Moscow Times
October 30, 2008
Closed-Door Trials Come Under Fire
By Nabi Abdullaev / Staff Writer
When Moscow notary Fail Sadretdinov went to trial on charges of throwing excrement in a prosecutor's face and attacking two other officials in an earlier trial, prosecutors demanded that the court proceedings be closed to protect the prosecutor's dignity.
The judge agreed that the portion of the trial dealing with the feces incident would be heard behind closed doors but left the rest of the trial open to the public, said Sadretdinov's lawyer, Anna Stavitskaya.
Stavitskaya said it was hard to fault the judge for closing that part of the trial, which ended with a jury clearing Sadretdinov in April. But she and other lawyers fear that a growing number of trials are being conducted out of public scrutiny, sometimes on seemingly far-fetched pretexts, preventing crucial reforms to the judicial system.
"Judges are abusing their right to close trials. The publicity of the court process is enshrined in constitutional law," said Aleftin Moshansky, a lawyer for retired Colonel Vladimir Kvachkov, accused of trying to kill former Unified Energy System chief Anatoly Chubais but cleared by a jury after a 20-month closed trial in June.
The law allows -- but does not demand -- that a judge close a trial in part or in whole if the case includes classified information, if the defendants are under 16 or if the purported crimes are sexual. A judge may also restrict access to a courtroom if he believes that the safety of trial participants is at risk.
The judge must provide a clear, legally sound explanation for closing a trial, the law says. The decision cannot be contested until after the trial is over, and the appeal must be submitted to a higher court.
Judges and prosecutors contacted for this report expressed reluctance to discuss closed trials. But defense lawyers, who see the practice as harmful for their clients, willingly spoke out.
Moshansky blamed prosecutors for closed trials, saying they understood that their cases were poorly crafted and did not want blunders by the investigators who prepared the cases to become public knowledge.
Another reason is that prosecutors and judges shy away from the intense public scrutiny that accompanies high-profile cases, said Stavitskaya, who will represent the family of slain journalist Anna Politkovskaya at a trial opening Nov. 18 in the Moscow Military District Court. The judge told a preliminary hearing this month that the trial would be closed because of classified case documents.
Other recent closed trials include the corruption conviction of former Senator Levon Chakhmakhchyan, the acquittal of suspects in the murder of Russian Forbes editor Paul Klebnikov and the conviction of banker Alexei Frenkel on Tuesday of ordering the murder of central banker Andrei Kozlov.
Provincial judges also tend to close trials in cases that have stirred public controversy, such as the trial of driver Oleg Shcherbinsky in the road death of Altai Governor Mikhail Yevdokimov in 2005 and the trial of military officer Eduard Ulman, accused of murdering six Chechen civilians, later the same year.
This summer, a closed trial found Novgorod resident Antonina Martynova guilty of attempting to kill her 4-year-old daughter by throwing her down a flight of stairs in a case that sent shockwaves across the Russian blogosphere.
No one keeps statistics for how many trials are closed, making it impossible to confirm defense lawyers' belief that the practice is increasing. The Supreme Court's court department, which collects various statistics about the performance of the courts, does not keep tabs on closed trials.
The most common reason given by judges to close trials is the presence of classified documents, lawyers said. Documents can be classified by the Prosecutor General's Office or the Federal Security Service, both of which can participate in pretrial investigations. This and the vagueness of the law opens the door to corruption, said Yevgeny Martynov, a lawyer for Liana Askerova, a Moscow businesswoman convicted Tuesday of participating in the plot to kill central banker Kozlov.
"The law doesn't say precisely when a closed trial should be held," he said. "This provides grounds for judges to abuse their authority."
The reason given by the judge for closing the Klebnikov trial was several pages of transcripts of tapped phone calls that prosecutors had stamped as classified. Lawyers for the murder suspects argued in court that the documents were largely irrelevant to the case and had been offered as evidence in order to close the trial. A jury cleared the suspects in May 2006, but the Supreme Court has ordered a retrial.
The Kozlov murder trial was closed for a similar reason, and the Politkovskaya murder trial is set to be closed because of several documents classified as secret by the FSB.
Klebnikov's and Politkovskaya's families have called for open trials.
Defense lawyers may find it too expensive and time-consuming to question the legality of classifying the documents as secret. The lawyer for former Senator Chakhmakhchyan, Boris Kuznetsov, fled Russia last year after being charged with divulging state secrets for making a copy of an FSB document in his client's case. The document confirmed that investigators had tapped the senator's phone a day before they received court permission to do so.
In closing the Chubais trial in the Moscow Regional Court in 2006, the judge initially said he did not want the public to learn about the design of the homemade bomb used in the attack. Then, when defense lawyers proposed that only the hearings related to the bomb be closed, the judge said he could not open the trial because he did not want to endanger the lives of the jurors, Moshansky said.
"In the two years of the trial with three different juries, not a single person complained of being threatened," he said.
Ivan Pavlov, head of the Institute for Information Freedom Development, a St. Petersburg-based think tank, said judges are heavily dependent upon the executive branch of power, which can appoint and dismiss them, and prefer to stay out of the public spotlight for the sake of their jobs.
Closed trials, however, preserve the current judicial system rather than improve it by hiding shoddy investigative work and not forcing investigators to improve their performances, he said.
Courts are among the least trusted of Russia's institutions, after traffic police, in first place, and criminal police, according to a survey of 1,500 people this summer by the pro-government Public Opinion Foundation.
A 2005 World Bank survey of 26 countries with transitional economies found that Russians trusted their courts less than the citizens of all the other surveyed countries, including those in Africa.
In the late 1990s and early 2000s, judges tended to close sensitive hearings rather than entire trials, including in the cases of environmental whistle-blowers Alexander Nikitin and Grigory Pasko, who were accused of divulging state secrets. In those trials, the judges closed the hearings when matters related to state secrets were discussed, leaving the rest of the proceedings open to the public.
Now, defense lawyers said, judges prefer to close the whole court process -- a practice that they say has little support in international law.
"You could even bring this issue to the European Court of Human Rights, which demands that all processes not related to state secrets be public," Stavitskaya said.
Lawyers would be hard pressed to argue such a case before the European court, however, because in Russia the legal description of what constitutes a state secret is a state secret in itself.