Recusal of a judge is a procedural procedure provided for by current legislation in order to ensure a fair and impartial trial. It allows the party involved in the process to replace the judge, but for implementation in practice it requires the presence of grounds.
Before writing the appropriate petition and initiating the procedure, you need to study all its nuances and, of course, the judicial practice on decisions made on applications for judicial challenge. Without a thorough analysis and consideration of the possible consequences, the initiation of a judge's challenge can have the most dire consequences for the applicant. For example, his actions may be regarded as contempt of court, an attempt to influence the court and lead to penalties.
What is a judicial challenge, why is a petition filed?
A judicial challenge is a procedural action that allows any citizen to exercise his or her own right to a fair and impartial trial and to remove from the process a judge whose candidacy raises doubts about making an objective decision.
Any participant in the process or his legal representative can submit a corresponding petition. But before you initiate the procedure, you need to consider the following important nuances.
- The applicant's claims must be justified, motivated and supported by evidence.
- It is permissible to petition to replace a judge not only before the start of consideration of the case on the merits, but in certain cases and at any point in the process. If the proceedings reveal compelling reasons for changing the judge, you can request his recusal.
- Petitions to disqualify a judge from the same person on the same grounds are not considered again.
The grounds for disqualifying a judge are given in the Arbitration Procedure Code of the Russian Federation and, according to them, a judge can be removed from participation in the process under the following circumstances.
- He previously conducted procedural actions in the case in the same position or in any other. It is easy to establish the fact of participation in the case: just carefully study all its materials.
- He knows any circumstances of the case to which he was an eyewitness. Under such circumstances, he could well have formed a certain attitude towards the participants in the case, precluding his impartial hearing.
- He is related to any of the participants in the process, including the legal representatives of the parties. The law does not specify the degree of relationship, so any family connections can be the basis for disqualification.
- His official or other dependence on the person(s) participating in the proceedings has been established.
- The fact of personal interest in the case and the adoption of a certain decision on it has been proven.
You can also apply for recusal if the judge makes statements or public statements about the case outside the trial.
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HOW TO APPLY FOR CHALLENGE
METHODOLOGICAL INSTRUCTIONS
in support of an inexperienced participant in a civil case
Part I. _ BASIC CONCEPTS
1.1. When should a challenge be filed?
In Part 1 of Art. 164 of the Code of Civil Procedure of the Russian Federation provides for a special procedure: at the beginning of each meeting, the presiding officer must explain to the persons participating in the case their right to challenge themselves and challenge themselves and asks the question: “Do you trust the court?”
However, it is possible to challenge a person during a court hearing if there are grounds for a challenge. They didn’t exist before, but they may appear (!)
Article 19
2. ... An application for self-recusal or challenge during further consideration of the case is allowed only if the basis for self-recusal or challenge became known to the person applying for self-recusal or challenge, or to the court after the start of consideration of the case on the merits
1.2. What grounds does the law provide for filing a challenge?
Formally, there are three grounds:
- during the previous consideration of this case, he participated in it as a prosecutor, court secretary, representative, witness, expert, specialist, translator (clause 1, part 1, article 16 of the Code of Civil Procedure of the Russian Federation);
- is a relative or relative of one of the persons participating in the case, or their representatives (clause 2, part 1, article 16 of the Code of Civil Procedure of the Russian Federation);
- personally, directly or indirectly interested in the outcome of the case or there are other circumstances that cast doubt on its objectivity and impartiality (Clause 3, Part 1, Article 16 of the Code of Civil Procedure of the Russian Federation)
1.3. Interest in the outcome
In the first part (in the first hyphen) of paragraph 3 of part 1 of Article 16 of the Civil Procedure Code we are talking about INTEREST IN THE OUTCOME OF THE CASE. This interest can be personal, direct, indirect
1.4. Doubts about objectivity and impartiality
The second part (the second hyphen) of paragraph 3 talks about DOUBT about objectivity and impartiality. Doubts arise in our minds. And it is generally impossible to refute the fact that doubts arise.
1.5. When is a recusal filed?
The law provides TWO options:
- at the beginning of the court hearing, when the judge asks the question: “Do you trust the court?” - on the basis of Art. 16 Code of Civil Procedure of the Russian Federation
- in the process itself, if grounds APPEAR for a challenge - on the basis of two articles: 16 and 19 of the Code of Civil Procedure of the Russian Federation
1.6. How is a challenge resolved?
The application is resolved in the deliberation room with the issuance of a Determination on a separate sheet(s). So that gives you 20 minutes of time to get your papers in order and get ready to continue the process. It is known what decision the judge will make in the deliberation room. This will be a refusal to satisfy the application for challenge.
But something else is important for us - we strive to include as many arguments as possible in the case materials.
Part II . CHALLENGE AT THE BEGINNING OF THE SESSION DUE TO THE JUDGE'S BIADS
EXAMPLE #1: WHAT RIGHTS ARE VIOLATED?
Justice of the Peace
Respondent:
APPLICATION OF CHALLENGE
I believe that the presiding officer committed such procedural actions that indicate the predetermination of the case and a conflict of interests.
From the contents of the statement of claim it is clear that it is based on an alleged violation by the defendant of the obligations arising from Part 1 of Art. 153 Housing Code of the Russian Federation. But no violation of duties is grounds for initiating civil proceedings:
| What violations are we talking about? | According to the law, to initiate a case it is necessary | The statement of claim states |
| Violation of the plaintiff's rights | X | — |
| Defendant's breach of duty | — | X |
Violation of duties may form the basis for an application for prosecution for an administratively punishable offense. Thus, it should be considered that a violation of the requirements of Part 1 of Article 134 of the Code of Civil Procedure of the Russian Federation has been established, namely, the application is not subject to consideration and resolution in civil proceedings, since filing an application is not aimed at protecting the rights, freedoms or anyone’s legitimate interests.
Federal Law “On Combating Corruption” h. 1 tbsp. 10, h.h. 5, 6 tbsp. 11, art. 13.1 provides for unconditional recusal in connection with the creation of a conflict of interest. By virtue of Part 1 of Art. 10:
“In this Federal Law, a conflict of interest is understood as a situation in which the personal interest (direct or indirect) of a person holding a position, the filling of which involves the obligation to take measures to prevent and resolve conflicts of interest, affects or may affect the proper, objective and impartial performance of official (official) duties (exercise of powers).”
Within the meaning of this norm, a conflict of interest arises when an official does not fulfill his duties, thereby violating the rights and legitimate interests of the victim.
The same meaning is expressed in a more specific form in paragraph 3 of Part 2 of Art. 3 of the Law “On the status of judges in the Russian Federation”:
“A conflict of interest is understood as a situation in which the personal interest (direct or indirect) of a judge affects or may affect the proper performance of his official duties and in which a contradiction arises or may arise between the personal interest of the judge and the rights and legitimate interests of citizens, ... and, capable lead to harm to the rights and legitimate interests of citizens ... or the Russian Federation.”
