Alexander Shadrin, a partner at Barristers, LLC, explained to the LHS audience how to properly file motions for recusal in criminal proceedings

Article 75 of the current Criminal Procedure Code of Ukraine defines the circumstances that preclude an investigating judge, a judge, or a juror from participating in criminal proceedings. In particular, they may not participate in such proceedings if they are complainants, victims, civil plaintiffs, or defendants, close relatives, or family members of parties to the case, etc.

There have been instances where a judge, prior to taking office, served as an investigator, prosecutor, or other participant in the case; consequently, certain findings, documents, and the like may already exist in this case that the judge was involved in creating. Such circumstances also preclude this judge from participating in the hearing of the case.

A judge, investigating judge, or juror may not participate in the hearing of a case if they personally, or their close relatives or family members, have an interest in the outcome of the proceedings. Oleksandr Shadrin cited an example from his own practice illustrating a case where a relative of a judge was an employee of an operational unit who was present during the arrest and search. Specifically, the decision of the Kharkiv Regional Court of Appeal in Case No. 11-kp/790/826/18 describes the following. Prior to the start of the appellate proceedings, Presiding Judge S.K. Shabelnikov filed a motion to recuse himself from this criminal proceeding on the grounds that, having reviewed the information contained in the criminal case file regarding the suspect, as well as the content of the appeals filed by the victim and the defense counsel—which, in particular, challenged the procedural correctness and legality of the suspect’s detention by SBU officers, a point on which the defense based its arguments regarding the fabrication of the criminal proceedings— concluded that he must recuse himself, since the judge’s declaration of family ties contains information about a relative who is an SBU officer, which does not preclude his participation in the pretrial investigation of the criminal proceedings against the suspect.

The lecturer also emphasized that Article 75 of the Code of Criminal Procedure of Ukraine includes a provision stating that the participation of a judge, an investigating judge, or a juror in criminal proceedings is precluded in the presence of other, that is, circumstances not explicitly listed in the Code, that cast doubt on their impartiality. As an example of this, Oleksandr Shadrin cited the ruling of the Kharkiv Regional Court of Appeal in Case No. 610/1813/13-k, which overturned a verdict handed down by a judge who had been recused on the basis of precisely such circumstances that “raised reasonable doubts as to the judge’s impartiality.”