New York Times
POSTED: 01:30 a.m. HST, Nov 19, 2013
MOSCOW » Under the Russian Constitution, Pavel V. Dmitrichenko, the star dancer charged with arranging an acid attack on the Bolshoi Ballet's artistic director, is innocent until proven guilty. But in court, Dmitrichenko sits in a locked iron cage, guarded by security officers and, at times, a nasty-looking dog.
A similar scene played out this month in Cairo, where the ousted Egyptian president, Mohammed Morsi, was corralled with other defendants in a meshed metal cage — his first public appearance in four months. Morsi was defiant, refusing to wear the customary prison-issued white track suit, demanding a microphone to speak from the pen and denouncing the trial as illegitimate.
Long eschewed as prejudicial by U.S. courts and by the International Criminal Court in The Hague, locked docks, either metal cells or enclosures made of glass or wood, are still common, not just in countries like Russia and Egypt where the judicial systems often face international criticism, but also in many Western democracies, including Britain and France.
Critics say that keeping defendants locked up in court presumes guilt, hinders the defense and often has no basis in law, resulting instead from administrative rules.
In Russia, it is standard for anyone held without bail, even those who pose little security risk, like the women from the punk band Pussy Riot, who were convicted of hooliganism after protesting at a church last year.
"Sometimes you can exchange two words through the cage if the security guard allows it, but very often the cage is far away," said Sergei E. Kadyrov, one of Dmitrichenko's lawyers. "It's a serious obstacle to maintaining equal rights in the courtroom."
The practice is coming under new scrutiny by legal experts and rights advocates, who say the potential harm — not only to defendants, but also to the judicial process in general — has multiplied now that court proceedings are often broadcast live, around the world on the Internet.
The way defendants are portrayed in court, especially in political cases, can influence judges, juries and global public opinion as well. Shrewd defendants like Morsi can also influence perception by turning the cage to their advantage, using it to heighten the sense of an overly aggressive, politically motivated prosecution.
"I showed the Pussy Riot photos to my first-year law students; it's a global audience we are talking about these days, with YouTube and the Web," said Linda Mulcahy, a law professor at the London School of Economics. "As soon as you put somebody in a cage, you begin to make the process part of the punishment."
Officials often cite security concerns for using docks, either the risk that violent suspects pose to others, or the danger to defendants from potentially hostile spectators. Supporters say that when docks are used routinely, they do not attract notice or prejudice against defendants, but are crucial to safety.
"People who committed various crimes — murder, rape, robberies, stabbings, shootings — are siting five to 10 feet away from us," said Rick Woodburn, the president of the Canadian Association of Crown Counsel, which represents prosecutors in Canada, where docks are customary. "I have seen numerous times where accused people got out of control and needed to be wrestled to the ground. I am not sure what that does to the presumption of innocence."
The European Court of Human Rights has issued several rulings in recent years criticizing the use of locked docks as degrading or inhumane, including in Russia and in the former Soviet republics of Armenia, Moldova and Georgia. But the rulings did not bar docks entirely as a rights violation.
In an initial ruling against Russia late last year, the human rights court went the furthest yet in censuring the practice under virtually any circumstance, siding with two men held in a cage while on trial for armed robbery, in the Russian Far East.
The men, who were acquitted of the robbery charges, complained that they had been held like "monkeys in a zoo." The rights court found that there was no evidence "giving serious grounds for the fear that the applicants posed a danger to order and security in the courtroom, or would resort to violence or abscond."
"Their placement in the cage," the judges found, "was not justified."
Russia argued that the docks were a routine security measure required under rules for court construction set in the 1990s. It has appealed the decision, which imposed a fine of 7,500 euros (about $10,000) per defendant.
Although there has been little research on the potential influence of locked docks on the verdicts reached by judges or juries, experts argue that defendants are clearly put at a disadvantage.
"All the evidence that we can collect suggests that it's prejudicial," said David Tait, a professor at the University of Western Sydney in Australia who has studied the issue.
Courts in France, England, Canada and much of Australia commonly place criminal defendants in docks made of wood or a combination of wood and glass. In England, docks are required to have side walls more than 7 feet tall. Higher-security docks are often enclosed by glass up to the ceiling.
In 2010, prosecutors filed an occupational safety complaint against Nova Scotia, one of the few Canadian jurisdictions that does not use docks. "People throw things at us, they threaten to cut our heads off, they punch at us in shackles, out of shackles, they escape," Woodburn said. "My view is safety and security of people inside that courthouse is paramount."
In the U.S., docks have been virtually eliminated as a result of judicial rulings, including by the Supreme Court. Some states still have courtrooms with docks, but many are historic relics and are rarely used.
Instead, some U.S. courts avoid the possible prejudice of docks by discreetly chaining the ankles of a potentially dangerous defendant to the floor. Others require an electric stun belt, which can deliver an immobilizing shock, to be worn under a defendant's clothes. As a security measure, the International Criminal Court in The Hague, Netherlands, puts the entire spectator gallery behind a glass partition.
While defendants in Mafia trials in Italy in the 1920s were held in cages, the modern use of docks in high-profile cases is generally traced to the trial of Adolf Eichmann, the Nazi war criminal, who was held in a glass box during proceedings in Israel in 1961.
Experts say that in most countries the use of docks is not a matter of legislation but administrative rules, often based on the recommendations of security consultants or law enforcement and corrections officials, rather than any decision by lawmakers. In many places, judges have ultimate authority, but their choices can be limited by the design of courtrooms.
Mulcahy said that docks seemed even more prejudicial in countries like England and France, where defendants' rights were otherwise well protected. "Why on earth do we want to marginalize somebody who is presumed innocent in this way?" Mulcahy asked.
In Russia, some courtrooms have floor-to-ceiling iron cages, while others now have glass boxes intended as an improvement. Sergei A. Golubok, a defense lawyer based in St. Petersburg, said that each created a negative impression of the accused and made it hard to for lawyers to communicate and share documents with them.
"There is a joke," Golubok said, "that in the cages, the defendants were like animals, and the glass cages are like aquariums; the defendants are fish."