The right to challenge a court or judge is an inalienable right of participants in legal proceedings. This right means that the parties to the case have the opportunity to express their confidence in the judge or express disagreement with his participation of the court judges in a collegial composition or the judge presiding alone over the trial of the case. Therefore, before the start of the trial, before explaining to the participants in the process their rights and obligations, the judge is obliged to find out from them: “Do they trust the court?” In this case, the presiding officer must explain to the parties on what grounds the judge(s) may be challenged.
Right to challenge a judge
The right to challenge a judge is an inalienable right of participants in legal proceedings. The right to challenge a judge means that they have the opportunity to express their confidence in the judge or express disagreement with his participation in the case. Therefore, before the start of the trial, before explaining to the participants in the process their rights and obligations, the judge is obliged to find out from them: “Do they trust the court?” In this case, the presiding officer must explain to the parties on what grounds the judge(s) may be challenged. At the same time, in our practice there have been cases, although quite rare, when the judge forgot to ask about this, and the participants in the process, as a rule, in the person of a lawyer, reminded him of this.
Remove a judge: how challenges work in civil and arbitration proceedings
It is possible to challenge a judge, but it is very difficult, says Olga Duchenko, senior lawyer in the corporate and arbitration practice of AB Kachkin & Partners Kachkin & Partners Federal Rating. PPP group/Infrastructure projects group Land law/Commercial real estate/Construction Company profile. The likelihood of a challenge is highest when family or official ties have been established between a party to the case and the judge, says Ivan Veselov, partner at Bryan Cave Leighton Paisner (Russia) LLP Bryan Cave Leighton Paisner (Russia) LLP Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade activities/Customs law and currency regulation group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Intellectual property (Protection of rights and litigation) group Intellectual property (Consulting) group International arbitration group Tax consulting and disputes (Tax disputes) TMT group (telecommunications, media and technology) group Transport law group Labor and migration law (including disputes) group Digital economy group Bankruptcy (including disputes) (high market) group Compliance group Corporate law/Mergers and acquisitions (high market) group International litigation group Tax consulting and disputes (Tax consulting) group Natural resources/Energy group Family and inheritance law group Criminal law group Pharmaceuticals and healthcare group Financial/Banking law group Private capital 2nd place By revenue 2nd place By revenue per lawyer (more than 30 lawyers) 5th place By number of lawyers Company profile. Lawyer KA Delcredere Delcredere Federal rating. group Arbitration proceedings (major disputes - high market) group Dispute resolution in courts of general jurisdiction group Antimonopoly law (including disputes) group Bankruptcy (including disputes) (high market) group Intellectual property (Consulting) Company profile Maxim Stepanchuk claims that requests for challenges are practically not satisfied, but still help to show the court that the party has doubts about his impartiality.
The grounds for disqualifying judges in arbitration and civil proceedings largely coincide.
In the APC there are more grounds for challenge, but in the Code of Civil Procedure there is one special basis: when the judge is a relative of the person participating in the case or his representative.
The challenge must be filed before the hearing of the case on the merits. An exception is if the basis for challenge became known after the start of the consideration of the case. That is, such a petition must be submitted in the first instance, explains Duchenko. It is useless to refer to the grounds for challenge when appealing a decision to a higher authority (case No. A27-12090/2019).
Most often, says Duchenko, the parties claim that the judge is not impartial (No. A28-15565/2019). But it is usually difficult to provide specific facts indicating this, the lawyer believes. Such evidence must refute the presumption of impartiality of the court, which is confirmed by (case No. A32-27296/2018). It is not easy to convince the courts; in most cases they refuse, citing the fact that the applicant has not proven the existence of grounds for challenge. A typical example of such a refusal is the decision of the 2nd AAS in case No. A28-15565/2019.
The judge will not be removed if
- he had previously considered a case involving the same parties (cases No. A37-1556/2018, No. A51-7223/2018);
- the applicant in fact simply does not agree with the procedural actions of the judge, for example, with satisfying someone else’s petition (cases No. A60-23170/2020, No. A50-8722/2017);
- they are trying to use recusal as a way to protect against the demands of the other party (case No. A67-2763/2016).
It is possible to disqualify a judge in an arbitration process if he “made public statements or gave an assessment of the merits of the case under consideration outside the framework of the trial.” And public statements are speeches in the media, publication of articles, interviews and speeches before an audience, the courts explain (cases No. A56-109239/2017, No. A37-1556/2018)
The judge will consider the petition himself
Since 2022, after changes to the APC, it has become more difficult to recusate a judge, says Veselov. Until October 1, 2022, a petition to disqualify a judge was considered by the chairman of the court, his deputy or the chairman of the judicial panel. And now the judge himself resolves the application for his challenge. “In my practice, a judge has never confirmed that he is not impartial,” says Duchenko.
