Abuse by Lawyers of the Right to Challenge a Judge: Issues and Ways of Counteracting Them in Administrative Proceedings

Abstract

The article examines the issue of abuse by lawyers of the right to challenge a judge in administrative proceedings, which is a relevant topic given the importance of ensuring the independence and impartiality of the court as a key element of the right to a fair trial. The provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Part 1 of Article 7 of the Law of Ukraine “On the Judiciary and the Status of Judges”, which enshrine the principles of independence and impartiality of the court, are analyzed. The normative regulation of the institution of challenge of a judge in Articles 36–41 of the CAS of Ukraine, the grounds and procedure for its application, as well as mechanisms for preventing abuse of procedural rights are studied. Based on the analysis of judicial practice, it was established that lawyers often file applications for the challenge of a judge without objective grounds, limiting themselves to subjective disagreement with adopted decisions or repetitive arguments, which leads to delaying the proceedings and additional burden on the courts. This is illustrated by the examples of the decisions of the Cherkasy District Administrative Court of October 25, 2023 in case No. 580/8439/23, the Suvorovsky District Court of Odessa of April 11, 2024 in case No. 523/1984/24, the Seventh Administrative Court of Appeal of August 21, 2023 in case No. 240/28199/22 and the CAS of the Supreme Court of Ukraine in case No. 300/6577/23 of May 2, 2024, where lawyers repeatedly and unfoundedly declared disqualifications, which did not meet the criteria of Art. 36 of the CAS of Ukraine. It has been established that the existing disciplinary liability of lawyers under the Law of Ukraine “On the Bar and Advocacy” does not cover cases of abuse of the right to disqualification, since such actions do not belong to the list of disciplinary offenses listed in Art. 34 of the Law of Ukraine “On the Bar and Advocacy”. Based on this, the need to amend the legislation by supplementing the list of disciplinary offenses with a provision on abuse of procedural rights is justified, which will create a legal basis for holding lawyers accountable for unfounded applications for the disqualification of judges, increase the efficiency of administrative proceedings, ensure compliance with the principle of reasonable time limits for considering cases, and contribute to strengthening the ethics of the legal profession and the trust of participants in the process in the judicial system.