Pleading guilty – trial
waiver systems
50. The increasing use of trial waiver systems across the world contributes to an overreliance on confessions and creates barriers to the identification and exclusion of
evidence obtained by torture.112 Trial waiver systems incentivize suspects to admit
guilt and waive some of their fair trial rights, such as the right to silence, in exchange for a shorter sentence or reduced charges.113 The number of countries
with trial waiver systems has grown in the OSCE region, as more than 40 of the
57 participating States have some form of such a system. The prevalence of the
use of these systems varies greatly among the different states. In one state, 66 per
cent of cases in 2019 were resolved via trial waiver,114 and in another just over 2 per
cent were resolved via trial waiver in 2018.115
51. An overreliance on guilty pleas can incentivize the police to use torture much in
the same way that an overreliance on confessions does. This risk is heightened by
the removal of the subsequent trial process and its associated safeguards for the
exclusion of evidence obtained through torture. Criminal trials and procedures for
challenging the admissibility of evidence are crucial forums that can expose torture
and other ill-treatment, and they can also inform the wider public about instances
of torture or other ill-treatment. Criminal court proceedings where allegations of
torture are dealt with can also form the basis of collateral claims for compensation,
or for the prosecution or establishing the civil liability of perpetrators. Plea deals
may, at times, be used to avoid such claims by “cleansing” or “laundering” cases
that are tainted by torture, ill-treatment or other human rights abuses by avoiding
trials. Thus, trial waver systems can provide an incentive for the use of torture or
other ill-treatment, as accountability for such acts becomes less likely.
112 In this document, the term ‘trial waiver’ is used. This guidance uses it broadly to represent the
different terms in different systems but, technically speaking, it is: “A process not prohibited by
law under which criminal defendants agree to accept guilt and/or cooperate with the investigative
authority in exchange for some benefit from the state, most commonly in the form of reduced
charges and/or lower sentences”; see also Fair Trials, “The Disappearing Trial: Towards a rightsbased approach to trial waiver systems”, (2017).
113 Ibid.
114 Questionnaire response Georgian Young Lawyers Association (2019).
115 Questionnaire response Promo LEX Association (Moldova) (2019).
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