Criminal-Justice Systems in the OSCE Area Reform Challenges and ODIHR Activities
ODIHR activities in the area of criminal justice have been made possible through the generous contributions of the European Commission and the Governments of Austria, Finland, Germany, Ireland, Italy, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom, and the United States of America.
ODIHR All of the participating States of the Organization for Security and Co-operation in Eu- rope (OSCE) have undertaken international obligations and committed themselves to comply with a set of rules and principles in the administration of criminal justice. These rules ensure fairness of the proceedings and create safeguards to protect the hu- man rights of people who are particularly vulnerable to the state’s influence and pres- sure. Ultimately, they ensure that criminal proceedings result in justice and uphold the rule of law.
The criminal-justice systems of some participating States still require substantial structural and institutional reforms to achieve compliance with OSCE human dimen- sion commitments. The Office for Democratic Institutions and Human Rights (ODIHR) encourages and supports such reforms at all stages of the criminal process: pre-trial, trial, and post-trial.
Any reform effort in the area of criminal justice should be comprehensive, since all the individual parts of the system must work together. The ODIHR carries out its activi- ties with an understanding that no part of the legal system stands alone and that all institutions involved in the administration of criminal justice are interconnected and interdependent.
Just as a criminal-justice system has different levels — the working level of lawyers, prosecutors, judges, and law enforcement personnel, as well as the level of criminal- policy decision-making — so should reform assistance. In its approach to reform, the ODIHR does just that. At the working level, training is provided to judges, prosecutors, and lawyers to help them improve their professional skills; opportunities to exchange experiences and knowledge are also created through the organization of seminars, conferences, and occasional study trips. At the political level, the ODIHR provides ad- vice and expertise to facilitate policy decisions to further uphold and strengthen the rule of law and human rights in the administration of justice.
Strengthening the rule of law in criminal-justice systems is by definition a long-term process that ultimately requires significant cultural and attitudinal changes. Thus, the ODIHR’s work in this field involves ongoing, long-term programmes that take into ac- count the need to ensure customized assistance specific to each country’s history and current developments.
Guided by these principles, the ODIHR implements activities in the criminal-justice sec- tor of OSCE participating States in Central and Eastern Europe, South-Eastern Europe,
the Caucasus, and Central Asia. These activities are currently conducted by two post- table professional staff and four professional staff funded through generous contribu- tions of the participating States. The Office builds on these resources by using outside expertise, stressing good practices developed across the OSCE region, including from those states with comparable experiences.
Co-operation with OSCE field operations is vital, as those on the ground in the rel- evant countries are able to react quickly to developments in governmental policies In 2005, the participating States or to cases that require OSCE involvement. The ODIHR also co-operates with a strong network of governmental and non-governmental partners, recognizing that they are a recognized the importance of work fundamental part of all its fieldwork. in the area of criminal-justice re- form through Ljubljana Ministerial Decision No. 12 on “Upholding Hu- Torture prevention man Rights and the Rule of Law in Prevention of torture, as well as other cruel, inhuman, or degrading treatment, is a topical issue in the OSCE area. Frequent instances of such treatment are symptoms of Criminal Justice Systems”. The par- deficient criminal-justice systems that lack adequate safeguards for the protection of ticipating States agreed to increase human rights. Such systems have implicit incentives that reward “solving crimes” at any attention to this area in 2006. cost. This leads to reliance by the police and prosecutors on confessions and witness testimony obtained through pressure and illegal treatment, with courts often closing their eyes to such illegally obtained evidence. Breaking this cycle requires the removal of flawed institutional incentives, greater professionalism, accountability, and a zero- tolerance policy towards abusers.
For these reasons, the ODIHR approaches torture prevention as an integral part of crim- inal-justice reform, promoting political awareness and encouraging structural changes in criminal-justice systems.
