Violations of the right to a fair trial in remote court proceedings: online conference

24 September 2021

On July 13, a parallel event was held at the 3rd OSCE Supplementary Meeting on the human dimension “Digital Technologies and Human Rights”. The interregional public human rights organization “Man and the Law” became one of the co-organizers of an online side event, the participants of which spoke about human rights violations in the implementation of remote justice. Olga Vasileva, project manager of the NGO “Man and Law”, spoke at the side event. Together with Olga Salomatova from the Helsinki Foundation for Human Rights, she spoke about how prisoners exercise their right to a fair trial in remote proceedings.

Olga Salomatova, “Helsinki Foundation for Human Rights”:

We will touch upon certain issues related to the holding of court sessions in places of deprivation of liberty using videoconferencing, since all the main systemic problems associated with access to the court online also affect convicts, who, at the same time, find themselves in an even more vulnerable position.

In our speech, we will be based on information obtained as a result of the monitoring “Compliance with the right to access to court in detention facilities of the Federal Penitentiary Service of Russia”, which was conducted in 2020 in 13 regions, within the framework of the project “Strengthening civic monitoring of detention facilities in Russia”.

With regard to the use of video communication or a video conferencing system, the ECHR stressed that:

“…this form of participation in the trial is intended, among other things, to reduce the delay in the transportation of prisoners and, thus, to facilitate and speed up the judicial process… The resort to such means is not, as such, incompatible with the concept of a fair and public hearing of the case, but it should be carried out so that the prisoner can follow the course of the trial, see those present and listen to what was said, as well as participate and be heard by other parties, the judge and witnesses without hindrance.”

Regardless of where the prisoner is located, his participation in the trial must be effective, and he must have equal conditions with the opposite party.

However, in practice, there are a number of recurring problems. Let’s focus only on a part of them:

– Lack of clarity of regulation in the implementation of remote processes in the colonies, mixing of the rules of the court and the colony. In practice, there is an existing legal uncertainty: what rules are applied in the premises of the court session on the territory of the colony – the rules of the court or the rules of the correctional institution? For example, in one region, convicts participate in a meeting standing up, because they do not consider it possible to sit in the presence of employees – the convict is forced to obey the internal regulations of the IU first of all, since violation of these rules entails the imposition of penalties. In practice, this can put the prisoner in an unequal position and significantly reduce the opportunities for participation and protection – the need to take into account the presence of an employee, the inability to sit down and work freely with documents, etc.

 

Olga Vasileva, “Man and Law”:

– Poor communication quality, when the participants in the process do not hear and see each other well, which causes difficulties in the process of presenting the position on the case, the possibility of implementing the principle of adversarial parties, etc. It is noted that in a situation where the quality of communication does not allow you to hear the words of a judge or lawyer, the convicts, with rare exceptions, are afraid to ask again (which is partly due to the above problem of mixing regulations). Convicts, lawyers, employees reported technical problems in the operation of equipment, which is why meetings are often postponed, but there were cases when the meeting was not stopped by the judge, even after the appeal that the prisoner did not hear the process. The results of the study showed that in most cases the judge himself makes a decision to postpone the meeting in case of technical problems, sometimes the defenders petition for this, but very rarely the convicts themselves. This may indicate that the convicts are not aware of such a right, or are afraid to apply it.

– Examples of violations of the confidentiality of communication with the defender and obtaining legal advice from him during a video session, which also affects the effectiveness of the right to defense. An advocate can ask a question and give advice to his client either in the presence of all participants of the court session, or the process should stop, everyone should leave the courtroom and the VKS room, but even in this case there is no certainty that no one will hear or record the conversation, since there are no clear procedures and technical capabilities that regulate this situation and ensure the confidentiality of communication. In some regions, cases of judges refusing to take breaks for communication between an advocate and a prisoner were recorded, as well as the judge’s refusal to have a confidential conversation between a prisoner and a defender who does not have the status of an advocate.

– The presence of employees and the prosecutor in the immediate vicinity in the VKS premises creates unacceptable conditions for the prisoner’s participation in the court session, exacerbates the situation of inequality in the process. In those regions where there is a small area of premises for VKS (about 2 sq.m.), in some cases it is possible to accommodate only one person, and the defender cannot participate in the meeting together with the client. In cases where the prosecutor is present at the meeting, the convicted person is often forced to sit at the same table with him, in close proximity to him. This can become pressure on the convicted person, he feels uncomfortable, does not dare to spread out the documents on the table, where the prosecutor has already spread out his papers. There are examples when a colony lawyer representing its interests is located in the premises of the VKS next to the convicted person when appealing the actions of correctional institution employees.

– In all rooms of the VKS there is a railing that protects the equipment, but there are differences in the installation of these railings: in some institutions, it only separates the equipment from the rest of the hall, and in others, the railing separates the place from which the convicted person participates in the meeting – in such conditions, the convicted person is separated by a railing not only from the equipment, but also from other participants, if they are present in the institution – an advocate, an accompanying employee, a prosecutor. Such placement puts the convicted person, regardless of his procedural status, in the position of the accused, even if he is the applicant in this process.

– Convicts are generally poorly informed about what and how they can do during the preparation and conduct of a remote trial, including about the possibility of sending and receiving documents on their case, requesting time to familiarize themselves with them, requesting a confidential conversation, as well as postponing the meeting if the quality of communication does not allow full participation in the process. The lack of awareness of the convicts about the right to transfer documents during the trial through remote technical capabilities, for familiarization by the court and inclusion in the case, or for familiarization by the convicts with the written position of the advocate, or with another document available in the case and examined in the process, restricts their rights.

But knowledge does not always help if the technical capabilities are not provided properly, which is especially important for remote processes. For example, a convicted person submits a petition for familiarization with the case materials, and the judge offers to get acquainted with them with the help of VKS – that is, the documents will be spread out in front of a video camera, and the convicted person will read them through the screen. But if the screen is small, too high, there are a lot of documents, and little time is allocated, then this does not solve the problem.

The creation and operation of procedures providing for the effective exercise by prisoners of their right to access to court in remote trials, especially during the restrictions caused by the pandemic, is becoming an important task for consolidating the efforts and joint actions of public institutions, authorities, international human rights organizations, including the OSCE / ODIHR.

 

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The conference participants also spoke about the legislative support of remote formats for the administration of justice in Russia and Kazakhstan and the impact of digital technologies on the monitoring of court sessions during the COVID-19 period.

The organizers of the conference are the human rights organization “Civil control” (St. Petersburg) with the participation of the Helsinki Foundation for Human Rights (Poland), the Moscow Helsinki Group, the NGO “Man and Law” and the public association “Dignity” (Kazakhstan).

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