The importance of challenge requests in our legal system
There has been an increase in the number of challenge requests by lawyers, especially in Ghent and Antwerp. The justice minister expresses concern about this development, and is planning talks with lawyers' professional organisations.
In this article, we want to elaborate on what exactly a challenge request entails, why it is a relevant legal instrument, and how it plays a crucial role in ensuring fair justice.
What is a challenge request?
A challenge petition is a legal instrument by which a party to a lawsuit requests that a judge withdraw from the case if there are doubts about his or her impartiality. The aim is to ensure that every court case is heard objectively and without prejudice. Filing a challenge request is not a light decision and must be based on concrete reasons showing the appearance of bias.
Does the judge agree with the challenge? Then he withdraws. A replacement comes in.
Does the judge disagree with the challenge? Then an immediate higher court decides within eight days. If the request is approved, the judge is replaced to ensure there is no doubt about the fairness of the decisions.
Why are challenge requests relevant?
Just like in a sports match, you obviously want the (referee) judge to be objective and impartial, a challenge request can then be compared to a 'time-out'. That you can raise the fact that you suspect the judge is not entirely neutral or impartial is important for several reasons.
- Protection of the rule of law: everyone has the right to a fair trial, and therefore also to a neutral judge. Challenge requests are a way of ensuring that judges are impartial. In fact, if they are not, they can be replaced. Thus, the right to a fair trial is respected.
- Strengthening trust in the judiciary: everyone should be able to trust our legal system. Just as you expect a referee not to favour a particular team, you want a judge not to be biased.
- Guarantee fundamental rights: it is a way of ensuring that a trial is fair and that decisions are objective. A fair trial is a pillar of justice, and challenge petitions help uphold this principle.
When can a lawyer challenge a judge?
A challenge petition can be filed before or during the hearing of a court case. A lawyer may file it with the court clerk or note during the hearing that there may be bias, after which the case is temporarily suspended.
What if a challenge request is unfounded?
While challenge petitions are an important tool, it is vital that they are not abused. This can lead to unnecessary delays in court proceedings, costly waste of time for all parties involved and can undermine confidence in the legal system.
In addition, it is also not without consequences. If the challenge is judged unfounded, you may be fined for it and the judge may seek damages for it if there is cause.
Open for dialogue
Advocaat.be recognises the importance of challenge requests as a valuable legal tool. However, it is vital that this tool is used carefully. Justice Minister Paul Van Tigchelt wants to enter into talks with the orders, and we as a professional organisation are certainly open to a constructive dialogue to ensure that challenge requests are submitted in a responsible manner, without prejudice to the right to a fair trial.
As supporters of the rule of law and advocates for the legal profession and the litigant, Advocaat.be remains committed to a legal system that is transparent, fair and effective for all concerned.
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