SDMA Workshop: Judicial Watch Ͳ Review of Verdict by Asian Civil Society Gwangju, Republic of Korea 17 May 2012 Concept Note I. Background Independence of the judiciary is vital for consolidating democracy and protecting human rights. The role and independence of the judiciary is crucial in pursuing corruption and preventing abuses by the legislative and executive branches. Unfortunately, judicial bodies forgo this responsibility in many Asian countries, acting instead as a power in their own right. It is commonly found that a select few elite legal professionals monopolise and abuse judicial power, in so doing failing to end impunity and corruption. As such, it is indispensible for civil society to monitor the judiciary in order to make it independent and transparent. The Regional Workshop on Judicial Watch aims to share Asian civil society’s experiences and strategies in monitoring judicial bodies and come up with a common monitoring guideline. During the 2011 Gwangju Asia Forum, human rights defenders from Indonesia, TimorͲLeste, Taiwan, Cambodia and South Korea shared their experiences regarding judicial monitoring in their own countries. This opportunity emphasized the need to develop a common judiciary monitoring guideline applicable to all Asian countries, regardless of differences in legal systems across borders. Among various judicial monitoring strategies, the ‘review of verdict’ is chosen as this year’s theme. The review of verdict consists of delivering critiques on judicial verdicts from civil society’s perspective. This reminds the judiciary that civil society can actively monitor judicial branches and determine whether or not they protect and promote the basic rights enshrined in the Constitution. Also, the review of verdict shows the importance of having judicial officers from diverse socioeconomic and ideological backgrounds. We expect to come up with a common monitoring guideline on the review of verdict for Asian civil society that reflects these principles.
II. Past Developments 1) “Democracy in Asia: Progress or Crisis?”, 19Ͳ20 May 2010 Ͳ Identified emerging trends and challenges in protecting human rights and democracy in Asia and conducted group discussion on monitoring the three government branches. PSPD shared its experience regarding judicial body monitoring. 2) NGO Parallel Meeting to the Bali Democracy Forum: “Advancing Democratic Governance in Asia: Challenges and Way Forward”, 8Ͳ9 December 2010 Ͳ Conducted group discussion on rule of law and independence of judiciary. Participants from Korea and Indonesia shared their experiences. 3) “Regional Workshop on Judiciary Watch by Asian Civil Society”, 16Ͳ17 May 2011 Ͳ As a followͲup to previous two meetings, participants from Indonesia, TimorͲLeste, Taiwan, Cambodia and South Korea shared their experiences and strategies on judicial body monitoring.
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4) “Regional Consultation on Democratisation and People’s Participation in Asia”, 6Ͳ7 December 2011 Ͳ Participants discussed the Institute for Democracy and Electoral Assistance (IDEA) guidelines on assessing democracy.
III. Objectives In line with the discussion at the previous workshops, the general objectives of this year’s “Regional Workshop on Judicial Watch –Review of Verdict by Asian Civil Society” are the following: 1) To identify different legal systems in Asia and assess the independence of the judiciary branch in relation to people’s participation; 2) To share experiences and strategies on judicial monitoring in Asia; and, 3) To develop a common judiciary watch guideline. As a step to achieve the above objectives, the specific objective of the “Regional Workshop on Judicial Watch – Verdict Review by Asian Civil Society” is the following: 1) To finalise the guideline for review of verdict in Asia.
IV. Programme Agenda
Judicial Watch Ͳ Review of Verdict by Asian Civil Society 11:30 – 12:30
12:30 – 13:30 13:30 – 15:30
15:30 – 15:50
17 May 2012 Session 1: Judicial Monitoring an Review of Verdict PSPD will share its experience in judiciary monitoring to explore what kind of common strategy might be possible in Asia. Among different strategies, PSPD will explain why they choose the review of verdict as the first theme of judicial watch. x Presenter: Professor Sang hie Han (PSPD) Lunch Session 2: Review of Verdict Ͳ Success and Challenges stories in Asia Ͳ Cambodia Justice Initiative (Cambodia) Ͳ LBH Jakarta (Indonesia) Ͳ Judicial System Monitoring Programme (TimorͲLeste) Ͳ Judicial Reform Foundation (Taiwan) Ͳ Campaign for Judicial Accountability and Judicial Reforms (India) Each speaker will prepare their presentation based on the ‘Draft Guideline for Review of Verdict’ which is attached to this concept paper. They will share their experience and the challenges that they are facing while reviewing judicial verdicts in their own countries. x Moderator: Poengky Indarti (Imparsial) Coffee / Tea Break -8-
15:50 – 17:20
Session 3: Plan of Action Participants will come up with common strategies on the review of verdict at the regional level and further discuss our plan for the 2012 Bali Democracy Forum. x Moderator: Adilur Rahman Khan (Odhikar)
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Guideline for review of verdict 1. Is the judicial verdict made public in your country? £G Yes (Please go to Question 1Ͳ1) ¤G No (Please share the reason and go to question 1Ͳ5) 1.1 To whom is the verdict made available? £G Available to everyone without limit ¤G Available by request only ¥G Available only to people who are related to the trial (plaintiff, prosecutors, lawyers etc) ¦G Available in a limited manner, usually to members of academia or of the press (In this case, how is it made available specifically?) §G Others (Please explain the way in which the verdicts made available) 1.2 To what extent is the verdict made available? What percentage of the whole verdict is made available? £G The entire decision is available without limit ¤G The final rulings only (eg. Supreme court or high court decision only) ¥G Others (Please specify) 1.3 How is the verdict made public? £G Available via Internet ¤G Available in a hard copy delivery ¥G Available only by visiting the Court (eg. OnͲsite reading or photocopy at the court) ¦G Others (Please specify) 1.4 Are there any legal regulations relating to make the verdict public? (Criminal or civil law) £G Yes (Please go to Question 1Ͳ5Ͳ1) ¤G No (Please go to Questions 2) 1.4.1 Please write down the related articles of the law that are related to make the verdict public? 2. Is it allowed to criticise the verdict? £G Yes (Please go to Question 2Ͳ1) ¤G No (Please go to Question 3) 2.1 Can academics publicly comment on the verdict? 2.2 Can civil society publicly comment on the verdict? 2.3 Can civil society or citizens organise a press conference or a demonstration to criticise the verdict? 3. Are the court proceedings authoritative?
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3.1 Does the judge behave in a proper manner toward the defendant, plaintiff and witnesses? 3.2 Is there a law on criminal contempt of court? £G Yes (Please go to Question 3Ͳ2Ͳ1 to 3Ͳ2Ͳ3) ¤G No (Please go to Question 4) 3.2.1 What are the related articles or clause of the contempt of court? (Please include relevant penalty if it is applicable) 3.2.2 Are there any cases in the past that contempt of court is applied to the verdict critics made by civil society? – If yes, please include details of the case 4. Is the trial held in an open court? £G Yes (Please go to Question 4Ͳ1) ¤G No (Please write down the reason. Then, please go to Question 4Ͳ4) 4.1 To whom is the trial open? £G To everyone without limit ¤G Generally open except some special cases, where trials are held behind closed doors ¥G Trials are only open to related people including family and parties to the litigation ¦G Others (Please specify) 4.2 In case the litigants speak in a different language to the official language of the court, are interpretation and translation services (including sign languages) provided openly? 4.3 In case the trial is composed of three or more judges, are minor opinions also included in the verdict? 4.4. How are the courts’ record kept? 4.4.1 How is the protocol for the written public trial? (Please include what contents must be included, whether involved parties consent is required etc) 4.4.2 Is it possible to take note, record sound or video during the trial? 4.4.3 Is the protocol for the public trial available to public? Are any objections or critics to the protocol accepted? 4.4 Is the press allowed to report on the court proceedings? £G Yes (Please go to Question 4.4.1) ¤G No 4.4.1 Does press cover court proceedings in a fair and balanced way? 4.5 Is there a legal framework related to openness of public trial? If yes, please include a brief description of its contents.
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5. Others 5.1 Has there ever been a television drama or movie based on real court cases? £G Yes (Please specify. Please go to Question 5.1.1) ¤G No 5.1.1 What was the reaction of the judicial bodies regarding this film or television show? 5.2 Is it possible for the legislative body to conduct hearings or investigation on the matters directly related to a trial while it is still in progress? £G Yes (Please give some examples including judicial body’s reaction on this) ¤G No 5.3 How does civil society intervene in the appointment process of the judges? 5.3.1 Can civil society freely comment on the decision to appoint judges? How does court respond to these comments? 5.4 Are there any groups to support victims of the judiciary system? If yes, please explain further. 6. What are the recent activities of judicial bodies regarding above issues?
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ળʹٵࡳ ଛ ࢴۉնݘચ ળʹ ࡲהːʋѵ˅ ࢎВɹ! £ ࠖ a ̧ए ओ ߾חзଥ ࣯ ࡁۿ ¤ ߅Тࠝ શʼ˓ ࢇחʎѸए ߉ˈ Е ࢇࡪձ ࢶ߭ ࣯ ࡁۿԻ ࢇѰ ːʋ лߪ ࡲەҞ̤ऌࢆɹ! £ ࢿଞ ߷ࢇ ࢊ؆ ˓ʎ ¤ ˓ʎ ࡁঐࢇ Е ˁࡉ߾ ࢊ؆ ˓ʎ ¥ ࢢશ к߾یʯփ ˓ʎ ¦ ࠉ˱ ߯Խীࢢ ּࢶ ҟ ࢊٕ߾ʯփ ࢿଞࢶࡳԻ ˓ʎ ࣯Ի ߭ӊʯ ˓ʎѸЕए ࠖձ Қִ" § ̛ ઞطଞ ࡕ ߷ࢇ ࢂࢶࡳԻ ˓ʎѸЕ ˁࡉ ҟ ˓ʎ ߦۘࡶ ۶ָଥ ࣯ ࡁۿ ːʋ آВ ߪҞ̤ऌࢆɹ! £ ֻҘ શʼࢿ ࡶחଞ ߷ࢇ ˓ʎ ¤ о ࡕئҟ ফࣗࢶࡳԻ ࢽѹ શʼחփ ˓ʎ ¥ ̛ ۶ָଥ ࣯ ࡁۿ ːʋɹ ѵВ ળʹࢴ ࡲה ળʹࢺ ֶ ࡿהѣࢆɹ! ːʋ ،ࢆߵב ࡲݢɹ! ળʹ הːʋࠧ ˔ԭଙࠃ ࡰࢳأԸ ̊ࢺଙ˅ ࢎВ ࣌ଡࢄ ࢎВɹ! ۉ㺃 أܛܒۉ״Ҝ £ ࠖ ࡳءԻ ࢇѰ ¤ ߅Тࠝ ࡳءԻ ࢇѰ ˔ԭ ࣌ଡࡳ ࢳߪ ࣬ ࠾ۼ ળʹ лଛ ࠆˮΜ ٵળࡲ ଭࡅѵВɹ! £ ରࡈѹЬ a ̧ए ओ ߾חзଥ ࣯ ࡁۿ ¤ ରࡈѸए ߉ЕЬ ࡳءԻ ࢇѰ ଚ ࢳה५ࡒࡿ ળԴࡧ ࡲۮԸࡈɹ!
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тАл╫┤▌бтАм╨мржО╔╣ рк│╩╣▀╗ ╨╗рмЫ ╧ЯрлЮрб│ рмЩ╨Т ╩ерб▓ рвТрбз╘╕рбИ╔╣! тАл╫┤▌бтАм╨мржО ╙У╨Т тАл╫┤▌бтАм╥ЧрвД рдУрна╬Ь ╠ШрвТрна╩╖рб│ раЗ╦Е рвЯрк│▀╗ ╨╗рмв тАл┘╡тАмрк│рб│ рмЩ╨Т ╩ерб▓ рмнрбЕ╤╡╨Т╔╣! рвЯрк│рдОрмкрб▓ ╦╜рбЯрв│рвЖ╔╣! тАл █н▀╗рв║╪гтАмрк│тАл█ЙтАм╨Т рбТ╦Е╬Ь рмС╦Е рдЛрвЖ╥Ч▀╗╩м рзУрв╡рмЩ╩м ╨╗рмЩ╨Т╔╣! тАлргбра┐╓╕рв║╪гтАм╔╣ рвО╨Т╔╣! рвС╨м a ╠зрдП рдУтАл ▀╛╫ЧтАм╨╖рме ргптАл рбБ█┐тАм ┬д ▀╖╨м тАлрб│╪бтАм╘╗ рвЗ╤░ ╦Ф╘н тАлргМ╪гтАмрмбрб▓ тАлрвЖ▀╡╫СтАм╔╣! ржЕтАлргМ ╪атАмрмб рлгрмЮ тАл█Й╫┤▌бтАмрнарб┐ рк│╩╣ тАл┘╡тАмрк│▀╗ ╨╗рмЩраГ тАлргбра┐╓╕рв║╪гтАм╔╣ рв│рбЕ╤╢ тАл█ЙтАм╘┤╔╣ рвО╨Т╔╣! рвО╨й╓▒ ╔╗╘ХроЯ тАл▄ТтАм╩Лрмв ╨о╙┐ ▀к╥╝рмЫ ржЕтАл рб│╪атАм╪Д▀О╨ТрдМ рлгрмЮ рб│ ╨┤тАл╪│тАмрмЫ тАл█ЙтАм╘Г╓А рбЯрб┐ тАл█ЙтАм╘┤▀╗ ╨╗рмЫ тАл█Й╫┤▌бтАмрнарб┐ тАл▀к рб▓рб╕╪ГтАм╥╝рмй╬Ь! рвЯрк│рб▓ ╦Р╩Лрв│рб░╘╕ рдОрмк╤╡╨Т╔╣! ┬г раЦ ┬д ▀Е╨враЭ ╦У╩ОрмЬрдП ▀Й╨Х рвЗрбк╒▒ рв╢▀н ргптАл рбБ█┐тАм╘╗ рвЗ╤░ рвЯрк│рб▓ ╧╣╦о▀╗╩м╠дрдМ ╦Р╩Л╤╡╨Т╔╣! ┬г ╓╗╥Ш тАл█МтАм╘Ж▀╛╩п рв┐рмЮ ▀╖рвЗ ╦У╩О ┬д рбХрзХрв╢рб│╘╗ ╦У╩ОрмЬ╦И ркЮтАл╪╖тАмрмЮ тАлрбк█МтАм╔╝ рвСрб╢ ╦БрбЙ тАл╦У┘╕тАм╩О ┬е рвврк╢ ╨║тАл ракрвХ█МтАм╔╝ргРрвЗ╬Я рмФрмервХ ╥Я тАл█МтАм╩в ╦Ч╦ГрвХ╠зрдП╓Г ╦У╩О ┬е ╠ЫрйЙ █╢╓╕рме ргптАл рбБ█┐тАм рвЯрк│рб│ ╪МржНрмЩ╘л╓▒ ▀к╥╛ рв╡рел╒о ╩ЭржЦ▀Ы рмЩ╨Т╔╣! ┬г тАл╪╖тАм╤жрвВ рв╕рео ▀╖рвЗ ╪ПржР ╔╝╨Ь ┬д тАл▌жтАмржР тАл ╪АтАмрм░╔╝ рв╕рео╒▒ ╩аржЩ▀Ю рмб рв╕рео▀╛ ╨╛рме █╢╓╕рме ргптАл рбБ█┐тАм
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࢟ળۭ ࡅۉѵВ ː࢟ ࠧߪ߬ݢળзۉɹ ࡅۉଙВ ߬ߪɹ Щծ ʾࡆ 㺃 ࢄࠄ؞ ːʋࢳࡰԸ ࢄՑߪऌВɹ! ܶ୕ࡿ ʾࡆѣ ૣଞ ࢆ ࢄࡰەԸ ˮۺѵВ ଟࡿْ ࢆࢺأʾࡆ лࡿʷࢄΜ ࡿܶܒʷࡲ ળʹش הѣԸ ̘࢟ѵВɹ! ࢟ળࡿ ̘Թࡲ ߪҾ ،ࡰݢԸ ࢄՑߪऌВɹ! ːળۭ࣌В ߪӇʬ ۺଙВɹ! ࣬ۺࠧ ଔܶࢳࡰԸ ̘Թଢߛ ଙВ έࡅ ࢟ળз ۉлଛ ѭࡿࠃْ Ҝ ˮࢳࡰԸ дଢ ࣬ ࠾ۼ ːળ έࡅ лଛ ̘ܓϞࡵ ࠏ ەϞ୕ Ҝࢄ ɹЙଛɹ!
ːળۭ࣌В
ࠇԃ
ɹЙଛɹ!
