The presence in the legislation of the norms on the possibility of challenging judges contributes to the correct consideration and resolution of the case, the achievement of the ultimate goals of justice and, above all, its main constitutional goal – the judicial protection of unlawfully violated or contested rights, freedoms and legally protected interests of citizens and organizations.
WHAT IS A COURT DIVERSION?
Disqualification of the court is the removal of a judge from participation in the consideration of a case, which is carried out if he is personally (directly or indirectly) interested in the outcome of the case or there are other circumstances that cast doubt on his impartiality.
GROUNDS FOR DISQUALIFICATION OF A JUDGE
The grounds for disqualification of a judge are provided for in Article 38 of the Civil Procedure Code of the Republic of Kazakhstan. A judge is subject to disqualification if:
- in the previous consideration of this case, he participated as a witness, expert, specialist, translator, representative, secretary of the court session, bailiff, bailiff;
- is a relative of any of the persons participating in the case, or their representatives;
- personally, directly or indirectly interested in the outcome of the case, or if there are other circumstances that give rise to reasonable doubts about his impartiality.
Also, the composition of the court considering the case cannot include persons who are related to each other.
DIRECT AND INDIRECT INTEREST OF THE JUDGE IN THE OUTCOME OF THE CASE
The participation of a judge in the previous consideration of the case or the existence of family relations is easily proved, and challenge on these grounds usually does not raise questions and disputes. The situation is much more complicated when declaring a challenge due to the interest of the judge in the outcome of the case.
Declaring a challenge to the judge on this basis, it is necessary to prove to the party that the behavior of the court is not impartial, independent, and the approach to the consideration of the case is legal. The personal interest of a judge in a case can be established if the party to the case proves the fact that the outcome of the case affects the interests of the judge or his relatives, and can also benefit the judge directly. This is usually very difficult to do.
Examples of the direct interest of the court in the outcome of the case may be the following:
- The plaintiff or defendant is a relative of the spouse of the judge, a close friend (acquaintance).
- A plaintiff or defendant is a legal entity in which a close relative of the judge acts as a participant (manager).
- As a result of satisfying the claims of the plaintiff or as a result of refusing to satisfy the claims, the judge will receive material or other benefits.
Examples of the judge’s indirect interest can be his interest in the outcome of the case in favor of the party from which the judge will receive any benefit. For example, the judge’s interest in the outcome of the case in favor of the educational institution where the judge’s child is studying or in favor of the bank in which the judge has deposits or accounts.
WHAT CIRCUMSTANCES ARE NOT GROUNDS FOR DISQUALIFICATION OF A JUDGE?
The circumstances specified in Article 38 of the Code of Civil Procedure have an exhaustive list of grounds for challenging a judge. That is, if the party to the case claims to challenge the judge on other grounds not specified in Article 38 of the Code of Civil Procedure, the applicant will be denied the request to challenge the judge.
It should also be noted that if the request to disqualify a judge is based on the circumstances specified in the article, but is not supported by evidence indicating the relevant facts, then the request to disqualify the court will be left unsatisfied.
These conditions are often forgotten by the participants in the process, declaring the requirements for the challenge of the judge in case of any violation of the order of consideration of the case on his part (real or imaginary).
For example, the challenge of a judge cannot be satisfied in the following cases:
- non-acceptance by the court of documents, audio-video recordings, photographic documents as evidence;
- leaving the application without movement, without consideration;
- other procedural actions of the court carried out by it within the framework of the trial.
These actions (even if committed in violation of the law) will not serve as a basis for disqualifying a judge, unless the party to the case finds factual evidence that the judge is personally (directly or indirectly) interested in the implementation of these actions, the execution of which prevents the proper consideration of a civil case .
Thus, a statement demanding the removal of a judge must be supported by factual evidence confirming the personal (direct or indirect) interest of the judge in the outcome of the case, and also justified in accordance with the requirements of Article 38 of the Code of Civil Procedure.
WHEN CAN A JUDGE BE CHALLENGED?
In the presence of the circumstances specified in Article 38 of the Code of Civil Procedure, the judge is obliged to declare self-withdrawal.
Self-withdrawal and challenge must be motivated and declared before the start of the consideration of the case on the merits. Recusal in other cases is allowed only in the case when the basis for the challenge became known to the court or the person declaring the challenge after the start of the consideration of the case.
APPLICATION FOR WITHDRAWAL AND THE PROCEDURE FOR ITS RESOLUTION
The application for recusal of a judge must contain arguments supported by factual evidence that the court is directly or indirectly interested in the outcome of the case, or other grounds that allow a party to the case to doubt the impartiality of the court.
A challenge to a judge considering a case alone must be considered by the chairman of the given court or another judge of this court, and in their absence, by a judge of a higher court.
In the event of a challenge to one of the judges when considering a case by a collegiate court, first of all, the court will hear the opinion of the persons participating in the case, the opinion of the challenged judge, if he wishes to give an explanation, as a result of which the court will resolve the issue of challenge in the absence of the challenged judge . If the number of votes cast for and against the challenge is equal, the judge will be challenged. A challenge declared to several judges or to the entire composition of the court shall be resolved by the same court in its entirety by a simple majority of votes.
The decision to reject or satisfy the challenge is not subject to appeal. Arguments of disagreement with the definition may be included in complaints to a higher court or in petitions for review of a judicial act in the manner of judicial supervision.
CONSEQUENCES OF GRANTING AN APPLICATION FOR RECUSAL OF A JUDGE
If the application for the removal of a judge or the entire composition of the court is satisfied when the case is considered in the district (city) court, the case will be considered in the same court, but in a different composition of judges, or it will be transferred for consideration to another district (city) court, if the district (city) court where the case is heard, the replacement of the judge becomes impossible.
In case of removal of a judge, or removal of the entire composition of the court when considering the case in the regional court or the Supreme Court of the Republic of Kazakhstan, the case will be considered in the same court by another judge or another composition of judges.
If, as a result of satisfying the application for the challenge of judges of the regional court, it will not be possible to form a new composition of the court to consider this case, the said case will be transferred to the Supreme Court of the Republic of Kazakhstan to determine the court in which it will be considered.
APPLICATION FOR REMOVAL OF A JUDGE AS A WAY OF DELAYING THE TRIAL
The delay in the litigation is most often due to the desire to delay the onset of adverse consequences and thereby obtain a positive result (for example, to delay the collection of the amount of the debt and receive a loan during this time).
As one of the ways to delay the trial, an application for recusal of a judge is often used. At the same time, the effect of this method is doubtful, since it is usually not possible to challenge a judge on subjective grounds stated by the party, and the challenge is most often considered on the day it is received, which does not save time. Moreover, the absence of objective grounds in the application for challenge can lead to a damaged relationship between the party and the court.
If the challenge is granted and the judge is challenged, the case will be referred to another judge. This circumstance will entail the postponement of the consideration of the case, which will increase the duration of the trial.