The public organization “World of Law” conducted monitoring of civil court proceedings in Tajikistan over the past three months and prepared a report based on the findings of the study. We met with the organization’s director, Gulchekhra Kholmatova, and asked her several questions about the research conducted.
— What was the purpose of your monitoring, and why was it conducted?
— Our study was carried out within the framework of the project “Monitoring Court Proceedings on Compliance with the Principle of Openness and Transparency in Civil Justice,” supported by the National Endowment for Democracy. This is the only study on civil court proceedings conducted in the country in recent years.
The purpose of the study was to obtain an objective assessment of how openness and transparency in civil court proceedings are ensured in the district courts of Dushanbe. The principle of open court hearings is enshrined in Article 14 of the International Covenant on Civil and Political Rights. This principle is also закрепed in Article 20 of the Constitution of the Republic of Tajikistan and is recognized as one of the fundamental principles of judicial proceedings in the procedural codes of our country.
Open and public hearings in courts are one of the most important guarantees of the right to a fair trial. Public access to hearings ensures the transparency of judicial proceedings and thereby serves as an important safeguard for the interests of individuals and society as a whole.
It is precisely the opportunity for citizens and representatives of the media to attend court hearings and subsequently disseminate the information obtained that contributes to the protection of the rights and legitimate interests of participants in the proceedings, improves the quality and effectiveness of the administration of justice, strengthens the authority of the judiciary and public trust in it, and promotes citizens’ constitutional right to access information.
— Where was the monitoring conducted, and were you able to accomplish all the objectives set by the study?
— The monitoring was conducted in Dushanbe. Our task was to monitor forty court hearings — ten hearings in each district court of the capital — as well as to conduct surveys among judges, lawyers, legal professionals, and applicants; in other words, among all categories of participants in civil court proceedings. A total of 21 judges, 60 NGO lawyers and attorneys, and 80 applicants were interviewed, half of whom were women.
Unfortunately, in Tajikistan, a practice has developed whereby monitoring activities must be coordinated with the Supreme Court of the Republic of Tajikistan in order to minimize the risk of disruption and to obtain prior consent from judges for interviews, although this procedure itself already undermines the principle of openness in judicial proceedings. Therefore, when our observers attended open court hearings, they were immediately asked about the purpose of their presence in court, which in turn influenced the judges’ approach to ensuring openness and transparency.
In other words, the principle of openness and transparency of judicial proceedings, although established by law, has not yet become a norm of everyday judicial practice in Tajikistan. In most cases, observers had to obtain permission from judges and explain the purpose of attending the hearings, even though all the proceedings were officially open. Permission from the chairperson of the court was also often required.
Naturally, this affected the breadth of access our observers had to the judiciary.
— What other shortcomings were identified during the monitoring of civil court activities?
— Our study identified not only shortcomings, but also certain achievements in ensuring the transparency of the judicial system.
For example, almost all courts now have official websites intended to provide the public with information about court activities, which is very encouraging. At the same time, among the four district courts of the capital, only the Sino District Court regularly updates information on ongoing court proceedings. The websites of the Firdavsi and Somoni District Courts do not contain information on scheduled hearings, while the information posted on the Shohmansur District Court website is outdated.
Most civil proceedings were held in judges’ offices, which do not always have sufficient space for individuals wishing to attend the hearings. Lawyers and surveyed citizens also confirmed that in 90% of cases, civil matters are heard in judges’ offices without any explanation, and this has already become standard practice.
Virtually all courts covered by the monitoring have checkpoint systems and security personnel at the entrance who, instead of conducting security checks, begin questioning visitors about the purpose of their visit, confiscate mobile phones and other devices that could be used for audio or video recording, and so forth.
This effectively creates conditions that restrict citizens’ right to access court buildings and attend open hearings, as well as undermining the openness and publicity of judicial proceedings themselves.
In most cases, judges refuse permission for such recordings without issuing reasoned decisions. Some judges also noted that audio or video recording requires authorization from the chairperson of the court, which indicates a lack of judicial independence.
At the same time, a judge may prohibit audio or video recording only if it interferes with the principles of judicial independence, impartiality, and competence, or if it could facilitate pressure on the parties involved.