The new norm is criticized by Stepanchuk: in his opinion, it contradicts common sense and simplifies the consideration of challenges for judges.
Until 2022 Art. 25 of the APC had a “chilling” effect on judges, who sometimes neglected the rules of the trial. Now, in fact, it has lost its meaning: in 99.9% of cases, the judge, after a “monologue with himself,” will not find grounds for his own challenge
Ivan Veselov, partner Bryan Cave Leighton Paisner (Russia) LLP Bryan Cave Leighton Paisner (Russia) LLP Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade activities/Customs law and currency regulation group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Intellectual property (Protection of rights and litigation) group Intellectual property (Consulting) group International arbitration group Tax consulting and disputes (Tax disputes) TMT group (telecommunications, media and technology) group Transport law group Labor and migration law (including disputes) group Digital economy group Bankruptcy (including disputes) (high market) group Compliance group Corporate law/Mergers and acquisitions (high market) group International litigation group Tax consulting and disputes (Tax consulting) group Natural resources/Energy group Family and inheritance law group Criminal law group Pharmaceuticals and healthcare group Financial/Banking law group Private capital 2nd place by revenue 2nd place by revenue per lawyer (more than 30 lawyers) 5th place by number of lawyers Company profile
Duchenko does not share his colleagues’ dissatisfaction. The fact that the judge himself considers the application for his challenge helps to avoid abuse of procedural rights, she believes. Previously, applications for challenges could be filed in order to delay the consideration of the dispute, the lawyer explains. The Constitutional Court spoke about the same in relation to the Civil Procedure Code back in 2011 in ruling No. 697-О-О. Independent consideration of the challenge reduces the likelihood of the process being delayed, the Constitutional Court indicated then.
Arbitration judges also defend the new approach. Stanislav Sidorkin, deputy chairman of the Arbitration Court of the Sverdlovsk Region, notes this advantage: the judge can listen to the arguments of the applicant for the challenge and the other side of the process, but the chairman did not have such an opportunity. Therefore, he could refuse in cases where the judge grants the challenge (Sidorkin S.V. Recusal of a judge in the arbitration process: a step forward or an element of uniformity? // Arbitration and Civil Process, 2022, No. 5, pp. 16–20).
The decision to refuse a petition for recusal is not appealed separately from the decision of the first instance (for example, case No. A21-8039/2015). This act does not prevent the further progress of the case, explains Duchenko.
If the court unreasonably refused to satisfy the application for challenge, then you can refer to this when appealing the judicial act, which ends the consideration of the case on the merits.
Olga Duchenko, senior lawyer in the corporate and arbitration practice of AB Kachkin & Partners Kachkin & Partners Federal Rating. PPP group/Infrastructure projects Land law group/Commercial real estate/Construction Company profile
An illegal refusal can be considered a significant violation of procedural law, which led to the adoption of an unjust decision, Veselov adds. You can complain about it to the chairman of the court and to the qualification board.
References to lack of impartiality do not always work in higher courts either. For example, the 18th AAC considered that the argument about the judge’s bias could not be verified on appeal and refused to challenge him in case No. A76-20658/2016.
Recusal
If the judge himself sees the grounds for recusal, he must refuse to consider the case - recuse himself. There are few such examples in practice, says Duchenko. As a rule, she adds, the reasons for recusal are not written in judicial acts, but only indicate that the judge was replaced in this way.
The judge recused himself after Governor Tuleyev addressed the Chairman of the Court of Justice
According to Veselov, in the arbitration process, recusals occur when a potential conflict of interest goes beyond the courtroom and becomes public. And as an example, he cites the self-recusal of the judge of the Administrative Court of the Kemerovo Region Andrei Dushinsky - the representative of one of the parties was his classmate (case No. A27-18005/2012). The key here is not potential interest, but the appeal of the governor of the Kemerovo region to the chairman of the court and the attention of the press, Veselov believes.
But there are also self-recusals, which judges absolutely take of their own free will. Veselov refers to a case where the judge of the Arbitration Court of the Ural District, Ekaterina Serditova, recused herself because the materials contained an opinion on a legal issue from Vladimir Yarkov, her former boss and scientific supervisor (No. A60-1260/2009).
In addition, if the judge who was supposed to resolve the case published the operative part of the decision in the file of arbitration cases a couple of days before the hearing, this is a reason to recuse himself, considers the Arbitration Court of the West Siberian District (case No. A27-13456/2020).
VKKS spoke about punishment for insulting colleagues and housing and communal services debts
If a judge does not recuse himself in a timely manner, he may be subject to disciplinary action. For example, Stavropol judge Mikhail Ivanov received a reprimand for making decisions on the basis of which his wife later registered ownership of real estate.
