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TRANSPARENCY OF GENERAL JURISDICTION COURTS: NOT ALWAYS, NOT FOR EVERYONE
Oleh Fedotov Summary
The transition period (2014) did not see a significant improvement of the transparency of the reformed general jurisdiction court system in 2015. Apparently, the former 'general' courts did not even seek to achieve the degree of transparency of the 'pre-reform' economic courts. The unified Supreme Court did not inherit the policy of ensuring the transparency of courts subordinate to the liquidated Supreme Economic Court, neither in terms of the availability of general information about courts' activities, nor court rulings in the public domain.
There was some progress in the public awareness of courts' activities last year, though, but the most sensitive information is still only disclosed in case of a stir among the public.
Trends:
• The transparency of the courts of general jurisdiction is fragmentary without any visible common plan;
• Public disclosure is predominantly 'reactive', rather than 'proactive', despite the presence of the courts on the Internet;
• A small number of court rulings is released to the public domain, thus nothing suggests that there will be more of them in the foreseeable future;
• Information about 'political' trials usually comes in response to discourses on social networking websites and in the web-based media.
Introduction
Two years passed since judicial reform took effect (from January 1, 2014 to January 1, 2016), so it makes sense to focus on the transparency of the already reformed courts of general jurisdiction in 2015 (bearing in mind that the year 2014 was a period of 'transition'1).
The overall situation: The reformed system of courts of general jurisdiction has all components of the online and
See Fedotov, Oleg. "Reform of the Judicial System in the Tradition of 'Cosmetic Repairs'." Belarusian Yearbook2014. Vilnius: Lohvinaü. 46—56. Print.
offline infrastructure providing transparency of judicial activities: (1) specialized magazines; (2) the site of the Supreme Court of the Republic of Belarus and courts of general jurisdiction court.by and websites of all regional and the Minsk city court; (3) computerization of all courts, and
(4) a departmental network, or at least access to the Internet;
(5) presence of the robust communication with the National Center of Legal Information (NSLI), the largest national media outlets and news agencies.
Openness or 'controlled leak'?
The presence of courts on the Internet. Courts continued and considerably expanded communication with the media through Facebook in 2015, basically by posting links to the materials published on court.by, schedules of court hearings and accreditation of media reporters there, results of high-profile trials, and also by reposting news published on the websites of regional courts and accounts of regional and district court officers, and communicating with journalists and representatives of the third sector.
However, spokespersons' accounts meant to ensure the transparency of courts of general jurisdiction are not presented as official pages of the spokespersons (press offices), and the owners of the accounts did not seize the opportunity to obtain the public figure status (a profile verified by Facebook as an authentic profile of a public figure). This 'flexible' approach to the policy of transparency allows the courts' leadership to avoid disputable situations referring to the unofficial status of Facebook accounts of their spokespersons (who are, by the way, not named on the official website court.by) and disclaim all responsibility for any negative impacts on the media.
The compilation and publication of a list of persons in charge of the interaction with the media in court (previously a.k.a. 'communicators'2) by the Supreme Court in 2015 was a step forward in this regard. However, the performance of those
«Контакты Верховного Суда.» Официальный портал системы судов общей юрисдикции. Web. 24 Feb. 2016. <http://court.by/justice/press_of-fice/contacts/>.
persons is quite doubtful so far. The 142 district courts number 148 'communicators.' Seven regional courts have eight and seven economic courts have 11. The Supreme Court has a press office and an editor of the official website of the courts of general jurisdiction court.by.
The positions held by the 'communicators' are quite important. As many as 113 of them employed by district courts were renamed 'chief experts', 28 became 'assistants to the president of court', five 'documents control officers', and two 'court (or court session) secretaries.' However, their open profiles on Facebook suggest that these 'chief experts' work for the organizational support departments, rather than press offices, which, most likely, will never be formed at the district courts.
Acting as regional courts' communicators are assistants to the president of court (1), section chief/chief expert/ department chief/leading or chief expert of the departments of organizational support for judicial activities, judicial practice statistics and analysis, individual appeals, and criminal cases. Acting as economic courts' communicators assistants to the president of court (2), leading or chief experts, heads of the departments of statistics, organizational support for judicial activities, organizational and personnel management, and documentation management. It can be assumed that well-informed officers of overburdened courts, who are busy with other work and used as the 'communicators' will be hardly able to ensure awareness of the public and the media of activities of a particular court to the full extent.
The analysis of the websites of the courts of general jurisdiction (court.by and those of the regional and the Minsk city courts) leads to the following conclusions concerning public awareness of last year's judicial proceedings. In most cases (such news can hardly total over three hundred in all courts) it was about corruption, high-profile murders (with death sentences in some cases), economic offenses, drug dealing and organized crime.
