Criminal proceedings: the need for minimum standards for trial waiver systems

In many European States, regular criminal trials have gradually been replaced by different forms of trial waiver systems (also called plea deal-making or plea bargaining). These trial waiver systems have clear potential advantages - they save resources that would be required for fully investigating and full trials - but also serious drawbacks, notably that they are open to abuse by both the prosecution and the defence.

Facing this reality, the Committee on Legal Affairs has considered it "essential that appropriate safeguards are needed" in order to ensure that member States enjoy the potential benefits that trial waiver systems may offer, whilst minimising the threat to human rights, in particular the right to a fair trial.

While welcoming the good practices that have already been introduced in several member States, the adopted draft resolution, based on a report by Boriss Cilevics (Latvia, SOC), calls on member States and observers to implement procedural safeguards.

In particular, the text underlines that it will be necessary to make the involvement of a lawyer obligatory, to impose a minimum level of investigation into the crime committed and make the results available to the defence, to require judicial scrutiny of key elements of the plea agreement, and to limit the differential between the sanction resulting at the end of an ordinary trial and the sentence proposed in the context of such a transaction.

The draft text will be debated by the Assembly at its next plenary session (Strasbourg, 8-12 October 2018).