Recusatio iudicus: Serbian scope, comparative review and practice of European Court of Human Rights

Abstract

The right of a party to exercise a judicial function in a case deciding its rights and obligations is impartial to a judge, which is determined by the obligation of the state to provide, first in a normative and then in a practical framework, the right to be upheld. Prima faciae, when it comes to the Serbian and legal frameworks of surrounding countries, it has been done nomotechnically in an impeccable way, but there are a number of essential shortcomings. The results we have obtained, using comparative legal review and analyzing practice of ECHR indicate that the Serbian, as well as the legislatures in the region, faces major problems in this area. As an anomaly we identified the possibility that a judge, although biased, in accordance with applicable regulations (in Serbian, Croatian and North Macedonian legal framework), could exercise judicial function in the case (because, there Criminal procedure codes stipulates that judge "can" be disqualified if there are doubts in his impartiality). Furthermore, very big problem in all legislatures (except Montenegrin) was that the injured party, although entitled to make a compensation claim (and this claim, within the meaning of Article 6(1) of the European Convention constitutes a civil claim), has no opportunity to seek a judicial excption/recusation. Finally, all analyzed legislation, except the Slovenian, allows a judge to take immediate action when it comes to an optional recusation. Disagreeing with this, we suggested that in the future they follow their Slovenian colleague who arranged it in a much better way.