Since specialists with impeccable knowledge of Russian legislation are appointed to the position of judges, the fact of accepting a claim that is not subject to acceptance is seen as the bias of the judge, his interest in the outcome of the case and an obvious conflict of interests, and therefore, based on the first hyphen of paragraph 3 of part 1 of Article 16 Code of Civil Procedure of the Russian Federation
I CHALLENGE the presiding officer
EXAMPLE #2: LEGAL RELATIONS HAVE NOT BEEN ESTABLISHED
Justice of the Peace
Respondent:
APPLICATION OF CHALLENGE
I believe that the presiding officer committed such procedural actions that indicate the predetermination of the case and a conflict of interests.
According to Art. 148 of the Code of Civil Procedure of the Russian Federation, at the preparation stage, the court is obliged to check whether the legal relations of the parties have been established, and since no legal relations have been established between the parties (the management agreement has not been concluded), the case is dismissed due to an unfounded claim. However, from the rulings made it follows that the presiding officer intends to consider the case in unknown legal relations.
According to Part 1 of Art. 161 of the Housing Code of the Russian Federation The Government of the Russian Federation establishes standards and rules for the management of apartment buildings. Government Decree No. 416 of May 15, 2013 approved the Rules for the implementation of activities for the management of apartment buildings. Failure to comply with mandatory rules entails loss of license.
The Rules stipulate that activities related to the management of apartment buildings can be carried out by management organizations that have entered into an agreement for the management of an apartment building (clause “c” of Article 1). Neither the law nor the regulations provide for other management organizations that manage the house without concluding a management agreement.
Thus, to confirm its right to claim, the plaintiff is required to provide, at a minimum, evidence that a management agreement has been concluded. Since such evidence was not presented in the statement of claim, the claim is not subject to consideration. The fact that a claim that is not subject to consideration was accepted for consideration can only be explained by the judge’s interest in the outcome of the case.
Since specialists with impeccable knowledge of Russian legislation are appointed to the position of judges, the fact of accepting a claim that is not subject to acceptance is seen as the bias of the judge, his interest in the outcome of the case and an obvious conflict of interest, and therefore, based on the first hyphen of paragraph 3 of part 1 of Article 16 Code of Civil Procedure of the Russian Federation
I CHALLENGE the presiding officer
EXAMPLE #3: NO PREPARATION DONE
Justice of the Peace
Respondent:
APPLICATION OF CHALLENGE
The defendant has the right as part of the preparation of the case (Part 2 of Article 149 of the Code of Civil Procedure of the Russian Federation)
- clarify the factual basis of the claims;
- submit a petition to the judge to obtain evidence that he cannot obtain on his own without the help of the court.
But in our case the preparation stage was not carried out
According to the law, as part of the training of a judge, the duty is assigned
- explain what facts are important for the case (clause 5 of the said Resolution)
- determine the legal facts that form the basis of the claims and objections (clause 5 of the said Resolution)
However, the judge did not fulfill these duties.
This behavior indicates the judge’s interest in the outcome of the case.
In Information Letter dated December 20, 1999 No. C1-7/Smp-1341 “On the main provisions applied by the European Court of Human Rights in the protection of property rights and the right to justice”, the Supreme Arbitration Court of the Russian Federation, revealing the content of the provisions of the European Convention, informed the courts that “members of the court as persons who accepted the dispute for consideration in an objective manner and having no personal interest in the outcome of the proceedings, must inspire confidence in the participants in the process…. The impartiality of the court members must be visible, obvious, and exclude any doubts about their impartiality. If there is the slightest doubt, the judge must recuse himself.”
In order to guarantee an objective and impartial
consideration of the case in accordance with the provisions of Article 6 of the European Convention and the legal positions of the case law of the European Court, guided by the second hyphen of paragraph 3 of part 1 of Article 16 of the Code of Civil Procedure of the Russian Federation
I CHALLENGE THE JUDGE
Part III . CHALLENGE STATEMENTS AT THE BEGINNING OF THE MEETING - due to DOUBT about impartiality and objectivity
EXAMPLE #1: IT IS NOT ESTABLISHED WHAT CIRCUMSTANCES ARE SIGNIFICANT FOR THE CASE
Justice of the Peace
Respondent:
APPLICATION OF CHALLENGE
I believe that the presiding officer committed such procedural actions that give reason to doubt his objectivity and impartiality.
In accordance with Part 2 of Article 56 of the Code of Civil Procedure of the Russian Federation, the court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties referred to any of them.
Within the meaning of Article 195 of the Code of Civil Procedure of the Russian Federation, a court decision is recognized as justified in which all legally significant facts for the case are comprehensively and fully established, supported by evidence that meets the requirements of relevance, admissibility, reliability and sufficiency, and the court’s conclusions themselves correspond to the circumstances of the case.
But in the case under consideration, the presiding judge has not established the range of circumstances that are relevant - and nevertheless, the case is recognized as prepared for trial on the merits. In such a situation, the defendant is deprived of the opportunity to understand what needs to be proven to satisfy (or not satisfy) the claims, and such disorientation is beneficial to the opposing party. Federal Law “On Combating Corruption” h. 1 tbsp. 10, h.h. 5, 6 tbsp. 11, art. 13.1 provides for unconditional recusal in connection with the creation of a conflict of interest. By virtue of Part 1 of Art. 10:
“In this Federal Law, a conflict of interest is understood as a situation in which the personal interest (direct or indirect) of a person holding a position, the filling of which involves the obligation to take measures to prevent and resolve conflicts of interest, affects or may affect the proper, objective and impartial performance of official (official) duties (exercise of powers).”
Within the meaning of this norm, a conflict of interest arises when an official violates the rights and legitimate interests of the victim.
Since specialists who know current Russian legislation are appointed to the position of judges, the fact of evading a timely explanation to the participants in the case what circumstances are important for the correct consideration of the case not only raises doubts about the objectivity and impartiality of the presiding officer, but also indicates a conflict of interest specified in the law On combating corruption" (273 - Federal Law).
In turn, paragraph 7 of Article 3 of the said law provides for cooperation between civil society institutions and individuals with the state in the fight against corruption.
Under the above circumstances, guided by paragraph 7 of Article 3 of the Law “On Combating Corruption” and the second hyphen of paragraph 3 of Part 1 of Article 16 of the Code of Civil Procedure of the Russian Federation,
I CHALLENGE the presiding officer
EXAMPLE #2: REFUSAL TO DEMAND GENUINE EVIDENCE
Justice of the Peace
Respondent:
APPLICATION OF CHALLENGE
The plaintiff presented evidence to the court in the form of a copy that was not properly certified (SPECIFY which document). To clarify the circumstances surrounding the appearance of this evidence, it is necessary to familiarize yourself with the original. But when on our part, with reference to Part 2 of Art. 71 of the Code of Civil Procedure of the Russian Federation, a petition was filed for the original, but the judge refused to satisfy it, determining that a copy was sufficient.
