چالش های ناشی از کاربست فنّاوری های نوین در برگزاری جلسات علنی دادگاه های کیفری ایران (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
دادرسی کیفری به عنوان یک آیین جمعی، از دیرباز بر تعامل چهره به چهره کنشگران مبتنی بوده است. بااین حال، اقتضائات روز زندگی بشری و پاسخ گویی به بحران هایی مانند همه گیری ویروس کرونا، نظام های قضایی را ناگزیر می سازد همسو با پیشرفت فناوری، از مزایای آن درجهت انطباق خود با شرایط عصر حاضر بهره گیرند. در این میان، کاربست فنّاوری های نوین در برگزاری جلسات علنی، حضور کنشگران دادرسی کیفری، ازجمله عموم شهروندان، را صرف نظر از بُعد مکانی آنان تسهیل می کند. بااین حال، واقعیت این است که ورود فنّاوری چالش های جدیدی را به همراه دارد که می تواند استقرار و تحقق عینی دادرسی علنی را با تردید مواجه سازد. در همین راستا، پژوهش حاضر با هدف بررسی این چالش ها و با روش توصیفی تحلیلی نگاشته شده است. یافته ها و نتایج حاکی از آن است که الکترونیکی شدن دادرسی علنی قادر است بر مشکلاتی نظیر صَرف هزینه و زمان برای حضور فیزیکی در دادگاه یا محدودیت در فضای دادگاه ها برای مشارکت عمومی فائق آید، اما هم زمان چالش های جدیدی همچون عدم تناسب فضای دادگاه های کیفری با تقارن دادرسی علنی و الکترونیکی، تشدید احساس طردشدگی متهم و نابرابری در مقابل دادگاه، تحمیل محدودیت های فناوری موجود بر دادرسی، خطر نقض حریم خصوصی، تهدید امنیت دادرسی و اصل قرارگرفتن حضور الکترونیکی شهروندان در دادرسی علنی به جای تسهیل دسترسی فیزیکی آنان به دادگاه ها را به همراه دارد. براین اساس، لازم است نظام دادرسی کیفری، چه در سطح تقنین و سیاست گذاری و چه در سطوح اجرایی، علاوه بر التزام به موازین دادرسی علنی، با اقتضائات جدید دادرسی الکترونیکی نیز سازگار شود.Challenges Caused by Using New Technologies in Holding Public Hearings of Iranian Criminal Courts
The criminal procedure, as a collective ritual, has long been based on the face-to-face interaction of activists. However, the current requirements of human life and responding to crises such as the coronavirus epidemic force the judicial systems to take advantage of technological advancement in order to adapt to the current conditions. Meanwhile, using new technologies in holding public hearings facilitates the presence of criminal justice activists -including citizens- regardless of their location. However, the reality is that the entrance of technology brings new challenges that can question the establishment and objective realization of public procedure. In this regard, the present research was written with the aim of investigating these challenges and with the descriptive-analytical method. The findings indicate that although electronicization of public procedure can overcome some problems such as spending money and time to physically present in court or limitation in the space of the courts for public participation, But at the same time, new challenges such as the disproportion of the space of criminal courtrooms with the simultaneity of public and electronic proceedings, intensification of the defendant's feeling of exclusion and inequality in front of the court, imposing limitations of existing technology on procedure, risk of privacy violations, threat to the security of proceedings and taking citizens' electronic presence in public procedure as a principle instead of physical presence them. Based on this, it is necessary for the criminal justice system - both at the level of legislation and policy-making and at the executive level - in addition to adhering to the standards of public proceedings, it should also adapt to the new requirements of electronic proceedings. Keywords: Electronic Procedure؛ Public Procedure؛ Judicial Transparency؛ Online Court؛ Remote Proceedings 1. Introduction "Publicity of the Procedures" is recognized as a means of realizing judicial transparency and a manifestation of fair proceedings in international human rights documents and principles 165 and 168 of the Iranian Constitution and Article 352 of the Criminal Procedure Law in this country. However, the Corona crisis and the closure of courts to protect public health created a serious obstacle in holding public proceedings in the traditional way and the possibility of physical presence of the public in the courts. In fact, the experience of Corona proved that the use of new technologies and the holding of remote hearings, along with its traditional method, is a solution and even a requirement; Therefore, in the face of this crisis, the use of the videoconference mechanism in proceedings - especially in public hearings - was widely welcomed by countries. In Iran, the prescription of hearing through videoconference, according to Article 659 of the Criminal Procedure Code approved in 2012. Due to the lack of necessary infrastructure and the lack of feeling the need to implement this sample of digital transformation in the judicial system of the country, the implementation of this regulation was practically delayed until the end of 2019. With the rise of the Corona crisis, the closing of the courts and the need of meeting between public health and the administration of justice, the necessity of revitalizing this regulation and implementing it in the country has shown. This led to the approval and notification of instructions on how to investigate and deal with the use of electronic communication systems in the last days of 2019. Now, according to the current practice in Iran's criminal courts, hearings are held electronically only if the defendant is in prison due to a temporary arrest decision or previous his prison convictions; In such circumstances, the presence of the defendant in the hearings is only available electronically, but citizens and members of the media, as representatives of public opinion, will be able to physical participate in the public hearings of the criminal court, in addition to being able to have an electronic presence in the proceedings through videoconference technology. 