At the same time, sporadic information about 'political' trials came in response to discussions in social networks (including the account of the Supreme Court press secretary) and on
media websites.3 With few exceptions, the pieces of news were insignificant and small only providing (at best) extracts from substantive provisions of judicial acts and case facts in brief (except for the Lohvinau Publishing House case).
Most of the courts' websites are pretty much alike as they offer brief statistics on activities of territorial units in 2014 and the first half of 2015 (sometimes a trimester or a quarter) and sketchy examples of generalized judicial practice (except for some regional courts in both cases). Considering that the regions number 18 to 25 district (city) courts, and the economic courts hear first and second instance cases of the entire region (Minsk), the coverage of trials (their results) and examples of the generalized practice is not enough to reflect the whole palette of legal disputes that took place in Belarus in 2015 (as many as 20,620 sentences were handed down over the six months aside from other activities).
Nevertheless, 2015 was a kind of a breakthrough year in terms of public awareness. Over the first six months, courts published proceedings guidelines previously available in the legal reference system Etalon-Online on a paid basis. Supreme Court proceedings guidelines were published for the first time. Economic courts' session schedules were published as before, but this time schedules of sessions of all judicial boards of the Supreme Court became available. The access to their archives, except for the board on intellectual property and economic affairs, was still restricted.
In 2015, the public disclosure of the results of disciplinary proceedings against judges can be generally characterized as unwillingness to "wash dirty linen in public." In two cases, such information (a reprimand to a judge for a disclose of personal information of a convicted transsexual to a journalist, and dismissal of a president of court, his deputy and a number of judges of the Minsk Economic Court) was released to the press in response to the extensive discussion of those events and the grounds for the punishment in social networks and on
See, for instance, the trial Narodnaya Volya newspaper vs. Ministry of Information; imposition of administrative sanctions on Lohvinaü Publishing House; changed judicial restraint in relation to former presidential candidate Nikolai Statkevich.
media websites. Prior to that, in such cases, the press office of the Supreme Court never explained particular reasons for dismissals of other judges, including those of the Supreme Court.4
In general, the analysis of websites of the courts of general jurisdiction suggests that in 2015, the seemingly adequate electronic transparency was ensured by the publication of news about personnel reshuffles, dates of personal appointments, bankruptcy cases, the 'Questions & Answers' column, interviews with judges, etc.
Publication of court rulings: deeds do not match words?
Judges of different ranks have been talking about the necessity to publicize judicial decisions recently.5 First Deputy Chairman of the Supreme Court Valery Kalinkovich said that the publication of relevant and important legal acts would be more extensive, especially in the second half of 2015.6 However, judging by Etalon-Online7, the sending ofjudicial decisions to the National Center of Legal Information of Belarus did not change the status quo in building public awareness in 2015.
For reference: The year 2014 totaled 39,269 sentences, 282,842 rulings on administrative offence cases (and 8,732 by economic courts); 238,875 rulings on civil cases and 26,917 on economic cases (first instance). These numbers in the first half
Supreme Economic Court Judge Margarita Posled by decree No. 183 of April 23,2014, Chief Justice, Judge ofthe Klichev District Court Alexander Komar by decree No. 587 of December 31, 2013, etc.
See the theses of T.A. Vysotski, S.M. Kulaka and T.V. Voronovicha in «Материалы V Международной научно-практической конференции "Информационные технологии и право".» Нац. центр правовой информации. Wfeb. 24 Feb. 2016. <http://www.pravo.by/Conf2015/col-lection.html>.
«Валерий Калинкович: Реформирование судебной системы в Беларуси продолжится.» БелТА. 18 May 2015. Web. 24 Feb. 2016. <http://bit.ly/1L8T7Ho>.
The legal reference and information retrieval system Etalon was created and is owned by the National Center of Legal Information of the Republic of Belarus.
4
of 2015 were at 20,620; 150,963 (6,300); 117,314 and 15,304, respectively.8
The 'district court' request on the Internet (as of February 23, 2016) forwarded to 197,223 and 80 rulings, respectively for 2015, 2014 and 2013; 'regional court' 82 (2015), 7 (2014), 13
(2013); 'municipal court' 13 (2015), 3 (2014); 'Supreme Court'
24 (2015), 22 (2014); 'Economic Court of the Brest Region' 64 (2015), 17 (2014); 'Economic Court of the Vitebsk Region' 69 (2015), 48 (2014); 'Economic Court of Minsk' 47 (2015), 22
(2014); 'Economic Court of the Grodno Region' 47 (2015), 28 (2014); 'Economic Court of the Minsk Region' 88 (2015), 62 (2014); 'Economic Court of the Gomel Region' 27 (2015), 18 (2014); 'Economic Court of the Mogilev Region' 97 (2015), 53 (2014).
