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Nina KUCHERUK,

leading researcher of the National School of Judges of Ukraine, lawyer

JUDICIAL DISQUALIFICATION IN THE ECONOMIC PROCEEDINGS: CERTAIN ISSUES OF THEORY AND PRACTICE

The article presents the matter of challenging the judge in the economic proceedings and the grounds for such claim. The grounds are conditionally distributed into general (i.e. may occur in the case hearing in all instances, in the “first”, as well as in the “second” (new) case hearing and in the event of case review in the newly discovered circumstances), and special (i.e. may occur in the event of a new case hearing or its review in the newly discovered circumstances). The matter of the right to challenge the judge due to the lack of information about the judges available to the public is also examined in the article (information on specialization of judges, the number of cases handled by a judge, etc.).

The author pays particular attention to contradictory judicial positions on the presence (absence) of grounds for the challenge of a judge in the new case hearing and review of court decisions in the newly discovered circumstances. The article analyzes practice of the Supreme Court of Ukraine, which refers to the inability of judge to participate not only in review of his judgments with regard to the newly discovered circumstances, but also in review of these judgments in the appeal and cassation.

The article discusses other grounds for the challenge of a judge in the economic proceedings that are not defined in Article 20 of the Code of Commercial Procedure of Ukraine, as well as circumstances that may not be the grounds for such challenge. It is noted that it is impossible to perform challenge of a judge for the reason of complaints about the judge (judges) connected with any case hearing, or for the reason of circumstances in connection with the adoption of decisions by judges in other cases etc. In the study of other grounds for the challenge of a judge, cases of the practice of the European Court of Human Rights, which determine the subjective and objective criteria of impartiality of a judge in the case hearing, are also provided.

The article also contains certain proposals on additional grounds for the challenge of a judge, set by the Code of Commercial Procedure of Ukraine, in particular making public comments on the merits of the case, and proceeding with the case before taking the oath of a judge.

Key words: judicial disqualification, impartiality, specialization of judges, a new hearing of a case, newly discovered circumstances

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