The public organization “World of Law” has published a study of the publicity of the judicial process in administrative cases and the openness of judicial information in the capital.
Gulchekhra Kholmatova, Director of the Mir Prava NGO & nbsp; said that the study of the publicity of the trial and the openness of judicial information in the capital’s courts was conducted at the beginning of this year & nbsp; within the project & nbsp; “Monitoring the transparency of legal proceedings and access to information in court” funded by the National Endowment for Democracy (NED).
Analysis of national legislation
According to the project participants, special attention to & nbsp; paid to the implementation of the right to attend open court sessions, the right to keep records (in a notebook and on a dictaphone) during an open court session, which & nbsp; according to the legislation in force in Tajikistan & nbsp; allowed & nbsp; and does not require agreement with the judge.
Gulchekhra Kholmatova, head of the Mir Prava NGO, noted that the study & nbsp; includes an analysis of national legislation, conducting an opinion poll on this issue among judges, lawyers and the public, direct observation of trials.
Authors & nbsp; indicate that one of the parts & nbsp; the study was an analysis of national legislation.
“A very interesting provision is reflected in Article 8 of the Administrative Offenses Code (Procedural Code of Administrative Offenses of the Republic of Tajikistan – ed.): if the courts, when considering a case, determine that the applicable legal norm infringes upon constitutional human rights and freedoms, they are obliged to suspend the proceedings and apply to the Constitutional Court of the Republic of Tajikistan & nbsp; on establishing the compliance of this provision with the Constitution of the Republic of Tajikistan. Upon receipt of the Constitutional Court’s ruling, the proceedings are resumed, ”the study notes.
Analyzing legislation, & nbsp; the researchers point to a number of articles of the SCoAP, indicating the implementation of public administration of cases of administrative offenses, the rights of those involved in the case.
“Non-admission or obstacle in admittance to an open hearing of a case on an administrative offense is illegal. The judge also issues a reasoned ruling on the consideration of an administrative offense case or part of it in a closed court session, ”the study says.
The researchers note that, according to the norms & nbsp; & nbsp; The PKoAP RT, the use of photography, audio-video recording, radio and TV broadcasting of the court session is allowed only with the permission of the judge.
“Audio recording requires the prior permission of a judge only during the administrative process, while the Criminal Procedure and Civil Procedure Codes do not have such a requirement,” says Gulchekhra Kholmatova.
“To the courthouse – no telephone”
Another component of the study was the conduct of & nbsp; poll & nbsp; of respondents on issues of ensuring the right to publicity of legal proceedings. Two groups of respondents, lawyers and victims, witnesses, defendants and observers, most of whom had to deal with the justice system in different capacities – plaintiff, defendant, witness, observer, etc., & nbsp; indicated that the entrance to the courthouse is carried out upon presentation of an identity document, & nbsp; & nbsp; inspection of personal belongings and & nbsp; seizing the phone.
The third category of survey respondents were judges.
“It is interesting that in the Sino region all administrative cases are considered in the judge’s office, while in other areas they can be conducted both in the courtroom and in the judge’s office. However, as shown by the observation of trials, all 40 trials in all four districts were conducted in the offices of judges, ”the study says.
The lawyer emphasized that all the judges interviewed indicated that they had a positive attitude towards the presence of listeners at the trial.
In the opinion of all the judges interviewed, those present in the administrative court room can make notes in a notebook, but audio and video recordings, as well as photography are made only with the judge’s permission.
Almost half of the judges surveyed had to prohibit the production of audio, video or photography.
One of the judges expressed his attitude to the admission of journalists to trials: “Often, journalists who are allowed to the trial cover the topic incorrectly; and the subjective aspects of the crime committed, therefore many judges try to prevent journalists from participating in trials. ”
What is real?
Another block of research was the authors’ observations. All courts in the capital are not available for & nbsp; persons with disabilities.
At the entrance to the building of all courts & nbsp; there is a guard who checks documents. It restricts free access not only to citizens, but also to lawyers. It is forbidden to bring a telephone into the courthouse, the entrance is carried out after inspecting personal belongings.
The researchers came to the conclusion that the administrative process has not yet received sufficient attention from the side of law enforcement agencies and the public.
“Legislation and practice in this direction need to be improved. At the legislative level, in administrative litigation, it is not allowed & nbsp; making an audio recording of the process without first obtaining permission from the court, although this is allowed by the Criminal Procedure Code.
The entrance to the courthouse is not free in any of the monitored courts, only & nbsp; only the I. Somoni district court does not carry out examination of things. In the rest of the courts, documents are checked, and they are screened and checked by a metal detector. Bringing a mobile phone into a courthouse is prohibited in all courts. Not all judges were allowed to be present at court hearings in administrative cases, although all processes took place in open court sessions, and the participation of listeners in such proceedings is permitted by law. None of the four district courts in Dushanbe are accessible to persons with disabilities (no ramps or elevators). The websites of the courts do not contain information about the cases pending, ”the study states.
The head of Mir Prava argues that although administrative proceedings are open, observers and journalists very rarely exercise their right to attend open trials.
In the conclusion of the study, conclusions and recommendations were given on the issue of the publicity of the trial and the openness of judicial information.
Summing up, Gulchekhra Kholmatova stressed that the study is intended for employees of the justice system, representatives of academia, civil society organizations.