2. Methodology This research, with the descriptive-analytical method and the use of library and documentary sources, seeks to answer the question that if hearings are held in the context of modern technologies, what challenges will the right to public trials face? What makes this research necessary and important is that so far no specific, comprehensive and extensive research has been done regarding the challenges facing the right to public trials in electronic hearings. Regarding the holding of criminal hearings with two "electronic" and "public" characteristics, a combination of physical and electronic presence is possible for different actors of the proceedings; Therefore, depending on which of the actors attends the hearing electronically and which physically attends that, multiple situations can be imagined. Therefore, this research aims to study these situations separately and examine the challenges facing each of them, according to the current legal practice in the country. Based on this, this article is organized in three parts: first, it explains "the situation of electronic presence of the defendant in the hearing due to his imprisonment and the physical presence of citizens in the courtroom"; Then, in the second part, "the situation of electronic presence of the defendant and citizens in the hearing" has been analyzed, and finally in the third part, "the situation of the physical presence of the defendant in the court and the electronic presence of citizens" has been evaluated. 3. Results and Discussion The electronicization of public hearings provides the possibility of the presence of criminal proceedings actors - including the parties to the crime, their lawyers, witnesses and informants, prosecutor's representatives and the citizens - regardless of their location and their physical distance from the court; Therefore, this transformation is able to overcome problems such as the distance dimension and spending money and time to physically attend the court or the limitation in the space of the courts for public participation and has significant benefits such as facilitating public access to the courts, realizing public justice and increasing judicial transparency. At the same time, the electronicization of public hearings brings new challenges; The incompatibility of the environment of criminal courts with the symmetrical state of public and electronic proceedings, the intensification of the defendant's feeling of rejection and inequality in front of the court by separating him from the place of the hearing and the lack of physical access to the judicial authority or his lawyer, the definition of new restrictions for public access to court hearings such as the limitation in the number of participants in each hearing, technical problems, lack of skill in working with electronic systems, the risk of violating the privacy of people related to a criminal case due to the ease of recording and publishing the proceedings and even the identity and private information of people and on the other hand, the impossibility of completely preventing the recording of public electronic proceedings, the threat to the security of the proceedings due to the sharing of the access link to the online hearing for the public, and most importantly, the focus of the legislator, judicial managers and judges on the electronic presence of citizens in public hearings and marginalize the policies based on facilitating their physical access to courts in order to achieve maximum public justice are the challenges that was examined in this article. 4. Conclusions and Future Research By increasing progress of technology and the need to adapt judicial systems to the requirements of human life and even to respond to crises such as the corona virus epidemic, the criminal proceedings as a collective ritual which have long been based on the face-to-face interaction of activists in the place of hearing, now must be realized in the context of new technologies and with the virtual communication of activists with each other. On the other hand, although the publicity of proceedings in its true sense means taking steps so that the citizens can monitor the proceedings by physically attending the courts, the limited capacity of criminal courts for the presence of them and the reluctance of many citizens to participate in the court for reasons such as being busy or being far from the courts, has led to the holding of public hearings in the context of remote communication technologies becomes to one of the most important ways for a large number of people to access the information of the proceedings and their supervision on the function of the judicial system. Based on this, the concept of publicness of the proceedings has also gone beyond its traditional framework under the influence of new technologies and has found a wider meaning. Although the nature of public proceedings does not change with the use of videoconferencing, it should be noted that the purpose of its use is to facilitate public access to such hearings. Therefore, if the mentioned challenges are ignored, it can be said that the use of new technologies in holding public hearings can be a violation of public justice and its accessories despite its many benefits. Based on this, it is necessary for the criminal justice system - both at the level of legislation and policy-making and at the executive level - in addition to adhering to the standards of public proceedings -such as public access to hearings and the orallity of proceedings-, it should also adapt to the new requirements of electronic proceedings like equipping and adapting the court space, providing up-to-date technical infrastructures, establishing safe and user-oriented systems, stable and continuous connection of activists on the line of proceedings with the court and providing support and training to them. In that conditions, it is possible to overcome the mentioned challenges while taking advantage of the undeniable benefits of new technologies in improving access to justice and judicial transparency.
تبلیغات
