Electronic access to judicial decisions in transition economies is an important way to improve judicial system functionality, accountability, investor confidence and access to justice. The key elements to a system of open access to judicial decisions include an enabling legal framework, buy-in from the judiciary and society, political will and technological readiness. In order to implement and maintain a sustainable system of judicial decision publication and circulation, it is essential to not only measure the modality and functionality adequate to the country context, but to apply a targeted, incremental approach to publishing judicial decisions and monitoring compliance. There are several obstacles which have been identified as common problems in introducing electronic access to judicial decisions, in particular: reluctance from the judges to be exposed to scrutiny, weak technical capacity of the courts and incompatibility of technical solutions to the country context. Lastly, there are several scenarios for future development of access to judicial decisions and e-justice, including integration with a wider e-governance platform or even private fee-based legal databases.

The EBRD’s Legal Transition Programme (LTP) has direct experience of the problems which exist in relation to access to judicial decisions in its countries of operations. As part of its legal transition work, the EBRD works in transition economies to improve dispute resolution mechanisms by introducing new methods of dispute resolution, enhancing enforcement frameworks and building the capacity of courts and tribunals. Access to judicial decisions is an important tool in preparing and monitoring technical cooperation projects in dispute resolution and other legal transition sectors. Furthermore, gauging the importance of this legal instrument the EBRD has conducted several comprehensive assessments and identified a correlation between countries with limited access to judicial decisions and overall low performance of the judicial sector. Policy work undertaken in the CIS region also indicates that a number of countries there have structural and practical limitations when it comes to making judicial decisions available to the members of the legal community and wider public. The Bank has been using this systematically collected region-wide data, along with its experience in judicial sector capacity-building programming, to effectively translate it into policy dialogue with local stakeholders.

Case study on Tajikistan

Of particular interest is the example of Tajikistan, where the EBRD has encountered the problem of access to judicial decisions first hand, and has set out to overcome this impediment in a technical assistance project developed in collaboration with the Supreme Economic Court of Tajikistan. The judicial system of Tajikistan has been criticised for its lack of transparency and capacity to implement the legal framework, including in the economic sector. More specifically, several comparative regional studies conducted by the EBRD have found court functionality to be below the regional average.

The EBRD has been working in Tajikistan since 2011 to address the needs of the judiciary through implementing the Commercial Law Judicial Capacity Building Programme. To implement this ambitious project, LTT partnered with the Council of Justice to build the capacity of the ill-prepared Tajik judiciary in commercial law and to create a sustainable commercial law curriculum.

The question of access to decisions from Tajik courts first arose in 2011, when the EBRD asked to have a sample judicial decision to evaluate the impact of judicial training. The authorities resisted this request on the basis of Article 11 of the Constitutional Law on the Courts1 (2001) whereby decisions were provided exclusively to the parties involved. Among other reasons given for not making decisions available, even for training purposes, were assertions that only higher courts can evaluate lower court’s decisions.

On further investigation via an intensive needs assessment,2 the EBRD discovered that as a result of the gaps in the legal framework and lack of technical capacity, judicial decisions, particularly of the lower courts, are not easily accessed either by the legal community or the public. Stakeholders interviewed in the course of the needs assessment, attested that this produces problems from poor transparency and the inability of business and civil society to understand how the judicial system functions, to difficulties experienced by judges in adhering to a unified standard of judicial practice.

There are several inherent obstacles which lie in the way of publishing judicial decisions in Tajikistan. The first problem is that there is no tradition of publicising judicial decisions. The second, which potentially fuelled the response of the authorities to the EBRD, is the attitude of the court system in general and some judges in particular of being fearful of over-exposure and open criticism. They believe that due to language difficulties and lack of legal literacy their decisions will not withstand public scrutiny. The third problem is the lack of technological know-how and resources.

However, in the course of extensive policy dialogue, the EBRD was able to formulate a project with the Supreme Economic Court of Tajikistan which would aim to review the legal framework and pilot a judicial decisions database for economic courts. The argument consists of the following postulates: the importance of improved confidence in the protection of investor interests and ensuring access to justice for the general public; facilitating coherence and predictability of jurisprudence to improve trust in the court and safeguard judges from accusations of corruption; and allowing legal professionals, such as lawyers to perform their jobs better.

It was agreed that in order to establish a decisions database, the EBRD would provide technical assistance to the Supreme Economic Court to resolve the legislative impediments, and when the legal framework is ready, develop and pilot a website and database for judicial decisions, which will initially contain decisions of the economic courts, but will be designed to be scaled up so that all the national courts’ decisions can be included at a later date. The Supreme Economic Court and regional economic courts staff will be up-skilled technically and the technological infrastructure will be improved to make the new work-cycle easy and sustainable. The EBRD should use the training capacity developed during the previous project to engage the Judicial Training Centre in developing an easy-to-gauge, skill-based curriculum and on-the-job training.

