Judicial impartiality and intimate friendship as grounds for disqualification in Spain
Published on 24th Feb 2023
Appearances are important because the confidence of litigants in the courts of a democratic society is at stake
Judicial disqualification or recusal is the instrument that enables parties to ensure the impartiality of the judges who are competent to resolve a given dispute. In this sense, the Supreme Court judgment 847/2022 of 28 November is of relevance, since it deals with this matter and defines precisely the scope of intimate friendship as a grounds for disqualification.
Concept of intimate friendship
Unlike the other grounds for recusal set out in the law – the scope of which is defined by specific and concrete facts – the case provided for in article 219.9 of the Organic Law of the Judiciary invokes the sense of "intimate friendship" as something that, by its very nature, remains in the innermost recesses of the human mind.
In this respect, the judgment reiterates the jurisprudence of the Constitutional Court, which understands the sense of friendship as a "personal, pure and selfless affection, usually reciprocal, which is born and strengthened by contact". However, there must be a qualified affection to consider that the objection is admissible. The law requires that the sense of friendship connotes the idea of intimacy, that is, that it affects the individual's private realm, his or her sphere of familiarity.
Subjective scope of intimate friendship
According to the above, and applying once again the constitutional doctrine, the Supreme Court recalls that it is only appropriate to accept the disqualification on the grounds of intimate friendship when this is adduced with respect to the parties, expressly excluding "their lawyers or the family of the parties".
Obviously, it is not a simple task to determine if a judge is affected by such particular circumstances. In any case, it must be based on objective data and facts that serve as an instrument to elucidate the individual's thinking.
In the case of the judgment in question, the challenging party had provided CVs to prove that the challenged judge and the opposing counsel were both students at the same law school (although they were not in the same class) and had also held teaching positions there.
The judgment insisted on the fact that it cannot be inferred from the above circumstances the existence of an intimate friendship between "the judge and the disputing party".
Osborne Clarke comment
Spanish law and courts have traditionally had a restrictive view regarding judicial disqualification. In the case of intimate friendship in particular, the legislator has restricted the case only to the relationship between the judge and the parties.
This subjective restriction may be excessive if compared, for example, with that established in family relationships (article 219.2ª LOPJ), where it is extended to the parties' lawyers and solicitors. Despite the difference in nuance, what is certain is that the reason underlying both grounds (intimate friendship and familiarity) is essentially identical and, therefore, the legal imprecision of intimate friendship between the judge and the parties' representatives as grounds for disqualification should perhaps be reviewed, especially to favour the aseptic conditions of judicial work.
In any case, it must be underlined – and, in fact, this has been a constant concern for the European Court of Human Rights – that in this matter even appearances are important because the confidence of litigants in the courts of a democratic society is at stake.