Exclusionary rule has been accepted in different legal systems and has not been clearly accepted in Iranian legal system. this rule can be justified both on the basis of individualism thinking and in ...the idea of collectivism. In the first approach, the goal is to further protect the accused and guarantee his human and individual rights, in the second approach, the goal is to improve the quality of the trial and the performance of the judicial system. Studies show that the dominant approach in Iranian law, as well as in many other individualistic legal systems, has been the reason for the exclusionary rule. the changes that have taken place in the legal system have caused the ideological foundations of this rule to change and society to thinking be in the center of attention rather than the individual, which in turn raises the status of the judiciary and, in other words, increases legitimacy. This study was conducted with a comparative study in the USA and Iranian legal system and the result is the confirmation of the rise of both legal systems to collectivist thinking as the basis for identifying exclusionary rule and attention to social feedback on the performance of the judiciary.
Today, the Internet is considered the best tool for speed and price. These advantages have caused a significant part of communication and information to be stored and transmitted in this space. ...However, the open nature of the network has paved the way for various people to enter so that they can quickly check data and control people without a warrant from a judicial authority. These concerns at the world level have caused increasing measures to be established in the laws of countries and international documents to prevent this and protect people's privacy. Law enforcement, network service providers or other people can violate this privacy. During the proceedings, judicial authorities and bailiffs may attempt to violate this privacy under the pretext of discovering a crime and finding a reason, so it is necessary to anticipate the mechanisms required in this field. With these explanations, the main question of this research is to what extent will the general rules of criminal procedure regarding protecting the privacy of information and communications in cyberspace be responsive to how the prosecution authorities deal with the investigation? This research investigates the current situation and expresses the gaps using library sources and looking at international laws and documents. According to the findings of the study, there is a high possibility of information and communication privacy violations by the investigating authorities in the judicial process, and despite the provision of defensible measures in the computer crimes law and the electronic commerce law, there are still deficiencies in some areas; Therefore, it is suggested to adopt measures such as using artificial intelligence and biometrics in this regard.
Good faith as an essential principle in substantive and procedural criminal law, can be discussed not only in the context of justifying the exercise of legal institutions including justifiable ...causes, legal excuses and mitigating factors for the crime perpetrator, but also in criminal proceedings, from the police stage to the investigation stage and even the execution of the sentence, have a special position. Though in the legal literature and in the criminal laws of many countries, explicitly or implicitly, the principle of good faith and its effect on the decision of the judicial authority and the scope of the criminal responsibility of the perpetrator, providing the basis for the use of the institutions of mutual aid, granting the right of defense to the accused in justifying the committed behavior and removing the charge, balancing the view of the official actors of the criminal justice system, etc. has been mentioned, but in the literature of Iran’s criminal law and criminal procedure, this principle has not been paid attention to in a proper and specific way. Although some judicial activists pay attention to good faith as a justification for adjusting or changing charges and changing the amount of punishments based on legal doctrine, but due to the lack of identification of the legal position of the aforementioned principle and its disregarded place during the criminal proceedings, the effective role of it, is not taken into account. In this research, which was carried out in a descriptive-analytical and at the same time comparative method by using library tools and analyzing the content of some opinions, the position of the good faith principle during the criminal proceedings process was explained and the positive consequences of legal and judicial efforts were explained. It has been mentioned, among other things, narrowing the scope of the population of suspects and accused persons, reducing the rate of court cases, reducing the number of convicts and prisoners, as well as consolidating the position of fair trial.
This article concerns the compliance of the institutions of remote trials and remote detention hearings introduced to the CCP by the Polish ‘coronavirus act’ of 19 June 2020 with the ECHR standard on ...the rights of the accused. In the first part of the article, it is indicated that the ECtHR in its jurisprudence accepts that a trial in the form of a videoconference is not in principle contrary to the ECHR, provided, however, that there are compelling reasons to dispense with the traditional trial (main or appellate) and that the procedure of using a videoconference itself meets the requirements of a fair trial according to Article 6 ECHR and ensures the accused both effective personal participation in the trial and effective use of the services of a defence counsel, in particular the confidentiality of the lawyer’s contact with their client. The Covid-19 outbreak has changed European justice systems, and now videoconferencing in court proceedings is seen not only as an exceptional measure, but as possibly an effective part of the ordinary activity of courts. The analysis of the assumptions of remote trials in ordinary Polish criminal proceedings shows that this institution does not meet the standards of a fair trial, especially the standard of the effective participation of the defence counsel. In contrast, compared to a remote trial, a remote detention hearing in Poland has a wider scope of application and poses serious risks to the standards on deprivation of liberty (Article 5(3) and Article 3 ECHR) and effective defence (Article 6(3) ECHR). The possibility of using both forms of videoconferencing without the participation of a defence counsel and the permanent nature of the changes introduced are particularly worrying.
