A Balance Between Court Security and Fair Trials:Court Cages in Criminal Cases
October 16,2019   By:CSHRS

A Balance Between Court Security and Fair Trials:
Court Cages in Criminal Cases

— Using European Court of Human Rights Cases for Reference

LI Chongtao*

Abstract: In response to the “cages in courts” issue in criminal trials, after reviewing a series of cases such as “Svinarenko and Slyadnev v. Russia”, the European Court of Human Rights has gradually clarified that the “human dignity of the accused and his right to a fair trial are higher than the value of court security”, thus found that putting the accused in a cage dock or improper use of a glass cabin dock are in breach of Article 3 and Article 6 of the European Convention on Human Rights, constitutes degrading treatment and violates the right to a fair trial. This position is in line with the international overall trend, which is of significance as a reference for China's courts. Domestic courts should take the initiative to change the current use of the “low fence dock” to further enhance China's judicial civilization.

Keywords: cage in the court ; low fence dock ; court security ; right to a fair trial

Since 2000, the European Court of Human Rights (ECtHR) has reviewed 11 cases and made 12 judgements (including a case tried respectively by both the Chamber and the Grand Chamber) in terms of cage docks and glass cabin docks used by member states of the European Convention on Human Rights (the Convention). The ECtHR decided that both a cage dock and glass cabin dock violated Article 3 (prohibiting torture and inhuman or degrading treatment) and Article 6 (the right to a fair trial) and their use should be restricted. The defendant states included Russia (six cases), Armenia (two cases) and Moldova (one case), Georgia (one case) and Ukraine (one case), Armenia argued that the use of a cage dock derived from the former Soviet Union. The legal regime in the former Soviet Union had a great influence on Chinese criminal legal rules and currently the low fence dock (or court cage) that is widely used in Chinese criminal trials is inherited from the courtroom practice in former Soviet Union. The amended Criminal Procedure Law that took effect in 2012 set the principle of respecting and preserving human rights, and in recent years the Chinese authorities have been vigorously implementing the principle of presumption of innocence as part of the efforts to push forward the judicial civilization. However, the issue of court cages has not gained wide attention and therefore has not been effectively addressed. Centering on the above-mentioned cases, this paper explores the basic stance of the ECtHR on the use of cage docks and glass cabin docks, and analyzes the lessons that the can be learned from the perspective of balancing court security and fair trials, in a hope of further upgrading China’s judicial system.

I. Controversy in the Chamber’s Judgement: Does Using a Cage Dock Amount to Degrading Treatment?

A. Titarenko v. Ukraine: a different judgement

From 2005 to 2013, the five Chambers of the ECtHR reviewed eight cases to de-termine whether keeping defendants in cage docks during trials amounted to degrading treatment in violation of Article 3 of the Convention. In all but one case, the use of the cage dock was considered illegal, and in the only one case did the judges hold that keeping the accused person in a cage dock in court proceedings did not breach European human rights law. The seven cases reviewed by the first, second, third and fourth Chamber were Sarban v. Moldova, Ramishvili and Kokhreidze v. Georgia, Ashot Harntyunyan v. Armenia, Khodorkovskiy v. Russia, Piruzyan v. Armenia, Svinarenko and Slyadnev v. Russia (the case was referred to the Grand Chamber) and Khodorkovskiy and Lebedev v Russia1, and the one case where the practice was not considered illegal was the case of Titarenko v. Ukraine examined by the fifth Chamber2.

In these cases, the Chambers of the ECtHR reached conclusions based on the comprehensive analysis of each specific case. Generally speaking, the judges decided that the use of cage dock would constitute degrading treatment within the meaning of Article 3 of the Convention if the following scenarios existed: The applicants had no criminal records; the risk of court security claimed by defendant state lack specific facts; the applicants were public figures; and the domestic trials had been reported by media. However, each case had its own distinctive characteristics, and it was reasonable to have new ideas and controversies on new cases, such as the case of Titarenko v. Ukraine. In this case, the judges of the fifth Chamber had divergent opinions and finally held by four votes to three that no violation of Article 3 of the Convention had taken place with regard the use of a cage dock during the court trial. The judges summarized in the verdict that the applicant had no criminal record, the defendant state failed to provide concrete evidence to prove the existence of a security risk, the use of the cage dock in court did not reach the threshold of degrading treatment on the grounds that the applicant was accused of violent crimes against police officers and the domestic trial did not receive extensive media coverage and public attention3. The three judges holding dissenting views thought that the only decisive factor was the realistic and specific security risk in court instead of the accusation of particular violent crimes. Besides, given that the case lacked specific facts identified as being a security risk and the domestic courts failed to conduct a risk assessment, the use of cage dock amounted to degrading treatment even in the absence of wide media coverage.4

B. Svinarenko and Slyadnev v. Russia: the only case referred to the grand chamber

Russia was the defendant state in four of the eight above-mentioned cases, and its use of cage dock was considered illegal according to the Article 3 of the Convention. The case of Svinarenko and Slyadnev v. Russia was referred to the Grand Chamber due to the application filed by Russia, and this case was the only case referred to an appellate court5. Svinarenko and Slyadnev were on probation when they allegedly committed a robbery and firearms-related crime. They were judged three times. The first applicant was judged not guilty by the jury in his first three trials. The second applicant was judged not guilty in his first trial, and in his second and third trials, he was only judged guilty on some counts. The decisions made in the second trial rescinded the original judgement and remanded the case to the original court for retrial, and in the retrail, the judges decided to dismiss the appeal and sustain the original judgement. During the trial they sat on a bench enclosed on four sides by metal rods 10 millimeters in diameter. The enclosure was 255 centimeters long, 150 centimeters wide and 225 centimeters high, with a steel mesh ceiling and a door made of metal rods. The distance between the metal rods was 19 centimeters. The two applicants respectively filed a lawsuit against Russia to the ECtHR and alleged that keeping them in a cage dock in court had amounted to degrading treatment prohibited by Article 3 of the Convention.

In fact, the Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation prohibits the degrading treatment of participants in criminal proceedings, but the Russian authorities didn’t hold that the use of “cage dock” constituted degrading treatment. In 1993, 1996 and 2006, the Ministry of Justice of the Russian Federation, the Supreme Court of the Russian Federation, the Ministry of the Interior of the Russian Federation and the Ministry of Justice and the Prosecutor General’s Office issued relevant orders that in order to provide proper conditions for the safety of trial participants, the guards of the internal troops and police escorts in the performance of their duties, the courtrooms needed to be equipped with a fixed metal barriers separating defendants in criminal cases from the court dock and the visitors attending the trial. It also instructed prisoner escort officers to be in place behind those barriers. In addition, the transfer of suspects and accused to courtrooms which were not equipped with the safety barrier was forbidden. In 2000, the Courts Administration Office at the Supreme Court of the Russian Federation and the Federal State Committee for Construction, Housing and Communal Services jointly approved the Rules on the Design and Construction of Courthouses for Courts of General Jurisdiction. According to the rules, a sub-zone for defendants in courtrooms for trial criminal cases would be set up, and the sub-zone was enclosed on four sides with metal bars that consisted of metal rods of not less than 14 millimeters in diameter. The metal rods were 220 centimeters high with a steel-wire ceiling or else extending up to the ceiling of the courtroom. In July, 2003, Russia judicial authorities put forward that two types of safety cabins in courtrooms could be used for persons in custody, which were a safety cabin made of metal bars with characteristics identical to those in the old rules and an isolating transparent safety cabin made of a steel frame and bulletproof glass walls. Notably, one suspect challenged the use of cage dock before the Supreme Court of the Russian Federation, saying that such practice violated domestic law and the Convention from the aspects of prohibited degrading treatment and guaranteed the right to a fair trial. But his request was rejected by the court in October 2004.

