More than 10 years have passed since the national legislation was amended to introduce mechanisms for ensuring the transparency of the judicial system, including, in particular, the right of parties to the proceedings, media representatives, and others to take photographs and record video of court hearings. What has changed during this time?
The equality of all participants in judicial proceedings before the law and the court, the adversarial nature of the proceedings, and the freedom of the parties to present their evidence to the court and to demonstrate its persuasiveness are among the fundamental principles of judicial proceedings, as defined in Article 129 of the Constitution.
In the Constitutional Court of Ukraine’s decision No. 9-rp/2012 dated April 12, 2012 (the case on the equality of parties to judicial proceedings), it is stated that “the equality of all people in their rights and freedoms, as guaranteed by the Constitution of Ukraine, means ‘the necessity of ensuring them equal legal opportunities, both substantive and procedural, for the realization of rights and freedoms that are identical in content and scope’”
The principles of public access and openness of judicial proceedings are also reflected in procedural legislation (Articles 7 and 8 of the Code of Civil Procedure, Articles 8 and 9 of the Code of Commercial Procedure, Articles 10 and 11 of the Code of Administrative Procedure, and Article 27 of the Code of Criminal Procedure). An analysis of these articles demonstrates the multifaceted nature of the principles of publicity and openness of judicial proceedings, each element of which is binding on judges administering justice.
In accordance with Article 11 of the Code of Judicial Ethics, adopted by the 11th Regular Congress of Judges of Ukraine on February 22, 2013, a judge must respect the right to information regarding court proceedings and must not allow violations of the principle of public proceedings.
In particular, Article 11 of the Law “On the Judicial System and the Status of Judges” stipulates that court proceedings are held in open session, except in cases provided for by law. Any person has the right to attend an open court hearing. If a person engages in conduct that demonstrates disrespect for the court or the participants in the judicial process, that person may be removed from the courtroom pursuant to a reasoned court decision.
Persons present in the courtroom, including representatives of the media (as defined by the new “Law on Media”), may take photographs and make videoand audio recordings using portable video and audio equipment without obtaining separate permission from the court, subject to the restrictions established by law.
Broadcasting of a court hearing is permitted with the court’s authorization. If all parties to the case are participating in the court hearing via videoconference, the proceedings must be broadcast live on the Internet.
Photography, video recording, and the live streaming of court proceedings in the courtroom must be conducted without interfering with the conduct of the proceedings or the exercise of the procedural rights of the parties to the proceedings. The court may designate a location in the courtroom from which photography and video recording are to be conducted.
A case may be heard in a closed court session only upon a reasoned decision by the court and exclusively in cases specified by law. During the hearing of cases, the proceedings shall be recorded using technical means in accordance with the procedure established by law, except for cases concerning authorization to conduct intelligence operations.
Any person has the right to be present at a public court hearing. A person who wishes to be
attend a court hearing may not be required to present any documents other than an identity document.
Photography, video recording, and the broadcast of a court hearing in the courtroom must be conducted without interfering with the conduct of the hearing or the exercise of the procedural rights of the participants in the judicial process.
A ruling shall be issued regarding the hearing of a case in a closed court session. The court may, by ruling, declare the court session closed in its entirety or declare a portion of it closed.
If a court decision is announced publicly, the parties to the case, other persons present in the courtroom, and media representatives may take photographs, make video recordings, and broadcast the announcement of the decision on radio, television, or the Internet within the courtroom.
It should be noted that persons who are not parties to the proceedings and wish to attend the court session are admitted to the courtroom only before the start of the court session and during recesses.
The court may remove from the courtroom any persons who obstruct the proceedings, interfere with the exercise of rights or the performance of duties by participants in the proceedings or by the judge, or who disrupt order in the courtroom.
The court may decide to restrict access for persons who are not parties to the proceedings to court proceedings during a quarantine established by the Cabinet of Ministers in accordance with the Law of Ukraine “On the Protection of the Population from Infectious Diseases,” if participation in the court proceedings would pose a threat to a person’s life or health.
It should be emphasized that the only official record of a court hearing is the technical recording made by the court in accordance with the procedure prescribed by law.
