Implemented projects Transparency of justice Observance of public trial principle

Observance of public trial principle

November 2004

The number of monitored trials - 100 , of which, 96 – public trials and 4 – closed trials.
Of all public trials, 91 were held in the judge’s office and 5 in the court.
All (4) closed trials were held in the judge’s office.

Of all the trials declared public (96), the principle of public trial was applied in 92 cases.

The alleged reasons, for which the public trial was not possible, even if the trial was declared public, were:

  • lack of space
  • The judge: "Do you really need that?! Look, there are not enough chairs..."
  • After numerous questions about the person, the occupation of the person who wants to attend the public trial, as well as about the intentions of the person, the clerk of the court: "The judge is already busy enough!"
  • The judge: "I am not the only judge, and I am not the only judge to have trials!"

Of the total number of the trials declared public, when the public trial principle was observed (92), unconditional admission of people occurred in 64 cases.

Judges’ comments in relation to people’s requests to attend the trial:

  • "You’re the boss!"
  • "It is the first time someone wants to attend a trial with no particular reason!"
  • "As you know, the Constitution of the Republic of Moldova provides for public trials, and you don’t need to ask for permission!"

Other comments:

  • The judge showed discontent during the trial because of the presence of persons other the participants to the trial
    Of the total number of the trials declared public, when the public trial principle was applied, in 28 cases the admission of the public was conditioned by the following questions/requests of the judge:
  • "Who are you?"
  • "Who are you? What is your occupation and why do you need that?"
  • "What is your occupation?"
  • "Who are you? Why do you need that? Yes, you can attend, the trial is public!"
  • "Who are you? We are almost done! Well, if you want...!"
  • "Are you a journalist? I would rather not see myself in a mangy paper..."
  • "Who are you? Are you from the press? Or something else?"
  • "Who are you and why do you want to attend?"
  • "Show your identification card, please! "
  • "Why are you here? Who sent you?"
  • "Why do you want to participate in the trial?"
  • "Why do you need to stay here? I have a penal trial, but there are a lot of civil trials! Let’s see if I get a room...!"
  • "Did you attend other trials?"
  • "Do you know any of the parties?"

Other findings:

  • Frequently, because of the insufficient number of chairs, the persons who want to attend the trial, as well as the participants in the trial, must be standing.

Of the total number of trials declared closed (4), the motivated decision was adopted in 2 cases, at the time of declaring the trial closed. Reasons invoked in the decision were:

  • Non-disclosure of confidential information (related to the execution of the contract of legal services)
  • Respect for the privacy of the parties involved in the trial (revocation of parental rights)

In 2 cases, where there was no motivated decision when the trial was declared closed, the judge refused to provide a reason for declaring the trial closed.

  • The actions undertaken by the judge in order to prohibit the participation of the public in the trial, when no motivated decision, were the following:
  • the request to produce the identity card, the badge etc.;
  • the request to provide information about the goal and the reasons a person wants to attend the trial;
  • the formal prohibition to participate in the trial.

December 2004

The number of monitored trials - 116, of which, 110 – public trials and 6 – closed trials.
From the total number (110) of public trials, 81 were held in the judge’s office and 29 in the court.
From the total number (6) of the closed trials, 3 were held in the judge’s office and 3 in the court.

Of the total number of trials declared public (110), the public trial principle was applied in 95 cases.

Reasons invoked to justify the impossibility to apply the public trial principle, even if the trial was declared public were as follows:

  • The judge: "I don’t know! It is too crowded already!"
  • The lack of space in the judge’s office. The judge: "You can’t sit like an orphan in the corner!"
  • The judge: "Don’t be upset, but you must understand the situation of Mr ... (the name of the complainant), so for you the trial is closed!"
  • The judge: "I can’t allow you to attend, it is a divorce trial and I don’t think the parties are going to like that! " When we asked the parties whether they don’t want someone to attend, the parties expressed their agreement. When we asked whether the trial was public, the judge said: "Yes, but go to another judge!"
  • The judge: "I think you’re chasing us, aren’t you?"
  • When we asked whether the trial was public, the judge: "It is public. No, you can’t attend. How can I allow you, I don’t know you! When I will have a prescription from the president of the court...!"

From the total number of trials declared public, when the public trial principle was applied (95), the unconditioned admission of the public was operated in 77 cases.