ࢄ
лଛ
ࢄࡿࢼ̘Μ
ܶࢺ࠾ˮВ
߂җࠃऌВɹ! ߬Ժࡿ ࢟ળ ˒ࢺ лଛ ؼѣВ ɹЙଛɹ! £ ɼМଡ ¤ ٙɼМ ߬Ժࢄ ؼѣଙВ ࢟ળ˒ࢺࡲ ːࢺଛɹ! ࠰ˆࢄΜ રࢳࢆ έࡅࢄ ࢴЮѵВɹ! ࢟ળ ːʋ ˔ଙࠃ ̊ࢺଙ˅ ࢎВ ࣌أଡࢄ ࢎВɹ! ࢎЩֱ έࡅࡳ ࢳߪ ࣬ ࠾ۼ ̘ ࢼݥ ۭࡒأԸ ЩՑ߶ш ۉʟࢄΜ ળʹࡳ ࢟ܒԸ ଛ ғӿվΜ ࠏ୕ࡿ ࢼࢄ ࢄՑߪऎ ࢳࢄ ࢎВɹ! £ ࠖ یԷձ ɾЯ ࢶ߭ ࣯ ࡁۿ ¤ ߅Тࠝ ۭ Ğࠓğӿ˅ дଛ ʾࡆ ۉԴ лଛ ࢄࡸ ࡿࡒأΜ ѣВ ߪҼΜ!
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рк│╩╣рвД ╬н╘лргЙ╩Э╬Ь рвЯрк│рвД ╦АтАл█Й рвЖрг╡ ▄УтАм╩Я▀╗ ╨╗рмв ╦прна ╥Ь▀╗█н ╦Ф╘н тАл█ЙтАм╩Я▀╗ ╨╗рмЫ ╦прв║ргМтАл█ЙтАм╒о рмЩ╩Э╬Ь ржНтАл╫ФтАмрна╒о ╩ЛржирмЬ ▄╢ рвО╨Т╔╣! ┬г раЦ тАл█МтАм╘╖╒▒ ╔╛╘Шров рв╢▀н ргптАл рбБ█┐тАм ┬д ▀Е╨враЭ ▀╗█н ─ЮраУ─Я╙┐╦Е ╨╗╨┤рмЫ ╩╛рбЖ рбЯ тАл█ЙтАм╘┤▀╗ ╨╗рмЫ тАл рб┐рбТ╪гтАмрйР╤г╨Т ▀к╥╝рмй╬Ь! тАл█Й╫┤▌б █н▀╗рв║╦Т╓╡рвЛ рб┐╦Ф╪гтАмрнарб┐ ╩ЛрвМрб▓ ▀к╙З╩м рвД╒С▀крдМ╨Т╔╣! тАл ▀╗╓╡рвЛ рб┐╦Ф╪гтАм╨╗рмЫ тАл█Й╫┤▌бтАмрнарб┐ тАл┘╡тАмрк│рб▓ ╔╣╨ЩрмЫ╔╣! ╠Н▀╗ ╨╗рмЫ тАл рб┐рбТ╪гтАм рйР╤г╨Т ▀к╥╝рмЫ╔╣! тАл╪г█ЙтАмрмСрмврвТ╥Чрб┐ ╓╕рвЛрвД╬Ь рнШ╤нрб▓ рвО╨Т╔╣! рвО╨й╓▒ ▀к╥╛ ╓╕тАлрб░▌ЮтАм╘╕ рдОрмк╤╡╦Е рвО╨Т╔╣! рвДтАл рб┐█ХтАмрдРтАл╦Ф ╦Т╫ФтАм╘нрмЩраГ ржи╠П тАл╪г█ЙтАм╩Лрм┐рб┐ рбМрдНрвЛрвД рвО▀╢╨Т╔╣!
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Cambodia Justice Initiative (Cambodia)
Guideline for review of verdict 1. Is the judicial verdict made public in your country? £ Yes (Please go to Question 1Ͳ1) ¤ X No (Please share the reason and go to question 1Ͳ5) 1.1 To whom is the verdict made available? £G Available to everyone without limit ¤G Available by request only ¥G X Available only to people who are related to the trial (plaintiff, prosecutors, lawyers etc) ¦G Available in a limited manner, usually to members of academia or of the press (In this case, how is it made available specifically?) §G Others (Please explain the way in which the verdicts made available) 1.2 To what extent is the verdict made available? What percentage of the whole verdict is made available? £G The entire decision is available without limit ¤G X The final rulings only (eg. Supreme court or high court decision only) ¥G Others (Please specify) 1.3 How is the verdict made public? £G Available via Internet ¤G Available in a hard copy delivery ¥G X Available only by visiting the Court (eg. OnͲsite reading or photocopy at the court) ¦G Others (Please specify) 1.4 Are there any legal regulations relating to make the verdict public? (Criminal or civil law) £G Yes (Please go to Question 1Ͳ5Ͳ1) ¤G X No (Please go to Questions 2) 1.4.1 Please write down the related articles of the law that are related to make the verdict public? 2. Is it allowed to criticise the verdict? £G Yes (Please go to Question 2Ͳ1) ¤G X No (Please go to Question 3) 2.1 Can academics publicly comment on the verdict? 2.2 Can civil society publicly comment on the verdict? 2.3 Can civil society or citizens organise a press conference or a demonstration to criticise the verdict?
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3. Are the court proceedings authoritative? 3.1 Does the judge behave in a proper manner toward the defendant, plaintiff and witnesses? No 1.1 Is there a law on criminal contempt of court? £G X Yes (Please go to Question 3Ͳ2Ͳ1 to 3Ͳ2Ͳ3) ¤G No (Please go to Question 4) 3.2.1 What are the related articles or clause of the contempt of court? (Please include relevant penalty if it is applicable) Criminal Code Articles 522 and 523 3.2.2 Are there any cases in the past that contempt of court is applied to the verdict critics made by civil society? – If yes, please include details of the case Not yet 4. Is the trial held in an open court? £G X Yes (Please go to Question 4Ͳ1) ¤G No (Please write down the reason. Then, please go to Question 4Ͳ4) 4.1 To whom is the trial open? £G To everyone without limit ¤G Generally open except some special cases, where trials are held behind closed doors ¥G Trials are only open to related people including family and parties to the litigation ¦G Others (Please specify) 4.2 In case the litigants speak in a different language to the official language of the court, are interpretation and translation services (including sign languages) provided openly? No 4.3 In case the trial is composed of three or more judges, are minor opinions also included in the verdict? No 4.4. How are the courts’ record kept? 4.4.1 How is the protocol for the written public trial? (Please include what contents must be included, whether involved parties consent is required etc) Informative checklist on procedural regularity rather than substantive analysis of fair trial
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4.4.2 Is it possible to take note, record sound or video during the trial? No 4.4.3 Is the protocol for the public trial available to public? Are any objections or critics to the protocol accepted? Informative checklist likely procedural regularity rather than substantive analysis of fair trial. Also, trial monitor guided by its own code of ethics of trial monitor 4.4 Is the press allowed to report on the court proceedings? £G X Yes (Please go to Question 4.4.1) ¤G No 4.4.1 Does press cover court proceedings in a fair and balanced way? Depend on what press is. 4.5 Is there a legal framework related to openness of public trial? If yes, please include a brief description of its contents. Criminal procedure code Article 316 5. Others 5.1 Has there ever been a television drama or movie based on real court cases? £G Yes (Please specify. Please go to Question 5.1.1) ¤G X No 5.1.1 What was the reaction of the judicial bodies regarding this film or television show? 5.2 Is it possible for the legislative body to conduct hearings or investigation on the matters directly related to a trial while it is still in progress? £G Yes (Please give some examples including judicial body’s reaction on this) ¤G X No 5.3 How does civil society intervene in the appointment process of the judges? Nothing 5.3.1 Can civil society freely comment on the decision to appoint judges? How does court respond to these comments? No such case has happened 5.4 Are there any groups to support victims of the judiciary system? If yes, please explain further. No. Lawyer may complain to Supreme Council of Magistracy, but very rare. 6. What are the recent activities of judicial bodies regarding above issues? - 29 -
None
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ؿ ৢ ˈ ؿҡ ߅
- 31 -
G ൏⤗G ⒡ሻU
G G ⟇㓄⚓ឳG 㕬ᯬG \YY⟇▗G \YZ⟇ୗG ⛟ሻU
G ⒛⤘ඣ⤗G ┝ሻU
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G ❳ౌ፯⤗G ⒡ᇫሻU
G ㍃㒿፯⤗G ⒡ᇫሻUG
G ౌ❬㒳G ✃㉧⚛G ♛㒳G ∻⤟❘⛏G ᳛⁴ሻᇫG ❟⭿❘G ള❬┧G 㒳G ❬ ❳ౌG ⭿☧⚯G Ⰻ⿃ᤃ⇻㈏┧G ୗපሻU
G ୗᇼ㒯⤗G ⒡ሻU
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G ⒵G ᤧ㓟ᐷG ∻⤟❘G ဋ☀ሻᇫG ❟⭿❘G ള❬┧G 㒳G Ⰻ⿃ᤃ⇻⿃ୗG ⟋✃㒯ᧇSG ⛧Ⰻ❘⛏G ✃㉧୧ጜ♻ᤃള❬┧G ᒇᣏG ✃㉧G ᧿ሟょୗG ⛟ሻUG
G ┏ិG ᤻Ⰻ┧G ᒇᛓG ሻᣋሻU
G 㕬 ⃣ᯬG ZX]⟇ୗG 㓋ቐ፳ሻU
G ╃㒯⤗G ⒡ᇫሻU
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G 㓋ቐG G ோ⛋G ┝ሻU
G ┝ሻUG ᰗ㖏 ᇫG ⒟㉧ ⲳష♛☧㗣┧G ⛋⚯ᣓG ❳ඇ㒷G ⅯG ⛟⤗ᤣG ൏ᝃ㒳G ఔ☇ᇫG ᤻☇G ᐳ᪓ሻU
G ┝ሻU
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LBH Jakarta (Indonesia)
Guideline for review of verdict 1. Is the judicial verdict made public in your country? £G я Yes (Please go to Question 1Ͳ1) ¤G No (Please share the reason and go to question 1Ͳ5) 1.1 To whom is the verdict made available? £G Available to everyone without limit ¤G Available by request only ¥G Available only to people who are related to the trial (plaintiff, prosecutors, lawyers etc) ¦G Available in a limited manner, usually to members of academia or of the press (In this case, how is it made available specifically?) § я Others (Please explain the way in which the verdicts made available) The law is saying that the verdict should be read in a trial which open for public, and the copy of the verdict should be available to those who are related to the trial 1.2 To what extent is the verdict made available? What percentage of the whole verdict is made available? £G я The entire decision is available without limit ¤G The final rulings only (eg. Supreme court or high court decision only) ¥G Others (Please specify) 1.2 How is the verdict made public? £G Available via Internet ¤G Available in a hard copy delivery ¥G я Available only by visiting the Court (eg. OnͲsite reading or photocopy at the court) ¦G Others (Please specify) 1.4 Are there any legal regulations relating to make the verdict public? (Criminal or civil law) £G я Yes (Please go to Question 1Ͳ5Ͳ1) ¤G No (Please go to Questions 2) 1.4.1 Please write down the related articles of the law that are related to make the verdict public? Article 13 (2) Law No. 48 of 2009 on the Judicial Power: Verdict shall only be valid and has legal power if it is pronounced in a trial which open for public The Supreme Court Decision No. 144/KMA/SKNIII/2007 on the Access to Information in Court: Kinds of information that should be announced by court, including: Final court verdict.
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2. Is it allowed to criticise the verdict? £G я Yes (Please go to Question 2Ͳ1) ¤G No (Please go to Question 3) 2.1 Can academics publicly comment on the verdict? Yes 2.2 Can civil society publicly comment on the verdict? Yes 2.3 Can civil society or citizens organise a press conference or a demonstration to criticise the verdict? Yes 3. Are the court proceedings authoritative? 3.1 Does the judge behave in a proper manner toward the defendant, plaintiff and witnesses? In cases related to minorities, judges tend to victimise the victim 3.2 Is there a law on criminal contempt of court? £G Yes (Please go to Question 3Ͳ2Ͳ1 to 3Ͳ2Ͳ3) ¤G я No (Please go to Question 4) 3.2.1 What are the related articles or clause of the contempt of court? (Please include relevant penalty if it is applicable) 3.2.2 Are there any cases in the past that contempt of court is applied to the verdict critics made by civil society? – If yes, please include details of the case 4. Is the trial held in an open court? £G я Yes (Please go to Question 4Ͳ1) ¤G No (Please write down the reason. Then, please go to Question 4Ͳ4) 4.1 To whom is the trial open? £G To everyone without limit ¤G я Generally open except some special cases, where trials are held behind closed doors ¥G Trials are only open to related people including family and parties to the litigation ¦G Others (Please specify) 4.2 In case the litigants speak in a different language to the official language of the court, are interpretation and translation services (including sign languages) provided openly? By law, yes 4.3 In case the trial is composed of three or more judges, are minor opinions also included in the verdict?
