Commentary on Judgment No. 26748 of 2023: Timeliness in Filing a Recusal Motion

Judgment No. 26748 of May 23, 2023, issued by the Court of Cassation, offers important clarifications regarding the timeliness of filing a recusal motion in chamber proceedings. In particular, the Court has established that the deadline within which such a motion must be filed coincides with any procedural step that marks the moment when the adversarial principle between the parties is concretized.

The Concept of Timeliness in Recusal

The principle of timeliness is fundamental in criminal procedural law, as it ensures the balance between the parties and the proper administration of justice. The Court, in the case at hand, deemed a recusal motion, filed after repeated adjournments, to be timely, as the adjournments had not created a situation of effective adversarial proceedings.

Chamber proceeding - Filing of the motion before the judge's act is completed - Timeliness - Prerequisites - Factual situation. The preclusive term of "completion of the act" pursuant to Article 38, paragraph 1, of the Code of Criminal Procedure, within which the recusal motion must be filed in chamber proceedings, coincides with any procedural step in which the adversarial principle between the parties is concretized for the first time. (Factual situation relating to a hearing pursuant to Article 409, paragraph 2, of the Code of Criminal Procedure, in which the Court deemed timely the declaration of recusal proposed after repeated mere adjournments granted to the defense counsel to formalize the relevant motion, considering said adjournments unsuitable for concretizing a procedural situation of effective adversarial proceedings).

Implications of the Judgment and Related Case Law

This ruling is part of a consolidated body of case law that emphasizes the need to ensure adversarial proceedings, even in situations where the judge delays in performing fundamental procedural acts. The Court referred to significant precedents, such as judgment No. 38938 of 2003 and No. 45052 of 2011, which highlight the importance of proper management of procedural deadlines.

• The timeliness of the recusal motion is crucial for the protection of the rights of the defense counsel and the defendant.
• Adversarial proceedings must be guaranteed at every stage of the proceeding, avoiding adjournments that could compromise procedural balance.
• The correct interpretation of Articles 38 and 409 of the Code of Criminal Procedure is essential to avoid conflicts of interest and ensure a fair trial.

Conclusions

Judgment No. 26748 of 2023 represents an important step forward in defining the rules concerning recusal in chamber proceedings. It not only clarifies the prerequisites for timeliness but also recalls the importance of effective adversarial proceedings. Decisions of the Court of Cassation, such as the one under review, are fundamental to ensuring justice and respect for the rights of all parties involved.