Providing The Proceeding By The Competent Court In The Civil Jurisdiction Of Ukraine

  • V.Ya. Romaniv
Keywords: presumption, proper composition of court, objectiveness, partiality, removal.

Abstract

The article defines the foundations for support of the cases by proper composition of court through action of presumptions of objectiveness and impartiality of the judge.

Presumption of objectiveness of the judge is fundamental for the process of consideration and solving of a civil case. By its meaning it pretends to be recognized as a procedural principle, as it concerns the foundations of justice. Presumption of objectiveness of the judge finds its indirect reinforcement in the number of constitutional and industry norms thus derives from the principle of judicial independence.

It is stated that according to the presumption of objectiveness of the judge, the judge is considered to be objective till the moment when by means of establishing the grounds for disqualification defined in the law the otherwise will be established.

It is proved that beginning of action of the presumption of objectiveness is the court ruling on the proceedings. With the adoption of this Procedural Act automatically conclusion is made about proper composition of court by means of its objectiveness. The purpose of such presumption is the need to create conditions for fair hearing of a case, provide procedural rights of the parties defined by law.

It is concluded that the presumption of objectiveness of the judge belongs to the category of refutable ones and the presumption of partiality - to the category of irrefutable. In the event, when the participant of legal procedure doubts the reliability of assumptions about objective composition of the court he\she can refute such presumption by means of the institute of removal. From the moment of establishment of this fact the presumption of partiality (bias) of such composition of the court comes into action. After the establishment of the fact-ground and beginning of action of presumed fact the refutation of presumption is not allowed. Legislator in the compulsory order presumes the partiality of such composition of the court and thus its inability to consider a case.

Published
2020-01-18