Judges’ comments in relation to people’s requests to attend the trial:

  • "Of course you can..."
  • "If you want it so much..."
  • "Yes, you can, but there is nothing interesting for you!"
  • "Yes, please!"
  • "Do you find the file tempting?"
  • "Our door is open!"
  • "Yes, come in!"
  • "If you want, there is no problem!"
  • "If you want... We are delivering the decision today."
  • "You can participate! If you have a cell phone, please switch it off!"
  • "Please! Are you going to write to the BBC about me!"
  • "Don’t’ you have something else to do before the holidays?!"
  • (Joking)"Only if you don’t denounce us!"
  • "Are you a party in the trial? No? Take a sit!"
  • "I think you are monitoring us!"
  • "Who are you? You have nothing to do, right?"
  • "Only if you don’t fuss!"

Other comments:

During the session, the judge emphasized that the trial is public, when the parties tried to "attack” the assisting person.
From the total number of trials declared public, when the public trial principle was applied, in 18 cases the admission of the public was conditioned by the judge by formulating the following questions / requests:

  • "What is your name?"
  • "Let us know once again who are you?"
  • "Only if you are above 18 years!"
  • "Produce the identity card to the court clerk!"
  • "Produce the lawyer identity card. You don’t have one?! Than the identity card!"
  • "Produce the identity card, o.k.?"
  • "Are you a party? No? Who are you? Produce the ID! You don’t have it? Then leave the room! Do you have another ID? Leave it on the table; I suppose you know the rules of behaving during the trial!"
  • "You can’t attend because there are not enough chairs! But if you want to stand, please do so...”
  • "There are not enough places... But if you insist, you can stand!"

Other findings:

  • In one case, at the request of a person to attend the trial, the registrar replied as follows: "Please show me a document certifying that you are a trainee lawyer, because not all judges like someone to attend a trial!"
  • Most often, the district courts do not post the roll (list) of trials, time and room where they are to be held. This is a major impediment for those who wish to attend public trials, creating also some difficulties for participants in the trial.

Sometimes, judges perceive others’ request to attend a trial as an intentional interference with their activity.

Of the total number of trials declared closed (6), the motivated decision was adopted in 2 cases, at the time of declaring the trial closed. Reasons invoked in the decision were:

  • Respect for privacy (protection of honour and dignity)
  • Respect for privacy (revocation of parental rights)

In 4 cases where there was no motivated decision when the trial was declared closed, the judges’ reasons for the closed trial were:

  • Respect for privacy (protection of honour and dignity of an individual, violated by a periodical)
  • The judge: "The Civil Procedure Code provides that when discussing intimate matters, the hearing is declared closed! The decision will be adopted later!"

Observing the privacy of adoption.

January 2005

The number of monitored trials – 108, of which 106 - public trials and 2 - closed trials.
Of all (106) public trials, 64 were held in the judge’s office and 42 in the courtroom.
Of all (2) closed trials, 2 were held in the courtroom.

Of all the trials declared public (106), the publicity principle was applied in 101 cases.

Reasons for which the application of the publicity principle is not possible, even if the trial is declared public, were:

  • The judge: "Who are you, anyway?", person: "We are people who want to attend the trial, can we?", judge: "No way!", person: "Is it a closed hearing?", to which the judge closed the door in the most brutal way right in the face of the person who wanted to attend a public hearing.
  • The judge: "Sit down! What is your name?", person, "Ivanov", the judge: "What? What do you want?", person: "I would like to attend the trial.", judge: "Are you a Muslim?", person surprised: "No.", judge: "What is this thing on your head?", laughing "I wanted to make you a special complement! Do you want to attend namely my trial? There are 18 judges in the court. Did you like me most of all?", continuing to flirt "Nooooo ... No way!"
  • One of the parties, representing a ministry, was against the people’s attendance of a public trial, on the grounds of the need to discuss secret information. The judge dismissed people from the room to consider the option of conducting a closed hearing.
  • The judge claimed that the hearing was closed, although in reality it wasn’t so. In fact, it is a judge who established a rule that every time when someone tried to attend his trial, it immediately became "closed", without making any record in the minutes, as required.
  • The judge: "As the situation in the country is tense, I have every right to limit access to the hearing". People did not understand the judge’s claim that the situation in the country was tense, as an excuse to limit public access to court.

