The Recused Judge and the Press Conference
Judge M. sits in a court of first instance in Antwerp. She is assigned a commercial dispute between Company A and Company B. Unknown to the parties at the time of assignment, Judge M.'s brother-in-law is a minority shareholder of Company A. During the trial, a local newspaper publishes an interview in which Judge M. describes 'the difficulty of judging companies that hide behind technicalities,' without naming the case. Company B's lawyer reads the article and asks Judge M. to step down. Judge M. refuses, saying her remarks were general and her family link is remote. The trial continues; judgment is reserved.
1. On what grounds can Judge M. be challenged, and what is the correct procedure?
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Two distinct grounds arise, and they must be pleaded through the correct procedural channel.
1. Family/financial interest (suspicion of partiality). A judge who has a personal interest in the outcome, or whose close relative has an interest in one of the parties, may be challenged. A brother-in-law's minority shareholding is not automatically disqualifying, but it creates an objective appearance of bias. The test is objective: would a reasonable observer, informed of the facts, doubt the judge's impartiality? The size of the shareholding, the brother-in-law's role, and whether the judge knew of it all matter.
2. Public statements. The newspaper interview, even without naming the case, may suggest a preconceived view about companies 'hiding behind technicalities.' A judge may speak publicly about the justice system, but remarks that touch on the type of case being tried can compromise the appearance of impartiality.
Procedure. In Belgian law, a party may request the judge's recusal (récusation) before the competent court, on listed statutory grounds, with a written request stating the facts and evidence. The request must generally be made before the close of proceedings; if the party only learned of the ground later, that delay must be explained. The challenged judge files observations, and the recusal is decided by a higher court. Separately, the judge's conduct may be referred to the disciplinary authority or the judicial council. A refusal by the judge does not end the matter: the statutory recusal route remains open.
2. If the judgment is already reserved when Company B learns of the shareholding, what can it do, and what is the effect on the judgment?
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Timing problem. Recusal is normally sought before the close of proceedings. Once judgment is reserved, the party must show it could not have known the ground earlier. Learning of the brother-in-law's shareholding after the hearing is exactly that kind of new fact, so the recusal request should be filed immediately, with evidence of when the information became known.
Options.
- Recusal request. File it at once; if the court accepts it, the judge is replaced and the case is reheard or the judgment set aside as appropriate.
- Appeal. If judgment is delivered before the recusal is decided, the party can raise the impartiality issue on appeal as a ground of nullity or as a procedural irregularity. Belgian courts assess whether the irregularity affected the outcome.
- Disciplinary/civil route. A separate complaint to the judicial disciplinary body may be made, but it does not by itself annul the judgment.
Effect on the judgment. Impartiality is a fundamental guarantee. If the appearance of bias is established and the party raised it in time, the judgment is vulnerable to annulment or retrial. If the party sat on the information and raised it only after an unfavourable judgment, a court may find the challenge inadmissible or abusive. The lesson is that the recusal request must be filed the moment the ground is discovered, not held back as a tactical card.