In 2005, the ODIHR continued to advocate for the transfer of power to authorize ar- rest from prosecutors to the judiciary. The ODIHR also continued to support the devel- opment of independent monitoring boards for places of detention and encouraged participating States to give early consideration to signing and ratifying the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
Transfer of authorization of arrest to the judiciary Most ill-treatment and torture take place against people held in custody. International human rights standards and OSCE commitments require that the decision on whether someone is to be held in custody be made by an independent judge. This is done through a procedure known as habeas corpus. The integration of this procedure into leg- islation puts both the defence and prosecution on a more equal footing when arguing their points before the court in an adversarial setting, as the prosecutor does not have the immediate advantage of deciding if a defendant remains in custody.
To date, prosecutors in six countries in the OSCE region retain the authority to place and hold a person in custody: Belarus, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan.
At present, discussions on the transfer of powers of arrest from the prosecutor’s office to the judiciary are prominent on the agenda in some countries of Central Asia. The ODIHR provides legislative advice and facilitates the sharing of experience and expertise on
how to implement this reform. In this context, the ODIHR, jointly with the parliament of Kazakhstan, held a conference in June 2005 on the transfer of powers of arrest from the prosecutor’s office to the judiciary.
OPCAT and detention monitoring In 2005, the ODIHR worked closely with NGOs and governmental partners to promote ratification of the OPCAT. One aspect of the OPCAT that could be a powerful torture- prevention tool is the monitoring mechanism: the OPCAT envisages the creation of a worldwide monitoring body and constantly working independent and transparent national mechanisms.
The ODIHR provides assistance in the development of independent national monitor- ing mechanisms. In 2005, this assistance included activities in Armenia and Kazakhstan. The ODIHR supported the Armenian Monitoring Board in the development of regu- lar and institutionalized monitoring of places of detention by civil society. The ODIHR translated the manual Monitoring Places of Detention: A Practical Guide for NGOs into Ar- menian to support the training and capacity-building activities of the Armenian Moni- toring Board.
In Kazakhstan, the ODIHR followed up the adoption of the law that allowed public monitoring of places of detention in 2004 by working with other partners, such as Penal Reform International, to assist the authorities of Kazakhstan with the drafting of official regulations on the creation and functioning of monitoring boards. The ODIHR is also closely following ongoing discussions on the establishment of monitoring boards in Kyrgyzstan.
Public participation in the administration of justice In the former Soviet Union, trials were decided by a judge who was typically joined by two so-called lay assessors, who were ordinary citizens, not legal professionals. Due to their penchant for agreeing with whatever the judge decided, these assessors became known as “nodders.” Seen as both expensive and ineffective, this system was disman- tled during the first wave of judicial reforms in the early 1990s that took place in most post-Soviet states.
ODIHR advocates greater support for criminal defence lawyers
T hroughout a large part of the OSCE region, a other hand, the system can be chaotic. Admission to person’s ability to get a fair trial can be severely practice is usually controlled by the Ministry of Justice, hindered by the lack of proper legal representation. or bodies created by it, which also leaves room for abuse. This glaring weakness has never been adequately Defence lawyers lack the ability to lobby effectively as addressed by the international community, while the few a professional association, and there is no framework domestic reform efforts have often foundered. for training or for regulating competence. Lack of “International actors have been slow in recognizing organization also means inadequate provision of legal the importance of the defence lawyer, especially in aid, with frequent instances of collusion between police states where there are concerns over other aspects of investigators and lawyers to the detriment of defendants. the judicial system,” says Cynthia Alkon, Head of the ODIHR’s Rule of Law Unit. Greater transparency and independence “But defence lawyers are as important as judges and Finding the right path to reform is not easy. Developing prosecutors in ensuring a fair trial and are often the first a professional bar structure that is transparent