Over the past three months, the public organization Mir Prava has monitored trials in civil cases in Tajikistan and prepared a report on the results of the study. We met with the director of this organization, Gulchekhra Kholmatova, and asked her a few questions about the study.
– What is the purpose of your monitoring, what was it for?
– Our research was carried out within the framework of the project “Monitoring of trials on the observance of the principle of openness and transparency in civil proceedings”, which is supported by the National Endowment for Democracy (USA). This is the only civil justice survey in the country in recent years.
The aim of the study was to obtain an objective assessment of ensuring the openness and transparency of civil litigation in the district courts of Dushanbe. After all, the principle of an open trial is enshrined in article 14 of the International Covenant on Civil and Political Rights. This principle is enshrined in Article 20 of the Constitution of the Republic of Tajikistan, and as one of the main principles of judicial proceedings in the procedural codes of our country.
Open and public consideration of cases in courts is the most important guarantee of the right to a fair trial. The publicity of hearings ensures the transparency of the proceedings and, thus, serves as an important guarantee of the interests of individuals and society as a whole.
It is the ability of citizens and media representatives to attend the court session, and then disseminate the information received, that helps to protect the rights and legitimate interests of the participants in the process, increases the quality and efficiency of the administration of justice, strengthens the authority of the judiciary and confidence in it, contributes to the implementation citizens of their constitutional right to information.
– Where was the monitoring carried out, did you manage to accomplish all the tasks set by the research?
– The monitoring was carried out in the city of Dushanbe, we were faced with the task of monitoring forty court hearings – in each district court of the capital for 10 court sessions, as well as interviewing judges, lawyers, lawyers and applicants – in a word, all categories of participants in civil proceedings … 21 judges, 60 NGO lawyers and lawyers, 80 applicants were interviewed, and half of them were women.
Unfortunately, in Tajikistan there has been a practice of coordinating monitoring with the Supreme Court of the Republic of Tajikistan in order to minimize the risk of disruption of monitoring, and obtaining the preliminary consent of judges for interviews, although initially this procedure is already violates the principle of publicity of the trial. Therefore, when our observers came to open court hearings, they were immediately asked about the purpose of their presence in court, and this already influenced the attitude of judges towards ensuring openness and transparency.
That is, the principle of openness and openness of legal proceedings, enshrined in law, did not become the norm of everyday judicial practice in Tajikistan. In most cases, observers had to obtain permission from the judges and explain the purpose of attending the trial, although all the trials were open. I also had to get permission from the president of the court.
This, of course, influenced the breadth of coverage of the judiciary by our observers.
– What other shortcomings were identified in the course of monitoring the activities of civil courts?
– Our research indicates not only shortcomings, but also certain achievements in terms of ensuring the transparency of the judicial system.
For example, almost all courts now have official websites designed to provide information to the public about the activities of the courts, and this is very encouraging. At the same time, of the four courts in the capital, only the Sino District Court constantly updates information on the current trials. On the websites of the Firdavsi and Somoni district courts there is no information about the appointed court hearings, on the website of the Shokhmansur district this information is not up-to-date.
Most of the civil cases were considered in the judge’s office, which does not always have enough space for persons wishing to participate in the trial. Lawyers and interviewed citizens also confirmed that in 90% of cases, civil cases are considered in the offices of a judge without giving reasons, which has already become the norm.
Almost all monitored courts have a pass system, security at the entrance, whose employees, instead of checking those entering for security, begin to ask questions about the purpose of the visit, seize mobile phones and other devices with which it is possible to conduct audio and video recording, and so on.
This circumstance actually creates conditions for restricting the right of citizens to visit a judicial institution and attend an open trial, as well as to ensure transparency and publicity of the trial itself.
In most cases, judges refuse to conduct such a recording, without making a reasoned decision. At the same time, some judges noted that the permission of the chairman of the court is required to use audio or video recording, which indicates a lack of independence for judges.
At the same time, the judge may prohibit the recording of audio and video recording only if it interferes with the principles of independence, impartiality, the competence of the court, and promotes pressure on the parties.