Judging from the relevant litigation time of the ECtHR and Russia’s acts: (1) From 2004 to 2008, several applicants filed lawsuits against Russia on the use of Cage in the Court to the ECtHR; (2) In 2011, Russia lost the lawsuit in the case of Khodorkovskiy v. Russia, but Russia didn’t appeal the Chamber’s judgement; (3) In September, 2012, the fifth Chamber of the ECtHR decided Ukraine’s use of courtroom cages was illegal, but three months later, the Chamber delivered the judgement in the case of Svinarenko and Slyadnev v. Russia that Russia’s use of courtroom cages was illegal. At that time another two cases pending against Russia were handled in ECtHR; (4) In March, 2013, Russia appealed the decision made in the case of Svinarenko and Slyadnev and the Grand Chamber received the case in April of the same year. The Russian government particularly cited the case of Titarenko v. Ukraine in the submitted written comments to support its stance. It is easy to find out that as the defendant state in the most cases concerning the use of cage dock, Russia’s appeal was possibly encouraged by the positive result in the case of Titarenko v. Ukraine. The Grand Chamber paid more attention to the cage dock and hoped to address the legal issue that had been repeatedly brought to the ECtHR for decades. Thus, the Grand Chamber no longer focused on the details of these cases, but gave an authoritative answer to whether the cage dock had amounted to degrading treatment based on the assessment of legal values.

II. The Grand Chamber Made the Final Decision: The Use of Cage Dock Amounts to Degrading Treatment

A. Opinions of defendant States and applicants

When the Grand Chamber tried the case of Svinarenko and Slyadnev v. Russia, the Russian government gave detailed explanation of the traditional use of a cage dock and its legitimacy: (1) A metal grid was first used during the trial of notorious serial killer A. Chikatilo in 1992 in order to protect the defendant from the relatives of his many victims. The “metal barriers” in courtrooms had been introduced in Russia in 1994, as a response to a crime wave in the aftermath of the break-up of the Soviet Union. The measure had pursued the purpose of preventing defendants in criminal proceedings from absconding or attacking escort officers, judges, witnesses and victims as well as ensuring the safety of visitors in courtrooms. According to the statistics conducted by the Ministry of the Interior of the Russian Federation and other Russian Judicial institutions, from 2009 to 2013, the total number of escapes from courtrooms in Russia was 0, 4, 5, 2 and 3 per year, respectively; the total number of attacks by suspects and accused in custody on State agents in courtrooms was 1, 1, 7, 0 and 7 per year, respectively; and the total number of incidents of self-mutilation by persons in custody in courtrooms was 4, 14, 20, 16 and 18 per year, respectively. If the suspects and defendants in custody had not been held behind these security barriers, the number would have been higher. Even though the high crime rate was curbed afterwards, the security barrier was still an effective method to prevent defendants from escaping, ensure judicial staff can perform their duties, allow victims, witnesses and other participants in proceedings to feel more secure, and avoid seeking revenge against defendants. (2) The security barrier was used in respect of all suspects and the accused detained on remand. However, the procedure for the imposition and extension of detention on remand served as a guarantee against arbitrariness and indiscriminate use of the security measure in question. They referred to the domestic legal framework for detention on remand, which was meant to be an extraordinary preventive measure to be ordered as a result of the assessment by a judicial authority of individual circumstances showing the existence of a danger of absconding, reoffending or obstructing the administration of justice, and only in respect of persons suspected or accused of having committed the most serious crimes and posing significant danger to society. (3) Defendants were not restricted in their movements by wrist or ankle restraints and were free to take more comfortable postures. (4) There were no international instruments which prohibited the placement of detained defendants behind security barriers in courtrooms or which set requirements for the use of such barriers.

In terms of the case, the Russian government submitted that: (1) The applicants in the present case that were kept in a cage in the court didn’t suffer from any diseases or require constant medical assistance during the trial. The applicants were not well-known public figures. There was no evidence that, apart from certain local media coverage, the case had been widely reported by the media. Therefore, holding them in cage dock would not affect their reputation or degrade their dignity. (2) The applicants had a history of violent crimes and local authorities also issued a submission to proof this. They were charged with violent crimes in this case and victims as well as witnesses said they refused to take part in the trials out of fear of the revenge from the suspects. Therefore, the applicants’ placement behind a security barrier was justified and such treatment had clearly not reached the minimum level of severity necessary for this treatment to be in breach of Article 3.

But the applicants came up with tit-for-tat opinions: (1) The keeping of suspects and accused detained on remand in a cage dock in a courtroom was a blanket practice applied irrespective of individual circumstances. (2) The documents that entitled domestic courts to construct and use cage dock were not laws enacted by legislatures and these documents were not published to the public. Therefore, these documents could not impose limitations on the exercising of human rights. (3) Human dignity was an absolute right which could not be undermined for any reason and should be protected by the state irrespective of a person’s background, criminal record or any other characteristics. Therefore, the Russian Government had erred in asserting that the use of z cage dock did not amount to degrading treatment because they were not public figures or well-known persons, and because their trial had not attracted significant public attention or extensive media coverage. (4) The applicants were not dangerous criminals and for their previous crimes were sentenced to probation. The accused in this case were found not guilty in their first trials. The Russian government didn’t have concrete evident to support their accusation that witnesses refused to participate in the proceedings out of the fear of applicants’ revenge and applicants didn’t commit any crime after they were released. Since the Russian Government could not provide any evidence to show that the applicants were likely to escape or resort to violence and the argument of the existence of courtroom security risks had no legal grounds, which meant the use of cage dock in courtrooms could not be justified. (5) The set of trial procedures should try to avoid juries being prejudice against defendants. Being exposed in the cage dock to the general public like criminals, or even like “monkeys in a zoo”, made the applicants feel helplessness, inferior and anxious during the entire trial. Such harsh treatment had had an impact on their power of concentration and mental alertness. The cages not only degraded human’s dignity, but also violated the principle of presumption of innocence and finally produced negative effects on fair trials.

B. The Grand Chamber’s opinions and attitudes

The ECtHR first put forward some basic principles: (1) Article 3 of the Convention enshrined one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment. (2) Degrading treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depended on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victims. Although the question whether the purpose of the treatment was to humiliate or debase the victim was a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3. (3) When judges identified the treatment to be degrading, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment. As regards measures of restraint such as handcuffing, these do not normally give rise to an issue under Article 3 of the Convention. The key factor was whether such measures brought unavoidable distress or suffering, or exceeded reasonable and necessary limitations. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage or suppress evidence.6

