Another Step in Criminal-Justice Reform: ODIHR Facilitates Discussions on Abolishing the Practice of Further Investigation M any of the problems related to criminal-justice reform in post-Soviet countries are rooted in the legacy of Soviet criminal procedure. One of these problems is the authority of the courts to refer a case for “further investigation”. This power provides a court with three main options after a trial: to find a defendant guilty; to acquit the defendant; or to return the case to the prosecutor, providing an opportunity (and more time) to investigate the case and look for more evidence. When a court decides to send a case back for further investigation, it says, in effect, that there is insufficient evidence for a conviction. Fair-trial standards require that, if there is insufficient evidence to uphold a conviction, the court should make a finding of acquittal. In practice, the power to return a case for further investigation allows prosecutors to bridge gaps and discrepancies in their case and often excuses unprofessional prosecutorial work. This can translate into breach of evidence rules, at best, and ill-treatment or torture, at worst, to ensure that the next time the case goes through the system it will result in a guilty verdict. Some cases go back and forth between the court and investigation for years, depriving the defendant of both a speedy trial and a final court decision. Such authority of the court reinforces the accusatorial approach of the judiciary and is at odds with the presumption of innocence of the accused, as well as the principle of equality of arms. This also partially explains why some countries in the OSCE region have acquittal rates of only around 1 per cent. The practice of further investigation violates the principles of adversarial procedure and the right to be tried without undue delay by an impartial tribunal. Due to the serious consequences of this practice, the ODIHR has facilitated discussions on the abolition of further investigation and assisted OSCE participating States that have expressed their intention to abolish this practice. One recent example is Kazakhstan. In 2005, at the request of the Prosecutor’s Office, the ODIHR helped organize a conference on the abolition of further investigation by providing best practices from other countries that have already carried out this reform and brought their legislation into conformity with Article 14 of the International Covenant on Civil and Political Rights, an international instrument that sets fundamental fair-trial standards. Obviously, this reform does not solve all the problems of the criminal-justice system, but without taking such important steps, overall progress towards implementing international fair-trial standards is not possible. Reforming the defence bar Where the defence bar is not an open institution that freely admits new members on a regular basis, there will inevitably not be enough lawyers to counsel those in need of legal assistance. The ODIHR has been an advocate for bar reform in order to improve access to legal advice. This assistance takes the form of expert recommendations, legislative reviews, or simply initiating much-needed discussion among all interested parties, including the non-governmental sector. In addition, the ODIHR has also encouraged the development of professional skills among lawyers. In Azerbaijan, the ODIHR has been observing implementation of the new law on advocates. Along with the OSCE Centre in Baku and other actors, the ODIHR initiated dialogue with partners in Azerbaijan to ensure that the law is implemented. In Kyrgyzstan, the ODIHR made two assessments of the draft law on defence lawyers. In October 2005, the ODIHR, together with the parliament and other interested parties, organized a roundtable to discuss the draft. Discussions focused on the status of advocates and ensuring independence of the proposed new bar while maintaining professional ethical standards and effective disciplinary procedures.