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Resolution 2245 (2018)
Deal making in criminal proceedings: the need for minimum standards for trial waiver systems
1. The Parliamentary Assembly recalls
the obligation of member States to ensure fair trials in criminal proceedings.
The safeguards foreseen in the European Convention on Human Rights
(ETS No. 5, “the Convention”), in particular its Article 6 (The
right to a fair trial), are designed to protect the innocent and
to promote equality of arms between the prosecution and the defence
in the interest of material justice.
2. It notes that in many member States of the Council of Europe
and in States having observer or other status with the Council of
Europe or the Assembly, regular criminal trials have gradually been
replaced by different forms of trial waiver systems (also called
plea bargaining, guilty pleas, abridged trials or summary procedures).
In a number of countries, only a minority of criminal convictions
are still based on regular trials.
3. The rapid development of trial waiver systems, in particular
in central and eastern Europe and in the successor countries of
the former Soviet Union, is partly due to efforts by the United
States to promote American-style plea bargaining as part of the
technical assistance provided to the newly established democracies
for the reform of their judicial systems. Given the marked differences
in the criminal justice systems within Europe, and between Europe
and the United States, such a transposition is fraught with risks that
need to be counteracted in order to minimise abuse. In particular,
the extensive powers of the prosecution (Prokuratura)
in the criminal justice systems of certain eastern European countries
must be counter-balanced by a stronger defence and a more active
role of the court if plea bargaining is not to deteriorate into
blackmail.
4. Trial waiver systems have clear potential advantages:
4.1. they save resources that would
be required to fully and thoroughly investigate all suspected crimes
and systematically hold full trials in open court. Some less serious,
although frequently committed types of delinquency may not justify
the investment in each case of scarce law-enforcement and judicial resources
required for a regular trial;
4.2. they facilitate concentration of the limited law-enforcement
resources on well-defined priority fields of criminal activity;
4.3. they can help the fight against organised crime, money
laundering and other forms of complex criminality, where inroads
into closed criminal structures can be facilitated by the prosecutors’
ability to offer deals to potential prosecution witnesses;
4.4. they allow suspects who confess and are ready to accept
a sentence to avoid a long pretrial investigation which might restrict
their rights.
5. But trial waiver systems also have serious drawbacks:
5.1. they are open to abuse by both
the prosecution and the defence. A prosecutor may threaten a defendant
with an inappropriately harsh sentence if he or she does not confess,
even in the absence of sufficient evidence; and a defence counsel
may persuade an overburdened prosecutor in a complex case to accept
a partial confession and a mild sanction while disregarding other,
more serious criminal activity. Typically, the first type of abuse
victimises young and poor offenders whereas the second type benefits
wealthy white-collar criminals;
5.2. by saving prosecutors the need to make their case in open
court, widespread trial waivers in time affect the authorities’
very ability to carry out solid investigations;
5.3. the secrecy of “deal making” undermines the public’s trust
in the judiciary and the fair and non-discriminatory application
of the law;
5.4. by increasing the case-processing capacity of the criminal
justice system, without increasing its resources, plea bargaining
increases the overall number of criminal convictions. This increase
(“net-widening effect”) may be inconsistent with optimal penal policy
and the cost of the resulting higher prison population may well
negate the judicial resources saved by trial waivers.
6. The Assembly considers that appropriate safeguards are needed
to ensure that member States enjoy the potential benefits that trial
waiver systems may offer, while minimising the threat to human rights,
in particular the right to a fair trial.
7. It welcomes and encourages the sharing of good practices that
have already been introduced in several member States, including:
7.1. the mandatory involvement of
a lawyer (Croatia, Estonia, France, Georgia, Ireland, Luxembourg, “the
former Yugoslav Republic of Macedonia” and Switzerland);
7.2. the imposition of minimum requirements for investigations
and the disclosure of their results (Finland, Germany and Luxembourg);
7.3. the requirement of judicial scrutiny of key elements of
the plea agreement and the limitation of the differential between
the sanction resulting from a full trial and that offered as part
of a plea bargain (Germany);
7.4. the prohibition of the waiver of the right to appeal and
the possibility to revoke an agreement in certain circumstances
(Germany).
8. The Assembly calls on all member States and States having
observer or other status with the Council of Europe or the Assembly
to implement the following safeguards, whose effectiveness will
ultimately depend on the existence of a truly independent judiciary:
8.1. make the involvement of a lawyer
obligatory, as a condition for the validity of a plea bargain, if need
be funded by legal aid, so as to ensure that defendants, in particular
vulnerable ones such as young offenders, are treated fairly – as
required by Article 6.3.c of
the Convention;
8.2. impose a minimum level of investigation into the crime
underlying the plea agreement and the disclosure of the results
of the investigation, to enable the defendant to make an informed
choice, in accordance with the right to presumption of innocence
under Article 6.2 of the Convention, and to protect the confidence
of the general public in the fairness of the criminal justice system;
8.3. require judicial scrutiny of key elements of the plea
agreement, regarding in particular the credibility and voluntary
nature of the confession and the appropriateness of the sanction
resulting from the plea agreement, and to envisage adequate accountability
for intimidation, duress and other abuse in the course of plea bargaining;
8.4. limit the differential between the sanction resulting
from a full trial and that offered as part of a plea bargain (“trial
penalty”), thus avoiding unfair pressure on the accused while ensuring
that sanctions remain within an appropriate range and justice is
seen to be done;
8.5. prohibit the waiver of appeal rights, in order to ensure
sufficient control, at the national level, of the actual practice
of lower courts in the field of plea bargaining;
8.6. foresee the possibility of revoking a plea agreement in
certain circumstances, in particular when new facts arise or become
known which make the plea agreement inappropriate and require further prosecutorial
action; in such a case, a confession made as part of the agreement
must not be used against the defendant;
8.7. minimise the use of pretrial detention against persons
suspected of less serious crimes by making use of alternative measures;
8.8. monitor indicators of racial or wealth bias or discrimination
in the reduction of sentences following guilty pleas, and take appropriate
awareness-raising, training and, if need be, disciplinary measures
in order to counteract any such bias or discrimination;
8.9. ensure that the law-enforcement authorities and the criminal
courts are properly resourced so as to avoid excessive recourse
to trial waiver systems for purely budgetary reasons and to enable
the effective implementation of the safeguards recommended above;
8.10. ensure proper monitoring and control by courts and law-enforcement
bodies to avoid blackmail, pressure or any other manipulation aimed
at compelling suspects to engage in a trial waver system.