Challenges and Application of Recusal in Criminal Proceedings

Author: Oleksandr Zaitsev, Attorney, Counsel at Grain Law Firm

The institution of recusal in modern criminal procedure plays a significant role in ensuring the rights of participants at every stage of criminal proceedings. At the pre-trial investigation stage, it guarantees objectivity, independence, and impartiality of the process, while at the trial stage it also safeguards the conventional right to a fair trial enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

This institution was not a novelty of the current Criminal Procedure Code of Ukraine of 2012, as it was already embedded in Chapter 4 of the Criminal Procedure Code of Ukraine of 1960. A comparative analysis shows that the grounds excluding participation in criminal proceedings and the rules for recusal were carried over into Chapter 3, Section 6 of the current Code in a more refined form, with certain issues previously unregulated by the 1960 Code now addressed.

At the same time, the current procedure for declaring and resolving recusals is not flawless. In practice, identifying grounds for recusal of a judge or another participant is not always straightforward and often requires a case-by-case analysis.

Articles 75–79 of the Criminal Procedure Code of Ukraine define the exhaustive list of grounds excluding participation of an investigating judge, judge, juror, prosecutor, investigator, inquirer, defence counsel, representative, probation officer, interpreter, expert, or court secretary in criminal proceedings.

The recusal mechanism is structured in such a way that, where relevant grounds exist, these participants — and the court itself — are obliged to declare self-recusal. The primary purpose of this institution is therefore self-withdrawal from participation in proceedings where such participation may undermine the objectives of criminal justice as defined in Article 2 of the Criminal Procedure Code of Ukraine.

For the most evident situations that create risks to procedural objectivity, Articles 75–79 establish clear and unambiguous grounds that do not allow discretionary interpretation. Once such circumstances become known, the relevant participant is obliged to declare self-recusal, as explicitly provided by Part 1 of Article 80 of the Code.

Declaration of self-recusal in such cases is not a right but a legal obligation.

For example, if an investigator assigned to a case is a family member or close relative of the complainant or victim, such investigator is unequivocally required to withdraw (Article 77(1)(1) of the Code).

Another absolute ground for judicial self-recusal is prior participation in the same criminal proceedings at an earlier stage. The exhaustive list of such cases is set out in Article 76 of the Criminal Procedure Code.

In practice, issues often arise when, after an indictment is submitted to court, the case is assigned to a judge who previously participated in the same proceedings as an investigating judge. In such situations, judges typically declare self-recusal, after which the case is reassigned in accordance with Article 35 of the Code.

However, not all instances of prior judicial involvement are obvious. This is especially true in cases involving merged or separated proceedings, where the procedural history becomes complex, and prior judicial authorizations (such as search warrants or covert investigative actions) may not be immediately evident.

In such circumstances, it is advisable for defence counsel to conduct a thorough review of the materials of the pre-trial investigation, including the register of procedural actions, to identify any prior judicial involvement that would preclude a judge’s participation in trial.

A full analysis of the procedural history is also necessary to determine whether the trial judge previously acted as an investigating judge in related proceedings prior to their consolidation or separation.

If such circumstances are confirmed, a motion for recusal should be submitted unless the judge has already declared self-recusal.

At the same time, not all grounds for recusal are obvious. In some cases, a participant may be aware of a clear legal conflict but still continue participation, either deliberately or by omission.

In such situations, once the defence becomes aware of relevant grounds, a motion for recusal must be filed under Article 80 of the Criminal Procedure Code—during the pre-trial stage to the investigating judge, and during trial directly to the court.

Where grounds for recusal of an investigating judge are identified, such motion must be filed either before or during the relevant hearing in which the judge exercises judicial control functions.

If a party knowingly refrains from raising a recusal at the pre-trial stage, despite being aware of the relevant grounds, and later attempts to rely on this circumstance during trial (for example, to challenge admissibility of evidence), it must be prepared to justify why the issue was not raised earlier and whether it was aware of the circumstances at that stage.

Section 6 of Chapter 3 of the Criminal Procedure Code also includes non-obvious grounds for recusal based on circumstances that may cast doubt on impartiality.

To establish bias on the part of an investigator, prosecutor, or other participants, it is necessary to collect sufficient supporting materials before filing a motion for recusal. There is no universal approach to such evidentiary substantiation, as each case is unique and requires an individual assessment.

A similar principle applies to the most common ground for judicial recusal at trial stage — circumstances giving rise to doubts as to the court’s impartiality.

In such cases, the applicant must rely on the case-law of the European Court of Human Rights, which establishes that judicial impartiality under Article 6 of the Convention must be assessed through both subjective and objective criteria.

The subjective criterion concerns the personal conviction and conduct of the judge, namely whether there is evidence of personal bias. The objective criterion assesses whether the court itself and its composition provide sufficient guarantees to exclude any legitimate doubt as to impartiality (e.g., Fey v. Austria, Wettstein v. Switzerland).

There is no strict separation between these two criteria, as judicial conduct may simultaneously raise concerns under both subjective and objective standards (e.g., Kyprianou v. Cyprus).

In cases where evidence to rebut the presumption of subjective impartiality is difficult to obtain, the objective criterion becomes particularly important. In this regard, appearances matter: justice must not only be done but must also be seen to be done (De Cubber v. Belgium). This reflects the trust courts must inspire in a democratic society.

Accordingly, motions for judicial recusal must be properly substantiated, with reference to both subjective and objective criteria and supported by evidence. Otherwise, such motions are likely to be dismissed.

It is also essential that a motion for recusal does not reflect disagreement with judicial decisions. Recusal is not a mechanism for appealing rulings. It is only justified in cases of clear indications of bias, including those that may be inferred from a pattern of decisions.

Even if alleged bias is derived from a series of procedural rulings affecting defence rights or access to justice, the applicant must explain how such circumstances demonstrate impartiality concerns under the ECtHR criteria.

Given the difficulty of proving judicial bias, motions must be carefully prepared. Repeated unfounded recusal motions may be considered an abuse of procedural rights and may be left without consideration.

Under Part 5 of Article 80 of the Criminal Procedure Code, motions for recusal must be reasoned.

An additional procedural concern relates to the mechanism for deciding recusal motions. Where a motion is filed against a single judge, it is reviewed by another judge of the same court. However, where proceedings are conducted by a panel of judges, motions may be decided by the same panel, including the judges subject to recusal.

This raises legitimate concerns regarding objectivity, as judges are effectively assessing allegations of their own impartiality. In practice, such motions are rarely granted.

From a procedural fairness perspective, this mechanism appears insufficient. A more objective approach would be to ensure that recusal motions against a panel are decided by another judge or another panel of the same court.

In conclusion, the institution of recusal remains a fundamental safeguard of impartial justice in criminal proceedings. However, its practical application reveals procedural gaps and challenges, particularly regarding non-obvious grounds for recusal, evidentiary standards for proving bias, and the mechanism for reviewing motions directed at judicial panels.