In terms of this case, the Grand Chamber held that: (1) The order and security in the courtroom are of great importance, but it would not be justified to take measures that severely violated Article 3 of the Convention simply for order and security in the courtroom, because the right enshrined in Article 3 was an absolute right. (2) The photo revealed that the applicants were confined in an enclosure formed by metal rods on four sides and a wire ceiling, which could be described as a cage. Given the fact that the trials were open to the general public, the applicants’ exposure to the public eye in a cage must have undermined their image and must have aroused in them feelings of humiliation, helplessness, fear, anguish and inferiority. (3) Such conduct would worry the applicants that their exposure in a cage during trials in their case would convey negative images to their judges and the principle of presumption of innocence would be undermined, which caused them anxiety and distress. In addition, the constraint measures taken by Russian courts possibly affect the right to fair trial that applicants should enjoy, especially affecting whether the applicants could participate in the proceedings and whether they could get effective legal assistance. (4) The Grand Chamber didn’t find any convincing evidence to prove that it was necessary to use the cage dock to constrain applicants’ freedom, prevent them from escaping and disturbing the court order and protecting them from being offended. On the contrary, it was obvious that the applicants were insulted and their human dignity degraded. Compared with defendants not held in cages, the applicants constrained in the cages suffered more from distress and humility, and also reached the lowest threshold stipulated in Article 3 of the Convention. (5) The court never assessed whether the applicants’ physical restraint was at all necessary during the trials. Moreover, no reasons were given for keeping the applicants in cages. The arguments that the applicants committed violent crimes, had criminal histories six years before this trial and received negative references from their places of residence were not sufficient to confirm that their predisposition to violence and the existence of real security risks in the courtroom enough to justify recourse to a cage for ensuring the proper conditions for holding the trial. Based on these reasons, the Grand Chamber concluded that civilized behavior was the hallmark of a democratic society and the existence of the cage dock in court went against the standards of civilized behavior. The applicants’ confinement in a cage dock amounted to degrading treatment prohibited by Article 3 of the Convention.7

C. The significance and impacts of Grand Chamber’s judgement

In March 2015, the Committee of Ministers signed the action plan on the execu-tion of the judgement delivered by the Grand Chamber.8 The action plan pointed out that respect for dignity is the standard of civilized behavior that is the hallmark of a democratic society. The European Court for the first time concluded that holding a person in a cage dock during a trial constituted in itself an affront to human dignity in breach of Article 3 of the Convention. The European Court’s judgment in this case was transferred to the Constitutional Court of the Russian Federation and competent state authorities for practical consideration and adoption measures under their competence in order to prevent similar violations in the future.9 Afterwards, the Committee of Ministers signed the action plan on the execution of the judgements or resolutions made in the cases of Ashot Harntyunyan v. Armenia and Piruzyan v. Armenia. The defendant, the Armenian government, promised to remove all of the cage docks in its courtrooms of all of the domestic courts and the Committee of Ministers welcomed such a move.10 In the following cases of Urazov v. Russia in June 2016, Yaroslav Belousov v. Russia in October in 201611 and Vorontsov and others v. Russia on Jan. 31, 2017, the Chambers of the ECtHR cited and followed the opinions in the case of Svinarenko and Slyadnev v. Russia. The judges decided that the cage docks violated Article 3 of the Convention after brief analysis. It was noted that Russia didn’t argue in the case of Vorontsov and others v. Russia. Russia not only admitted the use of cage dock degraded human’s dignity but claimed that it had already started dealing with this issue12.

III. Judges Gradually Identify “Cage Docks” Do Harm to Defendants’ Right to A Fair Trial

In the above-mentioned cases, all of the applicants firstly stated that their dignity was degraded and requested the ECtHR to review their claims in line with the provision in the Article 3 of the Convention. Based on this, (1) The grounds of appeal in some cases involved the right to a fair trial. Holding them in the cage docks made the applicants look like criminals, impeded applicants’ participation into the proceedings and private communication with their lawyers and caused them anxiety and distress.13 (2) The applicants in some cases stated that their litigation rights were illegally restricted and requested the ECtHR to review their claims in accordance with the Article 6 § 1, 2, 3 of the Convention, which respectively stipulates the general principles, presumption of innocence and some other minimal rights the applicants had when they were charged with a criminal defense. The Chambers had once given some confusing analysis about the Article 3 and 6 or logical contradiction even existed in previous judgments, but currently logic has become clearer in subsequent similar cases.

A. 2009-2013: less striking conservative attitudes

The first time that the ECtHR held the use of “cage docks” violated the principle of presumption of innocence in the case of Ramishvili and Kokhreidze v. Georgia in January 2009. When the case was tried, the court order was chaotic and the noise filled with the courtroom. The courtroom communication was repeatedly disturbed by journalists and the mobile phones often rang from the bench. Loud voices could be heard in the court room bitterly arguing and uttering vulgar curses. In order to respond to the judge, procurator and the lawyer or be heard, the applicants had to stand on the chair in the barred dock, hanging on to the metal side bars, and shout. In contrast, the immediate proximity of the prosecutor to the judge presented no obstacle of audibility for them. The dialogue of questions and answers between judge and prosecutor was unaffected. The Fourth Chamber of the ECtHR held that the court found it difficult to conduct objective and rational judicial review. The applicants’ attention would be affected when they were held in “cage docks” and regimental police appeared in the courtroom, and the attention was a must for applicants to argue back. The contumelious and unreasonable restrictive measures violated the principle of presumption of innocence and caused prejudice in the trial. In general, the basic requirements for a fair trial were not met in breach of the Article 5 (4) of the Convention.14 It was noted that when the court decided whether the use of cage docks violated the Article 3 of the Convention, the Court shared the applicants’ concern that “such a harsh and hostile appearance of judicial proceedings could lead an average observer to believe that “extremely dangerous criminals” were on trial. Apart from undermining the principle of the presumption of innocence, the disputed treatment in the court room humiliated the applicants in their own eyes, if not in those of the public.”15 This statement was enshrined in the future cases and was cited in very case regarding whether the use of cage dock violated the Article 3 of the Convention.

But such logic had contradictions to some extent when judges decided whether the use of “cage docks” violated the Article 6 of the Convention. In the judgment of the case Ashot Harntyunyan v. Armenia delivered in June 2010, the applicants requested to review the legitimacy of “cage docks” from the perspectives of Article 3 and 6 of the Convention. The third Chamber of the ECtHR held that this violated the Article 3 of the Convention and used the opinions in the case of Ramishvili and Kokhreidze v. Georgia to justify its decision. The judges further stated that such a harsh and hostile appearance of judicial proceedings could lead an average observer to believe that “extremely dangerous criminals” were on trial. Apart from undermining the principle of the presumption of innocence, the disputed treatment in the court room humiliated the applicants in their own eyes, if not in those of the public. The applicants’ attention and alertness were possibly affected in the criminal proceedings.” (this statement was cited repeatedly later) However, when it came to the issue of whether the use of “cage docks” violated the Article 6 of the Convention, the Chamber pointed out that: (1) Since the “cage dock” was a standard security measure for all criminal cases tried in the domestic appellate court, the use of the “cage dock” would not predicate the applicants’ guilt. (2) Although a cage dockmay affect the applicant’s attention and alertness, no evidence could show that they were unable to communicate freely or privately with their lawyers, or communicate with the judges smoothly. During the trial, they also did not raise any doubts. The applicants actually got the assistance of the lawyer and effectively defended their opinions. It is impossible to say that the cage dock puts the applicants at a disadvantaged position in front of procurators or the plaintiff. The third Chamber finally said that it opposed the indiscriminate use of the cage dock as a security measure that had long been found to be in violation of article 3 of the Convention, but it could not reach a conclusion that such practice violated the principles of “equality of arms” and presumption of innocence stipulated in the Article 6 (1) and (2) simply based on this reason16.

