The recusal of a judge in a criminal or civil proceeding is a legislatively prescribed measure to ensure compliance with a fair and impartial review of all circumstances of the case and an objective decision. A recusal may be carried out at the request of a participant in the process with consideration of the grounds given or at the request of the judge himself (recusal).
A judge shall be challenged in a civil proceeding in the following cases:
- during the previous trial, this judge participated in the process as a prosecutor, witness, expert, court clerk, representative of any party, as well as a translator or specialist;
- the judge is a relative of the participant in the process;
- he is interested in a certain outcome of the case (directly or indirectly);
- there are other grounds for doubt in his impartiality;
- he was the judge of the first instance when transferring the proceedings to the next instance (appeal, cassation, etc.).
The removal of a judge in a criminal proceeding occurs if:
- in this criminal case, the judge is the defendant, plaintiff or witness.
- Previously, he was involved in the case as a prosecutor, inquiry officer, investigator, expert, translator, secretary of the meeting, or representative of either party;
- he participated in the consideration of the case by the court of the previous instance;
- is in kinship with any of the participants in the process.
When considering an application for recusal of a judge, the court of the Russian Federation must be guided by the position of the European Court. Any grounds for challenging a judge should be carefully and comprehensively considered to exclude the slightest cause giving reason to doubt the fairness and impartiality of the decision. The judge’s lack of fairness and bias may even be evidenced by his behavior in the courtroom.
Unfortunately, in Russian courts this requirement is not always respected. During the consideration of civil cases, the judge often takes the side of the plaintiff or defendant and admits criticism of the arguments presented. The judge may express a personal opinion on the arguments presented by the parties or indicate his position before being removed to the meeting and a formal decision is made. During the criminal process, the judge may openly support the prosecutor and ignore the defense.
The recusal of a judge in these circumstances, despite the obvious existence of grounds, is practically not carried out. Higher courts also ignore the applicant's complaints about rejected applications for challenge. Thus, it becomes obvious that there is a need to revise the procedure for considering applications for recusal of judges and a thorough investigation of all circumstances of the case.
At the same time, there is the practice of endlessly delaying the trial of one of the parties by submitting more and more applications for the challenge of a judge, even if they are not satisfied. The Procedural Code contains a reservation on the inadmissibility of a repeated application for challenge by the same person on the same grounds.
A judge may be challenged at a preliminary meeting, and then this issue must be resolved before the end of the meeting. In the process of consideration of the court case, recusal is not possible - unless the circumstances for the recusal became known to the applicant after the start of the process. After the completion of the proceedings, the law does not allow such statements.
The application for challenge is considered by the judge individually or by the composition of the court (at a collegiate hearing). In this case, the judge, whose challenge is being considered, is not participating in the meeting. When a magistrate is challenged, as a rule, the case is referred to another magistrate of the same judicial district, and if this is impossible, to the magistrate to another district. If the entire composition of the court is dismissed, the case is considered in the same district court by another composition or transferred to the court of another district if such a replacement is not possible.