Thus, our right to study genuine evidence is infringed:
A participant in a civil case has the right ... to participate in the examination of evidence (Part 1 of Article 35 of the Code of Civil Procedure of the Russian Federation)
From paragraph 3 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the court decision” it follows that the court decision is considered justified, firstly, if the court has examined all the circumstances relevant to the case; secondly, if the court’s decision is based only on those circumstances that the court established with the help of evidence directly examined by it in the courtroom.
It is also stated here:
“When making a court decision, it is unacceptable to rely on evidence that was not examined by the court in accordance with the norms of the Code of Civil Procedure of the Russian Federation, as well as on evidence obtained in violation of federal laws (Part 2 of Article 50 of the Constitution of the Russian Federation, Articles 181, 183, 195 Code of Civil Procedure of the Russian Federation)".
Thus, in the actions of the court to refuse to request genuine evidence, there is a clear course of infringement of our procedural rights, in connection with which the defendant has doubts about the objectivity and impartiality of the presiding judge.
Under the above circumstances, guided by the second hyphen of paragraph 3 of part 1 of Article 16 of the Code of Civil Procedure of the Russian Federation,
I CHALLENGE the presiding officer
EXAMPLE #3: UNMOTIVATED REJECTION OF AN APPLICATION SUBMITTED by us
Justice of the Peace
Respondent:
APPLICATION OF CHALLENGE
I challenge the presiding officer because our arguments presented in the petitions are simply not considered on their merits.
It was stated that the plaintiff did not have the right to go to court, since the power of attorney in the name of Kalinichenko E.A. (ld 5 v.1) the right to judicial protection is bound by an agreement with a third party - VTs KP Housing and Communal Services. The power of attorney states that all funds are collected to pay off the debt to this organization; the basis is indicated on the Agreement dated July 25, 2005 No. 08/07, which in fact does not exist.
But the plaintiff does not have the right to act in defense of other legal entities, especially on the basis of a “dead” contract. However, our request to terminate the case and leave the application without consideration was left unsatisfied by the presiding officer, while it was indicated that an assessment of the affected circumstances will be given when making a decision on the case.
In connection with the above, we consider it necessary to note that the final assessment of the evidence is not relevant to the case. It is important for persons participating in the case to receive, immediately after filing a petition, without waiting for the end of the case, to hear a clearly expressed procedural decision of the presiding officer on the merits - whether the petition is satisfied or not satisfied, and if not satisfied, then on what grounds
An unmotivated ruling made by the presiding judge on previously filed petitions to terminate the case or to leave the application without consideration is the basis for raising doubts about its objectivity and impartiality, in connection with which, guided by the hyphen 2 of paragraph 3 of part 1 of Article 16 of the Code of Civil Procedure of the Russian Federation
I CHALLENGE
EXAMPLE #4: ACCEPTANCE OF A CLAIM. NOT SUBJECT TO CONSIDERATION
Justice of the Peace
Respondent:
APPLICATION OF CHALLENGE
The procedural action to accept for consideration a claim for debt collection twice led to violations of the requirements of the current legislation
FIRST. The requirement contained in Article 122 of the Code of Civil Procedure of the Russian Federation regarding the collection of debt for payment of residential premises and utilities exclusively through writ proceedings has been violated. The current legislation does not provide for an alternative: if a claim is made for the collection of debt for payment of housing and (or) utilities, then such claims cannot be considered in the manner of claim proceedings - in paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2021 No. 62 “On some questions..." stated:
….. The specified requirements are considered only in the order of writ proceedings (Chapter 11 of the Code of Civil Procedure of the Russian Federation and Chapter 29.1 of the Arbitration Procedure Code of the Russian Federation), and therefore the filing of a statement of claim (statement) containing claims that are subject to consideration in the order of writ proceedings entails the return of the statement of claim (statements) (clause 1.1 of part one of article 135 of the Code of Civil Procedure of the Russian Federation, clause 2.1 of part 1 of article 129 of the Code of Arbitration Procedure of the Russian Federation).
It is especially noted that the use by the legislator of the restrictive adverb “ONLY” completely excludes other options for prosecuting the case, except through writ proceedings.
It follows that at the stage of accepting a statement of claim for collection of debt for payment for residential premises and utilities, the judge has no other options other than returning the application - in accordance with clause 2, part 1, article 135 of the Code of Civil Procedure of the Russian Federation, if the stated claims are subject to consideration by order proceedings, the statement of claim is returned to the plaintiff.
SECOND. The prohibition on considering a statement of claim that is identical to an application for the issuance of a court order, on which a court decision has already been made and has entered into legal force, has been violated. According to the law, on the basis of clause 2, part 1, art. 134 of the Code of Civil Procedure of the Russian Federation, a judge refuses to accept a statement of claim if:
there is a court decision that has entered into legal force on a dispute between the same parties, on the same subject and on the same grounds, or a court ruling to terminate the proceedings in connection with the acceptance of the plaintiff’s refusal of the claim or the approval of a settlement agreement between the parties.
Based on Part 3 of Art. 134 of the Code of Civil Procedure of the Russian Federation, refusal to accept a statement of claim prevents the applicant from re-applying to the court with a claim against the same defendant, on the same subject and on the same grounds. This means that the statement of claim should have been returned to the plaintiff without consideration.
It is quite obvious that the plaintiff chose an improper method of protecting the right (Article 12 of the Civil Code of the Russian Federation) in the form of a claim for debt collection, while it is possible to file a claim for compensation for losses caused, for example, by unjust enrichment (Article 1109 of the Civil Code of the Russian Federation). According to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25 “On the application by courts of certain provisions of Section 1 of Part One of the Civil Code of the Russian Federation,” it is allowed to re-qualify a claim after the question of the legal qualification of the legal relationship has been raised.
Under the stated circumstances, in the actions to accept for consideration a claim for debt collection, a clear conflict of interests and assistance to the plaintiff’s side to obtain benefits from consideration of the claim in which the “debtor” and the “collector” appear is seen. An illusion is created that one side is obviously dishonest, and the other is obviously right.
Based on the above, guided by the second hyphen of paragraph 3 of part 1 of Article 16 of the Code of Civil Procedure of the Russian Federation, I declare a CHALLENGE to the presiding officer
Part IV . FEATURES OF CHALLENGE DURING THE PROCESS
Grounds for recusal
Let us remind you:
Article 19 of the Code of Civil Procedure of the Russian Federation
2. ... An application for self-recusal or challenge during further consideration of the case is allowed only if the basis for self-recusal or challenge became known to the person applying for self-recusal or challenge, or to the court after the start of consideration of the case on the merits
This means that if we want to challenge at a critical moment, we need to point out that the basis became known after the start of the consideration of the case on the merits, for example,
- from the actual actions of the presiding officer, for example, in introducing evidence presented by the opposing party, or in evading providing motives when making rulings; or upon the issuance of a refusal determination;
- from the petitions of the representative of the opposing party;
— from the answers to our questions from the representative of the opposing party;
- from the explanations of the representative of the opposing party;
- from the examination of evidence;
In order not to rack your brains, we offer a simple and error-free option for artificially forming the basis for filing a Recusal Application during the hearing of the case; it is contained in the filing of a Motion in which we ask the court to raise some issue for discussion; the court, as a rule, refuses, but there is a basis for filing an Application for CHALLENGE
EXAMPLE #1: PARTICIPATION OF THE PRESIDENT IN THE PREPARATION OF EVIDENCE IN THE CASE. DOUBT ABOUT OBJECTIVITY.