In the case of Titarenko v. Ukraine judged in September 2012, the fifth Chamber continued the basic ideas of the third Chamber, and it pointed out implicitly: (1) The cage dock in courtrooms used as a security measure was not line with the principle of proportionality, but there was no restriction imposed on the lawyers to perform their duties during the trial; (2) Although the cage dock has certain influence on the communication between the applicants and the lawyers, the such impact didn’t lead to the absence of communication; (3) The applicant did not prove that he was deprived of the opportunity to secretly communicate with his lawyer, nor did he exercise his right in time to bring the issue to the attention of the domestic court. Therefore, on the whole, the applicants’ right to defense had not been unreasonably restricted. The use of a cage dock in this case has not reached the threshold of ineffective defense, and accordingly no violation of Article 6 (1) and (3) of the Convention could be found.17

B. After 2013, explicitly safeguard the right to a fair trial of the defendants in “cage docks”

In the two cases respectively judged in 2013 and 2016, the ECtHR’s logic changed when they decided cases. These changes were embodied in the following two aspects.

First, the judges clearly pointed out that when it came to the use of cage docks, “presumption of innocence” was closely linked to the issue of “degrading treatment”. The First Chamber made it clear for the first time in the case of “Khodorkovskiy and Lebedev v Russia” judged in July 2013 that the rights covered by Article 6 of the Convention were often interrelated, and the use of the cage docks would raise issues related to Articles 3 and Article 6 (2) of the Convention. It also related to the communication between the defendants and the lawyers, document sharing and effective defense that were stipulated in the Article 6 (1) (3b) and (3c) under the Convention. Based on this logic, the First Chamber that was responsible for the case and the Third Chamber handling the case of Urazov v. Russia in June 2016 pointed out that when they decided the cage docks degraded human dignity and violated the Article 3 of the Convention, they considered that the applicant must have had objectively justified fears that his exposure in a cage during trial in his case would convey a negative image of him to the judges, which undermined the presumption of innocence. It has thereby already addressed the essence of the applicant’s complaint under Article 6 (2) of the Convention and it was not necessary to examine the applicant’s complaint under Article 6 (2) of the Convention separately.18

Second, vigorously safeguard the right to effective defense enjoyed by the defendants in the cage dock. In the case of Khodorkovskiy and Lebedev v Russia, the First Chamber cited the previous cases19 and pointed out that it was essential to respect the private communication between the lawyers and the defendants. Their communication out of the trial of a third person was the basic requirement for the fair trial in democratic society and the Article 6 (1) and (3c) of the Convention. In this case, there were always escort officers next to the cage dock and during the trial lawyers were not allowed to approach the cage within 50 cm, nor could they pass the defendants any documents, which meant the defendant and the lawyer had to shout in front of the escort officers. The First Chamber therefore considered that the applicant and the lawyer did not have the opportunity to communicate confidentially, and integrating other factors, the judges decided that the use of cage dock in this case violated Article 6 (1) and (3c) of the Convention.20 The Third Chamber further pointed out in the case of Urazov v. Russia that an interference with the lawyer-client privilege did not necessarily require an actual interception or eavesdropping to have taken place. A genuine belief held on reasonable grounds that their discussion was being listened to might be sufficient to limit the effectiveness of the assistance which the lawyer could provide. Even though the lawyers in this case were not banned from approaching the cage dock, the escort officers who remained standing in close proximity to the cage at all times still violated the Article 6 (1) and 3 (c) of the Convention.21

IV. Clearer Stance on the Strict Restriction on “Glass Cabin Dock”

The above-mentioned cases are all about cage dock in courtroom, but member states of the Convention also used glass cabin docks, especially when the cage docks were found in violation of the Article 3 and Article 6 of the Convention. Some member states such as Georgia began to use glass cabin docks to replace cage docks. After Georgia lost the case “Ramishvili and Kokhreidze”, it abandoned the use of cage docks and set up a “glazed area for prisoners”22 in its criminal courts. After the case Svinarenko and Slyadnev v. Russia was decided, the action plan required the Russian government to issue the Rules on the Design and Construction of Courthouses for Courts of General Jurisdiction. Russian government adopted the “safety cabins made of a resistant glass” in criminal courts and provided renovation fees to gradually replace the cage docks.23

Shortly after, the Third Chamber of the ECtHR stated in the case of Yaroslav Belousov v. Russia that the use of glass cabin docks was not absolutely legal. Two kinds of glass cabin dock had been used in its trials: (1) The first kind was first used in a trial in June 2013, ten defendants were held in a glass cabin measuring 3.2 m x 1.7 m x 2.3 m (height); (2) Due to the applicants’ protests, they were transferred to another courtroom that was equipped with two glass cabin docks, each cabin measuring 4 m x 1.2 m x 2.3 m (height). One of the defendants was no longer placed in a glass cabin owing to a change in the measure of restraint for him. The nine remaining defendants were divided between the two cabins. At the request of the applicants, the Third Chamber of the ECtHR reviewed the use of glass cabin docks in accordance with the Article 3 and Article 6 of the Convention.

First, speaking of the Article 3 of the Convention, the applicants held that the practice in domestic courts degraded human dignity, because the glass cabin lacked space and ventilation and the benches had no backrests, many complaints had been filed to the court. The Russian government submitted that the glass cabin was a permanent courtroom installation consisting of a steel frame and sheets of bulletproof glass, with a partition inside, a steel mesh ceiling and a secure door. The ventilation outlets were at floor level and near the dock was an air conditioner. The Russian government further noted that different from a cage dock, the use of a glass cabin dock would not amount to the degrading treatment within the meaning of Article 3 of the Convention or not cause serious discomfort to defendants. The Third Chamber of the ECtHR pointed out that glass cabin dock do not have the harsh appearance of cage dock, the very exposure in which to the public eye is capable of undermining the defendants’ image and of arousing in them feelings of humiliation, helplessness, fear, anguish and inferiority. However, if the manner and method of the execution of the measure subjected defendants to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, this would violate the Article 3 of the Convention. In the case: (1) Ten defendants were held in a glass cabin measuring 5.4 square meters. They had to endure the court trial in these conditions for several hours three days a week for a period of about two months. Besides, the applicants’ trial was a high-profile case closely followed by national and international mass media, so the applicants were permanently exposed to the public at large in this cramped setting, which amounted to degrading treatment in breach of Article 3 of the Convention. (2) The two-cabin arrangement allowed the each of the nine applicants to have at least 1.2 square meters of personal space, thus avoiding the inconvenience and humiliation of extreme overcrowding. In addition, the Court has insufficient evidence that ventilation, heating or cooling of the glass cabin dock in trial room were inadequate. As regards the alleged hindrance these installations caused to the applicants’ participation in the proceedings and their communication with lawyers, they may be considered as elements contributing to the defendants’ anxiety and distress, but taken alone they are not sufficient to pass the threshold of Article 3 of the Convention. The Court therefore concluded that the conditions did not attain the minimum level of severity prohibited by Article 3 of the Convention.24

