More than a thousand years have passed since ancient Rome, but people still enjoy the fruits of the work of legal practitioners of those centuries. It should be remembered that the main task of jurisprudence is not only the regulation of social legal relations by applying the rule of law, but also the resolution of disputes. To implement the legal regulation of this process, the courts were invented. It is hard to imagine that the ancient Romans used the court to defend their own or to challenge other people's rights.
But, paradoxically, the concept of “court” has existed since time immemorial. Despite the primitive nature of social relations that existed thousands of years ago, people realized that it was best to use a “side view”, based on law, to solve their problems. In addition, it is in court that justice can be achieved in a particular matter.
With the development of democracy, social relations have substantially changed. If before a judge had unlimited power within the framework of the case under consideration, today his freedom can be limited by the interests of the participants in the process. When the activity of a judge does not suit them, participants may exercise the right to challenge a judge. In the article we will consider the methods and conditions for the challenge of a judge, which are based on the legislation of the Russian Federation.
Deciphering the concept of “judge”
Before talking about the challenge of a judge, you need to understand the very meaning of the term “judge”. It is not known in what historical period this term arose, but its semantic coloring at all times was the same. A judge is a person who is part of court composition certain jurisdiction. The competence of a judge includes the administration of justice. In the theory of dividing power into several branches, a judge is a representative of the judiciary. Its powers may vary depending on the jurisdiction of the court itself.
In some countries, judges are given some investigative powers.
As for the Russian Federation, the courts are the only sources of the same branch of power. Justice cannot be administered by any other bodies or persons. The judiciary is in no way dependent on the executive and legislative. But what does it mean to challenge a judge in certain proceedings? How does this democratic institution work?
The challenge of the participants in the process and the judge in procedural law
In any process, regardless of jurisdiction (civil, criminal, administrative, etc.), it is possible to challenge one of the participants in the process or the judge. This right is vested in all participants. It exists so that the process is as objective as possible and no participant is able to include personal, irrelevant interests here. Otherwise, the very essence of the process is lost. Taps can be carried out by participants in the process in relation to each other or to themselves. Depending on the process industry, there may be some nuances in the process, although in general the conditions are similar.
Definition of a concept
The fact that there are special rules in the law governing the recusal of a judge, in many respects contributes to the correct consideration of court proceedings. With the help of the challenge, you can achieve the ultimate goal of the process, which is prescribed in the Constitution of the Russian Federation and is manifested in the protection of violated and disputed rights of citizens and organizations.
The challenge of a judge is an opportunity to remove the judge from consideration of the case, which entails his replacement.This is done in cases where the judge is indirectly or directly interested in the outcome of the court case, as well as in the presence of other facts that cast doubt on the objectivity of his work. Next, we will consider the principles and methods of challenging judges in civil and criminal law.
Challenge of a judge in civil proceedings
According to Article 16 of the Civil Procedure Code of the Russian Federation, the question of challenging a judge is resolved in the presence of the following circumstances, namely:
- The judge should be dismissed if, during the previous consideration of the case, he participated in the process as a specialist, prosecutor, expert, witness, translator, secretary of the court session.
- A statement on the challenge of a judge is allowed if he is a relative of one of the parties or their representatives.
- A challenge may be made when there is reason to believe that the judge has a direct or indirect interest in the outcome of the case.
Also in the same procedural article, other reasons for the challenge of the judge are indicated. For example, the court cannot include people who are relatives to each other. It should also be noted that an informal appeal to a judge outside the process is the basis for his further challenge. Article 16 of the Code of Civil Procedure of the Russian Federation provides an exhaustive list of facts allowing a judge to be dismissed from a case.
Statement of challenge and its consequences
In the presence of all the facts specified in article 16 of the Code of Civil Procedure of the Russian Federation, a person (in this case, a judge) is required to submit a challenge application. The document may be submitted by any of the participants in the process if there are grounds for challenging the judge. The application is considered solely by the judge. Many scientists criticize this procedure, explaining this by the lack of objectivity. If the application for challenge is accepted, then the case is transferred to another judge of the same court. If, during a collegial consideration of a court case, all judges were challenged, then another panel should be drawn up in the same court for further consideration of the case.
There are cases when, after several challenges, it is impossible to create a new panel of judges or choose another judge, then this case is referred to the nearest court. You can challenge a judge only before the start of the proceedings. In a direct examination of the case on the merits, if the circumstances listed in Article 16 of the Code of Civil Procedure of the Russian Federation became known after the start of the judicial review, it is permitted to challenge the judge. A sample challenge application is provided in the court itself.
Actions that are not grounds for challenge
Very often, the parties to the process forget that the judge is a key figure in the whole process. Therefore, at the slightest unsatisfactory action on his part, the participants declare a challenge. It should be noted that if there is one or another reason for the challenge, there must be factual evidence, without which the judge simply would not consider such a statement. The following actions cannot be grounds for challenging a judge:
- non-acceptance of documents, video and audio recordings, etc .;
- leaving the claim without consideration;
- other actions of a judge carried out under the procedural law.
Even if the above actions were committed in violation of the procedural law, they will not be grounds for challenging a judge.
Grounds for challenge in criminal proceedings
According to Article 61 of the Code of Criminal Procedure of the Russian Federation, the circumstances giving rise to a judge are generally the same in criminal proceedings as in civil, with the exception of some nuances. A judge shall be challenged if he participated in the criminal case as a party, civil plaintiff, defendant, prosecutor, investigator, specialist, expert, witness, victim, interrogating officer.Also, the reason for the challenge is an indirect or direct interest in the outcome of the criminal case, as well as in cases where the judge is a relative of one of the participants in the criminal process. As in the civil case, the grounds for the challenge can be considered any kind of extra-procedural communication of the judge and one of the participants in the process.
Challenge statement
In the presence of circumstances that allow the judge to be dismissed, the latter must be eliminated independently. If the judge does not recuse, the application may be filed by any of the participants in the process. Article 62 of the Code of Criminal Procedure indicates all participants who can challenge the judge, namely: suspects, victims, accused, their legal representatives and defense lawyers, public prosecutor, civil plaintiff, defendant, as well as their representatives.
In the context of criminal proceedings, the issue of challenge is extremely important, since a case is being examined regarding a socially dangerous act, the sanctions for which are quite high. The challenge is declared before the hearing. AT judicial process A meeting may be considered if the statements giving reasons to dismiss the judge became known after it began.
Judge challenge procedure
The judge, subject to challenge, considers the application and makes the decision in person. When a criminal case is considered by a panel of judges, the application for the challenge of a judge or the whole board is considered by the same voting.
If the challenge is satisfied, then the criminal case is transferred to another judge of the same court. When challenging the entire panel of judges in the same court, a new one must be created. In the event that after several challenges it is impossible to appoint a new judge or panel of judges, the case should be referred to the nearest court.
Conclusion
So, we found out that there are a number of circumstances in both civil and criminal procedure law that make it possible to challenge a judge. This procedural step can be carried out solely by the judge, as well as by some participants in the process who are empowered to submit an application to challenge the judge.
A sample of this statement can be found in the regulations governing the work of the courts. In conclusion, it should be noted that the possibility of challenging a judge is a manifestation of the basic principles of democracy in the process of exercising judicial power.