Step ONE - create a BASE
Judge
Defendant
Petition
The fact is that our side presented several evidence in the form of official responses from the state housing supervision authority, from which it follows that the LLC received the right to manage our house on the basis of a management agreement allegedly concluded with the majority of the owners of the premises, as evidenced by Minutes of the meeting No. 2, held on April 23, 2007, however, the presiding officer certified a copy of Protocol No. 2, which indicated a different date - April 18, 2007. The certified copy was attached to the case materials as evidence
Under such circumstances, there is a basis for recognizing as illegal the decision of the State Housing Inspectorate to make changes to the Register of Licenses based on the decision of the meeting dated April 22, 2007, while the court verified that the original Minutes of the meeting are marked with a different date - April 18, 2007. If the plaintiff illegally received the right to manage the house, then he does not have the right to make any material claims; on the contrary, there is a basis for filing a counterclaim to recover everything received.
We intend to exercise our right to file a Counterclaim.
In the interests of a complete study of all the evidence presented in the case, I ASK you to put for discussion between the parties the question of proving the right of the LLC to manage our apartment building and, in particular, Minutes No. 2 of the general meeting of owners of the premises, at which a decision was allegedly made on the choice of management method and the choice of organization as a manager.
Response move - Expected procedural decision of the presiding officer: Deny the petition
Step TWO - submit an Application for CHALLENGE
Judge
Defendant
Application for CHALLENGE
In connection with the refusal of the presiding officer to raise the issue for discussion between the parties, the issue of the date of Minutes No. 2 of the general meeting, two grounds arose for a challenge.
FIRST is the refusal to include the original Protocol No. 2 in the case materials.
According to Part 7 of Article 67 of the Code of Civil Procedure of the Russian Federation
The court cannot consider as proven circumstances that are confirmed only by a copy of a document or other written evidence if the original document is lost and not handed over to the court, and the copies of this document presented by each of the disputing parties are not identical to each other, and it is impossible to establish the true content of the original document using other evidence
The above rule of law refers to the transfer of the original to the court. The original submitted to the court must be included in the case file. This means that the court’s right to certify copies of evidence applies exclusively to those cases when the original document is attached to the case materials. This conclusion is confirmed by Part 1 of Art. 72 Code of Civil Procedure of the Russian Federation
1. Written evidence available in the case, at the request of the persons who presented this evidence, is returned to them after the court decision enters into legal force. In this case, copies of written evidence certified by the judge are left in the file.
SECOND is the infringement of the Defendant's right to examine the evidence directly. Regardless of the fact that the court reviewed the original Protocol, the Defendant’s right
examine original documents in cases where the circumstances of the case are subject to confirmation only by such documents (Part 2 of Article 71 of the Code of Civil Procedure of the Russian Federation)
is fully preserved. Since it has become impossible to exercise this right, we are forced to refuse confidence in the presiding officer due to doubts about his objectivity.
Based on the above, guided by the second hyphen of paragraph 3 of part 1 of Article 16 of the Code of Civil Procedure of the Russian Federation and part 2 of Article 19 of the Code of Civil Procedure of the Russian Federation,
I CHALLENGE the presiding officer
EXAMPLE #2: DRIVING THE PRESIDENT INTO A CORNER
Step ONE - we create a BASIS for filing such a petition that the court interested in the outcome of the case can neither satisfy nor refute
To the Solntsevsky District Court
Federal Judge SPECIFY
Participant in the case LAST NAME and full name
Address: FILL IN
Civil case No. 02-2488/2019 CHECK NUMBER
Petition
The court is in the process of a civil case on the claim of the State Budgetary Institution “Zhilishchnik SPECIFY District” to collect from me and my family members a large sum of money as a debt allegedly incurred to this institution for the housing and utility services provided to them. The statement of claim is based on inadmissible evidence, in particular, obtained in violation of the law on the confidentiality of personal data
... does not have the right, without the consent of the debtor, to transfer (inform) to third parties or make available to them information about the debtor, overdue debt and its collection, and any other personal data
Federal Law dated July 27, 2006 N 152-FZ “On Personal Data,” which is special for the dispute under consideration, establishes a general rule according to which the processing of personal data can be carried out by the operator with the consent of the subjects of personal data (clause 3 of Article 6). However, the subject of personal data did not give such consent to the defendant. In addition, the Defendant illegally transferred the Plaintiff’s personal data to a financial intermediary - the MFC of Moscow. An agreement concluded between the State Budgetary Institution “Zhilischnik” and the State Budgetary Institution MFC of Moscow without the participation of the plaintiff cannot have any legal consequences for the payer due to Part 3 of Art. 308 of the Civil Code of the Russian Federation: “an obligation does not create obligations for persons not participating in it as parties (for third parties).”
The Determination of the Constitutional Court of the Russian Federation No. 100-O dated January 28, 2016 “On the refusal to accept for consideration the complaint of Mr. Shalbin...” indicates the need to obtain the consent of the owners for the processing of personal data, including transfer to third parties exclusively within the framework of a management agreement :
“...in order to be able to carry out activities related to the management of an apartment building, it is obliged to obtain consent from the owners and tenants of residential premises for the processing of personal data, including their transfer to third parties, and this consent can be included as a condition in the agreement for the management of an apartment building” .
CONCLUSION:
An application based on unacceptable evidence is not subject to consideration by virtue of clause 1, part 1 of Art. 134 Code of Civil Procedure of the Russian Federation.
In the presence of the circumstances specified in clause 1, part 1 of Art. 134 of the Code of Civil Procedure of the Russian Federation, the case is subject to termination in the manner prescribed by Art. 220 of the Code of Civil Procedure of the Russian Federation - in full accordance with paragraph 31 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 24, 2008 No. 11 “On the preparation of civil cases for trial.”
Based on the above, I STRONGLY REQUEST the civil case that has been started to be terminated
WHAT'S NEXT? It is easy to predict that the court, out of established habit, will make a ruling to refuse to satisfy the stated petition, BUT without refuting our arguments
AFTER WHAT - Step two
Submit an Application for CHALLENGE
Federal Judge
Respondent:
CHALLENGE STATEMENT On our part, a motion was filed to dismiss the case due to the fact that the plaintiff violated the confidentiality of the defendant’s personal data, and, as a result, evidence of the debt turned out to be unacceptable, as obtained in violation of legal requirements. Considering a claim devoid of any evidence base is a pointless waste of time. But the petition was denied without refuting the arguments presented on our part, which indicates the direct interest of the presiding officer in the outcome of the case.
