The Constitution of Russia guarantees every citizen judicial protection of his rights and freedoms. This guarantee is fixed at the level of industry legislation, in particular, in the Civil Code. The implementation of this principle contributes to the protection of guaranteed rights and freedoms of every citizen, timely and correct consideration of court cases. However, one of the main factors that allows implementing this guarantee is the impartiality and objectivity of the judge. In practice, the challenge of a judge in a civil proceeding is intended to ensure the fairness of the trial.
Causes
A challenge is a procedure provided for by applicable law. You can resort to such a procedure if there is evidence that the judge is interested in the outcome of the consideration of the case, or there are other reasons that make it possible to doubt objectivity.
The grounds for challenging a judge in a civil procedure are spelled out in article 16 of the Code of Civil Procedure. In particular, they include:
- if the judge is a relative of one of the participants in the process or the legal representative;
- in cases where the judge has previously participated in the proceedings at earlier stages;
- if the judge previously participated in the process as a prosecutor, translator, expert, and so on;
- the presence of biased facts about the party to the process or personal (indirect) interest in the outcome of the proceedings.
There are no other grounds for the challenge. Even if the judge is convicted of insufficient qualifications, deliberate distortion of information, delaying the process, the challenge is not carried out. In such cases, a complaint is filed against the judge.
There is also such a thing as “indirect interest”. The simplest example is when a judge is interested in the outcome of the case in favor of the leadership of the educational institution where the child is studying.
Other process participants
All these motives are equally applicable for the challenge of a judge, prosecutor, other participants in the civil process. For experts and specialists, additional grounds for challenge are provided. If these participants in the process are in official dependence on any other participant, representative, then they cannot take part in the consideration of the case.
In addition, the judge and other participants in the process are entitled to submit a statement of self-recusation.
What actions are not grounds
According to the requirements of the current legislation and judicial practice of the civil process, the recusal of a judge is impossible in the following cases:
- rejection of video and audio recordings;
- non-acceptance of documents as evidence;
- abandonment of claim.
Even if certain procedural actions are not committed by a judge or are carried out in violation of normative acts, such actions are still not a reason for challenge. These actions are appealed in a different order.
Procedure
An application to challenge a judge in a civil proceeding is very important to file on time. Any process begins with the announcement of the composition of the court, after which the participants have the right to agree with it or express their complaints. In addition, the judge himself may declare his withdrawal. And he should even take it if he found out about the reasons that would not allow him to conduct the process impartially. But if the judge does not do this, then the participants in the process have the right to file a request.
The judge will deal with the application. If the challenge is filed with the whole composition of the court (or with several of them), then the decision is made collectively.
If a positive decision is made, the meeting is automatically rescheduled to a new date. In case of problems with the appointment of new judges, this issue is decided by a higher authority.
You can file a petition verbally. But practicing lawyers recommend that this be done in writing so that the statement remains in the case file. And it’s best to do this before the dispute is considered, that is, at a preliminary meeting. Naturally, if the circumstances that give the right to challenge became known later, then an application is submitted, but in any case, before a final decision is made.
Compilation rules
For a statement on the challenge of a judge in the civil procedure there is no unified form, therefore, it is necessary to rely on existing generally accepted drawing up rules that have been developed in practice.
The document begins with a “heading”, which indicates the details of the court and the parties to the proceedings. Further details of the legal case and the name of the document are prescribed. This can be a “Statement” or a “Petition”.
The next block should contain the essence of the case (briefly), the composition of the court and the reasons why the challenge is necessary. That is why a judge or judges cannot consider a specific case. Then the request for challenge is directly indicated and the list of attached documents is written. At the very end, the date of preparation is indicated, a signature is placed and its decoding.
Sample
The grounds for challenging a judge in a civil proceeding may be different; the main thing is that all of them be documented. The sample itself may look like this:
In ... the district court ... of the region
The plaintiff ...
The defendant ...
In the framework of civil affairs № ... date ...
In a suit about ...
Statement
In the proceedings ... of the court ... of the region ... there is a civil case No. ... o ...., which is being examined by the judge ...
I believe that the referee does not have the right to consider this claim. At present, my wife lives with a citizen, full name, registered at ... who is the brother of the judge, full name
This fact suggests that the judge will not be impartial in the proceedings, therefore I cannot count on a fair outcome of the trial.
Based on Articles 16, 19, 35 of the Code of Civil Procedure,
I beg:
- Satisfy the challenge judge
- Transfer the civil case No. ... to another judge.
Date, signature.
What's next?
A motion to challenge a judge in a civil proceeding is submitted to the same judge. The decision on the application is taken behind closed doors. Before being removed to the deliberation room, the judge listens to the opinions of the parties and speaks out himself. If the judge refuses, then the interested party should contact the higher authority.
If there is difficulty transferring the case to another judge, then it can even be transferred to another district court.
Resubmission of application
It is not allowed to file an application to challenge a judge in a civil proceeding for the same circumstances in which it was submitted earlier. However, sometimes the parties take advantage of this to delay the process. Very rarely, groundless statements lead to the desired effect, often the party interested in delaying the process simply spoils the relationship with the judge.
On the other hand, if it was not possible for the first time to prove that the judge cannot consider the case, then it is better to take a representative to the meeting, who will submit a new motion.
Futile arguments
Each challenge and its reasons are unique. Although some applications for challenging a judge in a civil proceeding have very similar arguments and are filed constantly, namely:
- The judge has already spoken out on a specific issue that mattered in another trial.
- The applicant believes that the judge unlawfully refuses to accept evidence, guided by his own selfish motives.
- The judge expresses contempt for one of the parties to the process.
In the first two cases, there is practically no chance of withdrawal, in the third case there is little possibility. Although incorrect behavior and disrespect are relative things, there is still a chance to prove such behavior.
Appeal
It is impossible to appeal the decision on challenge. However, the interested participant in the process has the right to include his claims in the text of the complaint against the court order, but only after considering the merits of the case.
Conclusion
According to the requirements of Article 19 of the Code of Civil Procedure, an interested participant in the process has the right to demand the challenge of a judge in a civil proceeding (a sample is given in the text). The grounds for applying are described in Article 16 of the PC. The right to demand is not only the plaintiff and the defendant, but also other participants in the process. If the judge himself clearly understands that he does not have the right to consider a specific case, then he is obliged to declare his withdrawal.
It is important to remember that it is necessary to request a challenge before the merits of the case. Later, before a final decision is made, an appropriate application can only be submitted if the party to the process becomes aware of circumstances that cannot give the judge an impartial consideration of the case, and the person concerned did not know about them before the matter is essentially resolved.
The most important thing in the matter of challenge is evidence. In practice, most applications are rejected precisely because of the lack of evidence to make a decision on the challenge of the judge, and the facts stated in the application are recognized as irrelevant.
Delaying the process with the help of applications for challenge is also not the best option, because the decision is made immediately at the time of consideration of the application. On the other hand, the interested party to the process has the opportunity to present its arguments that the judge could not impartially consider the case in the appeal, since the refusal to satisfy the challenge cannot be appealed.