Judge's challenge in criminal or civil proceedings- Legally stipulated measure to ensure observance of fair and impartial review of all circumstances of the case and making an objective decision. The challenge can be made at the request of the participant in the process, with consideration of the reasons given or at the judge's own request (self-withdrawal).
The challenge of a judge in the civil proceedings is made in the following cases:
- In the past case, the judge participated in the proceedings as a prosecutor, witness, expert, court clerk, representative of any party, as well as an interpreter or specialist;
- the judge is a relative of the party to the proceedings;
- he is interested in a certain outcome of the case (directly or indirectly);
- there are other grounds for doubting his impartiality;
- he was a judge of first instance in transferring proceedings to a subsequent instance (appellate, cassation, etc.).
The challenge of a judge in criminal proceedings occurs if:
- in this criminal case the judge is the defendant, the plaintiff or witness.
- Previously, he was in this case as a prosecutor, an inquirer, an investigator, an expert, an interpreter, a meeting secretary or a representative of either party;
- he participated in the consideration of the case by the court of the previous instance;
- is related to one of the participants in the process.
When considering an application for the challenge of a judge, the courtThe Russian Federation must be guided by the position of the European Court of Justice. Any grounds for challenging a judge should be carefully and comprehensively considered to exclude the slightest reasons that give rise to doubts about the fairness and impartiality of the decision. The lack of justice and partiality of the judge can be testified even by his manner of behavior in the courtroom.
Unfortunately, in Russian courts this requirementit is by no means always observed. During the consideration of civil cases, the judge often takes the side of the plaintiff or the defendant and allows criticism of the arguments presented. The judge may express his personal opinion on the arguments presented by the parties or indicate his position before being removed to the meeting and making a formal decision. In the course of criminal proceedings, a judge can openly support the prosecutor and ignore the defense's arguments.
The challenge of the judge in these circumstances, in spite ofobvious presence of bases, is practically not produced. The higher courts also ignore the applicant's complaints about the rejected applications for challenge. Thus, it becomes obvious that there is a need to review the procedure for considering applications for the challenge of judges and for a thorough investigation of all the circumstances of the case.
At the same time, there is an endlessdelaying the trial of one of the parties by filing more and more applications for the challenge of the judge, even if they are not satisfied. In the procedural code there is a reservation about the inadmissibility of a repeated application for withdrawal by the same person on the same grounds.
The challenge of a judge can be announced on a preliminary basis.meeting, and then this issue should be resolved before the end of the meeting. In the process of consideration of a case, no challenge is possible - except in cases when the circumstances for the challenge became known to the applicant after the start of the process. After the consideration of the case, the law does not allow such statements.
An application for a challenge is considered by a judgealone or by the composition of the court (at a collegiate hearing). In this case, the judge, whose issue is considered, does not participate in the meeting. When the magistrate is removed, as a rule, the case is referred to another world judge of the same judicial district, and if this is not possible, the magistrate to another district. In the case of withdrawal of the whole composition of the court, the case is examined by the other district court in the same district court or is transferred to the court of another district if this replacement is not possible.