The revealed interest directly indicates a deliberate violation of the requirements for objectivity and impartiality. In turn, the emergence in our minds of doubts about the objectivity and impartiality of the presiding officer is the basis for challenging the second part of paragraph 3 of part 1 of Article 16 together with part 2 of Article 19 of the Code of Civil Procedure of the Russian Federation
On the basis of the above
I CHALLENGE the presiding officer due to doubts about his objectivity and impartiality that arose during the hearing of the case.
EXAMPLE #3: REFUSAL to satisfy a petition without refuting the arguments
Federal Judge
Defendants:
APPLICATION FOR CHALLENGE On our part, a motion was filed to dismiss the case on two grounds
FIRST. The defendants are involved in the consideration of a civil case regarding the claim of the State Budgetary Institution for the collection of a fictitious debt that allegedly arose to the specified institution, although no payment documents were issued from this institution, and payment of unbilled invoices is impossible. Collection of fees for allegedly rendered services and work in our case is carried out by another State budgetary institution, the Multifunctional Center of Moscow, which has an agreement with the State Budgetary Institution “Zhilischnik”, which excludes the possibility of paying money directly to the plaintiff. It is significant that the payment document issued by the Moscow MFC does not indicate the current account of the State Budgetary Institution “Zhilishchnik”; moreover, the current account of the Moscow MFC is not indicated: instead of the current account, the details of the transit current account (tr/s) are given, which indicates that funds paid into this account immediately become the property of the recipient, regardless of what is written there as the final recipient. It follows that it is impossible for a law-abiding owner of premises to take action to pay for housing and communal services directly from the State Budgetary Institution “Zhilischnik”
SECOND. The assignment of the right of claim to management organizations is not permitted by law, since the management organization is limited in its rights to enter into contracts by the list given in clause 32 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings (approved by a decree of the Government of the Russian Federation dated 05/06/2011 No. 354):
"32. The performer has the right:
f) involve, on the basis of an appropriate agreement containing a condition on ensuring the requirements of the legislation of the Russian Federation on the protection of personal data, an organization or individual entrepreneur:
for taking readings from individual, common (apartment), collective (common house) metering devices;
for delivery of payment documents to consumers;
for calculating fees for utility services and preparing the delivery of payment documents to consumers".
The given list of possible contracts is closed. The list does not indicate the right of the managing organization of the contract to assign the right to receive payment for housing or utility services provided. This means that the State Budgetary Institution “Zhilischnik” does not have the right to assign the right to receive payment from the owners of premises, so the activities of the State Budgetary Institution MFC of Moscow are generally illegal.
Under such circumstances, the fact of assignment of the management organization’s right to receive payment to a financial intermediary may contain elements of the following crimes: Art. 165 of the Criminal Code of the Russian Federation (Causing property damage to the owner or other owner of property by deception or abuse of trust in the absence of signs of theft, committed on a large scale); Part 1 and Part 3 Art. 159 of the Criminal Code of the Russian Federation (Fraud); Part 1 of Article 174 of the Criminal Code of the Russian Federation (Conducting ... transactions with funds or other property, knowingly acquired by other persons through criminal means, in order to give legal form to the possession, use and disposal of the specified funds or other property).
The above arguments were put forward as the basis for the defendants’ petition to terminate the ongoing civil case, but the petition was denied. At the same time, not a single one of the arguments presented by us was refuted. This means that the court refused to conduct the process objectively and impartially and thereby provided, within the framework of the initiated process, the basis for a challenge - the second hyphen of paragraph 3 of part 1 of Article 16 together with part 2 of Article 19 of the Code of Civil Procedure of the Russian Federation
On the basis of the above
WE CHALLENGE the presiding officer due to doubts about his objectivity and impartiality that arose during the hearing of the case.
Features of the practical implementation of the recusal procedure
The judicial challenge procedure has its own characteristic features, which are important to study and take into account before proceeding with its practical implementation. These features can be briefly summarized in the following theses.
- The judge, if there are grounds established by law, independently initiates self-recusal. This requirement in practice is implemented differently: through checks before appointing a candidate judge or determining the composition of the panel of judges.
- If the judge does not recuse himself, any person participating in the process can initiate the procedure;
- The legal representatives of the persons participating in the case also have the right to petition for recusal.
- Both oral and written forms of application are allowed.
- Previously, the responsibility for considering a citizen’s appeal rested with the chairman of the judicial panel, from which the judge named in the petition was excluded; is currently being considered by the judge to whom the challenge has been filed, or collegiately in the absence of the judge to whom the challenge has been filed.
- An oral statement can be made during the hearing; a written petition can be submitted for consideration not only during the process, but also outside it: through the court office or by mail with notification.
The document is drawn up in the prescribed form, it includes detailed information about the applicant, all participants in the case, as well as the full name of the judge and all the grounds on which the challenge is requested.
Please note that the application cannot simply indicate and list the reasons; you will have to support their presence with evidence. Moreover, judicial practice shows that the presence of grounds does not guarantee you a positive decision on the petition. Let's look in detail at cases of positive decisions and refusals of judicial challenges. An analysis of practice will help you understand whether in your case it is worth initiating the challenge of the judge or whether it is better to try to solve the problem in another way.
Analysis of positive solutions
The easiest way to get a judge to be disqualified is if his connection with the participants in the process is revealed. This connection does not have to be familial; the basis for replacing a judge can be official or other relationships.
Relationship of any degree, official or other dependence relate to objective and obvious grounds, therefore refusals based on them are almost never encountered in judicial practice. Moreover, even at the moment of appointing a court or forming a judicial team, the possibility of the presence of such grounds is excluded with the help of information monitoring, which is actively used in the modern judicial system. But if a mistake was made and you became aware of the judge’s connection with a representative of the opposing party, challenge him and don’t worry: you won’t get a refusal.
Positive decisions are also made in cases where the applicant is aware of the judge’s participation in the consideration of the same case in the past. Procedural participation in a case at any position and at any stage before the start of the process can lead to the formation of a subjective opinion and affect the objectivity of the proceedings. This basis is also recognized by law as objective and there are no refusals on it in judicial practice.
But there is no need to rush to initiate a judicial challenge on other grounds, since applicants receive a refusal on them in 90% of cases. It is important to understand that hasty decisions based solely on emotions can have a number of unpleasant consequences for the initiator. These include: court fines, conflict with a judge who, after filing a petition for recusal, is unlikely to maintain the same impartiality in relation to the initiator.
Analysis of negative decisions
Most often, negative decisions on petitions for judicial challenges are made in the following cases.
- The applicant motivates the need to replace the judge with his past decisions when considering similar cases with similar circumstances.
- The applicant requests a challenge because the procedural decisions/actions of the judge seem to him to be incorrect, biased, and committed with intent.
- The applicant is trying to get the judge replaced due to inappropriate behavior.
Let's analyze each of the listed grounds in detail in order to understand and soberly assess the chances of positive decisions on them.
Past activities and decisions made
Even if in the past a particular judge, when considering similar cases, in most cases made decisions that do not seem objective to you, you should not rush to file a petition.
Such a motivation will be regarded as unfounded and the petition will remain unsatisfied, because the judge's past decisions in similar cases cannot be regarded as convincing evidence of his bias.
