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"The rule of law and our shared values are the foundation of our societies," European Commission President Ursula von der Leyen said on September 30. (file photo)

The European Commission, the executive arm of the European Union, has criticized judiciary reforms by the Hungarian and Polish governments as a "major source of controversy" and "serious concern."

The commission made its assessment in its first report about failings in the rule of law across the bloc released on September 30, a day before the bloc's 27 EU leaders gather in Brussels for a two-day summit.

It said Hungary was among member states where "the direction of change has given rise to serious concern about the impact of reforms on judicial independence," while "Poland's justice reforms since 2015 have been a major source of controversy."

Hungarian Justice Minister Judit Varga quickly dismissed the report in a statement on Facebook, calling it "flawed" and "unfounded."

Warsaw and Budapest have repeatedly clashed with EU leaders over their moves to increase state control of the judiciary, media, nongovernmental organizations, and academia.

The 2020 Rule Of Law Report addresses justice systems, anti-corruption frameworks, media freedom, as well as other checks and balances.

It said that in Hungary, the prosecution of high-level corruption "remains very limited," while the absence of legislation and transparency in the distribution of state advertising has opened the door for the government to "exert indirect political influence over the media."

The Commission's vice president, Vera Jourova, told RFE/RL, "It’s a big pity Hungary didn’t join the new European Public Prosecutor’s Office (EPPO)," a new EU body tasked with fighting corruption and fraud in the 27-member bloc. So far, 22 EU member states have joined the Luxembourg-based EPPO, expected to be up and running at the end of the year.

The report comes after the European Commission earlier this week rejected Hungarian Prime Minister Viktor Orban's demand for Jourova to be dismissed or resign after she said his vision of "illiberal democracy" was in fact spearheading the creation of an "ill democracy" in Hungary.

"I don't have any personal experience in resignations. I am not going to resign. If I resign one day, it will be because I will feel myself that I am not able to do the job properly, which is not the case today," Jourova told RFE/RL.

European Commission Vice President Vera Jourova (file photo)
European Commission Vice President Vera Jourova (file photo)

She also said that there should "definitely be space for independent media in Hungary," where media outlets critical of Orban have been muted or acquired by entities with ties to the government.

Bulgaria and Romania are also among the countries criticized in the report for shortcomings in ensuring judiciary independence.

The commission also called out Bulgaria for threats against journalists and the lack of transparency of media ownership.

Jourova reiterated to RFE/RL that the media situation in Bulgaria was "not rosy."

She spoke about "a trend in many member states where the media situation is worsening from the economic point of view, job security, and political pressure."

Jourova reiterated the importance of an independent media for democracy. "When they do their job right, the media are the defenders of democracy and freedom of speech," she told RFE/RL.

Budget Battle

The report could have repercussions for negotiations on the bloc's long-term budget.

While EU leaders have agreed in principle on a 1.8 trillion-euro ($2.1 trillion) economic recovery package for 2021-27, they have yet to find common ground on a distribution mechanism.

Reports say that a majority of the EU's 27 countries have approved a proposal over how to make payouts from the bloc conditional on upholding the rule of law -- a move opposed by Poland and Hungary.

"The rule of law and our shared values are the foundation of our societies," European Commission President Ursula von der Leyen said on September 30.

"They are part of our common identity as Europeans. The rule of law protects people from the rule of the powerful. While we have very high rule-of-law standards in the EU, we also have various challenges," she added.

With reporting by Rikard Jozwiak, Reuters, AP, and AFP
Kazakh activist Danaya Kaliyeva (left) and lawyer Zhanar Balgabayeva during her online trial on charges of contempt toward officials. She lost her case and had to pay a fine.

Almaty-based activist Danaya Kalieva is among dozens of government critics who have been tried and sentenced in an "online trial" since Kazakhstan ordered all courts to hold their proceedings only via video due to the coronavirus pandemic.

Kalieva told RFE/RL that a weak Internet signal throughout the trial held by the Zhetysu district court using the Zoom application was a major problem, as the prosecutor appeared not to properly hear the defendant.

"I had to repeat my words five, seven, even 10 times, but the…[prosecution] still pretended they couldn't hear me. The judge just silently watched all of this. I believe [such a thing] is convenient for them," Kalieva said.

In a country where the government clamps down on critics and courts are accused of pro-government bias, many activists believe that online trials with bad Internet connections have made it easier for authorities to punish its opponents.

Kalieva was found guilty of contempt toward officials and was ordered to pay about $130 in fines and compensation for the victim. The charge stemmed from an incident in February when she posted a video on social media showing men in plain clothes detaining a fellow activist.

Kalieva said she demanded the men show their official security IDs, which they refused to do.

As part of measures to contain the spread of the coronavirus, Kazakhstan banned face-to-face court proceedings in March and replaced them with video conferences using platforms such as Zoom, WhatsApp, and TrueConf.

