Democratization: Rule of Law Another Step Towards Ensuring Fair Trials ODIHR Facilitates Discussions on Abolishing the Practice of Further Investigation Many of the problems related to criminal-justice reform in former Soviet countries are rooted in the legacy of Soviet criminal procedure. One of these problems is the authority of the courts to refer a case for “further investigation”. This power provides a court with three main options after a trial: to find a defendant guilty; to acquit the defendant; or to return the case to the prosecutor, providing an opportunity (and more time) to investigate the case and look for more evidence. When a court decides to send a case back for further investigation, it says, in effect, that there is insufficient evidence for a conviction. Fair-trial standards require that, if there is insufficient evidence to uphold a conviction, the court should make a finding of acquittal. In practice, the power to return a case for further investigation allows prosecutors to bridge gaps and discrepancies in their case and often excuses unprofessional prosecutorial work. This can translate into breach of evidence rules, at best, and ill-treatment or torture, at worst, to ensure that the next time the case goes through the system, it will result in a guilty verdict. Some cases go back and forth between the court and investigation for years, depriving the defendant of both a speedy trial and a final court decision. Such authority of the court reinforces the accusatorial approach of the judiciary and is at odds with the presumption of innocence of the accused, as well as the principle of equality of arms. This also partially explains why some countries in the OSCE region have acquittal rates of only around 1 per cent. The practice of further investigation violates the principles of adversarial procedure and the right to be tried without undue delay by an impartial tribunal. Due to the serious con- for lawyers on the International Covenant on Civil and Political Rights. Twenty-five lawyers will complete this programme in 2006. Trial observation1 Trial-observation programmes can be instrumental to promoting the right to a fair trial. The information gathered by observers often points to the most pressing reform needs and may provide a basis for reform discussions. In individual cases, the presence of observers in the courtroom may encourage the court and the parties to adhere to the procedural rules more vigorously. When the ODIHR organized the first OSCE 1 For more information on the ODIHR’s activities in this field, see Human Rights, pp. 52-53. 28 sequences of this practice, the ODIHR has been facilitating discussions on the abolition of further investigation and assisting OSCE participating States that have expressed the intention to abolish this practice. One recent example is Kazakhstan. In 2005, at the request of the Prosecutor’s Office, the ODIHR helped organize a conference on the abolition of further investigation by providing best practices from other countries that have already carried out this reform and brought their legislation into conformity with Article 14 of the International Covenant on Civil and Political Rights, an international instrument that sets fundamental fair-trial standards. Obviously, this reform does not solve all the problems of the criminal-justice system, but without taking such important steps, overall progress towards implementing international fair-trial standards is not possible. Inter-Mission Trial Observation Meeting in 2002, trial observation was a relatively new activity for OSCE field operations, conducted primarily in the countries of South-Eastern Europe. A wealth of experience has been gained by those trial observers, who can offer experience to others who have begun to conduct trial observation in other parts of the OSCE region. The ODIHR organized two meetings in 2005 to provide such opportunities to exchange experiences and lessons learned. The fourth InterMission Trial Observation Meeting was held in Sarajevo in the fall, with staff from 12 OSCE field missions attending. A smaller meeting followed this in Zagreb that was dedicated to observation of war-crimes cases. ANNUAL REPORT 2005