Abstract
This article critiques the European Court of Human Rights’ recent extensive case law on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), and ...particularly the right to legal assistance in criminal trials. The article examines the significant and ongoing impact of the judgments in Ibrahim (2016) and Beuze (2018) and argues that the recent case law reflects buyer’s remorse on the part of the Court for its landmark judgment in Salduz (2008). Article 6 is among the most heavily litigated provisions of the ECHR, and this article is the first extended scholarly analysis of the post-Beuze case law. The article identifies two interrelated trends in the most recent case law: first, the Court taking a number of analytical steps that allow it to overlook the text of Article 6(3) in favour of an impressionistic assessment of the overall fairness of the proceedings; and, second, the Court providing Governments with multiple opportunities to advance public interest justification arguments despite continued pronouncements that Article 6 is an unqualified right. The article suggests that the jurisprudence is weakening the Article 6 guarantees.
Indisputably the right to a fair trial is one of the basic rights enjoyed by any person involved in a contravention process. Even if it is not directly enshrined in the contravention law, it is still ...found in the content of the law, its application being an obligation of the state authorities involved in carrying out the contravention process. Both the national jurisprudence and the ECtHR jurisprudence denote the role that this principle has in the administration of justice, its non-compliance having the consequence of harming the principles and fundamental rights guaranteed. Although the contravention presents a social danger that is reduced in relation to the crime, that fact must not influence the smooth progress of the contravention process, so that the investigating agent ignores the observance of all the principles established by law in the process of examining the contravention.
The principle of open justice, including the media's right to attend and report on criminal courts, must be balanced with the protection of individuals' privacy and an accused person's fair trial ...rights. Prohibiting media from identifying those involved in criminal cases is one way privacy and fair trial rights may be protected in New Zealand. Court news was not always restricted in this way: 115 years ago all parts of criminal court proceedings could be reported and media decided what information was censored. In 1905, New Zealand judges were given the power to suppress court evidence to protect public morality, and 15 years later, the power to suppress the names of certain first offenders to give them a second chance. The laws now stretch to suppressing many kinds of evidence and the identities of some people accused and convicted of New Zealand's most serious crimes. Investigation of the 115-year-long evolution of New Zealand's name suppression laws illuminates a piecemeal, but severe, curtailment of media freedom and a trend of imposition of increasingly complex laws which journalists must keep abreast of, understand and observe to prevent appearing before the courts themselves.
How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate ...has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. I Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes.
Even though approximately 97% of criminal offences are finalised in the summary jurisdiction, the High Court has only considered the nature of summary jurisdiction once: in 1930 in 'Munday v Gill'. ...In that case Isaacs CJ and Dixon J provided different characterisations of the summary jurisdiction. According to Dixon J, in the majority, in the summary jurisdiction efficiency may be prioritised over strict adherence to common law protections of the accused because it deals with minor criminal matters that are between subject and subject. In dissent, Isaacs CJ characterised summary criminal matters as between the Crown and subject, arguing that common law protections are as important in the summary jurisdiction as in the higher courts. Dixon J's judgment is still cited as an accurate characterisation of the summary jurisdiction today, and yet the summary jurisdiction has transformed in the nine decades that have elapsed since the case was decided. This is reason to think 'Munday v Gill' should be revisited. This article offers a critical analysis of the case by placing it in its social and historical context, showing that Isaacs CJ's characterisation is more relevant today than that of Dixon J. It makes the case that because of this transformation, it is necessary to re-think the nature of a fair trial in the summary jurisdiction.
The paper presents some general theoretical settings about the principle of immediacy in criminal proceedings. It should serve as a theoretical platform for developing further research in this area. ...The author gives a definition of the principle of immediacy and sees his place in the classification of procedural principles, linking it to the judicial function. The principle of immediacy is one of the implicit procedural principles, which also have international legal roots in Art. 6 of the European Convention for the Protection of Human Rights and fundamental freedoms. The paper emphasizes and analyzes the following important features of the principle of immediacy: instrumentality, complexity, relativity (susceptibility to gradation) and connection with other procedural principles.
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