The draft decree of the Plenum of the Supreme Arbitration Court of the Russian Federation "On ensuring transparency in arbitration proceedings" can be seen on the site of the Supreme Arbitration Court of Russia (hereinafter - Draft). Some provisions in the Draft haven't been fully defined and contain alternatives. Below we shall consider only those clarifications, which do not have alternatives in this version of the Draft.
Camera recording, photography, video recording and direct broadcasting of proceedings via radio, television or Internet.
According to the Draft any person present in a court session may take photographs, film , record or broadcast proceedings (hereinafter - photography and broadcasting) regardless of they are directly involved in the case or just part of the audience. But this is possible only on one condition – obtain an approval from the presiding judge. The persons concerned may request for the approval verbally or in writing. The request can be made before or during the session. The audience may make such a request only during the session.
If a request for photography and broadcasting is refused, the court must state the reasons for the refusal. The following will not be considered reasons for a refusal: If participants do not want wide-spread publicity of information related to the case or disclosure of data concerning activities of judicial participants that is non-confidential according to the law.
The Draft states that violation of the above requirements is not a reason to cancel a court order until it is determined that such a breach has or could lead to a wrong decision or ruling by the court.
Photography and broadcasting without the permission of the presiding judge is a violation of court session procedure. For those who commit the offense may apply sanctions in the form of removal from the courtroom or a fine. Offenders may be sent away from the courtroom or fined.
Materials from video recording and photography of a court session can be used in the case. However, this is allowed only if the arbitration court tribunal granted permission for the recording and photography. The approval is noted in the session minutes.
In accordance with the Arbitration Procedure Code at open proceedings audio recording is allowed and any person can record. In addition, as indicated in the Draft, there is no need for approval from the judge. These persons may use recording devices without informing the judge. Audio recording of a session can be attached to the case.
Cases in a closed court session
The Draft clarifies actions that should be taken by the arbitration court if the case file contains information constituting a state secret, trade secret or secret protected by law. If it is expected that an open court could lead to divulging state secrets, the arbitration court may decide to hold a closed session. The lack of access to state secrets from the persons participating in the case, their representatives, experts, professionals, witnesses and interpreters is not a basis for their exclusion from the session. However, the judge duly warns the persons of criminal liability for disclosure of state secrets and these persons sign a non-disclosure agreement that is included in the case file.
For trade secret or other secrets protected by law the court may hear a case in closed session only at the request of the person involved in the case. The judge can not decide on his own to hold such a closed court session. When considering a request for a closed court session the judge must determine whether the trade secret regime was implemented with regards to the information. This regime is established only after the owner of the information has taken all measures for its protection as listed in the law "On trade secret".