The public organization “World of Law” published a study on the transparency of judicial proceedings in administrative cases and the openness of judicial information in the capital.
The Director of World of Law, Gulchehra Kholmatova, stated that the study on the transparency of judicial proceedings and openness of judicial information in the courts of the capital was conducted at the beginning of this year within the framework of the project “Monitoring the Transparency of Judicial Proceedings and Access to Information in Court,” financed by the National Endowment for Democracy (NED).
Analysis of National Legislation
According to the project participants, special attention was paid to the implementation of the right to attend open court hearings and the right to make notes (in notebooks and on voice recorders) during open court hearings, which under the current legislation of Tajikistan is permitted and does not require approval from a judge.
The head of World of Law, Gulchehra Kholmatova, noted that the study includes an analysis of national legislation, public opinion surveys among judges, lawyers, and citizens, as well as direct observation of court proceedings.
The authors indicate that one component of the study was the analysis of national legislation.
“An especially interesting provision is reflected in Article 8 of the Code of Administrative Offenses (PCoAO) of the Republic of Tajikistan: if courts, while considering a case, determine that a legal norm applied in the case violates constitutional rights and freedoms, they are obliged to suspend the proceedings and apply to the Constitutional Court of the Republic of Tajikistan to determine whether the norm complies with the Constitution. After receiving the Constitutional Court’s ruling, the proceedings are resumed,” the study notes.
Analyzing the legislation, researchers point to provisions establishing the principle of openness in administrative proceedings and the rights of participants.
“Denying access or obstructing access to open hearings in administrative cases is unlawful. A judge must also issue a reasoned decision when a case or part of it is considered in a closed hearing,” the study states.
Researchers also note that under the PCoAO of the Republic of Tajikistan, the use of photography, audio and video recording, radio, and television broadcasting is permitted only with the judge’s authorization.
“Audio recording requires prior permission from the judge only in administrative proceedings, whereas the Criminal Procedure Code and Civil Procedure Code do not contain such a requirement,” said Gulchekhra Kholmatova.
“No Entry to the Court Building Without Surrendering Your Phone”
Another component of the study was a survey of respondents on the right to openness in judicial proceedings. Two groups of respondents — lawyers, and victims, witnesses, defendants, and observers (most of whom had interacted with the justice system in various roles such as plaintiff, defendant, witness, or observer) — reported that entry to court buildings requires identification, inspection of personal belongings, and confiscation of mobile phones.
Participants in court proceedings reported that judges prohibited audio, video recording, and photography due to lack of authorization from the presiding judge.
The third group of respondents consisted of judges.
“It is interesting that in the Sino district all administrative cases are heard in judges’ offices, while in other districts cases may be heard either in courtrooms or judges’ offices. However, observations showed that all 40 proceedings in all four districts were held in judges’ offices,” the study states.
The lawyer emphasized that all surveyed judges expressed a positive attitude toward the presence of observers in court hearings.
According to all judges interviewed, participants in administrative proceedings may take notes, but audio and video recording and photography are allowed only with judicial permission.
Nearly half of the judges surveyed had at some point prohibited recording or photography.
One judge commented on journalists’ access to court hearings:
“Often journalists who are allowed into proceedings misreport the topic, presenting inaccurate information that is intended to attract readers but does not reflect the real motives of the offender or the objective and subjective elements of the offense. Therefore, many judges try to avoid allowing journalists into hearings.”
What is the reality?
Another part of the study consisted of direct observation. None of the courts in the capital are accessible for persons with disabilities.
Security guards are present at all court entrances and conduct document checks. They restrict access not only for citizens but also for lawyers. Mobile phones are prohibited, and entry is allowed only after inspection of personal belongings.
Researchers concluded that administrative justice does not yet receive sufficient attention from law enforcement bodies and the public.
“Legislation and practice in this area require improvement. Audio recording in administrative proceedings is not permitted without prior court authorization, although this is allowed under the Criminal Procedure Code.
Entry to court buildings is not free in any of the monitored courts; only in the I. Somoni district court are personal belongings not searched. In all other courts, document checks, body searches, and metal detector screening are conducted. Mobile phones are prohibited in all courts. Not all judges allowed observers at administrative hearings, even though all proceedings were open and observer participation is legally permitted. None of the four district courts of Dushanbe are accessible for persons with disabilities (no ramps or elevators). Court websites do not contain information on ongoing cases,” the study states.
The head of World of Law stated that although administrative proceedings are open, observers and journalists rarely exercise their right to attend hearings.
The study concludes with findings and recommendations on improving transparency and openness of judicial information.
In conclusion, Gulchehra Kholmatova emphasized that the study is intended for justice system professionals, academic institutions, and civil society organizations.
