Feasibility of Open Trial in Cyberspace

Abstract

Principle of publicity is one of fundamental principles of proceeding which has been regarded as an essential component in fair trail in human right documents and there are clear signs confirming it in the Imamiya jurisprudence. The Civil Procedure Act 1379 unlike Civil Procedure Act 1318 and Criminal Procedure Act 1392 is silent about it; but according to Constitution Act, Principle 165, observation of this principle is necessary in civil cases too. Principle of publicity do not restrict to usual proceeding that in it the parties are required to be present in the court, rather, its observation is necessary in electronic proceeding; because this two proceedings have not substantive differences, and only holding procedures are different. On the other hand, currently lack of space in courts and long distances cause this principle to be isolated, using electronic instruments facilitate the presence of people in courts by spending less time and small expense. This approach not only has not any conflict with jurisprudential foundations, but also it is in compliance with them under the auspices of conditions of time and place, as it removes losses arising from the isolation of publicity of trials and facilitates its application. Practice of wise-men, generality and unconditionality of reasons relating to publicity of proceeding together with lack of prohibition on the side of Shariah confirm this approach. Therefore, the comprehensive system of electronic proceeding and national justice network should not restrict itself to the parties of a given case and instead it needs to allow those who intend to participate in legal proceedings by creating technical and legal infrastructure.

Keywords

• public trial
• civil procedure
• cyberspace
• electronic proceeding
• exceptions to the principle of public trial