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Only in the Constitutional Court, while the other court, like Supreme Court and courts below it, minor or dissenting opinions are not included 4.4. How are the courts’ record kept? In writing 4.4.1 How is the protocol for the written public trial? (Please include what contents must be included, whether involved parties consent is required etc) Court records are not available for public 4.4.2 Is it possible to take note, record sound or video during the trial? Yes 4.4.3 Is the protocol for the public trial available to public? Are any objections or critics to the protocol accepted? Yes, protocol is available for public. Objection to protocol never been accepted 4.4 Is the press allowed to report on the court proceedings? £G я Yes (Please go to Question 4.4.1) ¤G No 4.4.1 Does press cover court proceedings in a fair and balanced way? In most case fair enough, but not always. 4.5 Is there a legal framework related to openness of public trial? If yes, please include a brief description of its contents. Article 13 (1) Law No. 48 of 2009 on the Judicial Power: Every court trial is open for public, except the law ruled otherwise. 5. Others 5.1 Has there ever been a television drama or movie based on real court cases? £G я Yes (Please specify. Please go to Question 5.1.1) the Marsinah case trial ¤G No 5.1.1 What was the reaction of the judicial bodies regarding this film or television show? Not publicly known 5.2 Is it possible for the legislative body to conduct hearings or investigation on the matters directly related to a trial while it is still in progress? £G я Yes (Please give some examples including judicial body’s reaction on this) some cases related to corruption, the legislative body forming a task force for the case while the trial still in progress ¤G No 5.3 How does civil society intervene in the appointment process of the judges? By submitting a letter to the selection panel, but not necessarily effect on the appointment 5.3.1 Can civil society freely comment on the decision to appoint judges? How does court respond to these comments? - 39 -
Yes. The court rarely responds 5.4 Are there any groups to support victims of the judiciary system? If yes, please explain further. Yes. The Judicial Watch Coalition. 6. What are the recent activities of judicial bodies regarding above issues? The judicial bodies under the coordination of Supreme Court have developed systems which create more public access to the judicial information, including but not limited to the court’s verdict. The court clerks are also equipped by technology which supports the idea of access to court information. However, it doesn’t seem went well. G
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ࢉ ˈ ؿѦ ό ߅ ݤ
G ᯬ┧G ᒇᣋG ㉧ఇ⚗G ౌ୳G ✃㉧┧G ငጜ፯┋ⓓG 㒯షG ㉧ఇG ᱏ⚗G ✃㉧ G ፳G ᛣᐻ┧G ౌ୳፯┋ⓓG 㒳ሻUG
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G ᯬೣ┧G 㒳G ᯬᢷOs G u U[_VYWW`P⚯G XZ⟇G Y㓄G aG ㉧ఇ⛋G ౌ୳✃ ㉧┧G ㎳፳G ఔ☇┧ᤣG ♷㗿㒯ᧇG ᯬ❘㗿⚛G ୗ⤛ሻUG G G ᯬ☧GဋG❬G❨┧G㒳Gᯬ☧G㉧ఇOu UX[[VrthVzrupppVYWW^PGaG 㖬❬㉧ఇ⚛G ㍃㒿㓋G ᯬ☧⛋G ౌ୳㓋ⓓG 㒯ᇫG ❬⚯G ⟜ᐻ⚛G ❳∳㒿U
G 㒷G ⅯG ⛟ሻU
G 㒷G ⅯG ⛟ሻU
G 㒷G ⅯG ⛟ሻUG
G ⃣Ⅿ⤨ሿG ፳G ோ┧G ㉧ ᐻ⛋G 㒓㓋⛧ᣓG ಋោ㛟ᇫG ఔ㓼⛋G ⛟ሻU
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G ᯬ⚯G ⚯㓋G ❳ౌ፳ሻU
G 㔣ᯬG ✃㉧⃣⚯G ఔ☇┧ᤣG ㍃㒿፯షG ᯬ☧G ൏G ⛋㒯⚯G ᯬ☧┧G ⃣ⅯG ᭦G ᭯G ⚯ః⚗G ㍃㒿፯⤗G ⒡ᇫሻU
G ឳG ඇ឴፳ሻUG
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G ᯬ☧G ඇ឴⚗G ⡨ᐻ┧G ౌ୳፯⤗G ⒡ᇫሻU
G ୗᇼ㒯ሻU
G ౌ㉧⟇ᇫG ⡨ᐻ┧G ౌ୳፳ሻUG ౌ㉧⟇┧G 㒳G ⛋⚯O P ᇫG ❟G ᭲⒛ᐻ╃⤗⤗G ⒡ᇫሻU
G 㓄‘G ൏ᝇG ⚗G ⒛ሟ⤗ᤣG ᳗᳛⚯G ఔ☇G ⴀ᳛㛟G ౌ❬㒯ሻU
G ᯬೣ┧G 㒳G ᯬG XZ⟇G YWW`⚯G [_㖏┧G ⚯㒯G ᧿ᐷG ✃㉧⚗G ᯬ⛋G ᶛౌ୳ ឳG ള❬㒯ᇫG ఔ☇ᣓG ❳●㒯షG ౌ୳G ✃㉧⛋ሻU
G ᣋ∳G ோG ✃㉧
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G ౌ୳❘⚓ឳG ⒣➏G ⛟⤗G ⒡ሻU
᳗❬᳗㉿G ோ⚯G ఔ☇G ✃㉧⛋G ⤛㓠G ⡨⛏G ጛ⡨┧G ⛜ᯬ᳗ᇫG ோG ❛ቋ㉗⚛G ೃ₈㒳ሻUG
G㉿ၧ┧G㌏⤗ᣓG❳ⳳ㒿⚓ឳ⊿G╃㒯⤗ᤣG⤗┧ᇫG⿇G╘㓼⚛G࿓⤗G⒡ ᇫሻU
G ┏ൠ㒷G ⅯG ⛟ሻUG ᯬ☧⚗G ே⚯G ᭯⚨⚛G ⛋⤗G ⒡ᇫሻUG
G ᯬ୧∳╇㓀Oq G ~ G j P⛋G ⛟ሻU
G ᯬ☧⚯G ⡓ጛ㒯┧G G ᯬඇᐻ⛋G ᯬ☧G ㉧ఇ⚛G ㍃㒿㒯╃G ᯬ❬┧G 㒳G⡨⚯G❨₈⚛Gჩ⛋ඇG♛㒳G∳⇻コ⚛G୳᭳㒯షG⛟ሻUGᯬ☧⤘☧ᐻGᕧ㒳G❬ ❨₈⚛G ჩ⛋ඇG ♛㒳G ඇⅷ⤗☧⚛G ᭲షG ⛟⚓SG ❳ឳG ☋╘፯ᇫG G ୰⤗ᇫG ⒡ሻU
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Judicial System Monitoring Programme (Timor-Leste)
Guideline for review of verdict 1. Is the judicial verdict made public in your country? ձ Yes (Please go to Question 1Ͳ1) ղ No (Please share the reason and go to question 1Ͳ5) 1.1 To whom is the verdict made available? £ Available to everyone without limit ¤ Available by request only ¥ Available only to people who are related to the trial (plaintiff, prosecutors, lawyers etc) ¦ Available in a limited manner, usually to members of academia or of the press (In this case, how is it made available specifically?) § Others (Please explain the way in which the verdicts made available) ¨G The law said that all court proceeding are open to the public in limited public character and circumstances. However, the limitation on the public character of a proceeding shall never cover the reading of a sentence or the decision. 1.2 To what extent is the verdict made available? What percentage of the whole verdict is made available? £ The entire decision is available without limit ¤ The final rulings only (eg. Supreme court or high court decision only) ¥G Others (Please specify) 1.3 How is the verdict made public? £ Available via Internet ¤ Available in a hard copy delivery ¥ Available only by visiting the Court (eg. OnͲsite reading or photocopy at the court) ¦G Others (Please specify): We can also obtain the verdict by submitting a request to the court 1.4 Are there any legal regulations relating to make the verdict public? (Criminal or civil law) £ Yes (Please go to Question 1Ͳ5Ͳ1) ¤G No (Please go to Questions 2) 1.4.1 Please write down the related articles of the law that are related to make the verdict public? • In article 76 (2) of Law No. 13/2005 of TL’s Criminal Procedure Code on limitations on the public character of proceedings, defines that: A limitation on the public character of a proceeding shall never cover the reading of a sentence or the decision. • In article 132 of TL’s Civil Procedure Code, stated that the civil proceedings are public, unless regulated otherwise by law; 2. Is it allowed to criticise the verdict?
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£ Yes (Please go to Question 2Ͳ1) ¤G No (Please go to Question 3) 2.1 Can academics publicly comment on the verdict? Yes. 2.2 Can civil society publicly comment on the verdict? Yes. 2.3 Can civil society or citizens organise a press conference or a demonstration to criticise the verdict? Yes, it’s often to do the press conference rather than demonstration. 3. Are the court proceedings authoritative? Yes, they are. 3.1 Does the judge behave in a proper manner toward the defendant, plaintiff and witnesses? Yes, they do. 3.2 Is there a law on criminal contempt of court? A. Yes (Please go to Question 3Ͳ2Ͳ1 to 3Ͳ2Ͳ3) B. No (Please go to Question 4) 3.2.1 What are the related articles or clause of the contempt of court? (Please include relevant penalty if it is applicable) In Article 283 of Timor Leste’s Penal Code on Coercion against a magistrate said that: Any person who, by means of violence, threat to cause serious harm, or by any other means, acts in such a manner as to prevent a judge or public prosecutor from freely performing his or her duties, is punishable with 1 to 4 years imprisonment. 3.2.2 Are there any cases in the past that contempt of court is applied to the verdict critics made by civil society? – If yes, please include details of the case No. 4. Is the trial held in an open court? £ Yes (Please go to Question 4Ͳ1) ¤G No (Please write down the reason. Then, please go to Question 4Ͳ4) 4.1 To whom is the trial open? £ To everyone without limit ¤ Generally open except some special cases, where trials are held behind closed doors
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¥ Trials are only open to related people including family and parties to the litigation ¦G Others (Please specify) 4.2 In case the litigants speak in a different language to the official language of the court, are interpretation and translation services (including sign languages) provided openly? Yes, it’s a compulsory (Article 83 of Criminal Procedure Code). 4.3 In case the trial is composed of three or more judges, are minor opinions also included in the verdict? There is no explicit description on minor opinion in Timor Leste judicial verdict practice. 4.4. How are the courts’ record kept? In writing document. 4.4.1 How is the protocol for the written public trial? (Please include what contents must be included, whether involved parties consent is required etc); It’s not available to the public. 4.4.2 Is it possible to take note, record sound or video during the trial? Yes. 4.4.3 Is the protocol for the public trial available to public? Are any objections or critics to the protocol accepted? Yes, the protocol is provides publicly, but it’s not in regular basis. 4.4 Is the press allowed to report on the court proceedings? ձ Yes (Please go to Question 4.4.1) ղ No 4.4.1 Does press cover court proceedings in a fair and balanced way? It’s not really clear, because they do cover only some general aspect of the court proceedings. 4.5 Is there a legal framework related to openness of public trial? If yes, please include a brief description of its contents. Article 75: Public character of proceedings (1). A criminal proceeding is open to the public from the time the indictment is presented. 5. Others 5.1 Has there ever been a television drama or movie based on real court cases? £ Yes (Please specify. Please go to Question 5.1.1)
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¤G No 5.1.1 What was the reaction of the judicial bodies regarding this film or television show? 5.2 Is it possible for the legislative body to conduct hearings or investigation on the matters directly related to a trial while it is still in progress? £ Yes (Please give some examples including judicial body’s reaction on this) ¤G No 5.3 How does civil society intervene in the appointment process of the judges? Trough the media by providing general comment and recommendation and/or by submitting a letter to the competence body which involve in the appointment process. 5.3.1 Can civil society freely comment on the decision to appoint judges? How does court respond to these comments? Yes, we can, but it’s not really taken into consideration or less effected to decision making process. 5.4 Are there any groups to support victims of the judiciary system? If yes, please explain further. Yes, the Victim Support Service (VSS) within JSMP. It’s provides free legal assistances to helping the victims of gender base violence accesses to court of formal justice system. 6. What are the recent activities of judicial bodies regarding above issues? Currently, the Ministry of Justice is designing a new system which called: Integrated Information of Management System (IIMS), which expected to enable public access to related court document including the judicial verdict and to provide space to both parties and interested groups to know and to follow up the cases and its processes during the trial process.
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ˈ ؿѰ ફ ֻ ծ
Gᯬ┧G ᒇᣋGᯬ☧⚯G᧿ᐷG ⃣❟⭿ᇫG❳㒳፳Gᯫ♛G ဋ┧Gౌ୳፳ሻUG൏ᝃ G ⛋ᝃ㒳G ౌ୳┧ᇫG ఇ❬⛋G ⁷ష⚯G ငጜ⚛G ㍃㒿㒷G ⅯG ┝ሻU
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G㕬 ⃣ᯬOs Gu UXZVYWW\PG^]⟇GY㓄O⃣❟⭿Gౌ୳⚯G❳㒳┧G 㒳G ള❬PG aG ⃣❟⭿⚯G ౌ୳ᇫG ㉧ఇG ᕧᇫG ఇ❬⚯G ငጜ⚛G ㍃㒿㓋⁷G ⒟፳ ሻU G ᭓ ⃣ᯬG XZY⟇┧G ᒇᣋG ᭓ G ⃣⚗G ሻᣏG ᯬ┧G ⚯㓋G ള❳፯⤗G ⒡ᇫG 㒳G ౌ୳፳ሻU
G 㒷G ⅯG ⛟ሻU
G 㒷G ⅯG ⛟ሻU
G 㒷G ⅯG ⛟ሻUG ∳♛ሻG ඇ⛧㗣ః⚛G ㄌ㒳G ᶛ㉧⛋G ካG ᤥሻUG
G ೣ♛❘⛋ሻU
G ❘㓀㒯G 㓠ጰ㒳ሻU
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G 㕬ᯬG Y_Z⟇O⒟㉧ ┧G 㒳G ♛㓋┧G 㒳G ⟇㓄PG aG ᅛೃᐷ⤗G ㍄⚛G ㄌ㒯╃G ≃㒳G 㒓㓋ᣓG ᭳‴∳⿻ேSG ඇ〗⚯G Ⅿሿ⚛G ㄌ㓋G ㉧ G ᕧᇫG ௗ ୗG⛧∷⚯G⚯ᣓG⛧♷ោG⛋㓠㒯ᇫG⚛Gᮀ㓋㒯ᇫG⛧ᇫGX¥[ႛ⚯G⤬ ╄㕬⚓ឳG ⯯ᯣ፳ሻU
G ┝ሻU
G 㕬 ⃣ᯬG _Z⟇┧G ᒇᛓG ⚯❘⚓ឳG ❳ౌ፳ሻU
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G ጰ㉇᧿ᣋ⚯G ᯬG ㉧ఇG 㓠┧G ⃣ⅯG ⚯ః┧G 㒳G 㖬㒳G ┏ൠ⚗G ┝ሻU
G ឳG ඇ឴፳ሻUG
G ౌ୳፯⤗G ⒡ᇫሻU
G ୗᇼ㒯ሻU
G ള❬ⱟ⒟⚗G ౌ୳❘⚓ឳG ❳ౌ፯⤗ᤣG ❬ඇ❘⚓ឳG ❳ౌ፯⤗ᇫG ⒡ᇫሻU
G ┏ិ⛋G ᯬ❬G ⃣❟⭿⚯G ⛓᳗᳛ᤣG ጛ㒯ඇG ᒣ┧G 㖬㒯⤗G ⒡ሻU
G ^\⟇O⃣❟⭿⚯G ౌ୳PG X㓄G aG 㕬 G ⃣⚗G ඇ⃣ୗG ❳ඇ፳G ⅳ᳗ょG ౌ୳ ፳ሻU
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G ┏ិ⚛G ㄌ㓋G ⛓᭯❘⛏G ⺫㈏▗G Ⳬ⯳⚛G ❳ౌ㒯షV㒯ேG ㉧ G ⤗G ೣ 㒳⚛G ୗ⤛G ඇ┧G ㌏⤗ᣓG ရ⚓ឳ⊿G ╃㒳ሻU
G ┏ൠ㒷G ⅯG ⛟⤗ᤣG ⤗G ఇ❬G ❬┧G ே⚯G ╘㓼⚛G ࿓⤗G ⒡ேG ష ‘⛋G ፯⤗G ⒡ᇫሻUG
Gqztwဋ┧G㛃‴⛧☧⟇ᶛ⇻O}zzPୗG⛟ሻUG⛋GሿⰋᇫG₈㍄G㛃‴⛧ᐻ⛋G ᯬG ∳⇻コ⛏G ᯬ☧⚛G ⛋☀㒷G ⅯG ⛟ጛ឴G ᠣG ᯬᢷG ᶛ⇻ᣓG ❳ౌ㒳ሻU
GⲳG ᯬ᳗ᇫGㄌ㓀❬ᤃ∳⇻コOpptzPᛓᇫG‟ឳ☋G∳⇻コ⚛Gష⒟㒯షG⛟ ሻUG⛋G∳⇻コ⚛Gㄌ㓋G㉧ ⚯G㉧ఇ⚛G㍃㒿㒳GGᯬ☧G┧G㒳G⡨⚯G❨ ⛋G ୗᇼ㓋⤗షSG ⓨG G G ቐ ⛧ᐻ⛋G ✃㉧G ❬G ጰ⒟G ோG ൏G ❟⭿ ᣓG ⒣షG ᒇᛓୟG ⅯG ⛟ጛ឴G ጛ▗⡛G ⛋ሻUG
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Judicial Reform Foundation (Taiwan)
Guideline for review of verdict 1. Is the judicial verdict made public in your country? ¢ Yes (Please go to Question 1Ͳ1) ¤G No (Please share the reason and go to question 1Ͳ5) 1.1 To whom is the verdict made available? ¢ Available to everyone without limit ¤ Available by request only ¥ Available only to people who are related to the trial (plaintiff, prosecutors, lawyers etc) ¦ Available in a limited manner, usually to members of academia or of the press (In this case, how is it made available specifically?) §G Others (Please explain the way in which the verdicts made available) 1.2 To what extent is the verdict made available? What percentage of the whole verdict is made available? £ The entire decision is available without limit ¤ The final rulings only (eg. Supreme court or high court decision only) ¥G Others (Please specify) 1.2 How is the verdict made public? £ Available via Internet ¤ Available in a hard copy delivery ¥ Available only by visiting the Court (eg. OnͲsite reading or photocopy at the court) ¦G Others (Please specify) 1.5 Are there any legal regulations relating to make the verdict public? (Criminal or civil law) £ Yes (Please go to Question 1Ͳ5Ͳ1) ¤G No (Please go to Questions 2) 1.4.1 Please write down the related articles of the law that are related to make the verdict public? 2. Is it allowed to criticise the verdict? ¤G Yes (Please go to Question 2Ͳ1) ¦G No (Please go to Question 3) 2.1 Can academics publicly comment on the verdict? ġ ġ Yes, they can. 2.2 Can civil society publicly comment on the verdict? Yes, it can.
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2.3 Can civil society or citizens organise a press conference or a demonstration to criticise the verdict? Yes, they can. 3. Are the court proceedings authoritative? Generally, they are. 3.1 Does the judge behave in a proper manner toward the defendant, plaintiff and witnesses? Sometimes, he does not. 3.2 Is there a law on criminal contempt of court? £ Yes (Please go to Question 3Ͳ2Ͳ1 to 3Ͳ2Ͳ3) £G No (Please go to Question 4) 3.2.1 What are the related articles or clause of the contempt of court? (Please include relevant penalty if it is applicable) 3.2.2 Are there any cases in the past that contempt of court is applied to the verdict critics made by civil society? – If yes, please include details of the case 4. Is the trial held in an open court? ¢ Yes (Please go to Question 4Ͳ1) ¤G No (Please write down the reason. Then, please go to Question 4Ͳ4) 4.1 To whom is the trial open? £ To everyone without limit £ Generally open except some special cases, where trials are held behind closed doors. How ever, the supreme courts trial generally is not open. ¥ Trials are only open to related people including family and parties to the litigation ¦G Others (Please specify) 4.2 In case the litigants speak in a different language to the official language of the court, are interpretation and translation services (including sign languages) provided openly? Yes, in principle. 4.3 In case the trial is composed of three or more judges, are minor opinions also included in the verdict? No. 4.4. How are the courts’ record kept? It is kept in files as well as in counputers. 4.4.1 How is the protocol for the written public trial? (Please include what contents must be included, whether involved parties consent is required etc) (I do not know what “protocol” exactly means here.) 4.4.2 Is it possible to take note, record sound or video during the trial? Taking simple note is possible, but not allow to record sound or video. 4.4.3 Is the protocol for the public trial available to public? Are any objections or critics to the protocol accepted? (same as 4.4.1 above)
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4.4 Is the press allowed to report on the court proceedings? ¢ Yes (Please go to Question 4.4.1) ¤G No 4.4.1 Does press cover court proceedings in a fair and balanced way? Generally, yes. 4.5 Is there a legal framework related to openness of public trial? If yes, please include a brief description of its contents. Everyone is able to be the audience in the trial. If the courtroom is not large enough to have all audience, then the ticket will deliver on “the first come first serve” basis. 5. Others 5.1 Has there ever been a television drama or movie based on real court cases? £ Yes (Please specify. Please go to Question 5.1.1) £G No 5.1.1 What was the reaction of the judicial bodies regarding this film or television show? 5.2 Is it possible for the legislative body to conduct hearings or investigation on the matters directly related to a trial while it is still in progress? £ Yes (Please give some examples including judicial body’s reaction on this) £G No 5.3 How does civil society intervene in the appointment process of the judges? No way 5.3.1 Can civil society freely comment on the decision to appoint judges? How does court respond to these comments? It can freely comment, but the court makes no response. 5.4 Are there any groups to support victims of the judiciary system? If yes, please explain further. Yes, several groups, such as Taiwan Judicial Reform Foundation, Taipei Bar Association. 6. What are the recent activities of judicial bodies regarding above issues? “The Judicial Yuan” (the highest judicial body) recently is proposing to adopt so called “Layman Observer Trial” System.
