41. Given the increased reports by network members of
the use of trial waiver systems in jurisdictions across the
globe, and in light of the human rights challenges
identified as arising from the operation of plea
bargaining in the US, Fair Trials embarked in 2015 on a
project to map the global use of trial waiver systems.
The research sought to examine the adoption and use
of trial waiver systems in jurisdictions worldwide, to
analyse the various forms such systems take, to identify
the safeguards that different jurisdictions are
employing to protect human rights and to highlight
examples of good and bad practice. Working together
with its pro bono partner Freshfields, Fair Trials has
gathered information on trial waiver systems in 90
jurisdictions, covering all six major continents.
Methodology
42.
The research commenced in July 2015, and was
conducted in two phases. The first phase involved
asking lawyers across the globe to respond to a survey
requesting high level information on the law and
practice of trial waiver systems in their respective
jurisdictions. From July 2015 to March 2016, questionnaires
were distributed to local lawyers in over 100 countries
with responses received from 90 jurisdictions spanning
six continents.63
43. The survey circulated in Phase 1 included questions on
whether a trial waiver system (as defined) exists,
and if so:
• what laws and/or policies govern the system;
• when the trial waiver system was introduced;
• the reasons for introduction of the trial
waiver system;
• how commonly the trial waiver system is used; and
• how the trial waiver system works in practice.
44. The second phase of the project involved conducting
an in-depth review of the trial waiver systems in eight
jurisdictions (Georgia, Germany, Mexico, New Zealand,
Russia, Serbia, Singapore, and South Africa) by
sending detailed surveys to experts in the field in each
jurisdiction. The jurisdictions were selected based on
the results of the Phase 1 questionnaire responses and
to ensure that different types of trial waiver systems
and legal systems, as well as a wide geographical
spread, were captured. Further, Phase 2 surveys were
obtained in relation to Poland, Spain, the Czech
Republic, Greece, Lithuania, and Hungary using Fair
Trials’ own network of fair trial experts in the EU.
Interviews were also conducted with experts in a
number of other jurisdictions, including Georgia,
Ukraine, and Brazil.
63. Albania, Angola, Argentina, Armenia, Australia, Austria, Bahrain, Belarus, Belgium, Bolivia, Bosnia & Herzegovina, Botswana, Brazil, Canada, the Cayman Islands,
Chile, China, Colombia, Congo DR, Costa Rica, Croatia, the Czech Republic, Denmark, Egypt, England & Wales, Equatorial Guinea, Estonia, Ethiopia, Finland,
France, Georgia, Germany, Ghana, Greece, Guatemala, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, Italy, Japan, Jersey, Kazakhstan, Kenya,
Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malaysia, Mauritius, Mexico, Mongolia, Morocco, Mozambique, Myanmar, Namibia, the
Netherlands, New Zealand, Nigeria, Norway, Pakistan, Peru, the Philippines, Poland, Portugal, Qatar, Romania, Russia, Saudi Arabia, Scotland, Senegal, Serbia,
Singapore, South Africa, South Korea, Spain, Sweden, Switzerland, Tanzania, Thailand, Turkey, the United Arab Emirates, Ukraine, the US, Vietnam, Zambia
and Zimbabwe.
22.
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