Policy recommendations
States should ensure that national laws provide for the following safeguards in
the trial waiver process:
1.
2.
3.
4.
5.
6.
andatory access to a lawyer throughout the trial waiver process and,
M
specifically, access to legal assistance during any police interview and
prior to waiving the right to a trial;
A timely, accessible and comprehensive notification of rights;
Notification of the specific consequences of waiving rights (including the
right to a trial);
Robust disclosure of both inculpatory and exculpatory evidence;
A meaningful judicial review procedure; and
A legal guarantee that if the trial waiver process is not completed, any
negotiations cannot be used as evidence against the defendant.
Practical recommendations
States should take steps to assess how trial waivers, a relatively under-researched area of criminal justice, may be impacting the right to be free from
torture and other ill-treatment. It is recommended that states:
7.
8.
9.
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ollect data on the prevalence of trial waiver systems, the number of
C
allegations of torture and other ill-treatment by suspects, accused persons or defendants who have concluded a trial waiver, and examine the
impact of trial waiver systems on rates of arrest, prosecution, conviction
and incarceration;
Share examples of promising practice, risks and safeguards in relation to
trial waver systems among OSCE participating States; and
Engage with civil society and local bar associations to assess the impact
of trial waivers on the prohibition of torture and other ill-treatment and
fair trial rights.
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