any International Judiciary standards for email? Electronic Communication
The UN only has the United Nations Convention on the Use of Electronic Communications in international trade The rights for electronic communication in the justice system are thus to derive from the other core human rights instruments and publications.
Let's kick off the series of posts on email in light of access to justice and judicial recognition in Switzerland.
The United Nations and the Rule of Law states:
Access to justice is a basic principle of the rule of law. In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable.
definition of electronic communication and its reception
In international instruments, email is included in the term “electronic communication”. The United Nations defines electronic communication, and email (electronic mail), as follows:
“Communication” means any statement, declaration, demand, notice or request
“Electronic communication” means any communication that the parties make by means of data messages
“Data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex or telecopy
Moreover, the UN finds:
An electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the addressee’s electronic address
It adds to that notion that it:
presumes receipt of an electronic communication from the moment that the electronic communication becomes capable of being retrieved by the addressee
However,
individuals acting for personal, family or household purposes should not be held to the same standards of diligence
So according to the UN, email is received by the recipient as soon as it reached the recipient's mail server. This rule should not be applied strictly when email is received by a private individual.
Under different International Human Rights instruments, email is explicitly a recognised form of communication.
The fast evolving nature of electronic communication tools is recognised in international instruments, and always refers to “such as” when listing examples.
The UN and electronic communication
Email is listed as the preferred way to communicate with the UN. The UN Complaints Procedure explicitly includes complaints received by email. The UN explicitly demands to not send originals of documents, to only send copies and preferably scans, as they do not send original documents back.
A very clear stand on electronic communication by the UN is that it considers the refusal of electronic communicatoin as:
- a form of discrimination;
- increasing inequality;
- a violation of the right to free speech;
- a violation of free and accessible access to justice;
In addition, according to the UN email and other forms of communication are accepted as evidence in judicial proceedings.
The foundation for the acceptability of forms of electronic communication, such as email, can be found in the Universal Declaration of Human rights articles 2 and 19 and 28 and 29.2. Moreover, article 7 talks specifically about the non discrimination in the justice system, and the denial of email by the justice system is a form of discrimination as indicated in international jurisprudence.
It is so common, that academic papers have highlighted electronic communication can intimidate witnesses, who need to be protected in case they do not have access to electronic communication, and manuals exist for jurors to avoid creating the perception of not being independent when people do not have access to electronic communication.
Reality is, the vast majority of documents are nowadays no longer handwritten, on stencils, or typed on typewriters, (I feel a dinosaur typing these words, feels like millennia ago). Virtually everything is now typed on computers. This means even postal letters, unless handwritten, are a form of electronic information about one's person, which a person under GDPR and other international instruments has an unalienable right to obtain access to, in electronic format.
The UN on e-justice (electronic-justice)
The United Nations Development Programme (UNDP) released in June 2022 the report E-Justice: Digital Transformation to Close The Justice Gap
It describes opportunities and challenges, a roadmap for how to address the future of e-justice.
It argues the case for electronic case management, and highlights attention is needed to security and data privacy, especially when the state is party to court cases.
Discriminatory or corrupt public officials undermine people’s human rights and the transparency of the system as a whole. Technology is a powerful tool to strengthen the rule of law and increase anti-corruption and accountability initiatives.
Courts are a critical institution to redress rights violations and yet can also be the site of further corruption and discrimination. The impact of abuses of power within the justice sector is two-fold, failing to rectify rights violations and further undermining public confidence in the justice system.
The UN Secretary General Call to Action for New Frontiers for Human Rights says:
many users around the world face censorship, surveillance, intimidation, and other violations and abuses of their fundamental rights, either at the hands of their own governments or by the technology companies they trust with their data
UNDP recognises that digital tools can be used to advocate for, protect and defend human rights, and considers e-justice essential to people-centred justice. E-justices should not be obscure or hide injustices behind the guise of technology.
The primary stage is set, to be continued ...
- part 1 { any International Judiciary standards for email? Electronic Communication }
- part 2 { Switzerland subject to European electronic communication rules }
- part 3 { the Swiss and electronic communication in justice }
- part 4 { Swiss Judicial Electronic Communication conclusion: Human Rights Violations Galore }
Tags: #Rights #Accesstojustice
A lie gets halfway around the world before the truth has a chance to get its pants on.
This blog gets the proverbial pants on!
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