Efficiency over justice: Insights into trial waiver systems in Europe

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Criminal punishment is increasingly imposed without a trial but instead through a trial waiver system or other alternative disposition systems that fall short of a trial (including penal orders and fast track proceedings).

A recent report by the European Commission for the Efficiency of Justice, noted that in 2016, in the majority of Council of Europe member states, about 50% of criminal cases were processed before courts; the rest resulted in a sanction or measure imposed or negotiated by prosecutors. It is likely that the share of criminal cases processed out of courts will increase in the future. This shift in how criminal cases are processed requires research to understand the implications that such case resolution mechanisms have on the rights of the accused, but also on the integrity of the criminal justice system as a whole.

This report focuses on trial waiver systems, or negotiated outcomes, defined as “a process not prohibited by law under which suspected or accused persons agree to acknowledge guilt and/or cooperate with the investigative authority in exchange for some benefit from the state, generally in the form of lower sentences”. They include sentence bargaining agreements (close to the common law system of plea bargaining) and guilty pleas.

The report is the outcome of comparative research in Italy, Cyprus, Hungary, Slovenia and Albania. It highlights the potential risks associated with the rise of trial waiver systems in Europe and offers guidance on creating policies that better protect fundamental rights and the rule of law.

Download the report here.

Fair Trials has also produced a guide based for policy makers based on our research and report into trial waiver systems in Europe. Download the guide.