The deputy chairman of the Pervomaisky District Court of Izhevsk, Alexandra Khitalenko, at first did not satisfy the challenge filed against her, and then recused herself. True, after the chairman of the court conducted an internal investigation due to a report about the judge’s friendship with the defendant’s representative. The regional qualification board of judges issued a warning to Khitalenko.
You may receive a fine for an unjustified challenge.
A recusal in itself cannot be considered an abuse of procedural rights and contempt of court, says Duchenko. But if a participant in the process repeatedly requests a challenge on the same grounds, there is a risk that the court will consider this an abuse and fine the applicant, she adds. For example, the 15th AAC decided that multiple requests for recusal on the same grounds constitute contempt of court. As a result, the party’s representative was fined 2,500 rubles. (Case No. A32-40520/2015). The maximum fine under the APC for citizens is twice as large.
Lawyers reveal secrets: how to prevent the process from being delayed
By applying for a challenge, you can obtain a break or postponement of the hearing. In Veselov’s practice, there was a case when a party challenged the case at almost every hearing and this significantly slowed down the consideration of the case.
If you use obscene or ironic expressions in your recusal request, you may also be fined for this, Duchenko warns. Veselov believes that fines in the agrarian and industrial complex are insignificant, so the punitive function is poorly performed.
“Another way to deal with unscrupulous participants in the process is to place the burden of paying legal costs on them,” says Veselov. – This can be more effective than a fine. Of course, if there is something to collect."
But there is also practice that is positive for applicants. Thus, in one bankruptcy case, the creditor filed several challenges to the judge. He decided that this was disrespect: they were trying to put pressure on him, and the attempt to withdraw was a complaint about the “manner of conducting the process.” The creditor's lawyer was fined 2,500 rubles. The 9th AAS decided that this was illegal. The petition did not contain “derogatory judgments about the professional and personal qualities of the judge,” which means there is no disrespect here. “Nine” also noted that it is impossible to summarize challenges from different separate disputes. In each of them, a party can exercise such a right. The AS of the Moscow District “strengthened” this approach (case No. A40-163832/2017).
What if the judge gets offended?
Of course, a judge must be impartial and neutral, but he is also a human being. Even if the right to challenge is not abused, the judge may perceive the statement not neutrally, but as a personal insult, notes Duchenko. This means he will be more sympathetic to your opponent. As a result, the court may prevent a party from exercising its rights and not meet halfway interests in certain situations, says Veselov. For example, it will limit the time for a representative to speak.
Recusal of a judge is a last resort and not a normal course of action. You should not file such a petition for any reason, warns Stepanchuk.
My task as a lawyer is to protect the interests of the client. This is possible when at a meeting I can calmly explain my position to the court, and the court is determined to listen to me. If recusal does not help this, I will not file it. And vice versa, I will declare it if I see that a recusal will attract the court’s attention to the problem and will be able to return the conversation to a working direction.
Maxim Stepanchuk, lawyer at Delcredere Delcredere Federal Rating. group Arbitration proceedings (major disputes - high market) group Dispute resolution in courts of general jurisdiction group Antimonopoly law (including disputes) group Bankruptcy (including disputes) (high market) group Intellectual property (Consulting) Company profile
When there are questions about the impartiality of the entire court
The simultaneous challenge of all judges of a particular court is not expressly provided for in either the APC or the Civil Procedure Code, says Artem Dantsev, lawyer in the arbitration practice of VEGAS LEX VEGAS LEX Federal Rating. PPP group/Infrastructure projects group Transport law group Environmental law group Antitrust law group (including disputes) group Arbitration proceedings (major disputes - high market) group Land law/Commercial real estate/Construction group Compliance group Corporate law/Mergers and acquisitions (high market) group Tax consulting and disputes (Tax consulting) group Natural resources/Energy group Insurance law group Bankruptcy (including disputes) (high market) group Tax consulting and disputes (Tax disputes) Company profile. But in exceptional cases this can be achieved. In 2011, in the case of Igor Kabanov, the ECHR confirmed that such a possibility exists. Kabanov was a lawyer; the chairman of the Arkhangelsk Regional Court complained about him to the Bar Association. That is why the lawyer doubted that the judge of this court would be able to be objective when considering a complaint about the outcome of the disciplinary proceedings in the chamber.
It is necessary to justify that it is impossible to form the composition of the court to consider the case, because reasonable doubts may arise about the impartiality of any judge.