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ˈ ؿо փ
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G 㒷G ⅯG ⛟ሻU
G 㒷G ⅯG ⛟ሻU
G 㒷G ⅯG ⛟ሻUG G
G ❛᭯❘⚓ឳG ൏ሻU
G ୗྫG ൏⤗G ⒡⚛G ᒣጛG ⛟ሻU
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G 㒯⤗ᤣG ⛓᭯❘⚓ឳG ᯬ☧G ✃㉧⚗G ౌ୳፯⤗G ⒡ᇫሻUG
G ☧ⶰ❘⚓ឳG ❳ౌ፳ሻU
G ㍃㒿፯⤗G ⒡ᇫሻUG
G ⹋㐿ょ㉣⛓G G ㉣⛓ឳG ❗⛼፳ሻU
G Oሿ┋G ⚯G 㖬㒳G ⚯ᣓG ᧿ᣋ௷ሻUP
G ሿ㒳G ㈏ᇫG ୗᇼ㒯⤗ᤣG ა⚣⛋G ა㖫ᇫG ⒟G ፳ሻU
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G Oሿ┋G ⚯G 㖬㒳G ⚯ᣓG ᧿ᣋ௷ሻUP
G ❛᭯❘⚓ឳG ൏ሻU
G ᧿ᐷG ᛣ⛋G ✃㉧┧G ⮏⁴㒷G ⅯG ⛟ሻUG ᤣⓔG ᯬ❬⛋G ⿃⤗G ⒡⒛G ᧿ᐷG ᛣᐻ ⚛G Ⅿ☀㒷G ⅯG ┝ሻG ⁷⮀ⅳ⚓ឳG ㉇⛋G ᳗᭳፳ሻU
G ╃㒯⤗G ⒡ᇫሻU
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G ⛧♷ោG ┏ൠ㒷G ⅯG ⛟⚓G ᯬ☧⚗G ᭯⚨㒯⤗G ⒡ᇫሻU
G ᤣ ᯬ୳㕘✃ሿO{ G q G y G m PG ᤣᰗ㖏 㕨㗣O{ G i G h PG ୰⚗G ሿⰋୗG ⛟ሻU
G ⲳషG ᯬG ඇ⛏G ᯬ☧Oq G P⚗G ⃣♛G �⛓᭯⛏G ▌❗ᯛG ✃㉧ Os G v G { PG ∳⇻コ�G ⮛〴⚛G ❳⒟㒯షG ⛟ሻUG
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April 25 2012 CJAR (CAMPAIGN FOR JUDICIAL ACCOUNTABILITY AND REFORM, India)
Guideline for review of verdict BACKGROUND NOTE: INDIA HAS A COMMON LAW TRADITION, WITH ADVERSARIAL LITIGATION. THERE IS A THREE TIER HIERARCHY IN COURTS – DISTRICT COURTS, HIGH COURTS & THE APEX COURT, THE SUPREME COURT. IN THE DISTRICT COURTS, THERE ARE CIVIL AND CRIMINAL COURTS JUDGES. INDIA HAS ONLY ALLOCATED AROUND 0.2% OF ITS GNP (GROSS NATIONAL PRODUCT) TO THE JUDICIARY, AND AS A CONSEQUENCE, THE ADMINISTRATION OF JUSTICE IS EXTREMELY RESOURCEͲCONSTRAINED. APART FROM RESOURCEͲCONSTRAINTS, THE MANAGEMENT ALSO REQUIRES ENORMOUS IMPROVEMENT. 1. Is the judicial verdict made public in your country? ¢G Yes (Please go to Question 1Ͳ1) Ͳ YES ¤G No (Please share the reason and go to question 1Ͳ5) 1.1 To whom is the verdict made available? ¢G Available to everyone without limit ¤G Available by request only ¤ Available only to people who are related to the trial (plaintiff, prosecutors, lawyers etc) – ¦G Available in a limited manner, usually to members of academia or of the press (In this case, how is it made available specifically?) § Others (Please explain the way in which the verdicts made available) THE LAW PROVIDES THAT VERDICTS / JUDGEMENTS BE PRONOUNCED IN OPEN COURTS, AND FOR LENGTHY JUDGMENTS, THAT THE OPERATIVE PORTION BE PRONOUNCED / READ OUT IN OPEN COURT. AS A COROLLARY, THE ENTIRE VERDICT IS REQUIRED TO BE MADE AVAILABLE TO THE PUBLIC. FURTHER, THE SUPREME COURT & HIGH COURTS ARE COURTS OF RECORD, I.E. THEIR VERDICTS HAVE PRECEDENT VALUE. THEREFORE, THEIR JUDGMENTS/VERDICTS ARE ALSO REQUIRED TO BE MADE AVAILABLE TO THE PUBLIC.
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VERDICTS OF THE SUPREME COURT & HIGH COURTS ARE ALSO PUBLISHED IN REPORTERS EVERY WEEK / MONTH. THESE ARE AVAILABLE IN COURTS, LIBRARIES, AND ARE ALSO AVAILABLE FOR A PRICE TO SUBSCRIBERS SUCH AS LAWYERS. THERE ARE EXCEPTIONS TO PUBLIC HEARINGS – THESE ARE ‘IN CAMERA’ PROCEEDINGS. THESE ARE TO RETAIN CONFIDENTIALITY OF THE PARTIES, IN THE INTEREST OF ADMINISTRATION OF JUSTICE. HOWEVER, THERE ARE BARRIERS TO IMPLEMENTATION ON BOTH THE PUBLIC HEARINGS AND PRONOUNCEMENTS IN OPEN COURT, AS ILLUSTRATED BELOW: EXAMPLE 1. IN THE NAME OF SECURITY, ALL MEMBERS OF THE PUBLIC ARE NOT PERMITTED FREE ENTRY INTO THE SUPREME COURT AND HIGH COURTS. ENTRY PASSES ARE REQUIRED AND SUCH PASSES ARE NOT GENERALLY AVAILABLE TO MEMBERS OF THE PUBLIC, AND ARE ONLY ISSUED TO PARTIES TO THE MATTER, WITNESSES, ETC. EXAMPLE 2. VERDICTS ARE NOT PUBLISHED ON WEBSITES OF THE DISTRICT COURTS AND THOSE OF MANY HIGH COURTS. THERE IS ALSO, A DELAY IN MAKING THEM AVAILABLE ON WESBITES OF SEVERAL HIGH COURTS. EXAMPLE 3. VERDICTS ON WEBSITES OF HIGH COURTS ARE NOT EASY TO FIND, AS THE SEARCH IS DRIVEN BY THE NAMES OF PARTIES AND ADVOCATES IN THE CASE OR THE CASE NUMBER. A FREE TEXT SEARCH, ALTHOUGH OSTENSIBLY AVAILABLE, IS USUALLY NON FUNCTIONAL. 1.2 To what extent is the verdict made available? What percentage of the whole verdict is made available? ¢G The entire decision is available without limit ¤ The final rulings only (eg. Supreme court or high court decision only) THE ENTIRE DECISION IS AVAILABLE INCLUDING THE OPERATIVE PORTION, SUBJECT TO THE ABOVEͲMENTIONED BARRIERS IN IMPLEMENTATION. HOWEVER, COURT PROCEEDINGS ARE NOT RECORDED, UNLESS ARGUMENTS ARE SUBMITTED BY WAY OF WRITTEN SUBMISSIONS. THE JUDGE MERELY TAKES DOWN NOTES DURING THE PROCEEDINGS AND USES THEM TO RECORD HIS/HER ORDER. ¥G Others (Please specify) 1.3 How is the verdict made public? ¢ Available via Internet ¤G Available in a hard copy delivery ¥G Available only by visiting the Court (eg. OnͲsite reading or photocopy at the court) ¦ Others (Please specify)
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THE PRACTICES VARY. ALTHOUGH UNDER LAW, EVERY VERDICT OUGHT TO BE MADE PUBLIC, THE ENABLING INFRASTRUCTURE / SYSTEM IS NOT ADEQUATE TO ENSURE THAT THIS HAPPENS IN A RELIABLE MANNER ACROSS THE BOARD. IN CASE OF THE SUPREME COURT, ORDERS ARE UPLOADED ON THE COURT’S WEBSITE. FEW HIGH COURTS ALSO UPLOAD THEIR ORDERS ON THEIR WEBSITE, BUT MANY DO NOT. COMMISSIONS SUCH AS THE NHRC (NATIONAL HUMAN RIGHTS COMMISSION) MAILS ITS ORDER. IN DISTRICT COURTS, ONE HAS TO TYPICALLY APPLY FOR CERTIFIED COPIES OF THE ORDER. 1.4 Are there any legal regulations relating to make the verdict public? (Criminal or civil law) ¢G Yes (Please go to Question 1Ͳ5Ͳ1) ¤G No (Please go to Questions 2) 1.4.1 Please write down the related articles of the law that are related to make the verdict public? ORDER 20 OF THE CODE OF CIVIL PROCEDURE MANDATES THIS FOR CIVIL MATTERS BY READING OUT THE WHOLE OF THE JUDGMENT / OPERATIVE PORTION OF HE JUDGMENT IF LENGTHY. S 353 OF THE CODE OF CRIMINAL PROCEDURE MANDATES THIS FOR CRIMINAL MATTERS. BY ARTICLES 129 & 215 OF THE CONSTITUTION OF INDIA, THE SUPREME COURT & HIGH COURTS ARE COURTS OF RECORD, BY VIRTUE OF WHICH THEIR VERDICTS ARE BINDING PRECEDENTS. THEREFORE, THE CONTENTS OF THESE MUST BE MADE AVAILABLE TO THE PUBLIC. 2. Is it allowed to criticise the verdict? ¢ Yes (Please go to Question 2Ͳ1) – THE LAW PERMITS ‘CONSTRUCTIVE CRITICISM’ OF VERDICTS. BUT IN PRACTICE, SUCH CRITICISM IS NOT TOLERATED TOO KINDLY. CRITICISM IS ONLY ACCEPTED IF IT IS ALONG THE LINES THAT THE JUDICIARY WISHES TO HEAR. OF COURSE, IF THE VERDICT IS APPEALED, IT IS CRITCIZED BY THE APPELLANT. THAT APART, THE MOST ACTIVE CRITICS OF VERDICTS COMPRISE CIVIL SOCIETY / ACTIVISTS. THE MEDIA ALSO CRITICIZES VERDICTS BUT IN A MORE TENTATIVE AND CAREFUL MANNER. ¤G No (Please go to Question 3) 2.1 Can academics publicly comment on the verdict?
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ACADEMICS ARE PERMITTED TO DO SO IN THEIR PERSONAL CAPACITY. ONE AGAIN, THERE ARE RESTRAINTS IMPOSED BY SOME OF THE ORGANIZATIONS TO WHICH THEY ARE ALIGNED. 2.2 Can civil society publicly comment on the verdict? THEY ARE PERMITTED TO DO SO. HOWEVER, IT IS EXPECTED THAT IT WOULD BE A ‘CONSTRUCTIVE’ CRITICISM OF THE VERDICT, ALONG THE LINES OF WHAT THE JUDICIARY WANTS TO HEAR. MEMBERS OF CIVIL SOCIETY ARE OFTEN VICTIMIZED IF THEY DARE CRITICIZE COURT VERDICTS, COMMENCING CONTEMPT PROCEEDINGS AGAINST THEM, E.G. AUTHOR ARUNDHATI ROY WAS PUNISHED FOR CONTEMPT, FOR CRITICIZING A COURT ORDER BY SAYING THAT IT SHOWED A DISQUIETING ATTEMPT BY THE SUPREME COURT TO MUZZLE PUBLIC DISSENT/OPINION, PRASHANT BHUSHAN, ADVOCATE AND CIVIL RIGHTS ACTIVIST, HAD CONTEMPT PROCEEDINGS INITIATED AGAINST HIM, FOR SAYING THAT AROUND HALF THE JUDGES OF THE SUPREME COURT ARE CORRUPT, THE PUBLICATION (EVENING DAILY) ‘MIDDAY’, FOR EXPOSING THE THEN CHIEF JUSTICE, FOR THE NEXUS THAT HE HAD WITH A MALL DEVELOPER IN A MATTER THAT BENEFITED HIS SONS. 2.3 Can civil society or citizens organise a press conference or a demonstration to criticise the verdict? THEY CAN, BUT ONCE AGAIN, THEY ARE SUBJECT TO THE ABOVEͲMENTIONED TREATMENT. 3. Are the court proceedings authoritative? 3.1 Does the judge behave in a proper manner toward the defendant, plaintiff and witnesses? MOST PARTIES APPEAR THROUGH ADVOCATES / COUNSEL, SO THE OPPORTUNITY TO INTERACT DIRECTLY WITH THE JUDGE IS LIMITED, EXCEPT THROUGH COUNSEL. SOME JUDGES DO BEHAVE IN A PROPER MANNER TOWARD THE LITIGANT, BUT SUCH JUDGES ARE FEW AND FAR BETWEEN. MOST JUDGES ARE IMPATIENT AND ARE NOT VERY GOOD LISTENERS. MANY ARE ALSO NOT COMPETENT TO HANDLE THE MATTER BEFORE THEM. BESIDES, THEIR SENSITIVITY TO THE LITIGANT’S PROBLEMS AND APPLICATION OF THE LAW, IS ALSO LIMITED. EVEN THOUGH THERE IS NO BAR TO PETITIONERS APPEARING IN PERSON (UNLESS THE PARTY IS EXTREMELY OBSTRUCTIVE), THE JUDGE PREFERS TO HAVE MATTERS REPRESENTED THROUGH ADVOCATE / PLEADER, AS THEY FIND THAT MUCH EASIER / SIMPLER TO DEAL WITH. THUS, THE JUDGE’S INTERFACE IS LIMITED TO THE ADVOATES IN THE MATTER. 3.2 Is there a law on criminal contempt of court? ¢G Yes (Please go to Question 3Ͳ2Ͳ1 to 3Ͳ2Ͳ3) YES ¤G No (Please go to Question 4) 3.2.1 What are the related articles or clause of the contempt of court? (Please include relevant penalty if it is applicable) ARTICLES 129 & 215 OF THE CONSTITUTION OF INDIA ARE PROVISIONS DEALING WITH THE POWERS OF THE SUPREME COURT & HIGH COURT TO DEAL WITH CONTEMPT OF THEMSELVES. THE CONTEMPT OF COURTS ACT, IS A SPECIAL STATUE DEALING WITH CONTEMPT OF COURTS. S12, S14, S15 OF THE CONTEMPT OF COURTS ACT ARE CLAUSES RELATING TO PUBISHMENT. - 70 -