Supporters see it as the reality of life in the COVID-19 era and praise the Kazakh courts for adapting themselves to the new system in a relatively short time.

Conducting trials online -- as opposed to simply postponing them -- could spare some suspects held in detention from waiting a long period for their trial. It also prevents courts from having a backlog of cases.

But the trials risk not allowing defendants or their attorneys to properly present their cases, which can lead to rights violations and make it easier for them to be convicted of a crime.

Kazakhstan initially introduced virtual courts in 2017 and they are being held in many countries around the world. But until the pandemic, the video links were used mainly when a witness in a case was based in another location.

Many defendants and their lawyers say their recent experiences show that Kazakhstan's court system isn't ready to hold online trials or is unwilling to address certain problems to ensure defendants' rights are upheld.

Witness Tampering, Forged Document Risks

Like Kalieva's trial in Zhetysu, many Kazakh courts use Zoom in which group calls are capped at 40 minutes and the meetings cannot be recorded. A fee is required to use the platform longer for uninterrupted meetings.

Kazakh courts also widely use WhatsApp video calls, with most of the participants accessing the service on their mobile phones. WhatsApp group calls allow up to eight participants at a time.

Leading defense lawyer Gulnar Suleimanova is concerned about many potential problems with holding court proceedings on WhatsApp, such as witness tampering.

"In a WhatsApp call, it's impossible to know where the witness is speaking from. You can only see his face. There could be a person near them who is putting pressure on the witness, influencing their testimony," Suleimanova said.

"Or maybe another witness in the same case is sitting nearby and hearing the first witness's testimony. We can't monitor that," the lawyer said.

In real courts, witnesses are excluded from the courtrooms and communication among witnesses during trials is prohibited to avoid any influence on their testimony.

Defense lawyer Serik Aitbaev told local media that virtual courts have also made it impossible to verify the authenticity of the documents.

"Apart from the court secretary, nobody else sees the originals. One could forge documents. Through WhatsApp, you only get scanned copies. The judges don't even ask if there is an original or not, they say: 'Send the copies,'" Aitbaev said.

Yury Malnykh is another Kazakh activist who was convicted in an online court. He was given two days' detention for breaching public order. (file photo)
Yury Malnykh is another Kazakh activist who was convicted in an online court. He was given two days' detention for breaching public order. (file photo)

Kazakh defense lawyers also complain that online trials have deprived defendants of having confidential discussions with their lawyers. Defense lawyers and defendants participate in the same group call in which all sides can hear each other.

Since March, Kazakhstan has banned all visits -- including by family and lawyers -- to prisons and detention centers. The ban means that detainees can only contact their lawyers via video links, running the risk that their confidential conversations are being recorded or monitored.

To connect to trials, defendants who are in custody must use the jail WiFi where the signal is often weak.

Several defendants noted that the Internet connection is generally very weak -- not only in detention facilities.

Activist Yury Malenkikh was recently sentenced in an online court for two days for breaching public order.

"The connection was being interrupted constantly, at some points it was impossible to hear the others," he said of his trial.

Malls Reopened, Courts Remain Shut

Kazakhstan has gradually eased its lockdown, reopening many businesses, including shopping centers and restaurants. But courtrooms remain closed.

Many defense lawyers are calling on authorities to allow courts to have in-person proceedings while using social-distancing measures and mandatory face masks.

But the Supreme Court has ruled that the risks to public health still remain high.

"When 15-20 people attend a criminal case hearing, it already amounts to a large gathering of people. Also, judges and prosecutors must attend several different courts every day, potentially spreading the virus," spokesman Aidos Saduakasov told reporters.

He also noted that many courthouses in Kazakhstan are not big enough to accommodate social-distancing rules.

The Human Element

With all their critics and supporters, it's expected that online trials are here to stay in Kazakhstan and perhaps elsewhere, even post pandemic.

Many court lawyers say they are getting increasingly accustomed to virtual court proceedings, which they see as a necessity.

But they point out that in online courts they miss the human element -- the feeling and emotions -- that cannot be judged on the screen of the computer or phone.

"After a couple of months, I got used to the online court," said Almaty-based Judge Yernar Kasymkhanov. "But it's definitely better for all parties to conduct the proceedings face-to-face because I need to observe the emotional state of the person."

"After years of experience as a judge, I can tell -- by looking at the person -- if they're giving false testimony," the judge continued. "I need to see face-to-face how the person behaves, what they are trying to say, what do they mean. The video doesn't give you the complete picture."

RFE/RL's Kazakh Service contributed to this report.

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"Watchdog" is a blog with a singular mission -- to monitor the latest developments concerning human rights, civil society, and press freedom. We'll pay particular attention to reports concerning countries in RFE/RL's broadcast region.

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