It is also discouraging that none of the court buildings have ramps or elevators for persons with disabilities. Existing restrooms are closed to visitors, and there are no drinking water dispensers available.
— By the way, what other shortcomings exist in the courts’ work with vulnerable groups, particularly persons with disabilities?
— Let us begin with court websites. They do not provide accessibility features for visually impaired persons. Information displayed on notice boards in courts is printed in small font, and the boards themselves are positioned too high for persons of short stature and for individuals with visual or mobility impairments.
None of the courts are physically accessible to persons with disabilities. There are no illuminated or audio announcement boards, no clear signs indicating judges’ or assistants’ offices, no large-print or Braille text, and no seating areas for waiting before hearings begin. As I already mentioned, even the existing restrooms are inaccessible to visitors, let alone adapted facilities for persons with disabilities.
Persons with disabilities who participated in the public survey also noted the poor accessibility of court proceedings. They are forced to spend money on transportation that is not adapted to their needs, and judges’ offices often do not have enough space for wheelchairs because off-site court hearings are not conducted. Moreover, such proceedings frequently last a long time, sometimes several months.
If a person with hearing impairments does not have an interpreter, participants must speak loudly during hearings, and if the person is completely deaf, the proceedings are postponed until an interpreter can be found. Legislation regulating payment for interpretation services remains insufficient. Payment for sign language interpreters and other interpreters is provided for only under a government resolution of the Republic of Tajikistan, but in practice this is not implemented: such interpreters are usually provided by NGOs, which also hire lawyers. The legislation also does not provide for the use of Braille, including in court decisions, and this is not applied in practice either.
— During your research, you also encountered gender-related issues. What is the situation regarding women’s right to a fair and impartial trial?
— Yes, gender-related issues were undoubtedly present during the monitoring. For example, surveys showed that women are more vulnerable in civil court proceedings.
Women’s low level of legal awareness, financial and economic dependence on their spouses, fear of losing a breadwinner, gender stereotypes, dependence on relatives, husbands, and public opinion, lack of financial means to pay for legal services and transportation, as well as household burdens such as childcare and domestic responsibilities — all of these factors affect women’s position in court.
At the same time, judges do not always pay sufficient attention to issues of domestic violence, child support, and determining children’s place of residence when considering, for example, divorce cases.
Meanwhile, the Committee on the Elimination of Discrimination against Women, in General Recommendation No. 33 on women’s access to justice dated August 3, 2020, emphasized that women must be able to rely on a justice system free from myths and stereotypes, and whose impartiality is not compromised by such prejudices.
Eliminating stereotypes within the justice system is an essential step toward ensuring equality and justice for victims and survivors. These issues are also relevant to family and civil disputes, especially in cases involving compensation for moral and material harm suffered by women who have been victims of crime and gender-based violence.
— In your opinion, which recommendations should be implemented immediately in order to ensure openness and transparency in civil proceedings?
— First and foremost, it is necessary to conduct a gender and anti-discrimination analysis of the Civil Procedure Code and introduce amendments concerning the timeframes for notifying parties about the acceptance of claims by the court, as well as deadlines for any written submissions to the court, in order to avoid unnecessary delays in proceedings. These deadlines should be as short as possible. Amendments should also address the accessibility of proceedings and judicial decisions, as well as the submission of applications in the language of interethnic communication.
The state should ensure the possibility of filing applications and claims electronically and receiving responses in electronic form. This would improve access to civil justice for all participants in court proceedings, especially persons with disabilities. Court websites should promptly publish not only hearing schedules but also full texts of civil court decisions.
The authorities also need to determine who qualifies as a low-income citizen for the purpose of receiving secondary legal aid in civil cases, taking into account the interests and independence of persons with disabilities, women, and minors. In addition, a mechanism for providing free secondary legal aid should be established, and state budget funding should be allocated for the implementation of this right.
These and other recommendations were presented in our report, which we hope will be useful for public officials — judges, lawyers, prosecutors, representatives of public organizations working on human rights issues, as well as law students, university lecturers, and all other interested persons seeking information about the state of compliance with the right to a fair trial in civil proceedings in Tajikistan.