Of course, it is also depressing that none of the court buildings have ramps for persons with disabilities, elevators. The available toilets are closed to visitors, there are no coolers with drinking water.
– By the way, what other omissions do courts have when working with vulnerable groups of the population, in particular, people with disabilities?
– Let’s start with the courts’ sites. They do not provide a font for the visually impaired. The information presented on the stands in the courts is made in small print, the stands are high for people of short stature and for citizens with vision and movement problems.
All courts lack physical accessibility for people with disabilities. There are no luminous or voice boards with announcements, numbers of judges’ offices, assistants, large print and Braille, no seating places to wait for the start of the process. I have already spoken about toilets, let alone toilets for persons with disabilities.
Disabled people themselves, who were interviewed in the course of a population survey, also note the poor accessibility of trials. They have to constantly spend money on transport, which is not adapted to their needs, and there is no room for a wheelchair in the judge’s office, because there are no field court sessions. But often they last for a long time, sometimes for several months.
If a person with hearing problems does not have an interpreter, then they have to speak loudly during the processes, and if the person does not hear at all, then the process is postponed until an interpreter is found. & nbsp; The legislation does not regulate the process of paying for the services of an interpreter: the payment for the services of a sign language interpreter and other translators is provided only on the basis of a resolution of the Government of the Republic of Tajikistan, but in practice this is not done: such interpreters are provided at the expense of an NGO, which hires a lawyer. The use of Braille is not provided for by law, including for judicial acts. This also does not apply in practice.
– In the course of your research, you have come across a gender component. How are things going with regard to ensuring women’s rights to a fair and impartial hearing?
– Yes, gender issues were undoubtedly present during the monitoring. For example, polls have shown that women are more vulnerable in civil litigation.
Low legal literacy of women themselves, financial and economic dependence on a spouse, fear of being left without a breadwinner, gender stereotypes and dependence on relatives, husband, public opinion, inability for women to pay for services a lawyer, transportation costs, household problems (no one to leave children with, workload of household chores) – all this affects the position of women in court.
At the same time, judges do not always pay attention to the issues of domestic violence, the maintenance of children and the determination of their place of residence when considering, for example, divorce proceedings.
At the same time, the UN Committee on the Elimination of Discrimination against Women, in its General Recommendation No. 33 on women’s access to justice of 3 August 2020, notes that women should be able to rely on a justice system free from myths and stereotypes, whose impartiality is not questioned due to the indicated prejudices.
Eliminating stereotypes in the justice system is a critical step in ensuring equality and fairness for victims and victims. These issues also apply to litigation in family and civil disputes, especially if it is related to the determination of compensation for moral and material harm inflicted on women who are victims of crime and gender-based violence.
– What recommendations, in your opinion, should be implemented immediately in order to ensure the principle of openness and transparency in civil proceedings?
– First of all, it is necessary to conduct a gender and anti-discrimination analysis of the Civil Procedure Code, make changes to it on the issues of determining the timing of notification of the acceptance of statements of claim by the court for consideration, terms for any written applications to the court, so as not to delay the process of legal proceedings, data terms should be as short as possible, on the availability of processes, court decisions, and filing applications in the language of international communication.
The state should ensure the possibility of filing applications, statements of claim in court and receiving responses in electronic form, which will facilitate the accessibility of legal proceedings in civil proceedings to all participants in the trial, and above all , persons with disabilities. Courts’ websites should post not only timetables of trials, but also full texts of decisions in civil cases.
The authorities need to establish who is recognized as a poor citizen in order to receive secondary legal assistance in civil cases, taking into account the interests of the independence of persons with disabilities, women and minors, as well as determine the mechanism for providing free secondary legal assistance and allocate funding from the state budget for the implementation of this rights.
These and other recommendations were presented by our organization in its report, which, we hope, will be useful for employees of public authorities – judges, lawyers, prosecutors, representatives of public organizations dealing with human rights issues; students and teachers of law faculties and other interested persons who will need and be interested in information about the situation with the observance of the right to a fair trial in civil cases in Tajikistan.
