PROBLEMS OF THE INSTITUTE OF RECUSAL OF A JUDGE IN THE PROCEDURAL LEGISLATION OF UKRAINE

Abstract

The article focuses on the issues of legal regulation of the procedure for recusal of a judge in Ukrainian legal proceedings. Purpose. The purpose of the study is to develop scientifically grounded proposals for improving the legal institution of recusal of a judge. Methods. The research methods used are a set of general philosophical, general scientific and special methods of cognition, the choice of which was based on scientific and applied expediency. The empirical basis of the article is made up of current regulations, draft laws, and statistical information on the administration of justice, and the method of analysis and a special formal legal method were applied in the course of studying the same. Results. The study found that currently only 1–2% of applications for recusal of judges are granted in the administration of justice in Ukraine, which de facto indicates the complete ineffectiveness of this institution in the national legal system. It is established that the current procedural legislation of Ukraine does not contain a definition of the concept of “recusal”, and the procedure for consideration of applications for recusal in various types of proceedings has changed throughout the entire period of development of the national procedural legislation. The issue of judge’s recusal is no less relevant. The current procedural mechanism allows judges to declare deliberately unreasonable recusal, in effect removing themselves from consideration of legally or morally complex cases. Conclusions. The author comes to the conclusion that at present, Ukraine has not implemented the procedural guarantee of everyone’s right to an impartial court by ensuring the procedure for recusal or self-recusal of a judge in a situation where the judge is personally interested in the outcome of the case, has a conflict of interest or is otherwise biased towards any party. The reason for this is the imperfection of the procedural legislation of Ukraine, which, in terms of judges’ recusal, violates the basic principle of nemo judex in propria causa, formulated in Roman law. In fact, when deciding on the issue of recusal under the current model of legal regulation, a judge becomes both a party and a judge in his or her own case. A law that puts anyone in the position of a judge in their own case is a law that violates the law. Based on the study of procedural legislation, law enforcement practice and statistical information, the author proposes his own definition of the concept of recusal and appropriate changes to the procedural mechanism of judicial recusal.