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Recusing a Judge

I tried to recuse a judge on grounds of being biased, but my motions were dismissed.

24/12/2023

Ruth Silbermayr
Ruth Silbermayr

Author

I filed my first motion to recuse the judge who was in charge of my proceedings until October 2023 after I met her for the first time.

In theory, a judge can be dismissed on grounds of being biased, including situations where there is a mere concern for bias in Austria. In practice though, these motions are usually always dismissed by the judges and the courts. This is one of the constitutional rights that only exists in theory for most of us.

Lawyers will usually tell you not to file a motion to recuse a judge because you will then be considered “the enemy” within the court system and once this has happened, getting justice can be very hard. Even though, to be honest, getting justice is also impossible if you are dealing with a biased judge.

I have found what my lawyer said to be true. Once I had filed a few motions to dismiss the judge in charge of my proceedings, I was targeted by the president of the court, a female judge who dismissed my last motion by stating that ‘I was ignorant of the international aspects surrounding the proceedings of my specific case’.

To be able to be ignorant of something means that one must have enough knowledge of it.

For example, you could say a lawyer who is educated in international law is ignorant of the international aspects surrounding a specific case. But to say a lay person who is neither a lawyer nor a judge and who has not studied law is ignorant of the international aspects surrounding a specific case would be a false presumption about this person.

I then filed a motion to recuse this judge as well, on grounds of her accusing me of things that were not the case (which was dismissed as well).

What I have seen to be the case most of the time is that personnel within the justice system will protect each other. This can either mean judges protecting judges, which I have found to be true most of the time, or it can mean lawyers protecting judges.

There is a natural power imbalance people who have to go to court are subjected to, and the courts can use this power imbalance to dictate a person who goes to court to not speak up when rights have been violated, as well as to not protect their legal rights in the face of coercion and control.

Have you ever filed a motion to recuse a judge?