Judicial accountability
The effectiveness of Cyber Sovereignty depends on the legitimacy of national government courts.
Provision
Right of appeal
In order to ensure that national government courts meet the highest standards, in cases where a digital society defendant is being defended by their digital society, and loses the case, they are able to appeal on procedural grounds to a Neutral Digital Jurisdiction.
This right of appeal is also valid if the digital society itself is fighting for itself and not just one of it’s members.
Practical steps
To be clear, the defense attorney of the defendant can initiate an appeal to the relevant Neutral Digital Jurisdiction. And that Neutral Digital Jurisdiction, after looking at the facts of the case, has the discretion to choose whether or not to allow this case to proceed in its courts. And if it does, then the defense would mount a case under its own cost, in which the national government would defend itself in this society, utilizing its courts, each side paying for the service.
The goal
The goal is to ensure that a third party not involved in the case that is highly credible is able to act as a court of appeals.
Maintaining integrity
This court of appeals is quite limited, however, in that it's not trying or retrying the case, but it is looking at the legitimacy of the court itself.
In its examination of the validity of the court in which the digital society or the person the digital society was defending, the court may examine if any element involved in the case, whether the prosecutor's office, law enforcement, the judge, jury, or court, or any other part of the system of the national government meet the highest possible standards?
To meet the highest possible standards:
Do the defense and prosecution have the equivalent amount of time to adjudicate the case in question?
Does either party have disproportionate access to resources or tools?
Does the court in question have a significant number of individuals that have been convicted and later acquitted revealing a pattern of false convictions?
Does the court and system of justice it depends on allow for reasonable investigation into the possibility of false convictions including the right of discovery?
Does the court have a documented pattern of unpunished misconduct?
Does each element of power have an equal and opposite element of balance that frequently holds to account any party involved in the justice system that engages in misconduct? Do these elements fraternize with those that they should hold accountable?
Is there information asymmetry between the prosecution and defense?
Is the defense provided any and all evidence equivalent to that which is provided the prosecution before the evidence is examined by any party to ensure the prosecutor doesn't hide evidence?
Are there frequent complaints by defense attorneys of relevant evidence not being provided?
Are there significant safeguards preventing evidence tampering by the accusing party?
Is any party subject to a potential conflict of interest or maligned incentive structure?
Are plea bargains typically coercive by nature?
Are violations of the Charter of Cyber Sovereignty being observed?
Is the immunity of any party a potential an incentive to violate standards of ethics?
Does the power to provide a plea bargain lay in the hands of the prosecutor instead of a non-aligned third party?
Are the indictments made where one party (e.g. the prosecutor) has more leverage than the other?
Are innocent people regularly indicted?
Is whistleblowing encouraged or do whistleblowers regularly fear to speak out?
New standards
To comply with the relevant checks and balances mentioned, all systems of justice must now:
Allow for open and public complaint by prosecutor, defense, or any other party as to violations of the Charter or these principles by any other party within the system without fear or retribution.
Hand over all potential evidence to both the defense and prosecution before review of the material by the other party.
Governments may use a system in which a third party equally filters that information for classified information removing it totally from both parties.
Create a list of time spent by all assets of the prosecuting and defending team for public records.
Require all conversations with witnesses to be recorded and require both the defense and prosecution to have access to all recordings of all witnesses.
Every element of power and facet of the justice system leading to conviction must have an equal and opposite element of balance, with full powers to investigate and prosecute those who engage in misconduct. These bodies must not only hold to the highest standard of conflicts of interest, they must not fraternize with opposing parties even off-duty.
Obviously, a police force, for example, would not need equal funding to an element to investigate the police. Instead, the funding should be sufficient for the task at hand. This should be determined as a percentage of funding of the greater entity at a maximum of 10% based on the demand of the balancing entity. The max may be increased up to 100% by the entity being judged and any increase is not revocable at least seven years.
These balancing element would have the right to bring cases in Global Neutral Jurisdictions.
Digital societies in which cases against national governments and their elements of justice take place may publish names to shame those who engage in misconduct.
Disallow the fundamental conflict of interest that arises when the accusing party is also empowered to offer a non-trial resolution.
Disallow the fundamental imbalance of power that comes when one side has disproportionate opportunity to persuade in favor of the party they represent in the process of accusation, jury selection or any significant post-indictment procedure.
In civil cases, the person prosecuting the individual must provide the defendant the equivalent resources to defend themselves.
In criminal cases, the government must ensure that the defending attorney has no asymmetry in the use of tools, resources, time and financial ability to defend their client as the government has.
Delegating responsibilities
A digital society in question may feel itself unprepared for a case in question and therefore delegate the responsibility of the case to another similarly-sized or greater digital society by citizen population.
Cause of action
A digital society in finding that one of their citizens is having their rights violated, either the rights specified here or throughout the Charter receives a cause of action by which they can demand the national government in question to stand trial in front of a Neutral Digital Jurisdiction.
Defined remedies and binding consequences
A finding of failure must trigger specific, escalating, and non-negotiable remedies as decided by the court in question.
Level 1: Verdict nullification. If the court finds the national court's process failed to meet the "highest possible standards," the original verdict is automatically and irrevocably nullified. The defendant is legally restored to their pre-conviction status.
Level 2: Mandated retrial or release. Following nullification, the court can mandate one of two outcomes:
Acquittal with prejudice: If the procedural failure was egregious, such as the use of fabricated evidence or a proven pattern of unpunished misconduct, the defendant is ordered released, and the national government is barred from ever retrying the case on the same charges. In such a case, the acquitted individual must be compensated according to the demand of the court.
Mandated retrial under supervision: In cases of less severe procedural violations, a retrial may be permitted, but it must be conducted under the direct supervision of an appointed observer from the digital society's court to ensure compliance.
Level 3: Financial penalties. The national government found in violation will be assessed financial penalties payable to the defendant for damages and to the defending digital society for its legal costs. These are not requests but debts enforced through the mechanisms outlined below.
Level 4: Dissolution. All future cases by the court in question are considered invalid toward the citizens of digital societies until appropriate repair is done to its system of checks and balances as determined by the digital society in question. The court may be revalidated by either the digital society that demanded it, or the digital society which possesses the largest population of nationals from the nation in question.
Level 5: Systemic reform. If the problem in question is ubiquitous throughout the nation or written in law, then the digital society may mandate systemic reform throughout the whole nation, however, only on the ambiguous high-level principles of this document and the Charter, not to a specific imagined implementation. The digital society has the right to set a timeline on how long the nation has to fix the issue and has the right to be the validator of progress. If given reasonable time and if the process is not complete, then the digital society has the right to claim a meaningful financial reward by taking the national government to court with the JBT as arbiter. If they win the case against the national government in front of the JBT, the JBT will become the new manager of this reform process.
The JBT manages all disputes of this process.
All judgments by the digital society in question in such cases are seen to be valid in the national government without further checks and balances except under Level 5.
Balance
For every right that a society provides an individual in court, an extension of that society's court cases can be expected. Instead of perfection, Cyber Sovereignty seeks balance between the parties in question.