132.
The judgment in Natsvlishvili provides a potential
set of safeguards specific to the trial waiver context,
in order to consider that a defendant has effectively
entered into such an agreement: (a) access to a
lawyer; (b) understanding of the charges, waivers
and the consequences of those waivers; (c) recording
of the terms of the negotiation; and (d) independent
judicial review with additional evidence supporting
the conviction. However, as the dissenting opinion
points out, these safeguards alone failed to establish
the voluntariness of the trial waiver, given the high
conviction rate at trial in Georgia in the relevant
period and the “take it or leave it” attitude of the
prosecutor.138 Further indicators of due process
and safeguards must be developed to guard
against coercive proceedings that undermine the
presumption of innocence.
133. The relatively cursory acceptance of trial waivers by
the ECtHR with reference to only relatively formalistic
safeguarding of rights is disappointing given the quite
serious indications of irregularities in the case before
it. Judge Gyulumyan alone seemed willing to probe
the coercive potential of the possibility of a trial waiver
itself in the context of the Georgian legal system at
the time, rather than treating it as an uncomplicated
waiver of rights. One area where potential safeguards
may be developed, identified by Judge Gyulumyan in
her partially dissenting opinion, may be in relation to
charging practices by prosecutors. Judge Gyulumyan
notes that part of the coercive element in the case
related to threats by the prosecution to lodge further
charges unsupported by prima facie evidence, in
order to induce the trial waiver.139 Though similar
prosecutorial threats in relation to charging have been
deemed constitutional by the US Supreme Court,140
European standards may well regulate excessive
charging by prosecutors differently.
134. The ECtHR did not, in its first consideration of trial
waiver systems in the Natsvlishvili case, meaningfully
develop a framework to ensure that procedural rights
are respected in trial waiver proceedings. Nor did
it consider the implications of trial waivers for the
rule of law and the role of prosecutors and judges.
Further jurisprudence on trial waivers from regional
and international courts must ensure that fair trial
standards apply in full to trial waiver proceedings.
An approach that substitutes principled application
of rights for a cursory analysis of individual consent
to waive them is insufficient to ensure justice in the
context of the systematic replacement of full trials
with trial waivers in many jurisdictions. The existence
of full trial rights in law is meaningless if authorities
can avoid procedural requirements by systematically
disincentivising defendants from exercising them.
International criminal courts and tribunals
135.
Apart from the U.N. and regional human rights
mechanisms, legal standards relevant to trial waiver
systems are being developed in international criminal
courts and tribunals, with many of these formally
codifying a trial waiver system into their founding
documents or procedural rules. Examples of the
operation of trial waiver systems in the International
Criminal Tribunal for the Former Yugoslavia (the ICTY)
and the International Criminal Court (the ICC) provide
valuable case studies which provide further insight
into the legal standards and normative framework
which could be developed to govern the use of trial
waivers.
138. Ibid, para. 4.
139. Ibid, para. 5.
140. Bordenkircher v. Hayes, 434 U.S. 357 (1978), finding that a prosecutor would not violate due process if he adds additional charges, solely to punish a defendant for
exercising a constitutional or statutory right.
66.
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