International and regional standards
116.
Given the fact that, in many countries, trial waivers
account for the majority of convictions, it is astonishing
that international standards have so little to say on
such systems. Recognition of the application of fair trial
standards to criminal proceedings, like trial waivers,
that do not necessarily constitute a “trial” would also
be in line with the broader recognition by international
human rights bodies that the fairness of the “trial” is
affected by earlier proceedings, and requires certain
procedural safeguards in the post-arrest and pre-trial
period.110 There is currently no specific articulation
of how existing international and regional standards
on the right to a fair trial apply to trial waiver systems.
Within the provisions of major human rights treaties
that protect the right to a fair trial – Article 14 of the
International Covenant on Civil and Political Rights
(ICCPR), Article 6 of the ECHR, Article 7 of the African
Charter on Human and Peoples’ Rights (ACHPR), and
Article 8 of the American Convention on Human Rights
(ACHR) – only the last mentions something like trial
waiver systems explicitly, as a component of the right
to presumption of innocence. Article 8(2)(g) of the
ACHR articulates “the right not to be compelled to
be a witness against himself or to plead guilty”.111 No
decisions by the Inter-American Court of Human Rights
(IACHR), however, interpret that provision specifically
in relation to trial waiver systems.
117. This silence of international and regional human rights
instruments on the issue of trial waiver systems may be
due to the fact that at the time they were drafted, full
trials were the norm in most regions and jurisdictions.
Recent developments suggest, however, that the tide
is turning.
118. There have, for example, been recent efforts to promote
trial waiver systems (for example, by Recommendation
No. R(87)18 of the Committee of Ministers of the
Council of Europe112 promoting measures to simplify
criminal proceedings) but these have not given
adequate consideration to the need for human
rights safeguards. Recommendation No. R(87)18, for
example, mentions only the need for the trial waiver
system (which it calls a “guilty plea”) to be “carried
out in a court at a public hearing”, and that “[t]here
should be a positive response by the offender to
the charge against him.” It does not mention, for
example, any required procedural safeguards nor
the kinds of cases to which such proceedings might
be restricted.
119. The reduction in use of full trials also poses a problem
for the law’s ability to remedy rights violations that
occur during arrest, investigation and the pretrial period. In the context of a trial, the remedy for
due process violations (including torture, abuse of
process by police, and unlawful arrest, search and
seizure) includes exclusion or special treatment of the
tainted evidence obtained through unlawful means.
Where there is no trial, such violations are likely to go
unremedied and in some cases undiscovered, with a
potentially serious impact on both individual victims
of such abuses as well as the integrity of the criminal
justice system as a whole. The U.N. Special Rapporteur
on Torture has recently indicated that national laws
must take account of situations in which “evidence
or information is obtained in violation of preventive
safeguards and the accused takes a plea without trial.”113
110. I.e. Salduz v. Turkey, European Court of Human Rights, App No 36391/02 (Nov 27 2008), finding a violation of Article 6.3 ECHR (right to legal assistance) where the
defendant was denied access to a lawyer during interrogation in the police station, even where he was later represented by a lawyer at trial.
111. Note that Article 14(3)(g) of the ICCPR similarly provides for the right not to testify against oneself or to “confess guilt” – neither “pleading guilty” nor “confessing
guilt” necessarily relate directly to trial waivers, though they may be used as the basis for protections within trial waiver systems.
112. Recommendation No. R (87)18 of the Committee of Ministers, supra at n. 78.
113. “Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment”, United Nations General Assembly (UNGA),
A/71/298 (Aug. 2016), para. 100. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/250/31/PDF/N1625031.pdf?OpenElement.
62.
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