There is some evidence that the judicial system itself is ready to start opening up towards better transparency. The Constitutional Court sets a good example, by publishing and updating decisions on its website. To date the site has attracted 128,471 visitors indicating interest from a wide audience. Furthermore, several first- and second-instance courts have up-to-date interactive internet sites, where judges publish decisions from their personal computers through using a dongle and local area connection.3

Methodology

Allowing for the complex national and regional framework a participatory and phased-in approach was selected. Hence the model in which a national electronic repository of court decisions could be established is based on regional best practices and an on-the-ground needs assessment. It would have to start with the removal of the relevant legislative provisions which currently impede access to judicial decisions.

As the EBRD experienced first-hand, despite the constitutional law requiring public trials, conflicting legislation regarding access to legal decisions can be evoked at will. The current legislative framework is governed by the Constitutional Law which describes general judicial acts, while Chapters 4 and 8 especially deal with the economic courts. Specifically, Article 11 re Public Trials, states that only court proceedings containing information constituting state secrets, pertaining to the privacy of citizens, or other circumstances where open discussion might prevent proper consideration of the case or lead to the disclosure of secrets are to be held at closed court sessions. The same law also states that copies of decisions in cases closed to the public can only go to those parties involved.

By contrast, under this same law open court sessions are fully accessible to members of the public where the decisions are publically announced, except in cases relating to the rights and legitimate interests of juveniles and the private life of citizens.4 It therefore follows that decisions should be freely available, though it seems that closed court rules are often applied instead, with legal illiteracy and judges’ unwillingness to share information cited as the reasons for this.

Lastly, it should be noted, that the 2002 Electronic Documents Act amended in December 2014, introduces equal legal force for documents produced on paper and electronically. This provision opens the door for electronically produced decisions to be legally valid and can be used by the parties to the process.

Two elements are crucial for the legislative framework to be adopted and implemented: government support and engagement of the public. It is evident from the Judicial and Legal Reform Program in Tajikistan for 2015-2017, which emphasises the responsibility of the Supreme Economic Court of Tajikistan to keep the public informed of judicial decisions, that the government has set out for the judiciary new goals for transparency. But it is not only the government that is needed to play a key role in monitoring judicial compliance to publishing decisions, but also the civil society. The public’s engagement in consultations would serve the purpose of ensuring that the judiciary is under pressure from public opinion and educate future users.

Creating technological capacity and a user-friendly website are vital to the popularity and sustainability of the site and to the spread of e-justice. A website and database will be developed, trialled at the Supreme Economic Court, and then implemented in all economic courts. The design will be carried out by a joint team of local and international IT experts, who are tasked with making a user-friendly and easily updated site. The EBRD agreed to work closely with the Supreme Economic Court personnel to translate the antiquated workflow into a process which would enable electronic metadata registration, indexation and publication.

Two main issues need to be addressed in order to ensure that the judiciary and court personnel publish decisions. First, they need to foster the will to use judicial publication as a means to building trust, reputation and even protecting themselves from accusations of corruption. Second, despite widely growing internet use and a proportion of younger judges using personal laptops to publish decisions, a significant number of judges are not computer literate and need to be up-skilled and encouraged to embrace technology. Both issues rely on careful internal communications, a system of checks and balances to regulate and enforce publication and to monitor the quality and quantity of decisions published. Furthermore, it is of utmost importance that the judges and the end-users of the court system comprehend and endorse the possibilities brought about by open access to decisions, such as more unified legal practice, an enhanced dialogue between the judiciary and the public, improved confidence in the protection of investor interests, and the understanding that access to decisions opens the path to country-wide e-justice.

Regional Best Practice: Kyrgyz Republic

The EBRD regional assessment shows that publication of judicial decisions is a rapidly growing regional trend. In the neighbouring Kyrgyz Republic an online database of administrative-economic, civil, constitutional and criminal judicial decisions was introduced in 2013. The system was deployed incrementally, and with the support of the Supreme Court. As in Tajikistan, the first categories of cases uploaded to the database were commercial: creditor rights and insolvency. If the performance of the Kyrgyz precedent is an indicator for the forecast publication rates which Tajikistan can reach then the following trend can be expected (see Chart 1).

Chart 1: Cases adjudicated and published in Kyrgyz Republic and Tajikistan

Source: – EBRD Assessment of judicial decisions.

Conclusion

The next year will be crucial in introducing free access to judicial decisions in Tajikistan, and will require close coordination and united effort on the part of the judicial authorities, Judicial Training Centre, the EBRD and the judges and court personnel. If the effort succeeds, the Tajik public, local and international investors, lawyers and judges will be able to access case law and jurisprudence, while further work to introduce country-wide e-justice will be set in motion. In this accelerating technological field, possibilities are vast and will soon be influencing wider trends in the everyday administration of justice and business dispute resolution.