The Disappearing Trial
120. Based on the safeguards set out in the previous section
which have been identified through the research, it is
evident that the articulation of procedural safeguards
which contribute to protection of the right to a fair trial
could also be of benefit within trial waiver systems.
Article 14(3)(g) of the ICCPR, for example, protects the
right not to be compelled to testify against oneself or
to confess guilt. This includes the right for defendants
to be free from “any direct or indirect physical or
undue psychological pressure from the investigating
authorities on the accused, with a view to obtaining a
confession of guilt,”114 What constitutes psychological
pressure or duress sufficient to violate this principle has
not yet been established, however.
121.
Jurisprudence and guidance from regional human
rights mechanisms, such as the ECtHR, which have
developed standards in relation to safeguards for
defendants’ waiver of rights in criminal proceedings,
will have relevance in the context of trial waiver
systems. For example, the ECtHR has held that in
order to be effective for ECHR purposes, a waiver
must be unequivocal and attended by safeguards
commensurate to its importance.115 This means in
part that “[b]efore an accused can be said to have…
waived an important right under Article 6, it must
be shown that he could reasonably have foreseen
what the consequences of his conduct would be”.116
When it has examined whether waivers of the right to
silence are made willingly and knowingly, for example,
the ECtHR has considered factors such as whether a
lawyer is present117 and whether the accused has had
sufficient information on his rights presented to him
in simple, non-legalistic language, with the assistance
of interpretation and translation if necessary.118
It has considered whether the accused had particular
vulnerabilities, such as withdrawing from drugs119 or
having low levels of literacy,120 which may have made
it harder for the accused to understand and foresee
the consequences of their waiver. These general
safeguards necessary for waivers of fair trial rights
should also apply to trial waiver systems.
122.
There have been some attempts to start the
development of a normative framework applicable
to trial waiver systems. The United Nations Office
on Drugs and Crime (UNODC), together with the
International Association of Prosecutors (IAP), in
2014 produced a guide called “The Status and Role
of Prosecutors” which contains some guidance for
prosecutors on the proper use of their discretion in
what they term “plea bargaining”.121 The U.N. Special
Rapporteur on Torture, interpreting the Convention
Against Torture,122 has warned against inducements or
“promises of immunity or lighter sentences in exchange
for confessions…These methods are improper because
they ultimately deprive a person of his or her freedom
of decision.”123 The U.N. Guidelines on the Role of
Prosecutors provides that “The office of prosecutors
shall be strictly separated from judicial functions.”124
Other U.N. guidelines have recognised the need for
“special protection for all detained persons, who,
during questioning, must not be subjected to violence,
threats or practices that impair their capacity of
decision or their judgment or force them to confess,
incriminate themselves or testify against another
person.”125 However, taken together these do not yet
point towards a systematic approach to the protection
of human rights in trial waiver systems.
114. “General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial”, UN Human Rights Committee (HRC), CCPR/C/GC/32 (Aug. 23,
2007). Available at: http://www.refworld.org/docid/478b2b2f2.html.
115. Pishchalnikov v. Russia, App. No. 7025/04 (Sept. 24, 2009), para. 77.
116. Ibid.
117. Ibid, para. 78.
118. Hermi v. Italy, App. No. 18114/02 (Oct. 18, 2006), para. 41.
119. Plonka v. Poland, App. No. 20310/02 (Mar. 31, 2009), para. 38.
120. Kaciu and Kotorri v. Albania, App. Nos. 33192/07 and 33194/07 (Dec. 9, 2013), para. 120.
121. “The Status and Role of Prosecutors”, UNODC and IAP (Dec. 2014), p. 43. Available at: https://www.unodc.org/documents/justice-and-prison-reform/14-07304_
ebook.pdf.
122. “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, UN General Assembly, Treaty Series, Vol. 1465 (Dec. 10, 1984).
Available at: http://www.refworld.org/docid/3ae6b3a94.html.
123. “Interim report of the Special Rapporteur on torture”, UNGA, A/71/298, supra at n. 113, para. 40.
124. “Guidelines on the Role of Prosecutors: Adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba”, UN
Human Rights, Office of the High Commissioner (Sept. 1990), para. 10. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfProsecutors.aspx.
125. “Interim report of the Special Rapporteur on torture”, UNGA, A/71/298, supra at n. 113, para. 37.
63.
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