Second, in terms of the Article 6 of the Convention, the use of the glass cabins did not meet the requirement for a fair trial, including the reducing visibility and audibility that affected their participation in the proceedings, the glass partition that made confidential exchanges with legal counsel impossible and the interior arrangement of the cabins that made it awkward to handle and read documents. The Russian government argued that the cabin was equipped with microphones allowing for consultations with lawyers and facilitating the defendants’ participation in the proceedings. The Third Chamber pointed out that: (1) It was difficult to reconcile the degrading treatment of the defendant during the judicial proceedings with the notion of the importance of equality of arms, the presumption of innocence, and the confidence which the courts in a democratic society must inspire in the public. Therefore, the glass cabin holding ten defendants violated the Article 3 of the Convention, it would at the same time violate the Article 6 of the Convention. (2) The two-cabin arrangement avoided overcrowding and did not violate the Article 3 of the Convention. But the alleged impediments to the defendants’ participation in the proceedings and to their legal assistance remained. The Court \ therefore examined whether the applicant is placed in the glass cabin during this period had been detrimental to the fairness of the trial. In terms of this issue, the Third Chamber no long focused on the details of the case, but based on the whole picture, the Chamber explored the value balance between the court security and the use of the glass cabins. The judges stressed the importance of courtroom order for a sober judicial examination, calling it a prerequisite for a fair trial. However, given the importance attached to the rights of the defense, any measures restricting the defendant’s participation in the proceedings or imposing limitations on his or her relations with lawyers should only be imposed in so far as is necessary, and should be proportionate to the risks in a specific case. The two-cabin arrangement to some extent had an impact on the exercising of the right of the accused to participate effectively in the proceedings, and a measure of confinement in the courtroom may affect the fairness of a trial guaranteed by Article 6 of the Convention, in particular it may have an impact on the accused’s right to participate effectively in the proceedings and to receive practical and effective legal assistance, the right to communicate with his lawyer without the risk of being overheard by a third party and the right to handle documents and records. The domestic courts were obliged to take into account the interests of administration of justice, the appearance of the proceedings as fair, and the presumption of innocence, and then choose the most appropriate security arrangement for a given case, in a bid to secure the rights of the accused to participate effectively in the proceedings and to receive practical and effective legal assistance. In the case, the use of the glass cabin docks was not warranted by any specific security risks or courtroom order issues but was a matter of routine. The trial court had no discretion in this regard. They seemed not to recognize the impact of these courtroom arrangements on the applicant’s defense rights, and did not take any measures to compensate for these limitations. These restrictions had been neither necessary nor proportionate and affected the fairness of the proceedings, and the criminal proceedings against the applicant were thus conducted in violation of Article 6 (1) and 3 (b) and (c) of the Convention25.

V. Research and Practice of “Cage in the Court” in China

Generally speaking, the ECtHR takes a clear stand on the use of cage docks and glass cabin docks: (1) The use of a cage dock should be forbidden because it degrades human’s dignity and violates the principle of presumption of innocence, and further affects defendants’ right to a fair trial; (2) The glass cabin dock does not have such a prejudicial appearance and they can be used when the court has security risks. But two conditions should be met for their use: first, such court security risks shall be decided by the judges and shall have concrete evidence and facts to support the decision. It is prohibited to use a glass cabin dock as a routine measure; Second, the room and ventilation shall be secured and avoid the discomfort caused to defendants; Third, the glass cabin dock shall not impede defendants’ visibility, trial nor hinder the defendant’s cross-examination. Their right to get legal assistance from lawyers and right to defense should also be protected.

When reviewing the case of Mikhail Pustovoit v Ukraine, the United Nations Human Rights Committee pointed out that the applicant was kept handcuffed in a “cage dock” in the courtroom during the examination of his appeal, which subjected him to the degrading treatment and affected his right to a fair trial. Such conduct also breached the Article 7 and Article 14 of the International Covenant on Civil and Political Rights.26 The UN Human Rights Treaty Bodies share similar opinions with the ECtHR. They all hold that the form of the docks may prevent a fair trial and that the use of cage docks should be banned.

A. Inadequate research on this issue in China

Over the years, although the Supreme People’s Court has issued a number of documents concerning the space layout and the equipment in Chinese courts,27 these documents do not cover the issue of the form of the dock. At present, only the in 1997 mentions that “the dock is seated on the front of the bar and a low fence is adopted”. However, open and clear standards are not provided as to the material, the shape, the occupied area and the specific height of the “low fence”. In practice, various fences are used in Chinese courtrooms, including wooden or metal fences, four-sided closed fences or three-sided half-enclosed fences, strip-shaped fences and the fences with the same height of chest or abdomen, fences equipped with benches or not. In general, China's “low-fence docks” are different from the cage docks that is enclosed on six sides, but they still look like a cage.

In recent years, with the concept of presumption of innocence gradually embraced by a rising number of people, the Chinese judicial authorities have taken a string of measures to “de-criminalize the label” for criminal defendants. In particular, against the backdrop of the Third Plenary Session of the 18th Central Committee, where the goals of “Promoting the Construction of the Rule of Law in China” and “Improving the Judicial Protection Regime on Human Rights” were put forward, the Supreme People’s Court and the Ministry of Public Security stressed in a series of documents issued in 201528 and the Court Rules revised in 2016 that it is forbidden to ask detained criminal defendants, appellants, or convicted persons to wear clothes carrying the logo of prison or detention house, such as vests or a prisoner uniforms, to stand trial in court. Generally speaking, it is also forbidden to ask the accused or appellants to wear restraining devices. These measures have won nationwide acclaim in the country and are considered a move to protect criminal defendants’ human rights, respect their dignity and guarantee their right to a fair trial, which has promoted China’s judicial civilization.29 However, the low-fence dock and its criminalization label have not been explicitly prohibited.

Domestic research on the docks generally focuses on the spatial layout, and then argues whether the docks should be placed next to lawyers’ seat instead of being right in front of the bar30. A few researchers have mentioned the problems with the low fence dock, such as making the outside observers feel uneasy. It is a serious topic concerning the spirit of the judicial culture, the accused with criminalized labels and “guilty labels” that put the defendants in a position where they feel isolated and helpless31. However, these opinions are still mostly mentioned when researchers discuss the layout of the docks, and lack in-depth analysis. Researchers have also failed to come up with a systematic improvement plan or cause widespread concern in China.

B. Explorations made by local courts

As early as 2002, in order to promote humanistic care and judicial civilization, the Jinan Railway Transportation Intermediate People’s Court abandoned cage seats and replaced them with common seats for criminal defendants.32 Since 2011, Zhang Liyong, head of the Henan Higher People’s Court, has proposed and vigorously advocated the abandoning of cages in courts.33 Some people’s jurors praised his assertion that “everyone has dignity, and those who break the law should also be respected. Out of the humanitarian considerations, the courts have embodied judicial civilization”.34 In 2015, Tianjin Heping District People’s Court and Public Security Bureau jointly issued the Rules on Further Strengthening the Human Rights Protection for Criminal Defendants and Improving Judicial Civilization, requiring the use of court cages to be abandoned and new tables and chairs are used in practice35. In May of the same year, the trial pattern of the Zhenhai District People’s Court in Ningbo City, Zhejiang Province, changed from “squares” to “triangles”. The defendant was no longer placed in the place in a cage for trial. Internet commentators called this a substantial step forward in respecting the rights of defendants.36

At present, the practice of abandoning cages in courts has not been widely implemented in the country. Some scholars have conducted field investigations of the courtrooms of 13 grassroots courts in a city and found that the majority of the docks are enclosed by iron bars and wooden fences, with only a few not fenced.37 In Sichuan Province where the author is living, a low fence dock in a one court is sometimes used or a low fence dock is always used in other courts. In May 2017, the second instance of the high-profile “Shandong Liaocheng dishonored mother murder case” was held. The appellant’s image in the fenced dock could be clearly seen in the reports of CCTV News, a large number of newspapers and online media reports. In general, current domestic practice has shown that the use of court cages is arbitrary. Supporters are mainly concerned about court security and some of them think that the court cages cannot be removed.38 More courts tend to consider that following the previous practice is better than making mistakes in trying something new. They have a wait-and-see attitude. “Since there is no explicit prohibition, it is OK to continue its use.”

