International and regional case law and guidance A. United Nations Human Rights Committee 123.  The United Nations Human Rights Committee (HRC) has not directly considered a challenge to trial waivers per se. The only context in which it has been considered was in relation to the complaint of Hicks v. Australia,126 a decision published in 2016. Hicks, an Australian national, was apprehended by US actors in Afghanistan in November 2001 and thereafter held in Guantanamo Bay detention camp (Guantanamo). He claims that he was subject to torture and illtreatment there and held without charge for several years, after which time repeated attempts to try him in Guantanamo at the military commission were blocked as unconstitutional. 124.  Finally Hicks was charged anew in February 2007, entering into a plea deal through which he pleaded guilty to providing material support for terrorism, in return for which he was sentenced to seven years’ imprisonment. The terms of the deal included his subsequent deportation to Australia, where the sentence imposed in Guantanamo would be enforced. He ultimately served seven months of his sentence in Australia and was then made subject to a control order for a year following his release.127 125. The HRC held Australia responsible for its part in the negotiation of the plea deal. It recognised that Hicks had no choice but to accept the terms of the plea deal that was offered to him; therefore it was incumbent on Australia to show that it had done everything possible to ensure that the terms of the arrangement that had been negotiated with the US did not cause it to violate the ICCPR. In the absence of such evidence, the HRC considered that, by giving effect to the remainder of the sentence imposed under the plea deal and depriving Hicks of his liberty for seven months, Australia violated Hicks’ rights under Article 9(1) (protecting liberty and the security of the person) of the ICCPR.128 126. The facts of the Hicks case highlight the way in which trial waivers can be used to cleanse a history of human rights and fair trial rights violations that make a successful trial (meaning one that would lead to a conviction) impossible. The case demonstrates that courts can and should be interrogating the voluntariness of trial waivers in more than a formalistic way. It is clear that Hicks understood what the terms were and knowingly waived his right to a trial, but it is equally clear that there was no reasonable alternative to the plea deal, making the “choice” an illusory one. The chances of obtaining a fair trial in Guantanamo had proven to be nil; by rejecting the plea deal he would essentially be sentencing himself to an indefinite period of further detention in inhuman and degrading conditions. B. European Court of Human Rights jurisprudence on trial waivers 127.  The ECtHR has only considered the lawfulness of trial waivers, and their compatibility with the right to a fair trial in one case – Natsvlishvili and Togonidze v. Georgia.129 The case concerns the prosecution of the managing director of what was one of the largest public companies in Georgia, and the former mayor of a town called Kutaisi. Mr Natsvlishvili was arrested on suspicion of illegally reducing the share capital of the factory for which he was responsible and charged with making fictitious sales, transfers and write-offs, and spending the proceeds without regard for the company’s interests. Several features of the case suggested political motivation. His arrest was filmed and broadcast on local television. The Governor of the Region also made a declaration, without directly referring to Mr Natsvlishvili, that it was the State’s intention to pursue and identify all those who had misappropriated public money. During the first four months of his detention, Mr Natsvlishvili was held in the same cell as the man who was charged with kidnapping him some years before, and with another man serving a sentence for murder. 126. See “Communication No. 2005/2010: Views adopted by the Committee at its 115th session”, UN HRC, CCPR/C/115/D/2005/2010 (Feb. 19 2016). Available at: http:// ccprcentre.org/files/decisions/2005_2010_Hicks_v__Australia.pdf. 127. Joseph, S., “Australia found to have breached the human rights of David Hicks”, The Conversation (Feb. 21, 2016). Available at: http://theconversation.com/ australia-found-to-have-breached-the-human-rights-of-david-hicks-55120. 128. “Communication No. 2005/2010”, UN HRC, supra at n. 126, para 4.10. 129. App. no. 9043/05 (Apr. 29, 2014). Available at: http://hudoc.echr.coe.int/eng?i=001-142672 . See also “Plea bargain in Georgian misappropriation case did not breach the accused’s right to a fair trial” ECtHR Press Release (Apr. 29 2014). Available at: https://www.fairtrials.org/wp-content/uploads/10B-Natsvhlishvili-andTogonidze-press-release.pdf. 64.