Democratization: Rule of Law
Just as work in the area of criminal justice takes
place at different levels — the working level of
lawyers, prosecutors, judges, and law enforcement personnel, as well as the political level of
criminal policy — so should reform assistance.
In its approach to reform, the ODIHR does just
this. At the working level, training is provided to
judges and lawyers to help them improve their
professional skills; opportunities to exchange
experiences and skills are also created through
the organization of seminars and conferences.
And at the political level, the ODIHR provides
advice and expertise to facilitate policy decisions to further uphold and strengthen the rule
of law and human rights in criminal justice.
Justice and society
In the former Soviet Union, trials were decided
by a judge who was typically joined by two socalled lay assessors, who were ordinary citizens,
not legal professionals. Due to their penchant
for agreeing with whatever the judge decided,
these assessors became known as “nodders”.
Seen as both expensive and ineffective, this system was dismantled during the first wave of judicial reforms in the early 1990s that took place in
most post-Soviet states.
Following these initial changes, however,
some of these countries began considering the
idea of reintroducing lay assessors. In some
cases, the argument for this return centred on a
widespread distrust of the judiciary, allegations
of corruption, judicial dependence on the executive branch, or on the lack of transparency in
the making of judicial decisions. In Russia, the
fact that jury trials were used prior to the 1917
Revolution also contributed to this renewed
interest.
Russia was the first post-Soviet country to
take such a step, reintroducing jury trials in
1993. As a result, there have been improvements: defence lawyers have better standing in
criminal proceedings; there is more procedural
balance between the defence and the judiciary;
and rules related to the admissibility of evidence
have begun to work in practice.
Since Russia’s return to jury trials, other post-
24
Soviet countries — Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, and Ukraine — have also
been considering the possibility of taking this
step.
The reintroduction of lay participation in
criminal proceedings can have a serious impact
on the administration of justice and the rule
of law. On the one hand, it can help to further
democratize judicial systems that have often
been viewed as corrupt and unjust. Reform,
however, should avoid the return of the “nodders” system, which would further undermine
trust. In addition, the reintroduction of lay participation needs to be seen in the broader context
of its role in the entire criminal-justice system.
If the prosecution and defence are not ensured
equality of arms, if the judiciary depends on the
executive, and if jurors or lay assessors are unable to make independent decisions, then such a
system would hardly perform any better than its
predecessor.
With this in mind, the ODIHR has been facilitating discussions in Kazakhstan and Kyrgyzstan
on both the means of reintroducing lay participation and the possible consequences of doing
so. These discussions have included the sharing
of experiences from those OSCE states that have
jury trials, including expertise from Russia.
Torture prevention
Prevention of torture, as well as other cruel,
inhuman, or degrading treatment, is a topical
issue in the OSCE area. Frequent instances of
such treatment are symptoms of deficient criminal-justice systems that lack adequate safeguards
for the protection of human rights. Such systems
have implicit incentives that reward “solving
crimes” at any cost. This leads to reliance by the
police and prosecutors on confessions and witness testimonies obtained through pressure and
illegal treatment, while courts often close their
eyes to such illegally obtained evidence. Breaking this cycle requires the removal of flawed
institutional incentives, greater professionalism,
and a zero-tolerance policy towards abusers.
For these reasons, the ODIHR approaches
torture prevention as an integral part of crim-
ANNUAL REPORT 2005
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