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Statements made by Konstantin Dobrynin to the article ‘Senators opposed ‘aquariums’ in the courtrooms’ Profile, 21 November 2018

Cages and glass booths in the courts where defendants are now being placed should be prohibited. Such an initiative was launched by a group of senators. Lawyers and human rights activists favor it, as they believe that the established practice, which is not enshrined in any law, humiliates the defendants, and hinders exercise of the constitutional right to defense. But the question of security remains open.

A group of senators submitted to the State Duma a bill prohibiting the defendants from being held in metal cages and glass enclosures, so-called ‘aquariums’ or ‘cups’ during the trial. It is suggested that Article 9 of the Code of Criminal Procedure, prohibiting the humiliation of participants in the trial be clarified. ‘An individual placed in a safety booth is physically and psychologically isolated from the court hearing. First of all, it concerns the contact with a lawyer and, accordingly, the exercise of the right to receive qualified legal assistance,’ the authors explain.

The document appeared shortly after Valentina Matvienko, the speaker of the Federation Council, instructed her colleagues to resolve the issue of placing defendants in the courtroom so as not to humiliate them. ‘To keep people not accused of anything, innocent until the court proves their guilt, in a cage under a camera is inhuman, unworthy,’ the speaker said in July 2018. She advocated that, ‘like in European countries, the defendant sat next to the lawyer at the table, treated humanely.’ The courts are ‘ready to consider cases behind barriers today or tomorrow,’ Vyacheslav Lebedev, the head of the Supreme Court of the Russian Federation echoes he, specifying that the issue should be elaborated, in particular, by the Ministry of Internal Affairs. According to him, there were no cages before and, thanks to the highly professional convoy service, ‘for 10 years, there hardly was an escape from the courtroom’.

The influence of Chikatilo on the fate of the defendants

Cages for the defendants in the Russian courts are a relatively new  

phenomenon, lawyers say. In the Soviet Union, the dock was similar to the rostrum, lawyer Igor Bushmanov recalls.

‘For the first time, the cage appeared on April 14, 1992 – in courtroom number 5 of the Rostov House of Justice, the case of the serial killer Andrei Chikatilo was heard,’ said Konstantin Dobrynin, State Secretary of the Federal Chamber of Lawyers of the Russian Federation. – At that time, the idea of the state was rather to save the life of the monster during the trial, and for the triumph of justice, but not to extend the custom to everyone else. However, later, this experience came in handy during the trials of bandits and gangsters of the 1990s.’

According to Igor Pastukhov, a lawyer, a member of the Presidential Council for the Development of Civil Society and Human Rights (HRC), ‘the practice introduced on that exceptional occasion seemed useful to the authorities.’ In February 1993, a joint letter of the Ministry of Justice, the Ministry of Internal Affairs and the Supreme Court appeared, instructing the heads of the courts ‘to provide, until January 1, 1994, the equipment of all courtrooms with special fixed metal enclosures separating criminal defendants from the court staff and visitors attending the hearing.’

According to Bushmanov, the goal was to prevent the accused from escaping or attacking the guards, judges, witnesses or victims. At that time, the number of such incidents increased.

The innovation was due to the crime epidemic, which provoked the adoption of even more severe measures, Pastukhov recalls. In 1994, Presidential Decree No.1226 ‘On Urgent Measures to Protect the Population from Banditry and Other Organized Crime’ was issued. It allowed for the detention of citizens up to 30 days without charge, gave law enforcement agencies wide access to banking and commercial secrets, permitted them to inspect cars, the drivers and passengers. ‘It is clear that against this background the metal fences in the courtrooms did not seem too strong a restriction on the rights of defendants,’ Pastukhov says.

But there is no law that permits the defendant to be caged. Human rights are still abused by internal instructions, Dobrynin notes. The attempts to challenge the orders of the Ministry of Internal Affairs for official use at the Supreme Court also failed.

In the mid-2000s, cages began to be replaced with translucent cabins. ‘However, the project was a relative success in Moscow and Saint Petersburg only. In Russia as a whole, a share of glass booths is about 30%. Deep countryside, the defendants continue to listen to their cases in the old manner, behind the iron bars,’ Dobrynin says.

Abuse of human rights

The European Court of Human Rights (ECtHR) more than once recognized keeping defendants in the cages as ‘degrading human dignity’, which violates Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, experts remind. ‘The resolution of the Grand Chamber of the ECtHR on the Russian case of Svinarenko and Slyadnev has consolidated this axiom finally. States are encouraged to introduce other, more humane security measures in the courtrooms,’ Anton Ryzhov, an ECtHR expert, comments.

From the perspective of judges, the image of a person behind bars – especially if the court session is open and journalists are allowed to it – negatively affects the presumption of innocence guaranteed by Article 6 of the Convention, he says. Also, the ECtHR from time to time arrives at the conclusion that cages, especially ‘aquariums’, make it difficult for defendants to communicate with lawyers during a trial, rendering the help of lawyers less effective, violating the right to a fair trial.

Abroad

Cages are characteristic of the countries of the former post-Soviet area; while in most countries of Western Europe, this practice has either never happened or was abandoned, lawyers say, citing resolutions adopted by the ECtHR. The metal cage was used in Armenia, Azerbaijan, Georgia, Moldova and Ukraine, says Shepherds. But by 2014, Armenia and Georgia almost stopped using them, while Ukraine and Azerbaijan sought to replace them with glass partitions.

In some countries, cages for defendants were used in individual cases. In Albania, they are in the Court for Serious Crimes, says Bushmanov. In Serbia, in the High Court additional courtroom of the Belgrade District Prison, the defendants’ area is fenced with metal bars and bullet-proof glass. In France, in some courts there are glass cabins, but they are used only if the judge decides so.

In the UK, special glass rooms are equipped for the defendants, says Bushmanov. However, unlike Russian booths, they are large and open at the top, provided with microphones, and drinking water is available. And the bailiff is also in this room. In Holland, even those taken into custody can move freely around the courtroom, and security is provided by special officers. In the US, the defendant is next to a lawyer, and in some states, on the first bench for attendees.

Cages are no needed

Experts support the rejection of cages and ‘aquariums’ in the courts, the Human Rights Council and the Federal Chamber of Lawyers of the Russian Federation support the idea as well. Glass booths are often poorly audible, stuffy, there is no furniture, other than a bench to place the materials of the criminal case, says Pastukhov. He sees no obstacles to the rejection of cages. In his opinion, it is possible to return to placing the defendant behind a low fence, which until 1992 traditionally symbolized the ‘dock’. ‘Safety both of the defendant and of other participants in the trial can be provided by other means. For example, Anders Breivik, when his criminal case was heard, was fixed to the chair in the courtroom, but he was at the table with the documents, and partition separating him from the court,’ reminds Pastukhov.

Andrei Babushkin, a human rights activist, a member of the Human Rights Council believes that reforms should be carried out carefully to prevent escapes from or attacks in the courtroom. ‘In Soviet times there were barriers, not cages. But when there was a trial of very dangerous criminals, the escorts were more than the participants in the process. Today, we cannot afford such luxury,’ he says. Therefore, differentiation is needed for non-dangerous and dangerous defendants. As he sees it, the first should be behind the barrier, and for the second, portable protective devices should be provided as an addition to the barrier. Enhanced protection measures may be required in 20% of cases, for example, such as the trial of the GTA gang, a criminal gang whose members were accused of a series of murders of drivers in the Moscow region.

Konstantin Dobrynin, advocate, senior partner of Pen & Paper