14 October 2020
By Leonid Nikitinsky, Novaya Gazeta columnist, member of the Presidential Council for Human Rights, winner of the Moscow Helsinki Group’s Human Rights Award
During the period “between quarantines” nothing was done in the judicial system to solve the issue of openness and transparency of legal proceedings
News agencies have reported that as of 13 October Moscow courts are once again closing their doors to visitors. Or maybe not just to visitors, but to representatives of the respective sides of the case too? Who is defined as a “visitor”, and what should journalists do? And might people only be allowed in with masks (or gloves, or a certificate confirming they don’t have Сovid-19, or the judge’s permission, etc.)? “Visitors” only find out about these issues and what other regions are being affected by the quarantine conditions in person.
Until 11 May, the courts were operating in accordance with joint resolutions taken by the Presidium of the Supreme Court of the Russian Federation and the Council of Judges of the Russian Federation, dated 18 March and 18 April and amended on 29 April. It was recommended to “ensure that the courts comply with the rules stipulated by the decrees of the chief sanitary doctor of the Russian Federation… including the rules of social distancing” (which was often impossible in practice), not to conduct personal appointments and to consider only “urgent” cases, which most often were accompanied by deterrent punishments.
If restrictions had been imposed at the level of the Russian Supreme Court at the beginning of the epidemic, then the right to lift them from 11 May 11 (as dictated in a letter from the Judicial Department of the Russian Supreme Court dated 7 May 2020) was delegated to each court’s chair “depending on the situation in the region” – that is to say, each to their own, but with the region’s governor in mind. And we only learned about the resumption of the quarantine regime in Moscow from such a “source of law” as a statement from the press secretary of Moscow City Court, Ulyana Solopova – it is she whom news agencies have been citing.
We are not aware of any uniformity in the practice of “quarantine justice” undertaken by the Supreme Court and the Judicial Department — relevant information is most likely sketchy. Lawyers share some pieces of information with each other — for example, the regions where they were required to be quarantined, which practically excluded them from participating in court sessions. Regional journalists bring us more information, but only the St. Petersburg human rights organisation Citizens’ Watch has attempted systematic monitoring. However, the group has the status of a “foreign agent”, and civil servants are not recommended to cooperate with it. With limited resources, activists from Citizens’ Watch conducted monitoring of court websites in 13 regions of Russia, which to some extent were able to compensate for the forced restrictions on physical access to courtrooms. Rather than concentrating on the usual complaints about late and incomplete posting of court decisions on their websites, activists focused on how clearly the sites reported restrictions imposed because of the pandemic.
Only 40% of court sites correctly indicated the start dates of the quarantine restrictions, another 40% indicated the wrong end date, while 20% of sites did not even publish information about changes in operating hours.
From 19 March to 11 May, when the courts were still guided by the decisions of the Russian Federation’s Supreme Court, more than 40% of sites did not contain any information about restrictions. In half of these cases, it was only in a general form – that access to the building was forbidden, while the wording made it impossible to understand who was actually permitted entry. After 11 May, when the Judicial Department upheld the decision to lift the restrictions, 40% of court websites continued to report that “visitors” were not allowed.
Only a few courts clearly announced the requirement to wear face masks and gloves, sometimes supplementing this with a requirement to wear shoe covers and provide certificates proving that one is free of certain diseases. In some courts, a ban was imposed on “transferring documents from hand to hand,” and entry for those over 65 was limited.
During the quarantine, sections for “broadcast video” appeared on the websites of some courts, but were mostly absent. There was also news about court sessions being conducted via WhatsApp in the Komi Republic and Vologda region, but the details and results of this are yet to be seen.
Courts usually responded to requests for broadcasts of the proceedings by claiming that there were technological barriers.
Quarantine restrictions in courts are understandable, but these concern the rights of the defendants, not just the visitors. The openness and publicity of proceedings is an integral part of any fair trial. Article 6 of the European Convention on Human Rights and Article 123 of the Constitution of the Russian Federation allow restrictions of these principles, but there is no mention there that this can be because of an epidemiological situation. Not even the Supreme Court can restrict the principles of transparency and openness, let alone the chairs of lower courts.
In May, there were reports that the Ministry of Justice was preparing a draft law on cases being heard in courts remotely, and several variants of such drafts have appeared unofficially. However in the summer, when the virus receded, they apparently dropped the idea. Maybe this was for the better, since these drafts generally ignored the principles of openness and publicity in legal proceedings and provided purely technical solutions. And even then the courts (except, as always, the courts of arbitration) were not ready for them. For example, the video conferencing system, which has been used by the Judicial Department in courts and pre-trial detention centres for 20 years, does not always work reliably and does not allow one to connect to it from the outside.
The problems of court access and transparency of justice seem to be of no concern to anyone except human rights defenders and journalists. Judges and court staff seem to think of quarantine as a convenience, and one that compensates for a few everyday inconveniences.