VI. Moderate Adjustment: Reflections and Suggestions on the use of “Low Fence Dock” in China

Making a choice among the court security, fair trials and judicial civilization has become a prominent problem that needs to be faced in the renovations of the low fence dock in China. Some researchers have pointed out that the indiscriminate use of low fence docks is conducive to security but violates the principle of respecting and protecting human rights. In the future, the establishment of docks should give priority to human rights with due consideration to security.39 In terms of how to balance, dealing with different things in different ways is preferred. When it comes to the defendants who are likely to be given death sentence or are charged with murder and the defendants who are likely to escape, commit suicide or damage their own bodies, the low fence dock should not be used.40 Some alternative measures must be put forward. Some have suggested installing shields or bulletproof glass for the dock,41 and some believe that a restraining chair could be used depending on the nature of the case and the number of defendants.42 It was also suggested that the defendant awaiting trial or those being detained but suspected of non-violent crimes can be seated in a special dock when being questioned, and on other occasions, they can be seated together with their lawyer. In terms of the accused in custody suspected of violent crimes, they shall sit in dock for questioning during the entirety of court proceedings and the court should place escort officers on both sides. But in most cases such enforcement measures are not needed. The defendants who are unable to calm down during their trial, they can be placed in a small detention room for their trial. 43

The author holds that in response to the type of dock used for criminal defendants, we should first give priority to granting them a fair trial with due consideration to court security and court order. In general, the docks that do not bestow a criminalization label should be used by default. When the court security and trial order are likely to be endangered, we can use the kind of docks that can limit defendants’ physical freedom to some extent. The docks that degrade defendants’ dignity are absolutely prohibited.44 The reasons are as follows.

On the one hand, as the ECtHR said, citizens’ personal dignity right and the right to a fair trial are absolute rights, and these rights cannot be deprived of suspects in criminal trials with certain security risks. Fence docks (especially the strip-fence docks) can be considered humiliating due to their cage-like appearance. This design has no substantial effect on the trial safety, and the use shall be forbidden. Ordinary tables and chairs can greatly eliminate the “criminalization labels”, which should be used by default.

However, on the other hand, if court safety and court order cannot be guaranteed, it is difficult to highlight the judicial authority and judicial civilization. Some witnesses may also worry about their safety. Court security and court orders are particularly important when the domestic judicial organs lack judicial authority and a higher judicial credibility is needed. Objectively speaking, the unconstrained docks are indeed not enough to prevent the defendants’ offensive behavior. It was reported that in the United States, a defendant robbed the bailiff’s gun and killed the judge when waiting for a trial outside the court. Besides, a gangster was reported to took a pen suddenly, hoping to stab the witness in the court, but was killed by the bailiff on the spot45. In China, we can sometimes read news about a defendant escaping or disturbing the court order. Violent behavior, such as escaping from the court, rushing away from the dock46, reported in Chengdu in Sichuan Province (1997), Lanzhou in Gansu Province (2002), Teng County in Guangxi (2004), Neijiang in Sichuan (2008), Shaodong in Hunan (2012), Dazu District in Chongqing (2013); and kicking over the seat, attempting to injure himself and death threat through kowtowing,47 reported in Hefei in Anhui (2010), Xuzhou and Nanjing in Jiangsu (2012) and Zaozhuang in Shandong (2015). These cases involved various counts, including the production and sale of counterfeit drugs, explosions, robberies, corruption, bribery, drug trafficking, deforestation and dangerous driving. Some of them are minor crimes and non-violent crimes, which means that the security risks of the court are not only in serious crimes or violent crimes. Therefore, domestic courts should be allowed to take reasonable measures to deal with different defendants in different cases when there are security risks, in an effort to use the docks that can prevent defendants’ violent behaviors and meanwhile don’t degrade their dignity.

Inspired by the analysis and opinions of the ECtHR’s judgements, I offer four suggestions on the design of the docks in China’s courtrooms.

First, the use of low fence docks should be abandoned and ordinary tables and chairs used as docks are advised for use by default. The use of fenced docks, restraint chairs or glass cabins can be used for specific defendants charged with violent crimes or likely to conduct violent behavior. Given that the reform of grassroot courts is possibly delayed because of security concerns, it is expected that the reform be carried out from top to bottom. The Supreme People’s Court may select some pilot areas first to explore the issue. If no serious security incidents happen, the regulatory documents can be issued in a timely manner to propose unified requirements.

Second, as for the pre-set functions and construction standards of various types of restraint chairs, the following aspects can be considered. (1) Fenced docks can be used to prevent defendants’ possible escape, with the aim of increasing psychological security in the minds of witnesses. It can be designed to be enclosed on three sides of boards on the front, right and left side, and each side is enclosed by a whole piece of wood to avoid the cage-like appearance. (2) The aim of a restraint chair is mainly to prevent the defendant from leaving the area at will. Generally speaking, a baffle can be fixed on the seat, and it is no longer necessary to install lock catches on the baffle (Those who have lock catches are often found in the case-handling place and the detention center where the suspects are interrogated on the restraint chairs). Other design rules should focus on the principle that the defendant will not feel uncomfortable and be in pain. (3) In addition to preventing the defendants from leaving the area, the glass cabin dock can be used to prevent the defendants from throwing objects at someone else or being thrown by others. Designers should consider factors such as ventilation and sound reinforcement, in a bid to secure defendants’ participation in the proceedings, cross-examination, right to accept lawyers’ assistance and the right to express opinions. (4) The area of the enclosed fence, restraining chairs and glass cabin dock cannot be too narrow. We can take the Construction Standard of the People’s Courtrooms issued by the Supreme People’s Court in 2010 for reference. The seats in the public seating area shall occupy at least 0.8 square meters per person.

Third, in terms of the requirements applicable for various docks, we can consider from the following aspects. (1) Ordinary tables and chairs are used for the defendants who obtain a guarantor pending trial, because these defendants are less likely to escape or pose few threats to the court order. (2) The use of restraint chairs cannot be indiscriminately applied to all of the detained defendants and the use should be based on a specific security risk. The specific security risk refers to the concerns caused by facts or supported by concrete evidence instead of vague presumptions. The charges cannot be the reason for the use of restraint chairs. The accused suspected of terrorist crimes, gangland crimes and violent crimes, and the accused who was sentenced to death in the first instance cannot necessarily use restraint chairs. If we are worried that the possibility of such people being out of control is greater than that of other defendants, we can place a bailiff on both sides of the seat as a normalized security measure. (3) The use of fenced docks, restraint chairs and glass cabin docks should follow the proportional principle, which means the higher the degree of danger, the more restrictive the dock. In the cases where victims need to appear in court or involved in four kinds of serious crimes, if the relevant individuals fear the defendant and have reasonable grounds to support this fear, we may consider using the fenced dock to ensure that the witness have peace of mind to give their testimony. If we decide to use the restraint chairs or glass cabin docks, we should have specific reasons for believing that the accused may escape, be murdered, self-mutilate or be hurt, including the defendants’ physical condition, criminal record and previous behavior, the degree of coordination in the case and the mood of the victims as well as their families, to give a comprehensive judgment. (4) If the case is high-profile, or reported by media or live broadcast, the use of restraint chairs should be more cautious, in order to avoid the scene being permanently exposed to the public.