Artem Dantsev, lawyer in arbitration practice VEGAS LEX VEGAS LEX Federal rating. PPP group/Infrastructure projects group Transport law group Environmental law group Antitrust law group (including disputes) group Arbitration proceedings (major disputes - high market) group Land law/Commercial real estate/Construction group Compliance group Corporate law/Mergers and acquisitions (high market) group Tax consulting and disputes (Tax consulting) group Natural resources/Energy group Insurance law group Bankruptcy (including disputes) (high market) group Tax consulting and disputes (Tax disputes) Company profile
Arbitration courts agreed with challenges of the entire court composition when another judge of the same court participated in the case as a third party (case No. A78-6489/2011) or initiated an audit, based on the results of which the court decided the issue of administrative liability (case No. A26-12971/ 2018).
The likelihood of achieving a recusal of the entire court is higher in general jurisdiction, says Dantsev. For example, the Tambov and Sverdlovsk regional courts took into account the family and marital relations of the person participating in the case with the chairman of the court (cases No. 33-1699/2014 and No. 33-3614/2013) and even with another judge who is not considering this dispute (No. 33-3287/2012). Duchenko gives examples of the removal of the entire court from the Altai and Primorsky regional courts (cases No. 33-1113/2019 and No. 33-9523/2019).
The Supreme Court taught how to determine jurisdiction for inaction
After all the judges are disqualified, the territorial jurisdiction will have to be changed - the case will be transferred to another court. Where exactly is decided differently in arbitration and civil proceedings, notes Dantsev. In general jurisdiction, this is dealt with by a higher court, and in arbitration - by the judge or panel that resolved the request for recusal.
The idea of removing all judges in order to change territorial jurisdiction may not work, warns Dantsev. Here the courts are not bound by normative criteria and may not take into account the opinions of the parties. “Practice knows examples of transferring a case from the Autonomous Court of the Republic of Karelia to the Autonomous Court of the Moscow Region (by analogy with Part 3.1 of Article 38 of the Arbitration Procedure Code) or to the most territorially close court,” he says. But there is also more complex logic. For example, the Lipetsk Regional Court transferred the case to another district court of the same region with the lowest workload of judges (case No. 33-1097/2016).
- Ekaterina Korobka
- Arbitration process
- Civil process
Grounds for disqualifying a judge
The circumstances under which a judge is obliged to withdraw from participation in the proceedings are listed in Articles 61 - 63 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure), articles 16-17 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation). As a rule, these grounds for disqualifying a judge are clear to everyone. These include the participation of a judge in the proceedings as one of the parties whose status in criminal proceedings is determined by the Code of Criminal Procedure or the Code of Civil Procedure; repeated participation of a judge in the consideration of a case in a court of appeal or cassation, as well as by way of supervision, if he took part in the trial in a court of first instance. In addition, the basis for disqualifying a judge is the presence of family or related relationships between him and any other participant in the process.
However, part 2 of article 61 of the Code of Criminal Procedure and paragraph 3 of part 1 of article 16 of the Code of Civil Procedure contain provisions according to which a judge cannot participate in the proceedings if there are “other circumstances giving reason to believe that he is personally, directly or indirectly, interested in outcome of this case."
Application for disqualification of a judge in criminal proceedings
To the Ryazan Regional Court
Judge Chashchina S.N.
From: Sidorov Nikolai Petrovich
STATEMENT
On the challenge of a judge
On September 14, 2022, hearings began in the Ryazan Regional Court in case No. 2936742e4sh2. Judge: Chashchina S.N., accused: Petrov I.F., victim: Sidorov S.N. Petrova I.F. is accused of committing a crime under Part 1 of Article 158 of the Criminal Code of the Russian Federation.
According to the investigation, on August 25, 2022, Petrov I.F., while intoxicated, committed theft from citizen Sidorov S.N., pulling the latter’s wallet out of his pocket in public transport. Petrov I.F. was detained by vigilant citizens.
The theft of the wallet was recorded on a video camera installed in public transport.
However, the judge who is currently handling this case does not have the right to deal with it for the reason that she is the sister of the victim S.N. Sidorov, which is confirmed by certificates from the civil registry office.
Guided by Articles 61 and 63 of the Code of Criminal Procedure of the Russian Federation, I ask:
- Reject S.N. Chashchina;
- Transfer the case to another judge.
Documents confirming the applicant’s position are submitted as an appendix to the application.
Actions that are not grounds for challenge
Note!
If the defense indicates as a basis for disqualifying a judge that the judge does not accept evidence in the case, this will not become a reason for recusal.
Unsubstantiated and unfounded accusations by a judge will not be the basis for accepting a petition or statement. To prove a violation you can:
- find written evidence of violations;
- keep a personal audio recording of the process;
- provide copies of the minutes of the court hearing;
- study available open information on the Internet that will help prove violations on the part of the judge.