The number of search results by the keywords 'court of appeal of the Economic Court of the N region' in 2015 ranged from 15 (Grodno region) to 45 (Vitebsk region), and from 5 to
25 in 2014. Among the highest courts, the 'judicial collegium for civil cases of the regional court' stands out with 115 in 2015 against 62 in 2014, together with the 'judicial collegium for economic cases of the Supreme Court' with 7 in 2015 against 287 in 2014 and 'judicial collegium for criminal cases of the Supreme Court' with 65 and 55, respectively.
The results of this research are partly seconded by the director general of LLC YurSpektr (Belarusian reference legal system Consultant Plus), who said that in 2015, Consultant Plus "received about 30 files of the [economic] courts a week", although the users needed more.9
«Краткие статистические данные о деятельности судов общей юрисдикции за 2014 год.» Официальный портал системы судов общей юрисдикции. Web. 24 Feb. 2016. <http://court.by/justice_RB/ statistics/archiv/b626dd43c68be55d.html>; «Статистические данные о деятельности судов за 1-е полугодие 2015 года.» Официальный портал системы судов общей юрисдикции. Web. 20 Feb. 2016. <http://court.by/ justice_RB/statistics/>.
Сломенец, О.В. «Актуальные вопросы и перспективы предоставления отдельных видов правовой информации в Республике Беларусь.» Материалы V Международной научно-практической конференция «Информационные технологии и право». Web. 24 Feb. 2016. <http:// www.pravo.by/Conf2015/collection.html>.
As in the previous years, it is clear that there is no structured approach to the provision of access to judicial acts for the general public and professionals. The explanation that rulings issued in 2015 are few, because it takes time to put them in force, is rejected by judges themselves. According to Kalinkovich, appeals are only filed against about 20% of sentences (in the first instance) and about 1% of rulings on administrative matters.10
Conclusion
The analysis of the quality and transparency of courts of general jurisdiction in 2015 shows that the Supreme Court is unable to adopt the best, or at least acceptable methods of ensuring transparency in the system of the former economic courts, and also the reluctance to establish any reasonable time period for upgrading the official websites of the regional courts. Courts of general jurisdiction still disclose the most sensitive information only in response to strong public reaction to events (incidents), rather than prior to public debates. The presence of some courts' spokespersons in social networks is a good thing, but their statements are not official, and the published information only follows certain developments being 'reactive', rather than 'proactive.'
Due to the Supreme Court's policy towards ensuring the transparency of courts of general jurisdiction11, it is very hard to make forecasts in this area. It is unlikely that the websites of the regional courts will be upgraded with the emergence of independent sub-sections of district (city) courts in 2016 by analogy with economic courts. This means that information about the largest judicial segment in Belarus will still be
10 «Валерий Калинкович: Реформирование судебной системы в Беларуси продолжится.» БелТА. 18 May 2015. Web. 24 Feb. 2016. <http://bit.ly/1L8T7Ho>.
11 Федотов, Олег. «Позиция Верховного Суда Беларуси по транспарентности белорусского правосудия.» LJ. 1 Oct. 2015. Web. 24 Feb. 2016. <http://bit.ly/1QxzPrp>; Федотов, Олег. «Реквием по многофункциональному web-порталу судов Беларуси.» E-gov.by. 30 Mar. 2015. Web. 24 Feb. 2016. <http://e-gov.by/stroitelstvo-e-gov/ rekviem-po-mnogofunkcionalnomu-web-portalu-sudov-belarusi>.
unavailable. Neither will be the detailed information about court rulings and electronic schedules of hearings.
As the socio-economic situation in the country goes worse, we can predict an increased number of legal conflicts taken to unofficial accounts of spokespersons for courts of general jurisdiction. This may lead to the closure of those accounts, or making them 'ordinary' with the accompanying privacy settings.
The number of court rulings transferred to the National Center of Legal Information (for further 'resale' to other legal reference systems) will be negligible compared with the whole body of judicial acts. The results of economic courts' actions will constitute the largest part, as it was before reform. In other words, the number of rulings will increase by few, rather than several fold.
We can expect the traditional 'culling' of rulings related to politics. Traditionally, the amount and rapidity of public disclosures of information sensitive to courts or other branches depend on the activism of civil society institutions and the mass media.