THE SUPREME COURT RULES ALSO CONTAIN PROVISIONS TO REGUALTE CONTEMPT OF ITSELF. THE PENALTY IF THE ACCUSED IS FOUND GUILTY OF CONTEMPT, IS FINE AND / OR SIMPLE IMPRISONMENT FOR 6 MONTHS. HOWEVER, NOWADAYS, THE SUPREME COURT & DELHI HIGH COURT FAR EXCEED THEIR AUTHORITY AND POWERS IN INVOKING THEIR CONTEMPT JURISDICTION, AND TRY TO TAKE AWAY THE POWER TO APPEAR IN COURT, ARGUE, ETC., IN EFFECT, TAKING AWAY THE VERY RIGHT TO ACCESS JUSTICE. 3.2.2 Are there any cases in the past that contempt of court is applied to the verdict critics made by civil society? – If yes, please include details of the case AUTHOR ARUNDHATI ROY WAS PUNISHED FOR CONTEMPT, FOR CRITICIZING A COURT ORDER BY SAYING THAT IT SHOWED A DISQUIETING ATTEMPT BY THE SUPREME COURT TO MUZZLE PUBLIC DISSENT/OPINION. THIS PERTAINS TO THE CASE DEALING WITH THE NARMADA BACHAO ANDOLAN, RELATING TO DAMS IN GUJARAT. 4. Is the trial held in an open court? ¢G Yes (Please go to Question 4Ͳ1) YES ¤G No (Please write down the reason. Then, please go to Question 4Ͳ4) 4.1 To whom is the trial open? £G To everyone without limit £ Generally open except some special cases, where trials are held behind closed doors MOST CASES ARE HELD IN OPEN COURT, EXCEPT FOR SOME WHICH ARE HELD IN CAMERA FOR REASONS OF CONFIDENTIALITY / PROETCTION OF THE PARTIES IN THE LARGER INTEREST OF THE ADMINISTRATION OF JUSTICE. REVIEW PETITIONS IN THE SUPREME COURT OF INDIA ARE DECIDED BEHIND CLOSED DOORS, I.E. BY CIRCULATION BEFORE JUDGES. THEY ARE NOT DECIDED IN OPEN COURT. ¥G Trials are only open to related people including family and parties to the litigation ¦ Others (Please specify) 4.2 In case the litigants speak in a different language to the official language of the court, are interpretation and translation services (including sign languages) provided openly? IN TRIALS, UNDER S 281 OF THE CODE OF CRIMINAL PROCEDURE, THE EXAMINATION OF THE ACCUSED IS REQUIRED TO BE IN THE LANGAUGE OF THE COURT, AND THE LANGUAGE OF THE RECORD IN THE LANGUAGE THAT THE ACCUSED IS EXAMINED IN, I.E. IN A LANGUAGE THAT HE UNDERSTANDS. FURTHER, AN INTERPRETER IS SUPPOSED TO BE PROVIDED. THE SUPERIOR COURTS DO NOT CONDUCT TRIALS, AS TRIALS ARE CONDUCTED BY THE DISTRICT COURTS. THE SUPERIOR COURTS Ͳ THE SUPREME COURT & HIGH COURTS Ͳ REQUIRE ‘DOCUMENTS’ TO BE TRANSLATED INTO THE LANGUAGE OF THE SUPERIOR COURTS, WHICH IS ENGLISH. PROCEEDINGS IN THE SUPERIOR COURTS ARE CONDUCTED IN ENGLISH, AND UNFORTUNATELY, PEOPLE WHO ARE NOT FLUENT IN ENGLISH, ARE CUT OFF FROM WHAT IS GOING ON. NO INTERPRETER IS PROVIDED, THE LITIGANT SIMPLY HAS TO ENGAGE A LAWYER WHO SPEAKS IN A LANGUAGE (ENGLISH) THAT (S)HE, OFTEN, CANNOT EVEN FOLLOW. - 71 -
4.3 In case the trial is composed of three or more judges, are minor opinions also included in the verdict? YES – MAJOR AND MINOR OPINIONS ARE PROVIDED. 4.4. How are the courts’ record kept? COURT RECORDS ARE KEPT IN PAPER FILES. NOWADAYS, THEY ARE TRYING TO SCAN AND MAINTAIN EͲFILES OR ELECTRONIC RECORDS. COURTS ARE MANDATED TO MAINTAIN RECORDS AS FOLLOWS: – COURTS OF RECORDS HAVE TO KEEP THEIR RECORDS FOR 2 YEARS, AND THEIR JUDGMENTS IN PERPETUITY. TRIAL COURTS HAVE TO MAINTAIN THEIR RECORDS FOR 7 YRS. 4.4.1 How is the protocol for the written public trial? (Please include what contents must be included, whether involved parties consent is required etc) IN CRIMINAL CASES, ALL EVIDENCE IS RECORDED, AND IN CIVIL CASES, ALL DEPOSITIONS ARE RECORDED. HOWEVER, ORAL PROCEEDINGS OF THE COURT ARE NOT RECORDED. THE ONLY RECORD IF ANY, IS THAT OF WRITTEN ARGUMENTS/SUBMISSIONS IN CASE THOSE ARE PROVIDED BY THE PARTIES. THE JUDGE MAKES HIS / HER OWN NOTES AND MAKES USE OF THEM TO WRITE THE ORDER / VERDICT, WHICH IS THE ONLY PUBLIC RECORD OF WHAT HAPPENED IN THE COURT. 4.4.2 Is it possible to take note, record sound or video during the trial? ONLY NOTES ARE ALLOWED, NO SOUND RECORDING OR VIDEO IS PERMITTED DURING TRIAL. WE HAVE, BY WAY OF AN APPLICATION IN A PUBLIC INTEREST LITIGATION, SOUGHT THAT CASES BE VIDEOͲRECORDED. THAT APPLICATION IS PENDING HEARING. 4.4.3 Is the protocol for the public trial available to public? Are any objections or critics to the protocol accepted? EVIDENCE OF WITNESSES IS AVAILABLE, HOWEVER, THERE IS NO WRITTEN RECORD OF PLEADERS UNLESS SUBMITTED IN WRITTEN SUBMISSIONS FORM. THESE CAN BE APPLIED AND OBTAINED HOWEVER, THERE MAY BE A FEE AND REQURIEMENT TO SHOW BONA FIDES INTERSET. IN CASE OF DISSATISFACTION, THERE IS A PROVISION FOR APPEAL. HOWEVER, THERE HAVE BEEN CASES WHEN A TRIAL HAS BEEN REͲOPENED E.G. IN THE CASE OF JESSICA LAL, IN WHICH A WOMAN WAS SHOT IN PUBLIC, BUT WHERE THE MURDERER WAS AN INFLUENTIAL PERSON, IT WAS PUBLIC PRESSURE THAT FORCED THE COURTS TO REͲOPEN THE TRIAL. THESE ARE RARE, BUT THERE IS INCREASING PUBLIC PRESSURE WHEN THERE ARE GLARING LAPSES IN VERDICTS.
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4.4 Is the press allowed to report on the court proceedings? £ Yes (Please go to Question 4.4.1) – YES THE PRESS IS ALLOWED TO REPORT ON COURT PROCEEDINGS. HOWEVER, IN ORDER TO CURTAIL THAT, THERE IS A CONSTITUTIONAL BENCH MATTER BEING HEARD. THIS MATTER HAS BEEN TAKEN UP BY THE SUPREME COURT TO CONSIDER WHETHER THERE OUGHT TO BE REGULATIONS/GUIDELINES ISSUED TO THE PRESS/MEDIA WHILE REPORTING COURT PROCEEDINGS, AND WHAT THESE REGULATIONS OUGHT TO BE. THE PROFESSED AIM IS TO AVOID ANY PREJUDICE TO THE RIGHTS OF THE PARTIES. THE CONSTITUTION BENCH IS ALSO CONSIDERING WHETHER IT WILL BE APPROPRIATE TO FRAME CERTAIN GUIDLEINES SO THAT THE MEDIA DOES NOT IMPACT FAIR TRIAL IN ANY CASE. ¤G No 4.4.1 Does press cover court proceedings in a fair and balanced way? BROADLY, WHILE THE PRESS DOES NOT COVER COURT PROCEEDINGS IN A VERY INFORMED MANNER, OR EVEN, IN A FAIR / BALANCED MANNER, OVERALL IT EVENS OUT TO GIVE THE PUBLIC A GENERAL IDEA OF WHAT IS GOING ON IN A TRIAL. THERE ARE SOME PUBLICATIONS HOWEVER, THAT DO COVER PROCEEDINGS, AND THE JUDGMENT AND ITS CONSEQUENCES, IN A FAIR AND BALANCED MANNER. IN GENERAL, THE PRESS IS FAIRLY SENSATIONALIST AND BIASED, WITH LITTLE ANALYSIS, OR CHECKING OF FACTS. IF THEY PUT IN A LITTLE MORE EFFORT, IT WOULD HUGELY IMPROVE REPORTING. HOWEVER, AS MENTIONED, IT BALANCES OUT – AND THE PRESS HAS PLAYED A VERY POSITIVE ROLE IN CERTAIN TRIALS – BY AWAKENING THE NATIONAL CONSCIENCE . A TRIAL WAS REͲOPENED, ESPECIALLY WHERE INFLEUENTIAL AND MONEYED PEOPEZE CRIMES INCL CRIMES AGAISNT WOMEN, CORRUPTION, ETC. 4.5 Is there a legal framework related to openness of public trial? If yes, please include a brief description of its contents. INDIA IS A COUNTRY THAT FOLLOWS THE PRINCIPLES OF COMMAN LAW, AND ALL TRIALS ARE MEANT TO BE FAIR PUBLIC TRIALS BY VIRTUE OF INDIA HAVING SIGNED AND RATIFIED THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, AND INTERNATIONAL COVENANTS (INTERNATIONAL COVENANT FOR CIVIL AND POLITICAL RIGHTS). THE CODE OF CIVIL PROCEDURE (CPC) AND THE CODE OF CRIMINAL PROCEDURE (CR PC) MANDATE A FAIR TRIAL AS DOES OUR CONSTITUION. 5. Others 5.1 Has there ever been a television drama or movie based on real court cases? £G Yes (Please specify. Please go to Question 5.1.1) YES, OCC Ͳ
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¤G No YES, THERE ARE A FEW, FOR EXAMPLE, THE FILM “NOͲONE KILLED JESSICA”. BUT IN GENERAL, THE EFFORT IS TO PRESENT A FINCTIONALISED VERSION OF COURT PROCEEDINGS, AND NOT SPECIFIC COURT TRIALS. THERE WAS A TELEISION DOCUMENTARY NAMED ‘ALL RISE YOUR HONOUR’ TO PORTRAY THE DISMAL FUNCTIONING OF THE COURTS. 5.1.1 What was the reaction of the judicial bodies regarding this film or television show? THERE ARE NO PUBLIC/OPEN REACTIONS FROM THE JUDICIARY. BUT IN GENERAL, THE JUDICIARY TENDS TO PROTECT ITSELF FROM ANY CRITICISM, AND TRIES TO ATTACK AND MUZZLE ANY PORTRAYAL OF ITSELF IN A POOR LIGHT. 5.2 Is it possible for the legislative body to conduct hearings or investigation on the matters directly related to a trial while it is still in progress? £G Yes (Please give some examples including judicial body’s reaction on this) ¤G No 5.3 How does civil society intervene in the appointment process of the judges? THERE IS NO PROVISION FOR CIVIL SOCIETY TO INTERVENE IN THE APPOINTMENT OF JUDGES. EVEN THE LEGAL PROFESSION CANNOT PLAY A DIRECT ROLE. THE SYSTEM OF APPOINTMENT OF JUDGES IS OPAQUE AND NONͲTRANSPARENT. MOST OFTEN, ONE DOES NOT EVEN COME TO KNOW WHO IS GOING TO BE APPOINTED AS JUDGE, UNTIL THE APPOINTMENT IS OVER AND ANNOUNCED. THE CONSTITUTION OF INDIA, PROVIDES FOR APPOINTMENT OF JUDGES BY THE GOVERNMENT IN CONSULTTATION WITH THE JUDICIARY. ARTICLES 124 & 217 OF THE CONSTITUTION PROVIDE FOR APPOINTMENT OF JUDGES OF THE SUPREME COURT & HIGH COURT. HOWEVER, THROUGH A JUDGMENT OF THE SUPREME COURT, THE JUDICIARY USURPED THAT POWER UNTO ITSELF. INDIA IS A COUNTRY WHERE JUDGES APPOINT THEMSELVES THROUGH AN OPAQUE SYSTEM WITH LITTLE ACCOUNTABILITY . THERE HAVE BEEN ATTEMPTS – THROUGH CIVIL ACTION – THROUGH ATTEMPTS AT IMPEACHMENT, COMPLAINTS TO THE SUPREME COURT, ETC., WHEREIN ELEVATION TO THE SUPREME COURT HAS BEEN CONTESTED/CHALLENGED BASED ON THE MISCONDUCT OF CANDIDATE JUDGES. CIVIL SOCIETY HAS, IN A CASE, EVEN ATTEMPTED IMPEACHMENT OF A JUDGE, WHO, FINALLY, HAD TO RESIGN BECAUSE OF PRESSURE BROUGHT ABOUT BY CIVIL SOCIETY THROUGH MEDIA. THIS WAS JUSTICE DINAKARAN OF THE KARNATAKA HIGH COURT. CIVIL SOCIETY HAS ALSO TRIED TO INFLUENCE PUBLIC OPINION BY HOLDING SEMINARS AND DISCUSSIONS AND PROPOSING SYSTEMIC REFORM IN APPOINTMENT OF JUDGES, AND ALSO, BY PROVIDING INPUTS ON JUDICIAL ACCOUNTABILITY LEGISLATIONS. 5.3.1 Can civil society freely comment on the decision to appoint judges? How does court respond to these comments?
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CIVIL SOCIETY IS NOT ENCOURAGED TO COMMENT ON DECISIONS TO APPOINT JUDGES. EVEN IF CIVIL SOCIETY DOES COMMENT ON SOME DECISIONS, ITS VOICE IS GENERALLY IGNORED, AND IT IS ONLY WHEN AVOIDANCE IS INESCAPABLE THAT A HASTY DECISION TO HOLD BACK THAT APPOINTMENT IS TAKEN IN RARE CASES. THESE ARE EXTREMELY RARE EXCEPTIONS, AND ENORMOUS PUBLIC PRESSURE HAS RESULTED IN THE RESIGNATION OF A JUDGE JUSTICE DINAKARAN, ALTHOUGH HE HAD BEEN RECOMMENDED FOR ELEVATION. 5.4 Are there any groups to support victims of the judiciary system? If yes, please explain further. IF THERE IS VICITMIZATION IN TERMS OF JUDICIAL PROCESS, IT CAN BE TAKEN UP IN APPEAL. SIMILARLY, TRANSFERS OF CASES CAN BE SOUGHT ON GROUNDS OF BIAS. THERE ARE SEVERAL GROUPS Ͳ CIVIL SOCIIETY GROUPS THAT SUPPORT SUCH VICTIMS. THEY PROVIDE LEGAL SUPPORT OR AID TO CERTAIN GROUPS / PEOPLE WHO ARE VICTIMIZED IN THE ABOVEͲMENTIONED MANNER, SUCH AS THE HOMELESS, MARGINALIZED OR ABUSED WOMEN, ECONOMICALLY DEPRIVED GROUPS, ETC. 6. What are the recent activities of judicial bodies regarding above issues? RECENTLY, IN FEW CASES, THERE HAVE BEEN TRANSFERS OF CASES FROM ONE STATE TO ANOTHER FOR FEAR OF STATE INFLUENCE – E.G. FROM GUJARAT TO BOMBAY IN THE BEST BAKERY CASE, FROM TAMIL NADU, IN A CASE RELATING TO CHARGES AGAINST THE CHIEF MINISTER OF THAT STATE.
