The Recusal Request and the Late Filing
In a civil case before the Court of First Instance in Ghent, the plaintiff, Ms. Peeters, learns on Monday 10 June that the presiding judge is the brother-in-law of the defendant's managing director. On Friday 14 June she files a request for recusal (récusation/wraking) with the court, citing family ties. The judge has already held two hearings and issued an interim order on evidence. The defendant argues the request is time-barred and, in any event, that the judge's impartiality is not compromised because the family relationship is by marriage only. The court registry asks whether the recusal request suspends the proceedings.
1. Is the recusal request admissible as to time and grounds under the Judicial Code?
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Grounds. The Judicial Code (art. 828) lists legitimate grounds for recusal, including kinship or affinity between the judge and a party. A brother-in-law relationship is affinity. The defendant's argument that affinity 'doesn't count' is wrong: the Code expressly covers it, and the test is objective appearance of impartiality (art. 6 ECHR, De Cubber).
Time limit. Recusal must be requested, in principle, before the judge has ruled on the merits or before the party has pleaded. A request filed after two hearings and an interim order is late unless Ms. Peeters can show she only discovered the ground on 10 June. The date of discovery is decisive: she must prove she did not know earlier. Filing four days after discovery is within a reasonable period.
Procedure. The request must be made by a written petition stating the grounds and evidence, filed with the registry, and the judge concerned must be heard. If the ground is discovered late, the court should examine the discovery date before declaring it inadmissible.
2. Does the recusal request suspend the proceedings, and what happens to the interim order?
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Suspensive effect. Under the Judicial Code, a recusal request does not automatically suspend the proceedings; the judge may continue to act in urgent matters, but the prudent course is to stay the case until the recusal is decided. The registry should refer the file to the competent authority (the first president of the court of appeal for a judge of the Court of First Instance).
Effect on the interim order. If recusal is granted, acts performed by the recused judge after the ground arose may be set aside. The interim evidence order was issued after the family tie existed, so Ms. Peeters can ask the replacement judge to review or revoke it. Acts before the ground arose (if any) remain valid.
Practical answer to the registry. Do not calendar further hearings before the recusal decision; notify the parties; transmit the file. If the request is declared inadmissible as late, the case resumes and the interim order stands, subject to appeal.