Lawyer XXI

Oleksandr Burmagin,

Student of Kharkiv National university of internal affairs,
Lawyer at the Center of public protection of rights at Kherson regional charity and health foundation..

The procedure for rejection of judge became more like n anecdote from black English humor - the judge himself makes a decision about his rejection.

The reason for such humor are changes that were made in June of the past year in 22 article on Civil-Procedural Codex of Ukraine that regulates procedure rejection. "Rejection of judge - is a process of changing the judge in the process if the case straightly or secondarily relates to his interests, interests if his relatives who participate in the case" (from comments to Civil-Procedural Codex of Ukraine made by Tertyshnikova V.I.)
Old edition of the Codex clearly regulated procedure for solution of questions on rejection of judges. Head of the court or "other judges" considered demands for rejection when the judge who is being rejected was absent. Small court-law reform significantly shortened contents of the 22nd article.
The goal for conduction of this reform was to make legislative base correspond with the Constitution of Ukraine. In the case with the 22nd article CPC it was done by generation without clear regulation.
As a result the whole procedure of hearing the case for rejection of judge looks like this "The question on rejection on the judge must be decided by the court commission that works in the case" (article 22 CPC). On the first sight everything is fine. But when one compares and analyses norms of the articles 22 and 16 of CPC, one can get worried.
In the article 16 of CPC it is said that in civil cases in courts of first instance a judge IS a court commission. And if you think the judge is biased and subjective, you or your representative asks to reject the judge. In order to do it, you write the statement where you explain obvious and scandalous violations of procedural legislation done by the judge, about pressure from the judge, that you can't lead the case etc. So what does the judge do? Basing on article 22 of CPC the judge says "I have to go to the discussion room and decide whether I really am as biased and subjective as you say in your statement. You will be acknowledged about results on my decision". And the judge will be acting according to the law, and it is not hard to know what his decision will be. In practice such condition of things leads to violation of right for just and fair court hearing and sometimes to humiliation.
I don't understand one thing - the Constitution was ratified in 1996. There were five years for court-law reform. Over thse five years Verkhovna Rada did not ratify principally new laws that would regulate court work. By the end of the fifth year deputies limited their work to making some changes in the laws that were written 20-30 years ago. Analyzing some changes one can get the impression that people who made them were in a big rush because transitional articles of the Constitution were terminating and they had to do something. And now this "something" needs to be improved by additions and changes, instructions and legislative positions of Supreme Court of Ukraine.
Now there is a project that foresees making changes in the article 22 of CPC of Ukraine. In fact this will be new, the third, article 22 of CPC. It clearly regulates rules of the game on rejection of the judge. But when you read it - a lot of questions rise again. Answers to these questions are not in the legitimate laws. Introduction of a new article will lead to chaos, in some cases rejection of judges will not be regulated and it means it will be impossible.
Now deputies don't really care about creation of new laws elections are approaching. Solution of problems with CPC and related violations of human rights is postponed for undetermined period. And what newly elected deputies will be doing - no one knows…
We are left to hope that new composition of the Verkhovna Rada of Ukraine will first learn the Constitution of the country where they will be making new laws. Deputies don't even have to buy it: at the beginning of the first session all newly elected deputies are given the Constitution. And then may be newly elected will understand "Rights and freedoms of citizens are supreme value", "Writing new laws and making changes to existing laws it is unacceptable to narrow contents and volume of existing rights and freedoms" (The Constitution of Ukraine).

A star myself and a judge. Olexandr Burmagin	HIHGER EDUCATION IN UKRAINE: "OPEN DOORS" BUT WHERE TO? Anastasia Bohuslavska	Project of the constitution of Ukraine
Absolutely independent judge. Oleksandr Babiychuk	Absolutely independent judge. Decision	Decision: Ms.Rotova vs "VIK: time, events, people" newspaper and Mr. Kyrychenko
A question to Kherson judges	Kindness of Kharkiv Police Sergiy Smal

Oleksandr Burmagin, Student of Kharkiv National university of internal affairs, Lawyer at the Center of public protection of rights at Kherson regional charity and health foundation..
The procedure for rejection of judge became more like n anecdote from black English humor - the judge himself makes a decision about his rejection. The reason for such humor are changes that were made in June of the past year in 22 article on Civil-Procedural Codex of Ukraine that regulates procedure rejection. "Rejection of judge - is a process of changing the judge in the process if the case straightly or secondarily relates to his interests, interests if his relatives who participate in the case" (from comments to Civil-Procedural Codex of Ukraine made by Tertyshnikova V.I.) Old edition of the Codex clearly regulated procedure for solution of questions on rejection of judges. Head of the court or "other judges" considered demands for rejection when the judge who is being rejected was absent. Small court-law reform significantly shortened contents of the 22nd article. The goal for conduction of this reform was to make legislative base correspond with the Constitution of Ukraine. In the case with the 22nd article CPC it was done by generation without clear regulation. As a result the whole procedure of hearing the case for rejection of judge looks like this "The question on rejection on the judge must be decided by the court commission that works in the case" (article 22 CPC). On the first sight everything is fine. But when one compares and analyses norms of the articles 22 and 16 of CPC, one can get worried. In the article 16 of CPC it is said that in civil cases in courts of first instance a judge IS a court commission. And if you think the judge is biased and subjective, you or your representative asks to reject the judge. In order to do it, you write the statement where you explain obvious and scandalous violations of procedural legislation done by the judge, about pressure from the judge, that you can't lead the case etc. So what does the judge do? Basing on article 22 of CPC the judge says "I have to go to the discussion room and decide whether I really am as biased and subjective as you say in your statement. You will be acknowledged about results on my decision". And the judge will be acting according to the law, and it is not hard to know what his decision will be. In practice such condition of things leads to violation of right for just and fair court hearing and sometimes to humiliation. I don't understand one thing - the Constitution was ratified in 1996. There were five years for court-law reform. Over thse five years Verkhovna Rada did not ratify principally new laws that would regulate court work. By the end of the fifth year deputies limited their work to making some changes in the laws that were written 20-30 years ago. Analyzing some changes one can get the impression that people who made them were in a big rush because transitional articles of the Constitution were terminating and they had to do something. And now this "something" needs to be improved by additions and changes, instructions and legislative positions of Supreme Court of Ukraine. Now there is a project that foresees making changes in the article 22 of CPC of Ukraine. In fact this will be new, the third, article 22 of CPC. It clearly regulates rules of the game on rejection of the judge. But when you read it - a lot of questions rise again. Answers to these questions are not in the legitimate laws. Introduction of a new article will lead to chaos, in some cases rejection of judges will not be regulated and it means it will be impossible. Now deputies don't really care about creation of new laws elections are approaching. Solution of problems with CPC and related violations of human rights is postponed for undetermined period. And what newly elected deputies will be doing - no one knows… We are left to hope that new composition of the Verkhovna Rada of Ukraine will first learn the Constitution of the country where they will be making new laws. Deputies don't even have to buy it: at the beginning of the first session all newly elected deputies are given the Constitution. And then may be newly elected will understand "Rights and freedoms of citizens are supreme value", "Writing new laws and making changes to existing laws it is unacceptable to narrow contents and volume of existing rights and freedoms" (The Constitution of Ukraine).


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