and to learn about allegations of torture and mistreatment, independent requires the will of both the government before traditionally recognized human rights defenders and the legal profession. Issues such as responsibility for such as non-governmental organizations.” provision of legal aid must also be taken into account, as well as ensuring that whatever body regulates admission Shortage of defence lawyers to practice and disciplinary proceedings is free from One problem that affects some OSCE states in particular political interference. is an acute shortage of defence lawyers. In Azerbaijan, for “In Tajikistan, the defence bar is considered the least example, there are as few as 300 for a population of eight attractive option for law graduates. Lawyers need to million, compared to the European Union average of one push for reforms themselves, but many of the younger per thousand. members of the collegium are afraid to lobby for Defence lawyers in the Soviet Union joined mandatory change since they depend on older members for work,” defence bars, known as collegia of advocates. These says Nigina Bakhrieva of the Tajik non-governmental bodies enjoyed considerable autonomy but had tight organization Bureau of Human Rights and the Rule of control over the practice of their members. Reform of Law. this system has taken different directions across the “Lawyers want reform, but morale is low, and left to region, and the ODIHR is promoting discussions on their own devices they can’t initiate it. The state needs to whether these reforms have resulted in strong defence take the lead in reform, but in close co-operation with bar structures and improved access to legal assistance for members of the legal profession.” citizens. Raising awareness Inadequate reform efforts “The structural reforms needed for the defence bars In some countries, the few reforms that have been made in these countries will take many years of work, and to the existing defence bar structure have produced the ODIHR will continue to press for reform and offer systems that are restrictive and rife with nepotism. legislative support,” says Alkon. “In the short term, Admission procedures are obscure and bar exams we would like to raise international awareness of the lack transparency. And despite a steady supply of law importance of the defence bar in ensuring fair trials. graduates, defence bars are failing to replace even those Criminal lawyers in many parts of the OSCE region work retiring from their ranks. in difficult conditions and their voice should be heard by Where there is no structured defence bar, on the policy-makers.”
Following these initial changes, however, some countries began considering the idea of reintroducing lay assessors. In some cases, the argument for this return centred on a widespread distrust of the judiciary, allegations of corruption, judicial dependence on the executive branch, or on the lack of transparency in the making of judicial decisions. In Russia, the fact that jury trials were used prior to the 1917 Revolution also contributed to this renewed interest.
Russia was the first post-Soviet country to take this step, reintroducing jury trials in 1993. As a result, there have been improvements: defence lawyers have better standing in criminal proceedings; there is more procedural balance between the defence and the prosecution; and rules related to the admissibility of evidence have begun to work in practice.
Since Russia’s return to jury trials, other post-Soviet countries, including Azerbaijan, Georgia, Kyrgyzstan, and Ukraine, have considered the possibility of taking this step. In 2005, Kazakhstan adopted a new law calling for mixed courts of judges and lay asses- sors. This law will be implemented beginning in January 2007.
The reintroduction of lay participation in criminal proceedings can have a serious im- pact on the administration of justice and the rule of law. On the one hand, it can help to further democratize judicial systems that have often been viewed as corrupt and unjust. Reform, however, should avoid the return of “nodders”, which would further undermine public trust in the judiciary. In addition, the reintroduction of lay participation needs to be seen in the broader context of its role in the entire criminal-justice system. If the prosecution and defence are not ensured equality of arms, if the judiciary depends on the executive, and if jurors or lay assessors are unable to make independent decisions, then such a system would hardly perform any better than its predecessor.
With this in mind, the ODIHR has facilitated discussions in Kazakhstan and Kyrgyzstan on both the means of reintroducing lay participation and the possible consequences of doing so. These discussions have included the sharing of experiences from those OSCE states that have jury trials, including expertise from Russia.