Fourth, speaking of the procedural conditions for the application of the restraint chairs, the following points should be covered: the procuratorial organ should submit a written application with convincing reasons to the court before the trial for the approval of the use of restraint chair and glass cabin; the panel should make a decision to approve or reject the application of the procuratorial organ before the trial, and may also voluntarily decide to apply restraint chairs based on realities; before the decision is made, the panel shall notify the defendants and their defenders, and they are entitled to state their views. If necessary, we can use the mechanism such as the pre-trial meeting to hear the opinions of the prosecution and the defense. The defendant should also be allowed to apply for the use of the glass cabin for his own safety reasons (such as possible injuries from victims’ families).

(Translated by YIN Tao

* LI Chongtao ( 李崇涛 ), Ph.D Candidate at Southwest University of Political Science and Law, Procurator at People’s Procuratorate of Sichuan Province.

1. ECHR, Sarban v. Moldova, no. 3456/05, 4/10/2005; ECHR, Ramishvili and kokhreidze v. Georgia, no. 1704/06, 27/1/2009 ; ECHR, Ashot Harntyunyan v. Armenia, no. 34334/04, 15/6/2010; ECHR, Khodork-ovskiy v. Russia, no. 5829/04, 31/5/2011; ECHR, Piruzyan v. Armenia, no. 33376/07, 26/6/2012; ECHR, Svin- arenko and Slyadnev v. Russia, no. 32541/08, 43441/08, 11/12/2012; ECHR, Khodorkovskiy and Lebedev v Russia, no. 11082/06, 13772/05, 25/7/2013

2. ECHR, Titarenko v. Ukraine, no. 31720/02, 20/9/2012.

3. ECHR, Titarenko v. Ukraine, no. 31720/02, 20/9/2012, §§63-64.

4. Joint dissenting opinion of judges Spielmann, Zupancic and Power-forde, cited in ECHR, Titarenko v. Ukraine, no. 31720/02, 20/9/2012.

5. ECHR, Svinarenko and Slyadnev v. Russia, no. 32541/08, 43441/08, 17/7/2014.

6. ECHR, Svinarenko and Slyadnev v. Russia, no. 32541/08, 43441/08, §§113-118, 17/7/2014.

7. ECHR, Svinarenko and Slyadnev v. Russia, no. 32541/08, 43441/08, §§124-139, 17/7/2014.

8. It is noted that after Russia ratified the Convention in 1998, the ECtHR received a rising number of complaints against Russia (such as 10,146 complaints in 2008, accounting for one-fifth of all cases related to all member states.) In the end, Russia was mostly considered in violation of the Convention. Massive complaints have revealed Russia’s problems of human rights, regimes and even institutions. At the beginning, Russia tried hard to adjust legislation, justice and law enforcement to meet the requirements of the ECtHR, but later the results of some cases triggered a high degree of dissatisfaction in Russia, which led to the revision of the Federal Constitutional Court Act in December 2015. The resolution of the Constitutional Court took precedence over the judgment of the International Court of Justice and refused to enforce individual judgments of the ECtHR See Wang Zhihua: “The Game between Russia and the European Court of Human Rights for Twenty Years of Sovereignty and Human Rights”, Chinese and Foreign Law, No. 6, 2016, p.1554-1555. However, the Russian authorities’ attitudes are relatively positive for the results of the case “Svinarenko and Slyadnev”.

9. Council of Europe Committee of Ministers’ Action plan DH-DD (2015) 359.

10. Council of Europe Committee of Ministers’ Action plan DH-DD (2015) 435; Council of Europe Committee of Ministers, Decision CM/Del/Dec (2016) 1250/H46-1 and Resolution CM/Res DH (2016) 37; Council of Europe Committee of Ministers’ Revised action plan DH-DD (2016) 746.

11. The domestic court firstly used glass cabin dock and after the case was referred to another court, the “cage dock” was used. More details about the former will be introduced below.

12. ECHR, Urazov v. Russia, no. 42147/05, 14/6 /2016, §83; ECHR, Yaroslav Belousov v. Russia, no. 60980/14, 4/10/2016, § 122; ECHR, Vorontsov and others v. Russia, no. 59655/14, 25771/15, 7238/15, 31/1 /2017, §§29, 31.

13. In fact, the illustration “cage docks” violate Article 3 of the Convention is always linked to the Article 6 of the Convention. Such association not only exists in the applicants’ reasons, but also in the discussion of the ECtHR. Even in the case of “Svinarenko and Slyadnev v. Russia”, it is also the case in the judgment. Judges Nicolaou and Keller in the case noticed the issue and stated in the accompanying comments: “The presumption of innocence emphasized in the judgment of this case represents another point of contention: although the applicant in this case only cited Article 3, in some circumstances where the accused were held in a cage for trial also of course has something to do with the issue of Article 6 (2) of the Convention. However, most of the comments mentioned this possible problem, but it did not mean that it was related to the Violation of Article 3 of the Convention. The review of violations of Article 6 (2) of the Convention is different from the review of violations of Article 3 of the Convention, and the two should be carefully separated. See Joint concurring opinion of judges Nicolaou and Keller, §7, cited in ECHR, Svinarenko and Slyadnev v. Russia, no. 32541/08, 43441/08, 17/7/2014.

14. The use of “cage dock” was during the judicial review of pretrial detention. In accordance with Article 5 (4) of the Convention, “any person deprived of his liberty as a result of his arrest or detention shall have the right to use judicial proceedings, and the court shall decide on the legality of his detention in accordance with judicial procedures, if the detention is illegal, the detained should be released.” Therefore, the applicant in the case requested a review of the principle of presumption of innocence based on Article 5 (4) of the Convention instead of Article 6.

15. ECHR, Ramishvili and kokhreidze v. Georgia, no. 1704/06, 27/1/2009, §100.

16. ECHR, Ashot Harutyunyan v. Armenia, no. 34334/04, 15/6/2010, §§128, 138-140

17. ECHR, Titarenko v. Ukraine, no. 31720/02, 20/9/2012, §§92-93.

18. ECHR, Khodorkovskiy and Lebedev v. Russia, no. 11082/06, 13772/05, 25/7/2013, §§743 - 744; ECHR, Urazov v. Russia, no. 42147/05, 14/6 /2016, §§91-92.

19. ECHR, Sakhnovskiy v. Russia, no. 21272/03, 2/11/2010, §97; ECHR, S. v. Switzerland, no. 12629/ 87, 13965/88, 28/11/1991, §48.

20. ECHR, Khodorkovskiy and Lebedev v. Russia, no. 11082/06, 13772/05, 25/7/2013, §§646-647.

21. ECHR, Urazov v. Russia, no. 42147/05, 14/6 /2016, §§85-90.

22. Council of Europe Committee of Ministers’ Action CM/Res DH (2011) 105.

23. Council of Europe Committee of Ministers’ Action plan DH-DD (2015) 359.

24. ECHR, Yaroslav Belousov v. Russia, no. 60980/14, 4/10/2016, §§124-128.

25. ECHR, Yaroslav Belousov v. Russia, no. 60980/14, 4/10/2016, §§147-153.

26. HRC, Mikhail Pustovoit v Ukraine, no CCPR/C/110/D/1405/2005, 20/3/2014, §§9.3, 10.

27. For example, the Provisions on the Judgment of the Trial Court, the Public Prosecution Desk, and the De-fense Desk of the People’s Courts in 1985, the Opinions on the Construction of Trial Courts of People’s Courts at Different Levels in 1986, and the Name of the Court and the Trial Activity Area in 1993. Notice on the Arrangement and Issues Concerning the Suspension of the National Emblem, the Opinions on the Provision of Special Equipment for the Courts of the People’s Courts in 2002, and the Construction Standards for the Courts of the People’s Courts in 2010.