The law presupposes the reasonableness and validity of the judge’s actions in each specific case, so no matter what statistics you accumulate on his past decisions, you will not achieve a positive result in judicial challenge.
Dissatisfaction with the procedural decisions of the judge
Dissatisfaction with the procedural decisions of the judge is quite often cited as a reason. However, it is almost always recognized as unfounded, since if a judge carries out actions that are undesirable for the plaintiff or defendant, it is quite clear that they will be dissatisfied with them and perceive them as bias and bias.
However, if you are constantly denied consideration of applications, are prohibited from bringing in witnesses, introducing evidence, or conducting expert research that can radically affect the outcome of the case, then it is better to spend time and effort not on a judicial challenge, but on drawing up an appeal.
Another option to achieve a positive decision is to audio record the hearings or obtain copies of audio protocols that will help confirm the judge’s bias towards the applicant.
Inappropriate behavior of the judge
In cases of improper behavior of a judge, it is possible to achieve his recusal, but only if there is evidence. It is important to understand that “incorrect behavior” is a very subjective concept; it must be assessed by turning off emotions. If you just thought that the judge was rude to you, then this is definitely not a reason to write a petition for recusal, especially if such an incident was a one-time occurrence and has not been repeated.
But if a judge commits truly unlawful acts, supported by factual evidence, then the chances of getting him replaced increase significantly. You can apply for recusal if the judge makes public statements about the case outside the trial, communicates the decision in the case before the actual verdict, or tries to somehow influence or put pressure on the parties during the hearing. For example, a positive decision was made on the request to replace the judge, who during the trial ordered to turn off the audio recording and began to persuade one of the parties to change their position.
Simply describing the actions of the judge in a statement will not be enough; you need to collect evidence, which can include witness testimony, audio and video recordings.
In the absence of evidence, but if you are convinced that the judge is acting with obvious hostility and bias towards you, it is easier not to waste time on a futile challenge, but to prepare an application to the qualification board.
Causes and Effects
Before we talk about why you can file such a petition, let’s look at the subject of the article.
Recusal of a judge is a legally prescribed procedure used in situations where there is information about the existence of an interest on the part of the judge in the outcome of the consideration of the case, as well as other reasons that cast doubt on its objectivity
The reasons for disqualifying a judge are set out in Art. 16 Code of Civil Procedure of the Russian Federation .
However, many participants in court hearings, being confident that the process is not adversarial in nature, ignore the mistakes made by the court in the consideration of the case. The reason is hidden in the hope of an appeal.
But a challenge must be filed in a timely manner, since it is in such a statement that procedural violations are recorded. And in the appellate instance, it will not be possible to refer to previously committed flaws in the legal proceedings unless you make an appropriate appeal.
Procedural violations are grounds for canceling a court decision, but they must be recorded in a timely manner. Otherwise, the appellate court will not be able to consider these facts.
Illogical exceptions
By examining the practice of motions for recusal, one can learn about cases in which positive decisions were nevertheless made, although the grounds were frankly weak and unsubstantiated. Interestingly, these grounds are not disclosed in court documents either. For example, the judge withdraws himself and does not give any explanation of his actions.
The self-recusal of a judge without explanation is illogical and contrary to the law, since any judicial act is required to provide detailed explanations of the reasons for certain actions. But, as a rule, applicants do not object to the self-removal of judges; such a decision suits them; accordingly, there is no need to understand its motives and reasons.
We emphasize that illogical exceptions are rare; you should not hope that they will happen in your case. Act thoughtfully and according to the advice that we have collected for you in our article.
Practice with challenge, which was recognized as “influence on the court”
Filing a petition for judicial recusal involves the risk of unpleasant consequences for the applicant. For example, after considering the application, the court recognizes it as unfounded and decides that the purpose of filing it was to exert pressure (influence) on the court. Similar precedents exist in domestic judicial practice.
For example, the company’s request to disqualify a judge, filed during the consideration of the case in the Moscow Arbitration Court, was rejected. The applicant’s appeal was considered by a judge of the same court and made a resonant ruling: the judge’s challenge was refused, and the party’s actions were regarded as an attempt to influence the court for the purpose of obtaining personal gain.
The court motivated its decision with unproven grounds, and also informed the applicant that his petition was considered as contempt of the court and as a way to put pressure on the court in order to obtain the desired result.
On the same day, the judge issued a ruling ordering the joint stock company requesting the challenge to pay a substantial fine, the amount of which amounted to 100,000 rubles. In the opinion of the presiding judge who decided on the amount of the fine, such an amount should create due respect for the law and the court.
The judge justified the legality of the ruling by reference to decisions of the Constitutional Court and provisions from the Arbitration Procedure Code of the Russian Federation. However, if you start to understand the requirements of the Constitution, you can come to the conclusion that the refusal to challenge a judge cannot in any way be motivated and supported by provisions from it.
The Constitution of the Russian Federation establishes the independence of judges, emphasizes the inadmissibility of exerting outside influence and pressure on them, but at the same time guarantees an honest and fair trial to every citizen. The practical guarantee of this right is the judicial challenge procedure. We briefly outlined the reasons for initiating this procedural procedure at the very beginning of the article; they are given in detail in the Arbitration Procedure Code of the Russian Federation, sub-clause. 5 clause 1 art. 21.
Moreover, the law requires that the judge must explain to the participants in the process their right to challenge and appeal court decisions. This requirement serves as a reminder to judges that they are representatives of the law and must carry out their work impartially, guided by the rule of law and not by personal motives or emotions.
Thus, by petitioning for the recusal of a judge, a citizen does not influence the court. He exercises the right that is granted and guaranteed by law. The institution of recusal performs an important function: it helps to prevent miscarriages of justice by removing from the process a judge who incorrectly or biasedly assesses the circumstances of the case and deliberately commits a violation of procedural norms.
In the example that we present for you in this section of the article, as a basis for initiating the challenge procedure, the citizen indicated the incorrect behavior of the judge. He said that the judge almost did not take part in the process, did not ask questions to its participants, and limited the time of the hearings. Without a sufficient time limit, the parties simply could not voice their arguments, hold debates with opponents, or present the circumstances of the case in detail. The chairman of the judiciary, who was dealing with the citizen’s appeal, interpreted the judge’s actions as a “demeanor.” But in fact they were a violation, since they clearly interfered with the exercise of the right to be heard by the court.
This behavior of the judge cannot be called correct for the following reasons.
- Participants in the debate, who are not asked questions during the hearing, get the feeling that the judge’s indifference to the circumstances and details of the case is due to the fact that he made a decision on it in advance.
- A judge who does not ask questions and does not give the parties enough time may appear to the participants in the process as incompetent and capable of making a decision based on his personal likes/dislikes.
Let us note that no matter what actually explains the strange indifference of the judge in this particular example, such behavior is unacceptable and is clearly grounds for initiating a judicial challenge procedure. A judge cannot behave as he pleases during the trial: it is wrong, unethical and unacceptable.