Depending on the branch of law, legislation establishes additional restrictions on the possibility of video recording during a court hearing.
Civil Procedure
Broadcasting of a court hearing is carried out with the court’s permission. If all parties to the case participate in the court hearing via videoconference, the proceedings must be broadcast live on the Internet.
A case is heard in a closed court session in cases where an open hearing could result in the disclosure of confidential or other information protected by law, or at the request of the parties to the case for the purpose of:
ensuring the confidentiality of adoption proceedings;
prevent the disclosure of information regarding the intimate or other personal aspects of the lives of the parties to the case;
prevent the disclosure of information that would undermine their honor and dignity, as well as in other cases established by law.
Personal documents, letters, telephone recordings, telegrams, and other types of correspondence may be read aloud in court only with the consent of the individuals concerned. This rule applies to the examination of audio and video recordings of a similar nature.
If a court decision is announced publicly, the parties to the case, other persons present in the courtroom, and media representatives may take photographs, make video recordings, and broadcast the announcement of the decision on radio, television, or the Internet within the courtroom.
Criminal Procedure
The public nature and openness of court proceedings, as well as the complete technical recording of court sessions and procedural actions in criminal proceedings, are governed by Article 27 of the Code of Criminal Procedure.
An investigating judge or a court may issue
a decision to conduct criminal proceedings in a closed court session throughout the entire proceedings or a separate part thereof only in the following cases:
1) the defendant is a minor;
2) the case concerns a criminal offense against a person’s sexual freedom or sexual integrity;
3) the need to prevent the disclosure of information about a person’s private and family life or circumstances that humiliate the person’s dignity;
4) if conducting the proceedings in an open court session could lead to the disclosure of a secret protected by law;
5) the need to ensure the safety of persons participating in criminal proceedings.
Personal notes, letters, the content of personal telephone conversations, telegraphic and other messages may be disclosed in an open court session unless the investigating judge or the court decides to examine them in a closed court session.
Only the parties and other participants in the criminal proceedings may be present during a hearing held in a closed session.
Anyone present in the courtroom may take verbatim notes, make written notes, or use portable audio recording devices. Photography, video recording, radio and television broadcasts of the court proceedings, as well as audio recording using stationary equipment, are permitted only by a court order issued after considering the parties’ views and determining that such actions will not prejudice the proceedings.
Judges’ Liability for Violating the Principle of Publicity and Openness
A judge’s violation of the principle of public access and openness of the judicial process means that the judge fails to ensure open access to court proceedings, which is contrary to the Constitution. A violation of the principle of public access may manifest itself in:
restricting public access to court hearings.
holding hearings in camera without sufficient grounds.
failing to adequately inform the public about the proceedings.
failing to allow the recording of court proceedings (photos, video, audio).
If a judge has violated the principle of public access and transparency of court proceedings, his or her actions may be reviewed as part of disciplinary proceedings, which may result in disciplinary sanctions, including removal from office, if the violation was substantial. Disciplinary cases are heard by the High Council of Justice.
The High Council of Justice has published a guide titled “Summary of the Practice of the High Council of Justice and Its Disciplinary Bodies in Hearing Disciplinary Cases Involving Judges (Based on Case Files from 2017–2021),” which was published by the High Council of Justice in accordance with Decision No. 1315/0/15-23 dated December 14, 2023.
According to Section 4 “Practice of Considering Disciplinary Cases Against Judges Initiated Under Subparagraph ‘c’ (Violation of the Principles of Publicity and Openness of Judicial Proceedings) of Paragraph 1 of Part One of Article 106 of the Law of Ukraine ‘On the Judicial System and the Status of Judges’ the Generalized Practice of the High Council of Justice noted that:
“…publicity and openness are integral components and a guarantee of the right to a fair trial. Thus, by implementing the principle of public access, the court ensures that persons whose interests are affected by the case have the right to know the date, time, and place of the court hearing, the right to be heard, and the right to be informed of all decisions rendered in the case. The public nature of court proceedings is a fundamental and necessary condition for a fair trial by an independent and impartial court. At the same time, the openness of court proceedings entails granting those interested in the case the right to attend court hearings, follow the proceedings, take notes, transcribe what is taking place, and use portable audio recording devices. Open court proceedings strengthen public oversight of the court’s activities, foster a sense of responsibility among judges and those involved in the case, and ensure that the judicial process serves an educational purpose.
