Faṣlnāmah-i Pizhūhish-i Huqūq-i Kiyfarī (Jun 2023)
The Collapse of Fair Criminal Procedure in Confrontation with Political and Social Crises
Abstract
The criminal procedural may be exposed to the state of collapse by security-oriented policies resulting in suspense of the usual formalities of criminal proceedings and replacing them with emergency-oriented mechanisms. The collapse is due to the emergency of the country's political situation and social chaos, which is caused by the protests of a number of citizens against some policies. One of the most important factors of inception of such movement is the expansion of criminal law and maximum interference in people's freedoms and maintenance of political ideology. The Gap between the official norms and accepted values by citizens and insistence of the government to retain the norms via criminal protection of them gradually leads to social crises and civil disobedience. Conservatism, retrogression, standing against social and cultural changes, maintaining the status quo, refraining from fundamental reforms in political and social structures, have no result other than "crisis" and inevitably puts the citizens or a large part of them against the government. One simple solution to quell crisis is to declare the state of emergency and expand powers of the security forces and judicial authorities to arrest, prosecute and adjudicate the cases of protestors rapidly and secretly. The networks of control and supervision on citizens and the power and freedom of action of the police in this situation will be expanded and the logic of confrontation and repression are applied at high level. Due to the crowding of criminal cases in the judicial system as a result of these policies the rules of proceedings and some defense rights are ignored, including the right to have lawyer or the right to public trial, and prompt measures are taken into account due to the government's need to deal quickly and decisively. In such circumstances the guiding principles, especially the presumption and the principle of neutrality, and the government justifies its actions by claiming to maintain order and security of citizens. Summoning and arresting political dissidents without complying with legal frameworks and creating restrictions in cyberspace through filtering social networks and preventing the free flow of information are part of the strategies to deal with the crisis. When the political and social conditions are in an emergency, the fair criminal procedure inevitably collapses, and "extraordinary criminal procedure" prevails, which does not pay attention to the conventional and well-known rules of procedure and is often the product of the will of the political authorities and are dictated in the form of "judicial circulars". Thus, circulars have priority over the law. In this approach, the presumption of guilt is used instead of the principle of innocence, and the accused is treated as a criminal or a convict.The collapse of fair procedures is caused by factors that are mainly related to public strategies and macro policies. Incorrect policies or making wrong decisions regarding some social events and phenomena, legislation without paying attention to the basic needs of the people and ignorance of the political dissidents inevitably aggregate protests and social uprisings. Criminal policies based on arbitrary and baseless criminalization and merely based upon defending and protecting ideology, expanding criminal laws and maximum interference in people's freedoms, as well as the lack of transparency in statutes have unpleasant consequences in long term, and provide confrontation between citizens and policy makers.The substantive and procedural rules on security in the Iranian criminal law indicate that criminal policy makers have ignored some fundamental rights such as the right to choose a lawyer. In addition, following the expansion of the jurisdiction of special courts, which sometimes originates from circular, as well as the increase of the powers of judicial authorities and military forces, they have provided a legal basis for threatening the rights of individuals and the collapse of fair procedures. Holding secret and non-public trails and preventing the communication of court’s decisions are part of these challenges. Adjusting the criminalization and decriminalization of acts that are contrary to the values of citizens or a significant part of them, reforming public policies and avoiding criminal actions that create tension, and saving the criminal justice system from criminal inflation, and most importantly, paying attention to the phenomenon of "generational change" and normative gaps and ideology might be some solutions to prevent the collapse of fair criminal procedure. The Recognition of protests, changing policies and decriminalizing behaviors that have only an ideological aspect, removal of rights-threatening processes, accountability and prescribing discourse instead of criminal threats can prevent the criminal process from collapse.
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