Of all the trials declared public where the principle of publicity was observed (101), unconditional admission of people occurred in 94 cases.

Judges’ comments in relation to people’s requests to attend the trial:

  • "Our hearings are public and may be attended by anyone!"
  • "You may attend, but if there are no seats, the judge has the right to limit access to the hearing."
  • "It is not closed, you can attend!"
  • "Come in if you like."
  • "Yes, but if you have a mobile phone - switch it off!"
  • "Are you a relative of a party?"
  • " Who are you? Do you have any connection with this trial? Are you a witness?"
  • “Do you have any connection to this case?"
  • "Are you a witness?"
  • "Who are you?"
  • "What is your name...?"
  • "You may stay, but it won’t be interesting for you"
  • "Why, can’t you go to someone else?!!"
  • “Yes, you may participate, if it’s for your internship!"
  • "A-a-ah! You must be an intern!"
  • "Well, we are already at the end ...!"

Of all the trials declared public (106) where the principle of publicity was applied (101), in 7 cases the access of the public was conditioned by the judge’s formulation of the following questions / requests:

  • "Why did you choose my trial? I want to know who you are!", the person who wants to attend the trial replies: "I am a citizen of Moldova, I wish to attend ...", the judge: "Do you have an ID?"
  • "On what occasion? Are you an American agent? What's the point? We have plenty of controllers! Will you write anything? (to parties) What do you think?".Realizing the plaintiff’s reluctance, the judge: "I 'm not against, but the plaintiff and her lawyer do not approve it. I would accept it, if you have time to waist ...!"
  • "Show me a document that you are a trainee lawyer!"
  • "Who are you, and what are you doing at the trial?"
  • At the request of a person to attend the public trial, the judge: "Go to someone else of those 18 judges!." At repeated request to attend namely this trial, the judge said that there were no seats. When the person insisted to attend the trial even standing, the judge did not answer anything. During the hearing, a party has offered a chair to the person who attended the trial while standing, and the judge commented aggressively: "No one asked you to do that!"

Other findings:

  • In one case, the judge asked the person who wanted to attend the trial to show his/her ID and retuned it only at the end of the hearing.

Of the total number of trials declared closed (2), a motivated decision was taken in 0 cases, when the trial was declared closed. In 2 cases where there was no motivated decision at the time of declaring the trial closed, the reasons brought by judges for holding a closed hearing were:

  • After the hearing that could not be attended by the person, the person asked the judge if there was a motivated decision and the judge replied aggressively: "The hearing was closed, secret and full stop ...!"

Other findings:

  • It is interesting that in one case the prosecutor stated that the hearing was closed. When asked about that, the judge kept silent and it was understood that the hearing was closed.

February 2005

The number of monitored trials - 96, of which all 96 were public trials.
Of all (96) public trials, 77 were held in the judge’s office and 19 in the courtroom.

Of all the trials declared public (96), the principle of publicity was applied in 96 cases. Of all the trials declared public where the principle of publicity was applied (96), unconditional admission of people occurred in 92 cases.

Judges’ comments in relation to people’s requests to attend the trial:

  • "It’s not so interesting, but you can stay if you wish to"
  • “It’s not so interesting, you’d better come to the criminal trials, there are many things to laugh at!"
  • "No problem!"
  • "Don’t you have anything to do, like fishing? Come in, the trial is open!"
  • "You’re relatives or friends, aren’t you?"
  • "Are you from the press?"
  • “Where do you do your internship? Come in!"
  • "Are you a witness? Where do you do your internship?"
  • "We’re at the end already. So, do you wish to attend anyway?"

Of all the trials declared public (96) where the principle of publicity was applied, in 4 cases the access of public was conditioned by the judge’s formulation of the following questions / requests:

  • "If the parties are not against ..."
  • "There is no room, but you can stand in the waiting room"
  • "You a are not a journalist, are you? No, then there's no problem, you can stay!"

Other findings:

  • Rarely, when the hearing is held in the courtroom, public access is not restricted. Verification of identity of the person who wants to attend the trial is usually done when the hearing is held in the judge's office.

Parties in the trial do not always understand people’s attendance of a trial, although it is public, which shows the society’s ignorance of a simple principle like publicity of the trial.