In determining the grounds for holding judges accountable under subparagraph “c” for committing specific acts, the materials of 16 disciplinary cases from 2017–2021 were analyzed; of these, only two cases concerned exclusively the ground specified in subparagraph “(violation of the principles of publicity and openness of the judicial process).
The Council and its disciplinary bodies issued decisions to hold judges accountable, in particular in cases where individuals who were not participants in the judicial process were removed from the courtroom without justifiable grounds.
Disciplinary practice under subparagraph “c” is limited in number, but indicates that in most cases, judges’ actions were classified in conjunction with other grounds for disciplinary liability, in particular those provided for in subparagraph “a” (a material violation of procedural law during the administration of justice that prevented participants in the judicial proceedings from exercising the procedural rights granted to them).
Ombudsman Defends the Right to a Public Hearing
On July 19, 2023, the Verkhovna Rada Commissioner for Human Rights, by Order No. 88.123, approved the Regulations on the Organization and Conduct of Monitoring to Ensure Compliance with the Procedural Rights of Participants in Judicial Proceedings in Criminal, Civil, and Administrative Proceedings.
The Commissioner’s Office conducts monitoring, including with regard to compliance with the right to
a public hearing:
1. Was anyone denied access to the courtroom?
2. Was anyone denied permission to take photos or record video of the court hearing?
3. If a decision was made to hear the case in a closed court session, on what grounds?
In accordance with paragraph 1.7 of the Regulations, the grounds for deciding to conduct monitoring include the existence of substantiated information regarding a possible violation, received from Ukrainian citizens, foreign nationals, stateless persons, members of the Ukrainian Parliament, and from open sources on the Internet.
International Decisions
The European Court of Human Rights, in its decision of July 12, 2001, in the case of “Malhous v. the Czech Republic” (para. 55), noted that “the holding of court hearings in public is a fundamental principle enshrined in Article 6, paragraph 1, of the Convention. The public nature of proceedings provides the parties to the case with a guarantee that justice will not be administered in secret, without public scrutiny; it is also one of the means of maintaining public confidence in the courts. By ensuring the transparency of the administration of justice, public hearings make it possible to achieve the objective of §1 of Article 6, namely, to ensure a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the context of the Convention.”
In Opinion No. 7 (2005) of the Committee on the Rights of the Child (CRC), submitted to the Committee of Ministers of the Council of Europe on the topic “Justice and Society” held November 23–25, 2005, paragraph 46 states that the principle of open court proceedings requires that citizens and media representatives be granted access to courtrooms where hearings are held, but modern audiovisual equipment gives the events being broadcast such wide coverage that the very concept of open hearings is completely transformed. This may have certain advantages in raising public awareness of how court proceedings are conducted and improving the image of the judicial system, but at the same time, there is also a risk that the presence of television cameras in court could interfere with the proceedings and influence the behavior of those participating in the hearings (judges, prosecutors, attorneys, parties, witnesses, etc.).
Conclusion
An analysis of the legal framework governing the video recording of court proceedings shows that parties to the proceedings and other individuals who wish to be present during the trial and to record it on video have sufficient provisions in Ukrainian and international law guaranteeing them this right.
The High Council of Justice’s practice regarding holding judges accountable for violating the principle of public and open court proceedings is limited, which in turn can be viewed positively, as the number of violations by judges is minimal.
In contrast, the Unified State Register of Court Decisions contains a vast number of court rulings across various branches of law that have either granted motions to permit video recording or denied motions to prohibit video recording of court proceedings, which is a positive trend toward ensuring the principle of public access and transparency in judicial proceedings.
To counter the few instances of unlawful obstruction of participation in court proceedings for the purpose of video recording that do occur, prompt action must be taken using the mechanisms outlined above.
Author: Barrister Alexander Shatniy
Source: https://zib.com.ua/ua/168191-videozapis_sudovogo_zasidannya_koli_sud_mozhe_zaboroniti_i_y.html