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፳ሻUG G ౌ୳≃ᤃ⚯G ╟●ള❬⚓ឳG ᶛౌ୳≃ᤃ❟⭿ୗG ⛟ሻUG ✃㉧G ቐ ⛧⚯G ᶛ᭗♷ ⤗ᣓG ♛㒳G ᯬ⤨㓠⛋G 㒛◫㒳G ఔ☇┧G 㓋ቐ፳ሻU ൏ᝃG ౌ୳፳G ✃㉧┧G ≃ᤃG ᭦G ㉧ఇ⚯G ⁷షᣓG ᮀⰄ㒯ᇫG ⚗G ሻ⚣G ୰⚗G ┋☗⛋G ⛟ሻUG G G XUG ⒟‘⚯G ⛋♷ឳG ᧿ᐷG ᛣᐻ⛋G ⛧♷ោG ᯬ☧G షᑈᯬ☧┧G ᐻ┋ ୟG ⅯG ┝ሻUG ᐻ┋ୗඇG ♛㓋⁷G ⳳ⛜☀G ㉿⇻ୗG ⛟┋ⓓG 㒳ሻUG ⛓᭯ ᛣᐻ⚗G ⛋G ㉿⇻ᣓG ⛋☀㒷G ⅯG ┝⚓ᧇG ᨀఀ⛧G ᑈG ✃㉧G G ⛟ᇫG ᛣ┧ᤣG ❳ౌ፳ ሻUG G G YUG ⤗ᮀᯬ☧G ᳗᳛⚯G షᑈᯬ☧G ♐ ⛋㈏┧ᇫG ㉧ఇ⛋G ∳G ፯⤗G ⒡ᇫ ሻUG ᕧ㒳G ⛓᳗G షᑈᯬ☧G ♐ ⛋㈏┧ᇫG ㉧ఇG ∳G ⛨├⛋G ⤗╇፯ඇጛG 㒳 ሻUG G G ZUG ㉧ఇG ௗ†⛋G ோG ቐ ⛧ᐻG ᰗ㖏 ᐻ⚯G ⛋ᣛ⛋G ோG ᯟ㖏ឳG ⛋ᠿ ┋⤗ඇG ᒣ┧G షᑈᯬ☧G ♐ ⛋㈏┧G ㌠ఇ⚛G ⮕ඇᛗG ⇔⤗G ⒡ሻUG ㎳‘⚓ ឳᇫG ௗ†⛋G ⛧♷ឳ☋G G ୰⚓G ∻⤟❘⚓ឳG ே⚯G ඇᇼ⚛G 㒯⤗G ⒡ᇫሻUG
G ㉧ఇ⡓⚛G ㍃㒿㒳G ㉧ఇG ❛ⰋୗG ⛋☀G ୗᇼ㒯G ♛┧G ┏ൠ㒳G Zୗ⤗G ┋ ☗⛋G ⟋✃㒳ሻUG ൏ᝃG ᰗិ⛋G 㕬〳ឳG ❳ⳳ፯⤗G ⒡ᇫሻG ᯬ☧G ✃㉧G ❟⭿ᇫGඇ឴፯⤗G ⒡ᇫሻUG㉧ ᐻ⚗G⃣G ❟⭿Gጰ⒟Gⓔ⚯G ᦫ᧿ᣓG㒯షG㉧ఇ ⚛G ဋᤋG ᒣG ⛨₈㒳G ᦫ᧿ᣓG ☀㒳ሻUG
G ఔ☇┧G ᒇᛓG ሻᣋሻUG ᯬ┧G ᒇᣋG ᧿ᐷG ㉧ఇ⛋G ౌ୳፯┋ⓓG 㒯⤗ᤣSG ൏ ⚛G ୗᇼ㒯G 㒷G ᤣ㒳G ⛏㑛ᛓG ∳⇻コ⛋G ❛᭯❘⚓ឳG ᳗⟈㒯ሻUG
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G ᯬ☧⚯G ఔ☇G ᯬ☧G ♐ ⛋㈏┧G ᯬ☧G ថ⛋G ∳፳ሻUG ♐ ⛋㈏┧G ᯬ☧G ថ⚛G∳㒯ᇫGషᑈᯬ☧⚗Gே⚯G┝ሻUGೄୗ⛏ೣ♛☧㗣▗G୰⚗Gඇ⚗G൏ᐻ ⚯G ថ⚛G ☇㌏⚓ឳG ဏሻUG ⤗ᮀᯬ☧⚯G ఔ☇SG ⛓᭯❘⚓ឳG ᯬ☧G ថ┧G ᑈᱏ ⚛G ∷Ⰴ㓋ⓓᤣG 㒳ሻUG
G ᭓ ✃㉧⚯Gఔ☇G᭓ ⃣ᯬOv GYWP┧G㉧ఇG❛ⰋᣓGငጜ㒯ጛ឴G
ള❬㒯షG⛟⚓ᧇSG㉧ఇ⛋GඏGఔ☇G㉧ఇ⡓⚛Gငጜ㒿⚓ឳ⊿G㉧ఇ⚯Gౌ୳ ᣓG ⚯㖫G 㒳ሻUG 㕬 ✃㉧⚯G ఔ☇ᇫG 㕬 ⃣ᯬOz G Z\ZP┧G ⛋ᣓG ⚯㖫㒳ሻU G 㔣ᯬG XY`⟇▗G YX\⟇┧G ⚯㓋G ᯬ☧G షᑈᯬ☧⚗G ඇ឴ᯬ☧⛋ᧇSG ൏┧G ᒇᛓG ㉧ఇ⚗G ೃ⃤⚛G ୗ⤗ᇫG ⁷ភୗG ፳ሻUG ᒇᛓG ඇ឴G ဋ☀⚗G ⡨ᐻ ┧G ᭯ᐳ∳G ౌ୳፯┋ⓓG 㒳ሻUG
G ⛏ጛG ᯬ⚗G ㉧ఇ┧G 㒳G �ோ⁻❘G ᶛ㉧O G P�⚛G 㔟☀㒳ሻUG 㒯⤗ᤣG ∻❳❘⚓ឳG ㉧ఇ┧G 㒳G ᶛ㉧⚗G 㒯G Ⅿ☀፯⤗G ⒡ᇫሻUG ᶛ㉧⚗G ᯬ᳗ୗGⅯ☀㒷G∳┧ᤣG᭲⒛ᐻ╃⤛ሻUG᪓ិG㉧ఇ┧G㒳G㓄⃣ୗG❳ඇ፯G⛋G㉧ ఇ⚗G㓄⃣⛏┧G⚯㓋Gᶛ㉧⚛G᭲ᇫሻUG⛋ᣓG❳●㒯G㉧ఇ┧G㒳G㖳᭳㒳Gᶛ㉧⚗G ᳗᳛G ∳᭓ 㗣G 㖳ጰୗᐻ┧G ⚯㓋G ⛋ᠿ┋⤛ሻUG ┏ិጛG ㉧ఇ┧G 㒳G ᶛ㉧⚛G 㒯⤗ᤣG ∳᭓G 㗣G 㖳ጰୗᐻሻᇫG ⟇≃⇻షG ⃣❘⛋ሻUG
G 㒰ఛᇫG ╄ᜠ┧G ᒇᛓG ㉧ఇ┧G 㓋G ┏ൠ㒷G ⅯG ⛟ሻUG 㒯⤗ᤣG ⮃ୗ⤗ឳG 㒰 ఛ▗G ╇ఛ፳G ⛓᳗G ඇ┧G ⚯㒳G ❳㒳⛋G ⛟ሻUG
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G ∳᭓ 㗣ᇫG ㉧ఇ┧G 㒳G ౌ୳❘G ┏ൠ⚛G 㒷G ⅯG ⛟ሻUG 㒯⤗ᤣG ⛋G ┏ൠ⚗G ㉧ ఇ┧G 㒳G �ோ⁻❘G ᶛ㉧�⛋┋ⓓG 㒯షG ᯬ᳗ୗG Ⅿ☀㒯ᇫG 㒳㓋G 㔟☀፳ሻUG ᤣⓔG∳᭓ 㗣Gೃ₈☧⛋G♛㔯⚛Gᣜ⑇షGᯬ☧G㉧ఇ⚛Gᶛ㉧㒳ሻG⟜⟜G⛋ᐻ ⚛G ‘ឳG 㒯ᇫG ᯬ❬G ㉧ఇG ᧿ጜ┧G 㒳G ⃣⛋G ⤛㓠፯ᇫG ᑈ⚯G 㒓㓋ୗG ⛟ሻUG ⛨ୗG ⒛ᡃሻ㉇Gឳ⛋Oh G y PᇫGᯬ❬᧿◬⚓ឳG ⯯ᯣ⚛G ᭲⒯ᇫSG൏ᇫG ᯬ☧⛋G ថ⚛G ㄌ㓋G ᛣᐻ⚯G ᭯⚯ః⚛G ┌ᅛᣋG 㒿⚓ឳ⊿G 㗣❘G ᳟⒟ ⚛G ⓓඇ㓟ሻషG ᶛ㉧㒳G ᭫G ⛟ሻUG ᰗ㖏 ⛋⛧G ᭓ೣG ☋ጰୗ⛏G 㑛ᛓ‿㈏G ᵣ㘛‿ Ow G i P⚗G ᯬ☧G ㉧ ᐻG ❟᭯⛋G ᳗㉿㓟ሻᇫG ᭳┏⚛G 㓟ሻᇫG ⛋ ♷ឳG ᯬ❬᧿◬┧G 㒳G ✃㉧⚛G ᭲⒯ሻUG ⁴⛓⤗⛏G �ᐳ⛋Ot P�ᇫG ቐ∳G ᯬ☧⛼⛋G ⅓㒨ᨇG ୳᭳├⛧▗G ╇፳G ோ┧G ୳⛜፯┋G ⛟┟ᇫSG ൏G ோ⛋G ᯬ☧⛼⚯G ⒛ᐻ┧G 㕳〴⚛G ⡓┟ሻᇫG ⚛G ᭴㕫ሻᇫG ⛋♷ឳG ⃣⚛G ቐ㒯ඇጛG 㓟ሻU
G ∳᭓ 㗣G ∳᭓ᐻ⚗G ඇ⛧㗣ః⚛G ╋షG ∳♛ᣓG ⟇⤘㒷G ⅯG ⛟⚓G ♛┧G ┏ൠ㒳G ᳗ቐ㒳G ⃣┧G 㙯ᤧᤋG ⅯG ⛟ሻUG G
G ᰗ㖏⛏Oᤃ⛏P⚛G ㄌ㒳G ఔ☇ᣓG ❳●㒯షG ㉧ ᣓG ⤘❨❘⚓ឳG ‘㒷G ඇ㗣 ᇫG❘ሻUG ᧞᧞G㉧ ᐻ⚗G⃣G ቐ ⛧┧G❘❟㒳G〳ጛᣓG ⴿ㒯⤗ᤣG൏ᝃ㒳G㉧ ᇫGே⚯G ᐳ᪓ሻUG᳗᳛⚯G㉧ ᐻ⚗G ⃣Gቐ ⛧ᐻ⚯G⡓⛼⚛G ྴඣ⤗G⛯Gᐻ ┋⡓⤗G ⒡⚓ᧇG ₈ൠ㒯ሻO PUG ᕧ㒳G ᤥ⚗G ㉧ ᐻ⚗G ቐ ⛧ᐻG ⒵┧G ோ⚛G ሻᠿᇫG G ᇼⅰ㒯⤗G ⒡⚗ሻSG ൏ᐻ⚯G ❳┧G 㒳G ㉧ ⚯G ᭓୧₈ O P⛋G ᯬ⚛G ❘☀㒯ᇫG ᇼG ᕧ㒳G ᓿ┋⤛ሻUG G G 〛☧G∷Ⰴ⛏⛋G୳⛏❘⚓ឳGᯬ☧┧G〗ᇫGG❳㒳⛋G┝ሻషG㒯⤗ᤣO⃣G ቐ ⛧ୗG⃣G❬┧G≃㒳Gᮀ㓋ୗG፯⤗G⒡ᇫሻPG㉧ ᐻ⚗Gᯬ❘G ⒟⛋Gᰗ 㖏 ᣓGㄌ㓋G❳ඇG፷Gఔ☇GሻᠿඇୗGካ☈G⇔షGሿ㒯ሻషG╃Gᰗ㖏 ᣓGㄌ 㓋G❳ୗG❳ඇ፯ඏG᭫ᛗሻUGᒇᛓG㉧ ▗⚯G⤘❨❘G⚗Gᰗ㖏 ᐻ┧ឳG ❳㒳፳ሻUG
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G 㔣ᯬG XY`⟇▗G YX\⟇ᇫG ᯬ☧G షᑈᯬ☧⚯G ೣ㒳⚛G ള❬㒯షG ⛟⚓ ᧇSG ᯬ❬᧿◬⚛G ሻᡃሻUG ᯬ❬᧿◬ᯬ⚗G ⛋ᣓG ሻᠿᇫG ㈐ᰛᯬ⛏SG XYSG X[SG X\⟇┧G ⯯ᯣ┧G 㒳G ᳗᳛⚛G ള❬㒯షG ⛟ሻUG ᯬ☧ളⶰG ᕧ㒳G ᯬ❬᧿ ◬┧G 㒳G ള❳ᣓG ቋషG ⛟ሻUG ᯬ❬᧿◬⚓ឳG ඇ⃣፯┋G ♷⠛ୗG ⁷ష፯G ᯣൟG ᕧᇫG ]୳☫⚯G ⤬╄㕬⛋G ᳗፯ேG ᰨ፷G ⅯG ⛟ሻUG ൏ᝇG ◫⣯G ᯬ☧⛋G ዏᤃG షᑈᯬ☧⚗G ⛧∷ᐻ⚯G ೣ㒳⚛G ☀㒯╃G ᯬ㒷ೣ⚛G ❘☀∳⿿G ᦏ⤗SG ᯬ❬᧿◬⚛G ᯬ❬⛋G 㗣❘G დ✘SG ൏G ᭭⚯G ሻⓨ㒳G ొ┧G ጛ㒯G ❘☀㒯షG 㒳 ሻUG ൏ᝃ㒳G ఇឳG ᯬ┧G 㒳G ❨ೣ⛋G ⭿ሿ፯షG ⛟ሻU
G ⛨ୗG ⒛ᡃሻ㉇G ឳ⛋Oh G y PᇫG ᯬ❬᧿◬⚓ឳG ⯯ᯣ⚛G ᭲⒯ᇫ SG൏ᇫGᯬ☧⛋Gថ⚛Gㄌ㓋G ᛣᐻ⚯G᭯⚯ః⚛G┌ᅛᣋG㒿⚓ឳ⊿G 㗣❘G ᳟⒟⚛G ⓓඇ㓟ሻషG ᶛ㉧㒳G ᭫G ⛟ሻUG ⛋G ோ⚗G ೃ⛧ᛓ㈏ On P⤗ᮀ⚯G ቧG ோ⁻┧G ᭯㒯ᇫG ᣋሻG ᭫ⷋ╻G ⒟ጣᛗOu G i G h PG ⷷ㋯⛏G ╇⛋G ⛟┟ሻUG
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G ⃣G ቐ ⛧⚯G ᶛ᭗G ♷⤗V㖏G ᑈG ᯬ❟⭿⚯G ⤛㓠┧G ⛋⛌⛋G ⛟ᇫG ఔ☇ ᣓG ❳●㒯షG ᳗᳛⚯G ோ⚗G ౌ୳G ᯬ☧┧G ╋ᤇሻUG ᯬ☧┧G 㒳G ‘ష㔟ୗᇫG ㉧ ᐻ┧ᤣG 㗣ᛣ፯ᇫG ᑈG ᶛౌ୳ឳG ఇ❬፳ሻU
G 㕬 ⃣ᯬG ₐ₯G Y_X┧G ᒇᛓG 㒓ష⛏┧G 㒳G ≃⚗G ᯬ☧G ౌ∴┏┋ឳG ⛋ ᠿ┋⤗ᧇSG ඇ឴፯ᇫG ┏┋ᇫG 㒓ష⛏⛋G ⒣⒛ᐻ⚛G ⅯG ⛟ᇫG ┏┋╃ⓓG 㒳ሻUG ᕧ㒳G 㒛◫㒳G ఔ☇G ㄌ╄⛋G ❳ౌ፳ሻUG G ‘ൠG ᯬ☧ᐻO G P⚗G ⤗ᮀᯬ☧┧G ⛋ᠿ┋⤗ᇫG ✃㉧ᇫG ቃᛓ SG ᯬ☧G షᑈᯬ☧┧ᇫG ‘ൠᯬ☧G ౌ∴G ┏┋⛏G ╘┋ឳG ᯟ╄፳G ��ୗG ◫ೃ፳ሻUG ‘♛G ᯬ☧┧⚯G ⃣G ❟⭿ᇫG ╘┋ឳG ⛋ᠿ┋⤛ሻUG ᒣ┧G ╘┋┧G ᇼⅰ㒯⤗G⒡ᇫG ᛣᐻ⚗G⃣G⤛㓠G ❬⚛G⛋㓋㒯⤗Gᨒ㒯G ፳ሻUGㄌ╄⛋G❳ ౌ፯⤗G ⒡⚓ᬗឳG ⃣ቐ ⛧ᇫG ╘┋ᣓG ☀㒯ᇫG ᰗ㖏 ᣓG ష☀㓋ⓓG 㒳ሻU
G ሻⅯG ⚯ఃG ⃣Ⅿ⚯ః⛋G ❳ౌ፳ሻUG
Gᯬ☧G ඇ឴⚗GG㉣⛓ឳG ❗⛼፳ሻUG◫⣯┧ᇫGඇ឴⚛G ⇻ⷫ㓋G❛⛧G㉣⛓ ⛋G❛⛧G ඇ឴⚓ឳG♷㒯షG⛟ሻUG ᯬ☧⚗Gሻ⚣G୰⛋G ඇ឴⚛G♷㒷G⚯ ୗG ⛟ሻUG ඇ឴ᯬ☧⚗G ✃㉧ඇ឴⚛G YႛG ጰ⒟G 㒯ᧇSG ோ┧G 㒳G ㉧ఇ⚗G ╘ೃ❘⚓ឳG ♷፯┋ⓓG 㒳ሻUG X≃G ᯬ☧⚗G ✃㉧G ඇ឴⚛G ^ႛG ጰ⒟G ♷㓋ⓓᤣG 㒳ሻUG
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G 㕬 G ோ⚯G ఔ☇G ᧿ᐷG ⣴ேᇫG ඇ឴⚓ឳG ᇫሻUG ᭓ G ோ⚯G ఔ☇G ᧿ᐷG ⤛ⅷG აⴿ឴⛋G ඇ឴⚓ឳG ᇫሻUG ൏ᝃG ⓨ⛋G ឳG ፳G ✘❧ 㓄Gᑈ⚛G❬ᤃ㓋G❳ⳳ㒯⤗G⒡ᇫG㒳SGೃᎧឳG⛋ᠿ┋⤛Gᰗិ⚗Gඇ឴፯⤗G⒡ ᇫሻUG ㉧ ᐻ⚗G ✃㉧G ⡨┧G ᦫ᧿ᣓG 㒯ᇫSG ⛋G ᦫ᧿ᣓG ថ⛋G ㉧ఇ⚛G ဋᤃᇫG ☀㒯ᧇSG⛋G⛨₈፳GថGᕧᇫG㉧ఇᤣ⛋G♷⛓㒯Gౌ ∴❘⛏G ୗG ፳ሻU
G G ඇ឴ᤣG ୗᇼ㒯ᧇG ⚣₈G ა⚣⛋G ᶛᑫ╻G ა㖫ᇫG 㔟☀፯⤗G ⒡ᇫ ሻUG 㒯⤗ᤣG ౌ⛌⚛G ♛㒳G ✃㉧┧G ᶛᑫ╻G ა㖫ᣓG ❘☀㒯ᇫG ᮀ⒟⚛G 㒯షG ⛟ሻUG ⛋┧G 㒳G დ⚯ୗG ౌⰄ㗣┧G ⛋ᠿ┋G ⤟G ⛋ሻUG
Gᨀఀ⛧⚯G⣴┏⚗G⛏❬፳ሻUG൏ᝃG∷Ⰴ⛏⛋G❳ⳳ㕬∴┧GᒇᛓG⚓ ឳG ඇ឴⚛G ❳ⳳ㒯⤗G ⒡ᇫG 㒳G ඇ឴⚗G ⤗G ⒡ᇫሻUG ᇫG ⡨ᐻ⛋G ⒣G ⅯG ⛟ሻUG 㒯⤗ᤣG ឳG ❳ⳳ፯⤗G ⒡ᇫሻG ⃣G ቐ ⛧⚯G ඇ឴⚗G ឳGඇ឴፯⤗G⒡ᇫሻUG⛋Gඇ឴ᐻ┧G㒳G∷ⰄG♷ୗG⛋ᠿ┋⤟GⅯG⛟⤗ ᤣG ⓔ⚯G ᶛ☀⛋G ◫ೃ፯ᧇSG ⁷⚯⚯G ⚯ጛᛓᇫG ⛋G ⣴፯┋ⓓG 㒳ሻUG ✃㉧┧G 㒳G ᳟ᤣ⛋G ⛟ᇫG ఔ☇G 㓄⃣⟇㓄⛋G ⛟ሻUG G 㒯╃SG ✃㉧⛋G ሻ∳G ╋ᤇG ோ⛋G ⛟┟ሻUG ❳∳ⷋG ᛛOq G s P ோ⚯G ఔ☇SG ౌౌ⛼⃣┧G ⱴ‘⚛G ቐ㓟ᇫG ⛏⛧ୗG ╘㓼G ⛟ᇫG ᛣ⛋┟┟షG ⡨⚯G ⒬⛋G ே⤗⛧G ᯬ☧⚗G ⛋G ோ⚛G ሻ∳G ✃㉧㓟ሻUG ⛋ᝃ㒳G ఔ☇ᇫG ᐳ᪓⤗ᤣG ✃㉧G ఇୗG ❬ቐ㒯⤗G ᨒ㒯ሻషG ╃⤗ᇫG ோ┧G 㒳G ⡨⚯G ⒬⚗G ❧❧G ⸻⤗షG ⛟ሻUG
G ┏ិ⚗G ⃣❟⭿┧G 㒳G ጛᣓG 㒯ጛ឴G 㔟☀፳ሻUG ൏ᝃG ⛋ᣓG ❳㒳㒯ඇG ♛㒳G 㔣ᯬ❘G ❳ୗG ❳ඇ፯షG ⛟ሻUG ⛋G ❳ᇫG ᯬ☧┧G ⚯㓋G ❳ඇ፳G ⚓ ឳSG ┏ិVᑫ┋ୗG ✃㉧❬⚛G ጛ㒯ᇫG G 㒳G ❳㒳Vୗ⛋ᐳᛓ⛏⛋G 㒛◫㒳 ୗ▗G 㒛◫㒯ሻG ൏⛋G ┞⛏ୗ┧G 㒳G ⛋ሻUG ⛋G ᨀ❘⚗G ⃣G ቐ ⛧⚯G ೣᤃᣓG♛㓋G ┋ᓷ㒳G㌏ఃጛG㒓㒯ష⛧G 㒿⛋ሻUG⛋G❳ᇫG ┏ិ⛋Gౌ❬㒳G✃㉧
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┧G ╘㓼⚛G ࿓G ⅯG ┝ጛ឴G 㒯ᇫG ㈐❬㒳G ୗ⛋ᐳᛓ⛏⚛G 㕬₈㒯ᇫG ⛋G ❘❟㒳 ୗᣓG ሻᠿG ፳ሻU
G ⛓᭯❘⚓ឳG ┏ិ⚗G ᯬ❬G ⃣G ❟⭿ᣓG ❬㖬㒯షG ⛧㒯G ጛ㒯⤗G ⒡ᇫሻUG ┋ᓻG ఔ☇┧ᇫG ౌ❬㒯షG ഷ㕬G ⛸㛣G ∳┧G ጛ㒯⤗G ⒡⚛G ᒣ ጛG ⛟ሻUG ┏ិ⚗G ✃㉧┧G ⛓┋ᇫG ⛓┧G 㒳G ❛᭯❘⛏G ⒛⛋ᑫ┋ᣓG ❳ ౌ㒳ሻUG 㒯⤗ᤣG ⛓᳗ᇫG ⃣G ❟⭿▗G ㉧ఇSG ൏G ఇᣓG ౌ❬㒯షG ഷ㕬G ⛸ 㛣G ᮀ∴⚓ឳG ጛ㒳ሻUG G ⛓᭯❘⚓ឳG ┏ិ⚗G ⁷❬❘⛋ேG ㌏㓼፯┋G ⛟⚓ᧇG ோG ᭦G ⃣G ❟⭿ ┧G㒳G᳛⁴⛋G ∻┧G㒳G㖬⛏⛋G᳗⟈㒯ሻUGᤣⓔG┏ិ⛋G⟇ൟᤣGካG 㒳ሻG ጛ⚯G ⤟⛋G ⿃G 㓼‘፷G ⛋ሻUG G G 㒯⤗ᤣG ┏ិ⚗G ഷ㕬⚛G ⛋ᠿඇጛG 㒯ᧇG ೄ᭓G ⚯∴⚛G ☇⚓ឳ⊿G ㈐❬G ✃㉧┧G᤻☇G❬❘⛏G╄㒷⚛G㒳ሻUG㈐㛟G╃₈⚛G‘ឳG㒳Gᯫ⠛▗G᳗ ㉿G ᑈG ╘㓼G ⛟షG ᳗♷㒳G ᛣᐻ⛋G ❗⤗ᣋᇫG ᯫ⠛⚯G ఔ☇G ✃㉧⛋G ሻ∳G ╋ᤃඇጛG 㓟ሻUG
G⛏ጛᇫG ㄌᯬ⚯G☧ᤃᣓGᒇᣋషG ⛟ᇫGೄୗ⛋ሻUG᧿ᐷG ✃㉧⚗G⛏ጛୗG 㒯షG ᶛ⡗㒳G ఛ⛏ೣ⁷┏G ೄ❳G ⟇ⓔO∳᭓❘❬❘G ೣᤃ┧G 㒳G ೄ❳G ള ⓔP┧GᒇᛓGౌ❬㒳Gౌ୳G✃㉧⚓ឳG⛋ᠿ┋⤛ሻUG᭓ ⃣ᯬOjwjPG㕬 ⃣ ᯬOjywjP⚗G 㔣ᯬG ⮃ୗ⤗ឳG ౌ❬㒳G ✃㉧⚛G ⚯㖫G 㒳ሻUG
G ╘㖫G �⒛ጛG ❳∳ⷋᣓG ⡔⛋⤗G ⒡⒯ሻOu G G G q P▗G ୰⚗G ᧞ ᧞G 㑛ឳ൏⛋G ⛟ሻUG 㒯⤗ᤣG ୗ‘⚯G ᯬ❬G ⃣G ❟⭿ᣓG ሻᡃG ဋ☀⛋G ᤥషG ㈐ ❬G ᯬ❬G ✃㉧⚗G ே⚯G ሻᠿ⤗G ⒡ᇫሻUG ᯬ☧⚯G ≃㒳G ╄㒷G ᳗✃ᣓG ሻᡃG {}G
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ሻ⾧ょᤃG �᧿ᎧୗG ቐ∷⚯G ╟ᣓG ♛㓋Oh G G G G PୗG ⛟┟ ሻUG
G ᯬ᳗ᇫG ౌ୳❘⚓ឳG ┋ᓷ㒳G ᭯⚨ጛG ⛋షG ⛟⤗G ⒡ሻUG 㒯⤗ᤣG ⛓᭯ ❘⚓ឳG ᯬ᳗ᇫG ⛧∷ᐻ┧G 㒳G ┋ᓷ㒳G ᶛ┧G 㓋ጛG ᮀ┋❘⛏G ⛜⛼ ⚛G ⴿ㒯ᧇSG ᳗❬❘⛏G ┧G 㒳G ᧿ᐷG ㌠ୗ▗G ᩯ ┧G 㓋ᇫG 㒯ே G ౌఀ㒯G 㒳ሻU
