"Look back and don't lie"

Today, life is such that the rights and freedoms of citizens to a greater extent need to be protected in court.

The procedural legislation of the Russian Federation closely links the impartiality of the court with the institution of challenging judges in cases considered by them, and the enshrinement of this procedural institution in the legislation is aimed, first of all, at eliminating the bias of the judge in resolving a specific legal dispute and making a fair decision in the case.

In accordance with Part 3 of Article 16 of the Civil Procedure Code of the Russian Federation, the grounds for disqualifying a judge are circumstances that raise doubts about the objectivity and impartiality of the court.

According to Part 2 of Article 20 of the Code of Civil Procedure of the Russian Federation, the question of a challenge filed against a judge considering a case alone is resolved by the same judge.

Isn't this the "theater of the absurd"?

Knowing the work of the judicial system from the inside, I can say that in most cases the challenge is not granted by the judge, which is not surprising, since it is considered by the same judge.

The practice is that basically such a legal procedure as challenge lies with those persons whose dispute is being resolved, and not with the judge. What if the judge is in cahoots with someone in the pending case? What if the judge is pressured or told what decision to make? How will a citizen know about this?

But it is the judge who is responsible for making a decision on behalf of the Russian Federation.

I would like to note that, according to a survey conducted by the All-Russian Center for the Study of Public Opinion (VTsIOM), 51% of Russians believe that there are political prisoners in the country.

This is despite the fact that in the Criminal Code of the Russian Federation there is no punishment for political reasons.

I think it’s already clear to everyone that, most likely, in these cases, when considering cases, pressure is put on the judge.

In such situations, it is necessary for the judge to recuse himself in accordance with Article 19 of the Code of Civil Procedure of the Russian Federation.

This norm has long outlived its usefulness and requires change.

I would like to give another example of considering a civil case from my own practice .

Based not only on ethical considerations, but also on the principle of impartiality of the court when considering the case, I considered that the case in which I was a defendant could not be considered by the judges of the Volgograd region. But I was wrong. Apparently, in the courts of the Volgograd region this is a completely normal phenomenon.

Although in this case, consideration of the case in compliance with the rules of jurisdiction becomes impossible for objective reasons and is subject to referral to a higher court to change jurisdiction.

In the decision of the Constitutional Court of the Russian Federation in the case of checking the constitutionality of Article 44 of the Criminal Procedure Code of the RSFSR and Article 123 of the Civil Procedure Code of the RSFSR in connection with complaints from a number of citizens dated March 16, 1998, it was noted that “under certain circumstances (for example, if the claim is in civil process brought before the judge himself or by the judge of the same court, or if the court to whose jurisdiction the case is assigned does not function for one reason or another), a change in jurisdiction by a higher court is not only permissible, but sometimes necessary.”

As the Supreme Court of the Russian Federation noted (Determination No. 72-G03-6 dated April 1, 2003 - rapporteur Judge Potapenko S.V. ), in this case, consideration of the case in compliance with the rules of jurisdiction becomes impossible for objective reasons. Since the plaintiff is a judge of a regional court, the court of cassation reasonably granted the challenge to the entire composition of the court and rightfully, on the basis of paragraph 4 of Article 21 of the Code of Civil Procedure of the Russian Federation, transferred the case to the Supreme Court of the Russian Federation to determine jurisdiction.

Article 6 of the European Convention guarantees to everyone, in the event of a dispute regarding his civil rights and obligations, the right to a fair hearing by an independent and impartial tribunal established by law.

According to the position of the European Court (complaint no. 8921/05), there are two approaches to the requirement of impartiality contained in paragraph 1 of Article 6 of the Convention.

First, the court must be impartial from a subjective point of view, that is, none of the court members must have any personal prejudice or bias. Personal impartiality is assumed unless there is evidence to the contrary.

Secondly, the court must be impartial from an objective point of view, that is, it must provide sufficient guarantees to exclude any legitimate doubt in this regard.

Unfortunately, problems associated with the independence, impartiality and corruption of the judicial system seriously undermine the confidence of citizens of the Russian Federation in the courts in the Russian Federation.

According to a survey conducted in June 2012 by the Russian non-governmental research organization Levada Center, the level of trust of Russian citizens in Russian courts leaves much to be desired. Thus, the number of citizens who fully trust the court in our country is only 21%.

In modern conditions, the issue of improving the rules on the grounds for challenges in legal proceedings is of particular importance, since it is associated with a set of anti-corruption measures. From this point of view, the norms of the legislation on recusals should simultaneously have an anti-corruption effect in general.

The main purpose of the instrument of recusal of a judge is to ensure the legality of court decisions and protection from the influence of various subjective factors on the court’s decision-making. However, for this procedural tool to work, serious changes in legislation and effective mechanisms for its implementation are necessary.

Probably, taking advantage of the legislative initiative, it is time for the leadership of the judicial system to analyze the number of challenges filed by citizens and satisfied by judges, to tighten Article 305 of the Criminal Code of the Russian Federation for issuing obviously unjust sentences, decisions or other judicial acts, highlighting in a separate disposition responsibility for unjust decisions related to the resolution of challenges .

I consider it necessary to introduce serious changes to the legislation in such a way that applications for the recusal of a judge considering a case are considered not by the same judge alone, but by a higher authority.