By violating the parties' right to adversarial action by denying the participant the right to express their position on the case, the judge demonstrated his unprofessionalism, and ideally, after recusing the case, he would have been obliged to transfer his powers to another judge. But the chairman of the composition took his side, who also did not consider or delve into the details of the petition. Meanwhile, there was another argument worthy of attention.
The applicant indicated in the document that the judge participating in the process had previously taken part in resolving similar cases and always made decisions on them in favor of the participating authorities and organizations, and not ordinary citizens. This behavior of the judge caused the applicant to have objective doubts about his impartiality, which should have been considered as a weighty argument, but were ignored.
When a judge is constantly considering similar cases with similar circumstances, it can be psychologically difficult for him to abstract himself and make an individual decision in each individual case. This possibility should have been taken into account and the situation examined in detail, and not seen in the applicant’s actions as a desire to insult the court, express disrespect to it, or force it to act in its own interests.
However, in practice, the applicant was unable to prove the reasoning of the petition, and we have presented this case so that you soberly assess the possible consequences of the application for a judicial challenge.
Application resolution procedure
Typically, an application for challenge is resolved at a court hearing by the same judge who is presiding over the proceedings alone. This provision, enshrined in the norms of procedural law (for example, part 4 of Article 65 of the Code of Criminal Procedure of the Russian Federation in criminal cases), is criticized by a number of legal experts. In their opinion, it would be more correct to resolve statements of this nature by other judges. At the same time, in the presence of requirements of the Civil Procedure Code, Code of Criminal Procedure, CAS of the Russian Federation on the unchanged composition of the court when considering a case, in modern procedural legislation the resolution of individual petitions by other judges is impossible and is not provided for.
The exceptions are:
- challenges submitted to judges of an arbitration court, individually or collectively considering a dispute - such applications are resolved by the chairman of the arbitration court, his deputy or the chairman of the panel (which is why in the sample presented above, the application is addressed not to a specific judge, but to the arbitration court as a whole);
- cases in which legal proceedings are conducted by a panel of judges (as a rule, there are three of them) and when a challenge is declared to one of them. Then the petition is considered by the remaining judges in the absence of the third. If no confidence is expressed to the entire board as a whole, the decision is made by voting according to the majority principle.
After a motion to challenge has been filed, the opinions of the persons participating in the case are heard, after which the judge is obliged to retire to the deliberation room and, upon returning, announce the ruling:
- on refusal to satisfy the petition (when there are no grounds for dismissal, in which case the hearing continues);
- to satisfy the petition and remove oneself from the consideration of the case (in this case, the hearing is terminated and will begin again by another presiding officer after the materials are transferred to him).
Upon a petition to disqualify a judge in a criminal trial, the opinions of the victim, the defendant, their representatives, the defense attorney and the prosecutor are heard. In arbitration and civil proceedings, opinions are expressed by the plaintiff, defendant, their representatives, as well as third parties filing independent claims. Other persons (witnesses, experts, session secretaries) do not speak out. The discussion of self-recusal, declared by the judge himself on his own initiative, occurs in a similar way. Please note that discussion takes place only with the participation of those present.
Example No. 2 . The defendants appeared in the arbitration process, but the plaintiffs did not. If a judge is challenged, the procedure for resolving it, provided for by the arbitration procedural code, does not imply a delay in calling the plaintiffs to hear their opinion. Discussion of the petition takes place only with those who are directly present at the meeting here and now.
The determination based on the results of consideration of the statement of no confidence is not appealed separately. If a party to a dispute does not agree with the result, he has the right to draw the attention of a higher authority to this in his appeal, indicating in it violations of procedural legislation on recusal, along with other arguments.
Question: Is it possible to file a motion for recusal again?
No, if it is about distrust of the same person and for the same reasons.
Example No. 3 . At the beginning of the meeting, the defendant declared no confidence in the presiding officer due to his interest - the applicant believed that he had already formed a decision in favor of the plaintiff and, thus, was biased. After hearing the parties, the judge retired to the deliberation room and denied the petition. Subsequently, at the end of the proceedings, after questioning all the witnesses, the defendant again filed the same motion, again alleging interest and bias. The repeated application was not considered, as it was made for the same reasons and in relation to the same presiding officer.
During legal proceedings, challenges may be filed not only to the judge. As a general rule, if a challenge is also filed against other persons (for example, a prosecutor), then the issue of lack of confidence in the judiciary is considered first, and only secondarily – issues of lack of confidence in the rest.
If the request is granted, the case is transferred to another judge working in the same court. For example, if district judge Petrov I.I. a challenge was filed and it was granted, the chairman of the court transfers the case to another judge A.A. Repin. From this moment, Repin accepts the case for his proceedings, schedules a court hearing and the hearing takes place all over again, even if many witnesses have already been questioned earlier in previous trials. Eyewitnesses will be interrogated again, case materials will be examined again, etc.
Question: How is a magistrate replaced if a motion for no confidence is granted? After all, the magistrate is the only representative of justice in his territorial area, and it turns out there is no one to transfer the case to.
In such cases, by order of the chairman of the district court, the case is transferred to the magistrate of another territorial district, taking into account the workload and interchange schedule. In exceptional cases, materials may be transferred to another district if replacing the judge is impossible.
How to recognize and prove a judge's bias?
The bias of a judge can be expressed both in certain actions and inaction. To prove incorrect behavior of a judge or evidence of bias in his decisions, audio recordings of meetings or video recordings should be kept. Audio or video recording will help establish the difference in the judge’s communication with different participants in the process. This difference may lie in demeanor, intonation, emotions, and if you have audio recordings or video materials, you can easily prove the fact of the judge’s obvious bias or unacceptable behavior.
A judge can also be suspected of bias if he systematically rejects requests from a particular party. For example, a judge accepts all requests from one side, but leaves similar requests from the other side unsatisfied and does not motivate or explain his decisions in any way. Such actions of the judge indirectly indicate that he has already made a decision in favor of one of the parties and is simply collecting the documentary basis for its approval.
The judge's bias is expressed in his reluctance to listen to the opinions of all participants, both on the case directly and on the fact of adding any evidence to it. The party has the right to express its objections, and they must be taken into account. If objections show and actually confirm the inadmissibility of evidence, they cannot be added to the case. But if a judge violates this legal requirement, then this can only indicate one thing: his bias. The described actions of the court are not grounds for an appeal, but may be a valid reason for initiating a judicial challenge procedure.
The judge's bias may manifest itself in issuing instructions to a person participating in the process. Such “instruction” is illegal, and therefore if you see that the judge is advising your opponent on collecting and presenting evidence, drawing up motions, do not remain idle, petition for his replacement.
It is definitely worth thinking about replacing a judge if he is inactive during meetings and does not fulfill his direct duties. Inaction often indicates that the decision on the case has already been made and will clearly be biased and not in your favor.
We draw your attention to the fact that you do not need to obtain any permission from the court to audio record meetings. However, it is advisable to inform the court of your decision to keep an audio record of the hearing. To do this, it is enough to declare the decision to record the proceedings with the help of sound recording devices before the start of the trial. If the court objects, ask that your arguments and the judge’s arguments regarding the ban on audio recording be included in the protocol.