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 approach of the judiciary and is at odds with the presump- reform in post-Soviet countries are rooted in the tion of innocence of the accused, as well as the principle legacy of Soviet criminal procedure. One of these of equality of arms. This also partially explains why some problems is the authority of the courts to refer a case for countries in the OSCE region have acquittal rates of only “further investigation”. around 1 per cent. This power provides a court with three main options after The practice of further investigation violates the princi- a trial: to find a defendant guilty; to acquit the defendant; ples of adversarial procedure and the right to be tried with- or to return the case to the prosecutor, providing an oppor- out undue delay by an impartial tribunal. Due to the serious tunity (and more time) to investigate the case and look for consequences of this practice, the ODIHR has facilitated more evidence. When a court decides to send a case back discussions on the abolition of further investigation and for further investigation, it says, in effect, that there is insuf- assisted OSCE participating States that have expressed their ficient evidence for a conviction. Fair-trial standards require intention to abolish this practice. that, if there is insufficient evidence to uphold a conviction, One recent example is Kazakhstan. In 2005, at the request the court should make a finding of acquittal. of the Prosecutor’s Office, the ODIHR helped organize a In practice, the power to return a case for further investi- conference on the abolition of further investigation by pro- gation allows prosecutors to bridge gaps and discrepancies viding best practices from other countries that have already in their case and often excuses unprofessional prosecutorial carried out this reform and brought their legislation into work. This can translate into breach of evidence rules, at conformity with Article 14 of the International Covenant best, and ill-treatment or torture, at worst, to ensure that the on Civil and Political Rights, an international instrument next time the case goes through the system it will result in that sets fundamental fair-trial standards. Obviously, this a guilty verdict. Some cases go back and forth between the reform does not solve all the problems of the criminal-jus- court and investigation for years, depriving the defendant of tice system, but without taking such important steps, overall both a speedy trial and a final court decision. progress towards implementing international fair-trial Such authority of the court reinforces the accusatorial 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 develop- ment of professional skills among lawyers.
In Azerbaijan, the ODIHR has been observing implementation of the new law on ad- vocates. Along with the OSCE Centre in Baku and other actors, the ODIHR initiated dia- logue 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 par- ties, 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.
In Kazakhstan, the ODIHR also reviewed new amendments to the law on defence law- yers that concern reform of access to the bar, disciplinary proceedings, and the organi- zational structure of the bar. During the Supplementary Human Dimension Meeting on the Role of Defence Lawyers in Guaranteeing a Fair Trial, in November 2005, a number of recommendations were made with respect to bar reform that could be implement- ed in Kazakhstan. The ODIHR plans to organize an international conference on reform of the bar in Kazakhstan in 2006.
In Armenia, the ODIHR followed the implementation of the new law on advocates and also monitored the unification of two former bodies into the newly established Cham- ber of Advocates.
Professional development The ODIHR also encourages the creation of continuing legal education programmes that allow legal professionals to regularly update their professional knowledge and im- prove their skills.
In 2005, the ODIHR worked with defence lawyers in Kazakhstan on improving the pro- fessionalism of bar members. A group of Kazakh trainers who completed an ODIHR training programme in 2004 conducted more than 90 hours of seminars to improve the professional legal skills of their less-experienced colleagues in the Almaty City Col- legium of Advocates. In Kyrgyzstan, the ODIHR provided support to the Youth Human Rights Group, a national NGO that implements an advanced training course for law- yers on the International Covenant on Civil and Political Rights. Twenty-five lawyers will complete this programme in 2006.
Responding to a request from the Armenian Prosecutor General’s Office, the ODIHR carried out a training session for a group of Armenian prosecutors in November 2005 on dealing with domestic violence. The seminar featured a prominent expert from the English Crown Prosecution Service. In 2006, the ODIHR will conduct another training session for Armenian prosecutors on prosecuting cases of sexual assault.
Trial observation Trial-observation programmes can be instrumental to promoting the right to a fair trial. The information gathered by observers often points to the most pressing reform needs and may provide a basis for reform discussions. In individual cases, the presence of observers in the courtroom may encourage the court and the parties to adhere to the procedural rules more vigorously.
When the ODIHR organized the first OSCE Inter-Mission Trial Observation Meeting in 2002, trial observation was a relatively new activity for OSCE field operations, conduct- ed primarily in the countries of South-Eastern Europe. A wealth of experience has been gained by those trial observers, who can offer experience to others who have begun to conduct trial observation in other parts of the OSCE region. The ODIHR organized two meetings in 2005 to provide such opportunities to exchange experiences and lessons learned. The fourth Inter-Mission Trial Observation Meeting was held in Sarajevo in the fall, with staff from 12 OSCE field missions attending. A smaller meeting followed this in Zagreb that was dedicated to observation of war-crimes cases.
OSCE Office for Democratic Institutions and Human Rights Rule of Law Tel.: +48 22 520 0600 Al. Ujazdowskie 19 Fax: +48 22 520 0605 00-557 Warsaw E-mail: ruleoflaw@odihr.pl Poland www.osce.org/odihr May 2006