The presence in the legislation of 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 - judicial protection of unlawfully violated or disputed rights, freedoms and legally protected interests of citizens and organizations.
What is a court challenge?
A recusal of a judge 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 raise doubts about his impartiality.
Grounds for disqualification of a judge
The grounds for challenging a judge are provided for in Article 38 of the Civil Procedure Code of the Republic of Kazakhstan. A judge is subject to challenge if:
- during the previous consideration of this case, participated as a witness, expert, specialist, translator, representative, court secretary, bailiff, or enforcement officer;
- is a relative of any of the persons involved 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 court hearing 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 judge's participation in the previous consideration of the case or the existence of family relations are easily proven, and a challenge on these grounds usually does not raise questions or disputes. The situation is much more complicated when a challenge is filed due to the judge's interest in the outcome of the case.
When challenging a judge on this basis, the party must prove that the court's conduct is not impartial, independent, and that its approach to the case is not lawful. The judge's personal interest in the 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 may also benefit the judge directly. This is usually very difficult to do.
Examples of the court's direct interest in the outcome of the case may include the following:
- The plaintiff or defendant is a relative of the judge’s spouse or a close friend (acquaintance).
- The 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 plaintiff's demands or as a result of refusing to satisfy the claims, the judge will receive material or other benefits.
Examples of indirect interest of a judge may be his interest in the outcome of a case in favor of the party from which the judge will receive some benefit. For example, the interest of a judge in the outcome of a case in favor of an educational institution where the judge's child is studying or in favor of a bank where the judge has deposits or accounts.
What circumstances are not grounds for disqualifying a judge?
The circumstances specified in Article 38 of the Civil Procedure Code have an exhaustive list of grounds for disqualification of a judge. That is, if a party to a case files a motion to disqualify a judge on grounds other than those specified in Article 38 of the Civil Procedure Code, the applicant will be denied satisfaction of the request to disqualify the judge.
It should also be noted that if the request for the recusal of a judge is based on the circumstances specified in the article, but is not supported by evidence indicating the relevant facts, then the request for the recusal of the court will be left unsatisfied.
These conditions are often forgotten by the participants in the process, who make demands for the judge to be recused for any violation of the procedure for considering the case on his part (real or imaginary).
For example, a judge’s recusal cannot be granted in the following cases:
- refusal by the court to accept documents, audio-video recordings, and photographic documents as evidence;
- leaving the application without action, without consideration;
- other procedural actions of the court carried out by it within the framework of the judicial process.
These actions (even if committed in violation of the law) will not serve as grounds for disqualification of the 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 performance of which prevents the proper consideration of the civil case.
Thus, a request to disqualify a judge must be supported by factual evidence confirming the judge’s personal (direct or indirect) interest in the outcome of the case, and also substantiated in accordance with the requirements of Article 38 of the Civil Procedure Code.
When can a judge be recused?
In the presence of circumstances specified in Article 38 of the Civil Procedure Code, the judge is obliged to recuse himself.
Self-recusal and recusal must be motivated and declared before the start of the consideration of the case on the merits. Recusal in other cases is permitted only if the grounds for recusal became known to the court or the person declaring the recusal after the start of the consideration of the case.
Application for recusal and the procedure for its resolution
An application to challenge a judge must state 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 filed against a judge hearing a case alone must be considered by the chairman of the court or another judge of that court, or, in their absence, by a judge of a higher court.
In the event of a challenge to one of the judges during the consideration of the case by the court in a collegial composition, the court will first 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 the 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 filed against several judges or the entire court is resolved by the same court in full composition by a simple majority of votes.
The ruling on rejection or satisfaction of the challenge is not subject to appeal or protest. Arguments regarding disagreement with the ruling may be included in complaints to a higher court or in petitions for review of the judicial act in the order of judicial supervision.
Consequences of granting a petition to disqualify a judge
If an application for the recusal of a judge or the entire panel of judges is granted during the consideration of a case in a district (city) court, the case will be considered in the same court, but by a different panel of judges, or will be transferred for consideration to another district (city) court if it becomes impossible to replace the judge in the district (city) court where the case is being considered.
In the event of a judge being recused, or the entire panel of judges being recused, when a case is being heard in a regional court or the Supreme Court of the Republic of Kazakhstan, the case will be heard in the same court by another judge or another panel of judges.
If, as a result of satisfying the application for the recusal of the judges of the regional court, it is impossible to form a new panel of judges to consider the 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 recusal of a judge as a way to delay the trial
Delaying the legal process 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 debt amount and receive a loan during this time).
One of the ways to delay the trial is often to apply for a judge's recusal. However, the effect of such a method is questionable, since it is usually impossible to recuse a judge on subjective grounds stated by the party, and the recusal application is most often considered on the day it is received, which does not provide a gain in time. Moreover, the absence of objective grounds in the recusal application may lead to damaged relations between the party and the court.
If the motion for recusal is granted and the judge is recused, the case will be transferred to another judge for consideration. This circumstance will entail a postponement of the consideration of the case, which will increase the duration of the trial.