Grounds for application
Let us examine in more detail situations where each party to the process has the right to insist on changing the composition of the court:
- the judge is a relative of another participant on the court;
- the judge has already taken part in the proceedings in the early stages, acting in a different procedural role;
- is related to representatives of the parties;
- there is evidence to indicate that the judge may not be unbiased when making a decision.
At the same time, there may be various reasons that interfere with impartiality. Practicing lawyers recommend filing a request for recusal if there are examples of “gender discrimination”, incorrect reflection of the proceedings of the meeting in the minutes, refusal to include documents and testimony.
It is important to understand that an unfounded application will be rejected, so a challenge can only be filed if the applicant has evidence.
Is it possible to challenge the entire arbitration court?
But what if a citizen has doubts about the objectivity of the entire composition of the court involved in the consideration of his case? Definitely, do not sit idly by, but file a petition for recusal. The procedure can turn out to be protracted and complicated and, naturally, the process of investigating the case as a whole will also drag on.
The task of the citizen or his representative will be to submit applications for challenge to each of the members of the judicial panel, each of which will be considered separately. Note that cases of positive decisions on such appeals are rare, but still exist, so the situation is not as hopeless as it might seem at first glance. To successfully implement the task in practice, you need to collect strong evidence that cannot be categorized as “unfounded.”
Procedure for consideration of the issue
The withdrawal process is divided into successive stages:
- the participant in the process draws up a petition and prepares evidence of his case;
- documents are transferred to the judicial authority before the consideration of the case;
- the received documentation is evaluated;
- a vote of judges is held or a single decision is made on this application;
- a determination is drawn up containing a negative or positive decision;
- it is prohibited to appeal the refusal separately;
- if the applicant considers the act controversial, then he can draw up another statement with additional arguments in his favor;
- If a judicial challenge is carried out, then the case is still considered by the court of the previous instance.
If a magistrate is dismissed by representatives of the district court, then a specialist working in the same area is selected in his place. If this is not possible, then the case is transferred to another district.
If a positive decision is made
After considering the petition to challenge the court, the chairman or the judicial team makes a ruling and if it contains a decision to satisfy the challenge, then the consequences may be as follows.
- Another judge is appointed to carry out legal proceedings in the case.
- A new composition of the judicial panel is formed (during a collegial consideration of the case).
- If it is impossible to implement the two options described above, the case is transferred for consideration to another court.
If the request for recusal and replacement of the judge is granted, the case is subject to re-trial and therefore will be considered from the beginning.
Are there penalties for requesting recusal?
The law does not establish any penalties for filing motions for judicial recusal, unless it was filed intentionally to delay the process or influence the court. In other situations, filing an application is considered as the right of every citizen to an honest, fair and impartial trial. Let us recall that this right is enshrined in the main regulatory document of the country - the Constitution of the Russian Federation.
Even if a recusal request is made without significant and compelling grounds, the only consequence for the applicant may be the court’s refusal to request a replacement judge. No court fines are imposed on the person who initiated the challenge procedure. The introduction of penalties for attempts to exercise the right to an objective trial would not lead to a reduction in the number of petitions, but to lawlessness and the practice of lynching.
It is unacceptable to consider the actions of the applicant filing a motion for recusal as an insult to the honor and dignity of the court. Citizens' requests to replace a judge are an expression of doubt about impartiality and disinterest, which cannot be punished by a fine or other types of legal liability. Moreover, these doubts could arise due to erroneous value judgments of a person who is in a certain emotional state or due to his legal incompetence.
Accordingly, the court should consider requests for recusal without bias and a negative attitude towards the applicants, not perceive such requests as additional and unnecessary work, but deal with each received request objectively and impartially, that is, as the current legislation prescribes to carry out legal proceedings.
How is an application made?
An application for recusal is drawn up in writing. Oral communication is also allowed. But it is better to submit the appropriate document, which will reflect all the grounds.
The application can be submitted in any form, but it is necessary to follow a certain order of presentation of data:
- The name of the court where the appeal is filed is indicated.
- The applicant enters his personal information (last name, first name, patronymic) and residential address.
- The details of the court case and its name must be reflected.
- The main part provides the grounds for challenge. They must be motivated, refer to the attached evidence and norms of legislative acts.
- Next is a request to remove the judge from considering the civil case.
- After the main application, originals and copies of documents justifying the citizen’s position are attached.
- At the bottom of the document is the date of compilation, the signature of the person and its transcript.
The application is submitted without paying a state fee. No negative consequences (for example, fines) are provided even in case of deviation. In this way, a citizen exercises his right within the framework of the law.
Let's sum it up
An analysis of practice allows us to come to the following important conclusions, which must be taken into account before filing a petition to replace a judge.
- If the grounds are objective and obvious, there is no need to doubt a positive decision on the application; there is practically no practice of rejecting such applications.
- If the actions of the judge are considered as a prerequisite for challenge, then the petition will be rejected in 90% of cases, because the applicant’s dissatisfaction can be (and most often is) subjective. The exceptions are situations in which the judge himself becomes tired of the conflict and grants the challenge in order to maintain the impartiality of the trial. But counting on such an outcome is a serious risk, since if the court suspects the applicant of deliberately inciting and aggravating a conflict situation in order to influence the court, then the described actions may lead to the imposition of penalties.
- It is useless to refer to previous decisions made by the judge in similar cases. Such motivation is not recognized as objective and sufficient.
- When filing a challenge, it is necessary to be properly prepared and remember the existing judicial practice on imposing a court fine for contempt of court. Such a determination can be appealed to a higher court, however, in the above example, the applicant appealed all the way to the Supreme Court of the Russian Federation, but the determination was left in force.
If, when considering a case, the judge behaves tactlessly, boorishly, and clearly expresses his sympathy for the opposing party, then before writing a petition for recusal, you should carefully prepare the evidence base. We advise you to keep your own audio minutes of meetings, which can be considered as objective evidence.
We hope our article helped you find out the most useful and up-to-date information about the procedure for disqualifying a judge in arbitration proceedings, and you will know how to act correctly and effectively if you have doubts about the impartiality and impartiality of the court.
Recusal of the judge. Examples of statements, reasons and replacement regulations
Removal of a court employee:
- In civil proceedings: a judge cannot participate in the proceedings if he has previously been a prosecutor, secretary, witness, expert, specialist or translator in this dispute, a judge in other instances, or is a relative of one of the parties to the dispute.
- In the arbitration process: a court employee cannot take part in a dispute a second time if he considered the case as an arbitrator, was a secretary, representative, expert, etc. And also if he is a relative of one of the parties to the proceedings.
- In criminal proceedings: a judicial officer cannot study a criminal case if he is or was an injured party in it. Or he is considered a plaintiff, witness, expert, investigator, prosecutor. It is not allowed to involve him in a re-examination of the case.
- In the administrative process: all of the above provisions can be included here.
How to declare a suspension?
According to the general rules, the statement can be announced at the stage of forming the composition of the court session.
