Conceptual approaches on improving the legal regulation of a judge’s disqualification (self- disqualification) in civil judiciary of Ukraine

Abstract

The article is focused on studying the legal essence of the motion for a judge’s disqualification (self-disqualification) and on elaborating conceptual provisions on legal regulation for a judge’s disqualification (self-disqualification) in the civil judiciary of Ukraine.
The doctrinal definition of the concept of a judge’s disqualification (self-disqualification) has been considered in the article. Special attention has been paid to the analysis of legislation, case law of the European Court of Human Rights on regulating the right or obligation to file the motion for a judge’s disqualification (self-disqualification) depending on the subject of civil procedural legal relations (a judge, a participant in the case), the one who performs the relevant procedural action.
Based on the results of a systematic analysis of the provisions of the Civil Procedural Code of Ukraine, it has been determined that the legislation contains both a direct, imperative reference – determining the grounds for a judge’s disqualification (self-disqualification) (paragraphs 1–4 of Part 1, Parts 2, 3 of the Art. 36 of the Civil Procedural Code of Ukraine), and a reference to “other circumstances that raise doubts about a judge’s impartiality or objectivity” (paragraph 5 of Part 1 of the Art. 36 of the Civil Procedural Code of Ukraine), the list of which is inexhaustible.
It has been substantiated that while solving the issue for self-disqualification, judges should not act automatically, but must consider both objective and subjective criteria to determine impartiality as a result of hearing the case. While solving the issue for self-disqualification, a judge should be guided by a subjective criterion, which is determined by own personal beliefs and behavior, which make it possible to establish the manifistation of bias or impartiality in the case. The judge’s impartiality is presumed to exist until proven otherwise. The objective criterion for the judge’s impartiality is the absence or presence of convincing facts that raise doubts about the judge’s impartiality and which are objectively grounded.
In view of the researched problem, in order to internally harmonize the provisions of the Civil Procedural Code of Ukraine, which regulate the procedure for a judge’s disqualification (self-disqualification) (Part 1 of the Art. 36 and Part 1 of the Art. 39 of this Code), their unification with the Art. 15 of the Code of Judicial Ethics and taking into account the case law of the European Court of Human Rights as a source of law, the author has elaborated suggestions to amend Part 1 of the Art. 39 of the Civil Procedural Code of Ukraine.
Based on the results of the conducted research, the author has elaborated conclusions.