The principle of “closed justice”

Does the Council of Judges intend to further complicate the work of journalists?

On Wednesday, February 6, the Presidium of the Council of Judges of the Russian Federation intends to discuss the draft “Model Rules for the Stay of Visitors in Courts” – an important document that regulates, among other things, the rights and obligations of journalists. I intended to write about this after the discussion, especially since the version of the document under discussion, links to which appeared on January 31 in Vedomosti, was received unofficially, and I myself was invited to discuss it in the Council of Judges - this is due to the fact that last year we conducted a study of the openness and accessibility of courts in several Russian regions.

However, the still unapproved "Model Rules ..." have already begun to be applied: on February 1, bailiff Alexei Bagaev detained Svetlana Osipova, editor of the site Rus Sidyashchaya and Radio Liberty, in the building of the Khoroshevsky District Court of Moscow for trying to take a photo of three lawyers of Rus ” and the organization “For Human Rights”, which did not object to this at all. The bailiff drew up and sent to the Magistrate's Court a protocol on the violation of Osipova Art. 17.3 of the Code of Administrative Offenses of the Russian Federation (part 2) - "Failure to comply with the lawful order of the bailiff to ensure the established procedure for the activities of the courts to stop actions that violate the rules established in the court."

In the field of administrative law, the so-called generally permissive principle of law enforcement applies (everything that is not prohibited is allowed), and the federal law of March 28, 2017 (which worsened the situation of journalists) requires obtaining the consent of a judge only for filming in the courtroom, and not in the corridor. The bailiff Bagaev, who dragged Osipova to draw up a protocol against her, verbally pointed out to her some rules approved by the chairman of the Khoroshevsky court, but here a fundamental question arises:

and who is he to change the generally permissive order into a permissive one?

In the working version of the Model Rules, which (according to Anastasia Kornet from Vedomosti, who published a link to the document) will be discussed in the Council of Judges on Wednesday, a similar rule is spelled out requiring the consent of the chairman of each individual court to shoot inside its building. Here is the same question, but addressed above: what is the Council of Judges of the Russian Federation - is it a legislative body?

The judicial community often reports on the “openness of justice”, referring to the publication of court decisions on the Internet (in the GAS “Justice” system), but, firstly, decisions important for journalists appear there with a significant delay (and sometimes for some reason are not published at all), and secondly, in parallel, practice is moving towards the closure of an increasing part of court hearings under various and often artificial pretexts.

The same trend is picked up by the working version of the "Model Rules ...". At the same time, it should be clarified that this document, if adopted in this form, will also not have the force of law: this is only a recommended practice. Meanwhile, it contradicts, in my opinion, the principle of openness of justice, which is enshrined in Art. 123 of the Constitution of the Russian Federation.

“Model rules for the stay of visitors…” have so far been developed in the apparatus of the Council of Judges without taking into account the opinions of the “visitors” themselves (in my opinion, it would be more correct to point out all the same to the “citizens” who most often “visit” the courts in a different way than museum or cultural park). The very idea of ​​their approval is correct, although in our opinion, the “rules” should not be typical, but uniform for all courts in order to exclude toughening on the part of court chairmen, who are not always committed to openness. This position of the HRC on Wednesday will be presented to the Presidium of the Council of Judges. We will ask him not to hurry with the adoption of the rules, but to discuss them with representatives of civil society.

It is important for the Council of Judges and each individual judge to understand that it is not they (and certainly not bailiffs) who determine what is interesting for the audience for which certain media or bloggers work.

Whether you like it or not, such interest is legitimate, and its vector is determined by the person who is interested: the court is open.

The permit procedure for filming in the courthouse, in our opinion, cannot be justified by anything: this is a public space. Of course, you can shoot a judge: he is a public person, the ban on filming judges is the same as if it were forbidden to photograph, for example, the president. If privacy considerations are more important for someone, then a judge is not his profession.