Judicial Security in Mongolia (comments)

2019 оны 06 сарын 06 41 удаа нээгдсэн

JUDICIAL SECURITY [1]

Comments

Following the structure of the Judge Duncan’s paper, this comment consists of three parts. First, it discusses which organization have the responsibilities of judicial security, then it tries to show the examples and responses to the threats to judges’ physical security. And at the end, it comments on the cybersecurity issue.

 

Agency responsible for Judicial Security

Traditionally in lower court level, very few usually one police personnel were assigned to each court. But this practice changed since 2014 with establishment [2] of “Tahar Agency” which has a very similar function as the US Marshal. Security to Supreme Court as its building has been under the protection of State Special Protection Agency. No personal or day to day protection service available for judges in any level of the hierarchy. In a case of serious threat to a particular judge or panel which mostly occurs during trial, personal protection for a judge for a certain time is organized by court administration and the police department.

Tahar Agency’s functions include protection and security of judges and court, a projection of victim and witness, transferring an accused or prisoner, and enforcement of a summons for accused and witness.

Unfortunately, newly established Tahar Agency abolished in August 2016. According to the newly formed government, this decision was made due to the financial burden facing the government. Its function for judicial security is transferred to the police. With this transfer, the General Police Department created a unit which is responsible for Judicial Security. Nowadays, judicial security is in hands of police with few more presence of police personnel in the building of court than formerly.

However, it is far fewer means of protection if compares with time with Tahar Agency. Latter was specifically designed and organized agency for judicial security than the police. Some argue it is proven that the police is not capable of protection and security of judges and court. This allegation mostly refers to the incident in relation to trial after the July 01, 2008 riot [3], first in its kind. The incident occurred when the trial court decides the criminal case involved certain numbers of high ranking police officers including chief of police accused of excessive use of police power during the clash with protesters and caused the life of five people and many injured. During the trial police who supposed to be protecting judges and the court was not able (or does not want) to perform its duty when protesters of the trial intended to attack a judge. Moreover, many police personals were in presence at the trail in support of defendants. Overall, it pushed the separate agency designed to maintain judicial security in 2013.

In 2016 after the abolishment of Tahar Agency, Minister of Justice and Head of General Council of Courts enacted the Rule [4] for protection of Judicial Security based on the Article 30.0 of the Law on Courts. Security of courts and judges are responsibilities of Unit for Judicial Security at police departments in each administrative units.

In 2016 small division of Protection of Judges created within the General Council of Courts. Its main duties are to help maintain Judicial Security and deal with attempts of Improper Influence. It is responsible for coordinating the security measures with police and individual court administration. This unit is also employed with the function of reviewing the "disclosure of improper influence" submitted by judges and take necessary further actions or transfer to an appropriate legal organization in order to initiate an investigation.

 

 

Threats to Physical Security and its response

Occasionally, judges attacked by parties to the litigation. It takes place mostly in the building or nearby court building during trail or when judges enter or leave the office. Usually, there is no separate entrance to the court building and separate hallways to the courtrooms but judges share the same route with everyone.

Judges are provided with a certain level of training on how to maintain security and use of allowed protective gears for them. A few years back there were no metal detectors at the entrance of court buildings including Supreme Court. Now it is common that courts being equipped with a metal detector, however, full usage of this and other protective measures are not inline of international practice. Security of home or residence is only in hands of judges themselves and no consultation or warnings in any form in this regards from the state.

An incident [5] occurred in a courtroom in January 2017, a defendant cute his throat (with unknown object presumable by his fingernails) during a criminal trial and hospitalized. Court administration believes that abolishment of Tahar Agency was one reason for this security breach because since the function of judicial security transferred to police degree of protection was degraded and insufficient because police personals are not enough (at least 4-5 policeman required but some courtroom has none). In 2014-2015, four criminal cases tried by the court which were classified as a crime against the judicial procedure. In only nine months, Tahar officers secured and took protective measures for in total of 64 judges, prosecutors, witness, and victims.[6] Exact numbers of in-person confrontation and other physical threats were not available for this time.  

Threats to Information and Cybersecurity

In 2013, Mongolian Judges Association conducted a survey [7] among its members about the usage of social media. According to this survey half of the total judges at that time participated. The overwhelming number of judges (89.5%) who took this survey has a Facebook account but it varies as an active or inactive user. On the other hand, only 13 judges actively use twitter account plus 91 has an account but inactively uses it. This is about 5 years ago.

As of global trend, a number of judges who use social media is growing and its impact is feasible in terms of cybersecurity. Warnings of news that a judge whose Facebook account hacked and used for requesting money from contacts were disseminated among judges and asked to take necessary precautions to secure personal social media accounts.

As mandatory requirement judges file financial disclosure every year, the disclosure of Supreme Court judges is public with all other high ranking public officials such as the president, members of government and parliament. Beside Supreme Court judges all lower court judges’ disclosure were kept in General Council of Courts and was not readily public but can be obtained through a certain procedure. March 2018, General Council of Courts made all lower court judges disclosure public [8] first time in its website.

It caused a series of backlash mostly accused of judges for being far richer than the rest of the public servants. And it leads to a certain level of scrutiny to investigate some of the judges repeatedly named in media and social media by the Anti-Corruption Agency. In social media, series of wave against judges in general but also in particular judges by calling name and making posts towards disrespecting judiciary. Some judges made public explanations in response to some of those serious allegations against them.

 

Conclusion

Judicial Security issues are not fully studied and cover not enough attention from policymakers. Abolishment of Tahar Agency was backward stepping for this matter. Due responses deserved for physical threads are not addressed as actual threads rise in correlation with the overall rise of the popular movement against corruption in state organizations. Need for training and other means of preventive measures for judges in terms of use of social media are essential. In this regards, we are eager to learn from the experiences of other jurisdictions and rest of the ANAO members.

 

Judge Tsogt Tsend (Mongolian Judges Association)

 

 


[1] Comments from the experience of Mongolia in relation to the paper prepared by the Honorable Allyson K. Duncan, Circuit Judge, United States Court of Appeals for the Fourth Circuit.

[2] Law on Tahar Service (2013.07.05)

[3] https://uk.reuters.com/article/us-mongolia/five-dead-in-mongolia-post-election-violence-idUKSP3149220080702

[4] General Council of Courts, 2017 Annual Report at 63. http://www.judcouncil.mn/main/7022--2017.html

[5] Media news (in Mongolian). http://eagle.mn/r/23272

[6] General Council of Courts. Research on Judicial Security (in Mongolian). http://www.judinstitute.mn/main/217--2016-.html

[7] Mongolian Judges Association - 2013 Survey. http://judge.mn/home/view/?id=90

[8] Financial Disclosure Report of Judges (in Mongolian).  http://www.judcouncil.mn/hashom.html

 

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