28. For example, the Opinions of the Supreme People’s Court on Comprehensively Deepening the Reform of the People’s Court in 2015, the Work Report of the Supreme People’s Court, and the Notice of the Supreme People’s Court on the Issue of Dressing When a Defendant Appears in Court, The Ministry of Public Security of The Supreme People’s Court on Criminal Defendants or Notice of Dress Code when the Appellant Appears in Court.

29. Li Zhanya, “Implementing the Trial-Centered Litigation System Reform with The Revised People’s Court Rules at its Core”, Journal of Law 12 (2016); Hu Shihao and other authors, “New Highlights in Court Rules”, Law Application 7 (2016); Dai Yuli, “What other “criminal labels” to be changed in the court”, Beijing News, February 27, 2015.

30. Long Zongzhi, “How to Rank Rows in the Court”, Prosecution Daily, July 27, 2000; Bian Jianlin and Li Jingjing, “Improvement of the Criminal Judicial Structure from the Criminal Court in China”, Legal Studies 3 (2004): 82-85; Hu Xiabing, “Setting of the Defendant’s Seat from the Perspective of Judicial Culture”, People’s Court Newspaper, November 12, 2010; Li Wei and Xu Shengbo, “The layout of the criminal court in China History and Innovation Paths”, Journal of Liaoning Normal University (Social Science Edition) 9 (2015); Liu Shude and Luo Can, “New Breakthroughs and New Concepts in the Layout of Criminal Courts”, People’s Rule of Law 5 (2016): 12-13.

31. Lan Yuejun,“On the Establishment of Criminal Court Seats in China”, Chinese Journal of Criminal Law 12 (2010): 70; Zhang Jianwei, “The Litigation Culture Reflected in the Court Layout”, People’s Court Newspaper, March 23, 2012; Li Fenfei, “The layout of the trial: see the rule of law at a subtle point”, Procuratorate daily, July 2, 2014; Zhang Liyong, “Promoting the trial-centered system reform to resolutely prevent false and wrong cases”, People’s Court Newspaper, April 13, 2016; Liu Renwen, “On the Reform of the Defendant’s Seat in China’s Criminal Court”, Political and Legal Forum 4 (2017).

32. China Court Network, “Jinan Railway Intermediate People’s Court Abolished the Cage-Like Dock”, accessed September 10, 2018, https://www.chinacourt.org/artic1e/detai1/2002/04/id/3062.shtm1.

33. Pei Xiaolan,“Head of Henan Higher Court Proposes to Remove Cage-like Docks at Criminal Courts”, Jinghua Times, March 13, 2011; Zhang Shuling, “Henan Attempts to Abandon the Rules On Shaving Heads, Wearing Prison Clothes, Standing in cage docks and Wearing Barnacles”, Beijing Times, December 4, 2013; Han Jingwei, “No shaving, No Prison Uniforms, No cage docks, Defendants Sitting with Defenders”, Dahe Daily, December 3, 2013.

34. Li Guigang, “Henan Issues New Rules: It is Forbidden to Ask Defendents Wear Prisom Uniforms and Barnacles and Sitting in Cages”, Legal Daily, January 9, 2015.

35. Wang Doudou, “Tianjin Heping District Court Removed “Crime Label” from Defendants Decently Appearing in Court Without Wearing Prisoners’ Uniforms”, Legal Daily, January 9, 2015.

36. Dai Xianren, “The Defendant Sits Side by Side with Lawyer Embodies Judicial Progress”, accessed September 10, 2018, http://ping1un.iqi1u.com/yuanchuang/2015/0507/2396171.shtm 1.

37. Zou Yuting and Qiuzhixin, “Hardware Upgrade” under the Framework of Judicial Reform: Re-exploration of the Spatial Layout of Criminal Courtrooms in China’s Courts to Balance “Power” and “Right”, Applicable for Law 1 (2016): 21.

38. Yang Tao, “It’s Unrealistic to Remove Cage in the Court”, Beijing Times, March 14, 2011.

39. Chen Yue, “On Reconstruction on the Spatial Layout of Criminal Courtrooms in China’s Courts from the perspective of dock”, Journal of Hubei Police Academy 1 (2016): 94.

40. Zhang Liyong, “Advance the trial-centered system reform and resolutely prevent unjust, false and wrong cases”, People’s Court Daily, April 13, 2016.

41. Lan Yuejun, “On the Establishment of Criminal Court Seats in China”, Chinese Journal of Criminal Law 12 (2010): 72.

42. Luo Can and Shao Xin, “The Rules of the Court in the Trial-Learning Litigation System”, People’s Justice 25 (2016): 20.

43. Yang Tao, “It’s Unrealistic to Remove Cage in the Court”, 21.

44. I don’t think it is realistic to set up the dock beside or behind lawyers to ensure that defendants can get lawyers’ assistance timely and secretly in the near future, especially when the trial reform is carried out in China and push “four kinds of people” to appear in a court as witness. If defendants are arranged to sit together with lawyers, it will be more difficult to get evidence from defendants and posed great challenges to judicial departments. Therefore, now it is more realistic to firstly change the current design of docks.

45. In March 2005, a defendant accused of robbery and rape robbed police officers of a gun killed the judge and other individuals during a courtroom trial at the High Court in Fulton County, Atlanta, USA. See Liu Aicheng, “An American Prisoner Shoots at Court”, People’s Daily, March 13, 2005. In April 2014, a gang member accused of extortion suddenly rushed out of the dock when he was tried in Salt Lake City, USA. He took the pen and rushed to the witness seat, and was shot dead by the bailiff on the spot. The family of the deceased prosecuted the court for abuse of force, and the federal court published the live video in March 2018. Relevant news report: see Abigail Miller, “Shocking moment a Crips gang member defendant, 25, grabs a pen and launches himself at a witness before a marshal shoots him dead during a racketeering trial”, Daily Mail, 13 March 2018.

46. Shao Qingping, “A prisoner under sentence of death jumps off the court building to escape punishment and the police captain commits suicide”, Lanzhou Morning News, June 1, 2005; Song Fangcan, “The accused screamed in the courtroom, shouting ‘I can leave if I Want to’ and escape”, accessed December 1, 2018, http ://www.chinanews.com/news/2004/2004-10-27/26/499199.shtm1; Yang Yuanlu, “Just out of the court, the prisoner ran away”, West China City Daily, December 2, 2008; Bao Zhiheng, “A suspect escapes on the spot in court in Hunan,”Oriental Morning Post, October 30, 2012; Lian Xiao and Liu Weihong, “A drunken driver in Chongqing escaped and surrender after police’s persuasion”, accessed December 10, 2018, http://www. chinanews.com/fz/2014/02-18/5853302.shtm1.

47. Nie Zhongxia and others, “A Man Breaks Court Order but pleads not guilty”, Xin’an Evening News, November 30, 2010; Ding Guofeng, “ Robbing Defendants and swallow nails at a Police Car”, Legal Daily, April 21, 2012; Chen Shanshan, “An Official From Nanjing out of Control When Standing in Trial, Causing His Wife to Injure herself”, Yangtze Evening News, June 20, 2012; Li Yongjun, and others, “Crying, smashing the wall, Defendant Stinks at Court”, Qilu Evening News, July 16, 2015.

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