G ∳᭓G 㗣⚯G ㉧ G ⤗❬┧G 㒳G ୳⛜┧G 㒳G ള❬⚗G ┝ሻUG ≃⤗┋G ᯬ ❘G ❛ୗጛG ⛋G ❬┧G ⤘❨❘⛏G ╘㓼⚛G ࿓G ⅯG ┝ሻUG ㉧ ⚯G ⛛┧G 㒳G ∳⇻コ⚗G ㆃ㒯⤗G ⒡⚓ᧇG ᭳㎳፯ඇG ❛ඣ⤗G ᅛୗG ㉧ ឳG ⤗፷⤗G ᧿ᣏሻUG 㔣ᯬ⚗G㉧ ⚯G ⛛⚛G ᯬ᳗▗⚯G㕨⚯ᣓG ேⰧG❬᳗ୗG㒯ጛ឴G 㒯షG⛟ሻUG㔣 ᯬG XY[⟇▗G YX^⟇ᇫG ᯬ☧G షᑈᯬ☧⚯G ㉧ G ⛛❟⭿ᣓG ള❬㒯షG ⛟ሻUG ൏ᝃGᯬ☧⚗G㉧ఇ⚛Gㄌ㓋G⛋ᝃ㒳Gೣ㒳⚛G ᯬ᳗ឳGᷓ⒮⒛▫ሻUG⛏ጛ┧G ㉧ ⚯G ⛛ᮀ∴⚗G ㆃ㒯⤗G ⒡⚓ᧇSG ே⚯G ⮜⛛⚛G ⤗⤗G ⒡ᇫG ᮀ∴⚓ឳG ⛋ᠿ ┋➏▫ሻUG G G G ᯬ☧⚓ឳ⚯G∐⤛❬┧G㉧ G㘛⛧ᐻ⛋G᳗❬㒳Gᮀᯬ⚛Gㄌ㓋Gఔ✘㒯ష ⛧G 㓟ኯG ⛓┧G 㒯╃SG ᯬ☧┧G 㓄⚯㒯ඇG ♛㓋G ∳᭓☋ጰ⚛G ㄌ㓋G ㉧ G 〛㓌G ∳ጛG ᑈ⚛G 㒳G ❘⛋G ⛟ሻUG ⛋G ❬┧G ∳᭓ 㗣ᇫG ≃⤗┋G ㉧ ᐻ┧G 㒳G 〛 㓌⚛G ∳ጛ㓟ᇫSG ఇೄ┧G ቐ ⛧ᇫG ∳᭓ 㗣G ᭦G ╃ិ⚯G ⒬⚛G ᭲⒛G ⛛㓟 ሻUG൏ᇫGⷋᣋ〗ⷋ⡓Or PGషᑈᯬ☧⚯GᑫⷋᛗOk P⛋ᛗG㉧ ╗ ሻU ∳᭓ 㗣ᇫG▗Gヷិ⚛G╋షG㉧ G⛛G∳⇻コG୳㕘⒟⚛G❳⒟㒯ᇫGᑈ⚯G ᭫├⚓ឳG╃ិ┧G╘㓼⚛GషG㓋▫ሻUGᕧ㒳G ᯬ᳗⚯G⮜⛛₈⚛G୬㖫㒯ᇫG
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⛜ᯬ⒟⚛G ᤣᐻጛ឴G 㒯ඇጛG 㒳ሻU
G ∳᭓ 㗣ୗG ㉧ G ⤗G ఇ❬┧G 㓋G ┏ൠ㒯ᇫG ⚗G ⛼፯⤗G ⒡ᇫ ሻUG∳᭓ 㗣ୗG⛓᳗G㉧ G⤗Gఇ❬┧G㓋G┏ൠ⚛G㒯ካᛓጛGㄌG∳ ፳ሻUG╻⤘G᳟ୗ㒓㒳Gఔ☇┧G㒳㒯╃G൏ᝃ㒳G㉧ G⤗Gఇ❬⚯G⯷㗣ୗG⛋ ᠿ┋⤗G ⛋⚗G ᐳG ╟⛋ሻUG ⡨G ⒬⛋G ே⤗⛧G ᑫⷋᛗG ㉧ ᇫG ᯬ☧G ㉧ ⤘┧G Ⳬ⯳⛋G ፯┟⚣┧ጛG ⛛㓋ⓓG 㓟ሻUG
G ᤣⓔG ᯬG ❬┧G 㒓㓋⛧ୗG ‴උሻG 㓄⃣ୗG ❳ඇ፷G ⅯG ⛟ሻUG ⛋▗G ♷ 㒯G ᯬ᳗⚯G ㌏㓼₈⚛GேឳG㒳G ோ⚯G⛋⚛GⰄೃ㒷G ⅯጛG⛟ሻUG ᯬG ∳⇻コ┧G ⚯㒳G 㒓㓋⛧ᣓG ጬᇫG ∳᭓G ሿⰋୗG ⟋✃㒳ሻUG ⛋ᐻG ሿⰋᇫG ⅰ⛧SG ⃣●፳G 㒰G 㒓㓋G ╃₈SG ఔ❳❘⚓ឳG ┋☋G ሿⰋG ᑈG 㒓㓋ᣓG ᭲⚗G ㈐❬G ᛣ ⛋G ሿⰋ┧G ᯬ❘G ጛ☗⚛G ❳ౌ㒳ሻUG
G ⲳG ⡓⚯G ╘㓼O G P┧G 㒳G ☇ឳG ⡓G ⛋┧G ோG ⛋ ⛋G ⛟┟ሻUG ╟ᣓG ᐻ┋G i G i G ோ⚗G ೃ⛧ᛓ㈏On P┧G ᭫⛋ ឳG ⛋፯┟షG 〗᭗G ᎧO{ G u P⚯G Ⅿ⁴G ⛼┧G 㒳G 㕧⚯G G ோ ጛG ⛋፯┟ሻUG
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May 7 2012 Jinyoung Lee (PSPD, Korea Republic)
Guideline for review of verdict 1. Is the judicial verdict made public in your country? ෭ £Yes (Please go to Question 1Ͳ1) ¤No (Please share the reason and go to question 1Ͳ5) 1.1 To whom is the verdict made available? ෭ £Available to everyone without limit ¤Available by request only ¥Available only to people who are related to the trial (plaintiff, prosecutors, lawyers etc) ¦Available in a limited manner, usually to members of academia or of the press (In this case, how is it made available specifically?) §Others (Please explain the way in which the verdicts made available) 1.2 To what extent is the verdict made available? What percentage of the whole verdict is made available? £The entire decision is available without limit ¤The final rulings only (eg. Supreme court or high court decision only) ෭ ¥Others (Please specify) ȥ I responded that the texts of court decisions are open to 'the general public with no limits attached' in the previous question. But, not 'all' the texts are open to the 'all' people 'with no limits attached.' In principle, a third person who is not directly involved in the trial can have access to texts whose detailed information such as name of trial participants and certain places are deleted. Furthermore, only small portion of the revised text, 5 percent of the total text describing court ruling, are available on line with no strings attached. Whoever wants to reach the remaining 95 percent must know the case number and pay small amount of commission to the court. 1Ͳ2Ͳ1. How much percent does open text take in the total number of court ruling documents? ȥ As mentioned above, only 5 percent of the texts is available on line with no limits attached. Case numbers and commission payment are required to obtain the remaining 95 percent of records on court decisions. However, the request can be a significant constraint to researchers and attorneys who search for court judgements by year and cases. ȥ As an exception, people can only have an access to the collection of the revised text via three display devices in Supreme Court Library located at Supreme Court. However, it lacks accessibility and only allows visitors to read the texts. 1.3 How is the verdict made public? ෭£Available via Internet ෭¤Available in a hard copy delivery ෭¥Available only by visiting the Court (eg. OnͲsite reading or photocopy at the court)
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¦Others (Please specify) 1.4 Are there any legal regulations relating to make the verdict public? (Criminal or civil law) ෭ £Yes (Please go to Question 1Ͳ5Ͳ1) ¤No (Please go to Questions 2) 1.4.1 Please write down the related articles of the law that are related to make the verdict public? ȥ Article 162 of Civil Proceedings Act(Request for Perusal of Litigation Record, and for Delivery of Certificates) ༃ A party or a third person vindicating the interests may, under the conditions as prescribed by the Supreme Court Regulations, file a request with the junior administrative officer, etc. of a court for a perusal and copying of litigation records and a delivery of an authentic copy, certified copy or abridged copy of the judicial documents or protocol, or a delivery of a certificate of matters relating to the litigation. ༄ As stipulated by Supreme Court, a party trying to protect rights, conduct researches, and support public interests may file a request with the junior administrative officer, etc. for an approval to read records final rulings on lawsuits. Yet, the defense records forbidden to release to the public are an exception. ȥ Article 59Ͳ2 of Criminal Procedure Law(Reading and Making a copy of Final Judgement Records) ༃ Anyone trying to protect rights, conduct researches, and shield public interests can make a request to Prosecution Service for an approval to read and make copies of final judgement records. Ȅ Law revision in 2011 ordered judgements in criminal and civil trial to be posted on line from 2013 and 2015 respectively. New stipulation is as follows. ȥ Anyone can read the texts of final rulings via electronic means including the internet and other electronic data processing system but also make copies of them. 2. Is it allowed to criticise the verdict? ෭ £Yes (Please go to Question 2Ͳ1) ¤No (Please go to Question 3) 2.1 Can academics publicly comment on the verdict? Yes 2.2 Can civil society publicly comment on the verdict? Yes 2.3 Can civil society or citizens organise a press conference or a demonstration to criticise the verdict? ȥ Yes. However, they are banned to stage rallies or protests within 100 meters of the court. 3. Are the court proceedings authoritative? 3.1 Does the judge behave in a proper manner toward the defendant, plaintiff and witnesses?
