C. Reasons for introduction of trial waiver systems
56. Many different justifications are cited as reasons for
adopting trial waiver systems, most related to
efficiency aims, but there is a nearly uniform failure on
the part of authorities to assess whether these aims are
achieved in practice. The Phase 1 survey asked
respondents why trial waiver systems were introduced
or used in each jurisdiction.77 In some cases, where the
practice was formally introduced in legislation (rather
than, for example, jurisdictions in which higher courts
ratified the practice through case law), it was possible
for respondents to identify the stated intent of the
statute. Other respondents cited commentary by
judges in key cases or guidelines provided to
prosecutors in relation to trial waivers. Still others
provided rationales with no clear evidentiary basis,
apparently reflecting the common views of stakeholders
in the criminal justice system.
57. In Phase 2 of the research, the surveys further solicited
the opinions of experts as to the systemic benefits of
trial waivers in practice, and sought input on the
perceptions of court actors of the justifications for the
use of trial waivers.
i. Efficiency
58. Efficiency-related justifications were the most cited
reasons given in the surveys for the use of trial waiver
systems. These rationales take a variety of related forms.
Reduction in case backlogs
59. Many countries represented in the survey have justified
the use of trial waiver systems as a means to clear longstanding case backlogs, which create often intolerable
delays. This is a serious concern for countries regularly
found to be violating defendants’ right to a trial within
a reasonable period of time. Finland, for example,
adopted a trial waiver system in 2015 which is made up
of several mechanisms, including a process whereby
guilty pleas are made during the pre-trial investigation
(known as “tunnustamismenettely”), in which the case
is heard in a full criminal trial, and a plea bargaining
procedure which takes place post-investigation (known
as “syyteneuvottelu”). The law which came into force in
January 2015 was introduced as a result of concerns by
the Ministry of Justice about the number of European
Court of Human Rights (ECtHR) cases in which Finland
was found to have violated Article 6(1) of the European
Convention on Human Rights (ECHR), which ensures
trial within a reasonable period of time.
60.
Some jurisdictions, according to the surveys, have
justified the adoption of a trial waiver system as
“simplifying” proceedings or reducing procedural
requirements and associated timeframes. This view
is supported by the Council of Europe, which has
recommended the use of simplified judicial
proceedings including trial waivers (which it refers to
as “guilty pleas”) and other forms of simplified and
abbreviated proceedings, along with increased
prosecutorial discretion to dismiss charges.78 The
survey from Macedonia, for example, specifically cited
the influence of the Council of Europe’s recommendation
as part of the government’s adoption of a trial waiver
system (known as “plea bargaining”).
Human resources savings
61. Many of the responses to the Phase 1 surveys and the
experts surveyed in Phase 2 of the research expressed
the belief that trial waiver systems allowed
straightforward cases with little in dispute to be
resolved more quickly, freeing up prosecutors’ and
judges’ time for contested cases. However, some
respondents, for example from Serbia, indicated that
trial waivers (which include both “plea agreements”
and a witness collaborator programme) have in fact
increased workloads in particular for prosecutors.
Public spending
62.
In 23 survey responses, the rationale given for the
introduction of trial waiver systems was the savings in
public spending on the justice system which can be
achieved as a result. Little data is collected in many
jurisdictions to establish what savings, if any, had
actually been made due to the adoption of trial waiver
systems, nor is it clear what the parameters of a costbenefit analysis of the efficiency of trial waiver systems
would look like. Adopting trial waiver systems can, for
77. Responses to this query from survey respondents are summarised in the table available at Annex I.
78. Recommendation No. R (87)18 of the Committee of Ministers to Member States Concerning the Simplification of Criminal Justice, adopted on Sept. 17 1987, Council
of Europe: Committee of Ministers. Available at: http://www.barobirlik.org.tr/dosyalar/duyurular/hsykkanunteklifi/recR(87)18e.pdf. At part III, paras. 7–9, it reads:
‘Wherever constitutional and legal traditions so allow, the procedure of “guilty pleas”, whereby an alleged offender is required to appear before a court at an early
stage of the proceedings in order to state publicly to the court whether he accepts or denies the charges against him, or similar procedures, should be introduced.
In such cases, the trial court should be able to decide to do without all or part of the investigation process and proceed immediately to the consideration of the
personality of the offender, the imposition of the sentence and, where appropriate, to decide the question of compensation. 8.(i.) The “guilty plea” procedure must
be carried out in a court at a public hearing. (ii.) There should be a positive response by the offender to the charge against him. (iii.) Before proceeding to sentence
an offender under the “guilty plea” procedure, there should be an opportunity for the judge to hear both sides of the case. 9. Where the investigation process at the
court hearing is retained, notwithstanding the willingness of the accused to admit his guilt, it should be restricted to those steps absolutely necessary for
establishing the facts, taking account of procedure already gone through prior to the trial. In particular, the hearing of witnesses who have previously testified before
a judicial authority should be avoided as far as possible.’
36.
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