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ȥ There has been some improvements but a lot of judges still preside over trials in an authoritative and overbearing manner. ȥ According to a report announced by a civic group called The Good Law in 2010, judges ignored or talked down to participants in 14 percent of trials. (The civic group monitors courts to make its assessment on trials during the National assembly's annual inspection of government ministries and agencies.) 4,307 people monitored trials at Seoul High Court from July 2009 to July 2010. In addition, the report said some judges did not listen to the full testimonies of participants and interrupted them (22.9%), were late for trials (11.6%), and nodded off during trials (4%). ȥ According to 2011 Assessment on Judges released by Seoul Bar Association, a few problematic behaviors by judges were reported. • Presiding judges turned their back on an attorney and a defendant who were making last testimony by moving their chair. • A judge seriously undermined fairness of a trial by talking to one of the participants who was a manager of a bank. The judge said, "I am one of the people borrowing money from your bank. How's your branch manager doing?" • A presiding judge threw preparatory documents to a participant and rebuked him or her, saying, "If you don't understand, ask others who know much about writing the document." • A judge told a participant of trial, "As you have been beaten for 20 year, keep yourself beaten for years ahead as well." Seoul Bar Association offers its member lawyers to assess judges. 395 member lawyers evaluated 939 judges nationwide in 2011 and the report analyzed 2555 evaluations of the member lawyers. 3.2 Is there a law on criminal contempt of court? ෭ £Yes (Please go to Question 3Ͳ2Ͳ1 to 3Ͳ2Ͳ3) ¤No (Please go to Question 4) 3.2.1 What are the related articles or clause of the contempt of court? (Please include relevant penalty if it is applicable) ȥ Article 138 of Criminal Law(Contempt of Court or the National Assembly) A person who offends court or causes disturbance in or near the courtroom or National Assembly's meeting room aimed at interrupting court's judgement or hindering parliamentary deliberation subjects to imprisonment less than 3 years or penalty less than $ 700. ȥ Unlike Contempt of Court, a court can order around 20 day in a detention centre without trial. (Article 61 of Court Organization Law). 3.2.2 Are there any cases in the past that contempt of court is applied to the verdict critics made by civil society? – If yes, please include details of the case ȥ No problematic occasion occurred.(No one was indicted for contempt of court in 2011.) ȥ As a punishment for not implementing court order, there is no charges under the contempt of court in an abstract form, but it is limited to specific insult and disturbance. 4. Is the trial held in an open court? ෭£Yes (Please go to Question 4Ͳ1) ¤No (Please write down the reason. Then, please go to Question 4Ͳ4) 4.1 To whom is the trial open? - 89 -
£To everyone without limit ෭ ¤Generally open except some special cases, where trials are held behind closed doors ¥Trials are only open to related people including family and parties to the litigation ¦Others (Please specify) ȥ In principle, criminal trials are open to the general public.(Article 27 of the Constitution). However, release of statements made by victims can be prohibited to protect their privacy and safety.(Article 294Ͳ3 of Criminal Procedure Law) 4.2 In case the litigants speak in a different language to the official language of the court, are interpretation and translation services (including sign languages) provided openly? ȥ In the event that any person taking part in pleadings does not speak Korean languages, or has any impediment in hearing or speaking, the court shall have an interpreter conducting the interpretation: Provided, That the court may make the person having the said impediment to ask questions, or to make statements, in writing. (Article 143 of Civil Proceedings Law) ȥ The presiding judge of a judge may, when he examines a defendant in light of his age, gender, nationality or any other factor, allow a person who has a reliable relationship with the defendant to sit in company with the defendant.(Article 276Ͳ2 of Criminal Procedure Law) 4.3 In case the trial is composed of three or more judges, are minor opinions also included in the verdict? ȥ The document of final judgement made in a court other than Supreme Court or Constitutional Court only contains the final conclusion, not dissenting or minority opinions among the judges. Also, it is legally prohibited to disclose how the judges reached an agreement. 4.4. How are the courts’ record kept? ȥ All the protocol of public trial shall be prepared on the date of public trial.(Article 51 of Criminal Procedure Law). 4.4.1 How is the protocol for the written public trial? (Please include what contents must be included, whether involved parties consent is required etc) ȥ Court staff members who took part in the trial, for example court deputy director, write trial report. ȥ Details: Date and name of the court, participants of the trial, whether the trial was open to the public or not and the reason why it was held in closed session if it was not open to the public, reading of a statement of facts constituting the offense charged, rights of a defendant and other details related to the trial procedures. ȥ The trial report must be made immediately after the trial. Also, the report must be read in the next trial to notify the main points of the previous trial. 4.4.2 Is it possible to take note, record sound or video during the trial? ȥ Unless there is any extraordinary reason otherwise, every court shall, upon a motion from a public prosecutor, a defendant, or a defense counsel, assign a stenographer to take stenographic notes of a hearing in the court, in whole or in part or make audio or video records(including those - 90 -
with sound recorded; hereinafter the same shall apply) of a hearing by using an audio or video recording system, and may also order ex officio to take such notes or make such recording, if deemed necessary.(Article 56Ͳ2 of Criminal Procedure Law) 4.4.3 Is the protocol for the public trial available to public? Are any objections or critics to the protocol accepted? ȥ Prosecutor, defendant or attorney is able to request correction or raise an objection over the details written in trial reports. In this case, reasons for making the request or objection as well as judge's opinions regarding the demands must be added in the report. 4.4 Is the press allowed to report on the court proceedings? ෭ £Yes (Please go to Question 4.4.1) ¤No ȥ Press cannot videotape or directly report on the trial proceedings. Reporters usually deliver news by attending trials in person to write notes or by referring to press release provided by the court during or after the trial. 4.4.1 Does press cover court proceedings in a fair and balanced way? ȥ Media emphasizes different parts of the judgement or make different assessment (which can be either positive or negative) according to its political view. ȥ For instance, Prosecution Service indicted a number of protesters who attended a rally against the South KoreaͲU.S. Free Trade Agreement in 2008 and most of the trials were handled by Seoul Central District Court. One of judges requested the Constitutional Court to deliberate on the constitutionality of the ban on night time rallies. Conservative media outlets unleashed a string of harsh criticism on the judge every day. What is worse, the conservative press remained silent on the intervention of the then chief justice of Seoul Central District Court in the trial and continued to make lopsided reports to blame the judge who raised the issue. As a result, the judge who asked for the Constitutional Court to review the relevant article stepped down whereas the Chief Justice was appointed as Supreme Court Justice. Consequently, such efforts seriously undermined judicial independence. 4.5 Is there a legal framework related to openness of public trial? If yes, please include a brief description of its contents. ȥ (The third clause of Article 27 of the Constitution) All citizens have the right to a speedy trial. The accused have the right to a public trial without delay in the absence of justifiable reasons to the contrary. 5. Others 5.1 Has there ever been a television drama or movie based on real court cases? ෭ £Yes (Please specify. Please go to Question 5.1.1) ¤No ȥ In 2007, A former professor shot a crossbow at a judge for a verdict against him, in a suit he filed to be reinstated in his job. The court dubbed the incident 'terror against judiciary' and found him guilty in criminal court. A film entitled 'A Broken Arrow',is based on this story and released in theaters early this year. The movie drew 3 million viewers nationwide and prompted immense public attention.
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5.1.1 What was the reaction of the judicial bodies regarding this film or television show? ȥ After the release of the movie, court's unilateral and arbitrary way of proceeding trials emerged as a social issue. It reaffirmed high public distrust of judiciary. In response, Supreme Court said the film is based on a fiction, seeking box office hit and misleading fact of the incident. The Supreme Court distributed manuals to judges across the nation who are in charge of dealing with media coverage. Seoul Central District Court held an event as part of an effort to listen to the public opinion but underwent criticism for ending up as a oneͲoff event. 5.2 Is it possible for the legislative body to conduct hearings or investigation on the matters directly related to a trial while it is still in progress? ෭ £Yes (Please give some examples including judicial body’s reaction on this) ¤No ȥ Last year, the National Assembly embarked on investigation into the breakdown of nonͲ monetary institutions including savings banks. However, the National Assembly faced many difficulties because there was no forcible way to summon witnesses who refused to participate due to other schedules like other investigation or trial. Also, it was hard to find the fact of cases due to the lack of cooperation from investigation agencies including Prosecution Service. 5.3 How does civil society intervene in the appointment process of the judges? ȥ The Chief Justice of the Supreme Court is appointed by the President with the consent of the National Assembly. The Supreme Court Justices are appointed by the President on the recommendation of the Chief Justice and with the consent of the National Assembly. Judges other than the Chief Justice and the Supreme Court Justices are appointed by the Chief Justice with the consent of the Conference of Supreme Court Justices.(Article 104 of the Constitution). Civic society does not have many legal channels ensuring its participation in appointing judges. ȥ The Supreme Court Justice Nomination Advisory Committee or the Judges Appointment Committee recommends candidates for Supreme Court Justice and discusses nomination of judges. Although civic group personnel can be a member of the two committees, the Chief Justice of the Supreme Court has the right to appoint the committee member. ȥ In recommending candidates for Supreme Court Justice, an individual, a corporate body, or a group are institutionally allowed to recommend the most appropriate candidate and collect opinions to deliver unanimous view on the recommendations made by the Supreme Court Justice during a certain period(Article 6 of the Supreme Court Justice Nomination Advisory Committee Act). ȥ The views exchanged during the designated period are not released to the public. Therefore, civic society separately announces its own criteria for ideal Supreme Court Justice and publicly recommends candidates for the positions. 5.3.1 Can civil society freely comment on the decision to appoint judges? How does court respond to these comments? ȥ In designating Supreme Court Justice and Constitutional Court Justice, confirmation hearings are held to gain approval from the National Assembly and civic society takes part in the process. Civic society sends its own questionnaire made to assess candidates or to ask for National Assembly's approval for attending the hearing. Civic society has constantly pointed out that many retired judges and public prosecutors go on to become lawyers. The point made by the civic society plays an important role in evaluating the candidates' legal ethics.
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5.4 Are there any groups to support victims of the judiciary system? If yes, please explain further. 去 There has been a growing number of people that show their distrust and raise questions on the overall judicial procedures after they are dissatisfied with unilateral, uneven trial or investigation. They have created several groups of victims suffering from jurisdiction. They have continued to stage a one筒man protest in front of court or investigation agency buildings or file a civil complaint. 6. What are the recent activities of judicial bodies regarding above issues? 去 The Supreme Court and the South Korean government have revised criminal act to ensure defense rights of defendants and due process since 2004. As part of the same effort which outstandingly expands citizens' participation in jurisdiction procedure, jury system suggested by civic society has been discussed and legislated. In regards to the release of the text illustrating court rulings, the bill reflecting civic society's stance to disclose full document passed the National Assembly last year.
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List of Participants 㵬ᴴ㣄G⮹␜G *organized in alphabetical order Organization
#
Country
Full Name
1
Bangladesh
Mr. Adilur Rahman Khan
Odhikar
2
Bangladesh
Mr. Ahmed Swapan Mahmud
VOICE
3
Burma
Ms. Khin Ohmar
Burma Partnership
4
Cambodia
Mr. Panhavuth Long
Cambodia Justice Initiative
5
India
Mr. Lenin Raghuvanshi
People's Vigilance Committee on Human Rights
6
India
Ms. Indira Unninayar
Campaign for Judicial Accountability & Judicial Reform
7
India
Mr. Prashant Kumar
Campaign for Judicial Accountability & Judicial Reform
8
Indonesia
Mr. FebiYonesta
LBH Jakarta
9
Indonesia
Ms. Poengky Indarti
Imparsial
10
Indonesia
Mr. Wendy Andhika Prajuli
Initiatives for International Dialogue (IDSPS)
11
Korea Republic
Mr. Chanho Kim
The May 18 Memorial Foundation
12
Korea Republic
Mr. Deepak Prasad Bashyal
The May 18 Memorial Foundation
13
Korea Republic
Ms. Heejeong Kim
The May 18 Memorial Foundation
14
Korea Republic
Ms. Mihoko Yamamoto
The May 18 Memorial Foundation
15
Korea Republic
Mr. Youngjeong Kim
The May 18 Memorial Foundation
16
Korea Republic
Ms. Gayoon Baek
People's Solidarity for Participatory Democracy (PSPD)
17
Korea Republic
Ms. Huisun Kim
People's Solidarity for Participatory Democracy (PSPD)
18
Korea Republic
Mr. Jaegun Lee
People's Solidarity for Participatory Democracy (PSPD)
19
Korea Republic
Ms. Jinyoung Lee
People's Solidarity for Participatory Democracy (PSPD)
20
Korea Republic
Ms. Mihyeon Lee
People's Solidarity for Participatory Democracy (PSPD)
21
Korea Republic
Mr. Sang hie Han
People's Solidarity for Participatory Democracy (PSPD)
22
Korea Republic
Ms. Sangmi Lee
People's Solidarity for Participatory Democracy (PSPD)
23
Korea Republic
Ms. Sunmi Lee
People's Solidarity for Participatory Democracy (PSPD)
24
Korea Republic
Mr. Taeho Lee
People's Solidarity for Participatory Democracy (PSPD)
25
Korea Republic
Mr. Yang Chihchiang
People's Solidarity for Participatory Democracy (PSPD)
26
Korea Republic
Ms. Youngmi Yang
People's Solidarity for Participatory Democracy (PSPD)
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27
Korea Republic
Mr. Seungwon Lee
Soengkonghoe Univ., Democracy and Social Movements Institute
28
Malaysia
Mr. Wong Chin-Huat
Monash University Malaysia
29
Nepal
Mr. Krishna Gautam
Informal Sector Service Centre (INSEC)
30
Pakistan
Mr. Rashid Rehman Khan
Human Rights Commission of Pakistan
31
Singapore
Mr. James Gomez
Thammasat University
32
Sri Lanka
Mr. Niran Joshua Anketell
Inform Human Rights Documentation Centre
33
Taiwan
Mr. Chuan-yueh Chen
Judicial Reform Foundation
34
Taiwan
Mr. Wen-Lung Cheng
Judicial Reform Foundation
35
Timor- Leste
Mr. LuisdeOliveiraSampaio
Judicial System Monitoring Programme
36
Regional
Mr. Sayeed Ahmad
Asian Forum for Human Rights and Development (FORUM-ASIA)
37
Regional
Mr. John Liu Yn Tynn
Asian Forum for Human Rights and Development (FORUM-ASIA)
38
Regional
Mr. Yap Swee Seng
Asian Forum for Human Rights and Development (FORUM-ASIA)
39
Regional
Ms. Giyoun Kim
Asian Forum for Human Rights and Development (FORUM-ASIA)
40
Regional
Ms. Sejin Kim
Asian Forum for Human Rights and Development (FORUM-ASIA)
41
Regional
Mr. Isagani V. Abunda II
Initiatives for International Dialogue (IID)
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