Reform of the Criminal Trial in Germany – The Introduction of “Sentence Bargaining”

Reform of the Criminal Trial in Germany – The Introduction of “Sentence Bargaining” Hans-Joerg Albrecht

Introduction • In 2009 an amendment of criminal procedural law went into force in Germany which formally introduced “agreements” (sentence bargaining) • Agreements as introduced in 2009 had precursors which are located before the trial but which basically are dependent on consenting parties • non-prosecution in exchange for conditions set by the prosecutor • penal orders Sentence Bargaining Beijing 2011

Non-prosecution and conditions • In 1975 the discretionary powers of the public prosecutor were extended considerably. A statute, namely § 153a German Procedural Code, went into force which empowered the public prosecutor to dismiss a case of minor guilt (felonies still excluded) if the offender complied with conditions specified and determined by the public prosecutor. In this way • ► a (summary) fine, • ► community service • ► and/or compensation of the victim of the crime • can be imposed Sentence Bargaining Beijing 2011

Penal orders • A simplified procedure may be initiated by the public prosecutor which consists of mere written proceedings. If the public prosecutor concludes that the case is not complicated in terms of proving guilt and that a fine is a sufficient punishment, then, a penal order may be suggested to the judge where besides the indictment, the public prosecutor proposes a fine (according to the day fine system) • If the court agrees with the proposal a penal order is mailed to the suspect who may appeal against the order within a period of two weeks. If an appeal is filed, then, ordinary proceedings take place Sentence Bargaining Beijing 2011

Decision Making in the Public Prosecutors Office Sentence Bargaining Beijing 2011

The history of sentence bargaining • During the 1980s a discussion emerged around the phenomenon of so-called “Absprachen“ (informal agreements or sentence bargaining between prosecutor, defense and the court) • Although, there was no statutory basis for such agreements this type of „agreement“ between the parties spread rapidly and soon played a very prominent role in achieving a consensual solution (and settlement) of criminal cases outside the court • consensus on • a confession on the side of the defendant and • a sentence discount promised by the court in exchange for the confession Sentence Bargaining Beijing 2011

Main arguments • Maintaining the capacity of criminal courts to deal with criminal cases indicted by prosecution services, in particular cases of complex crime, and to uphold thus efficient operation of the criminal justice system • Effective Implementation of criminal law • Protecting the victim of violent and sexual crime (in particular young victims) through avoiding that the victim has to testify in open court and possibly suffers from secondary traumas • The victim • „Administrative convenience“ Sentence Bargaining Beijing 2011

An urgent need of legislation • In 2005 the Supreme Court, in a landmark decision, reiterated its view that agreements fulfill an important function as they would contribute to effective enforcement of criminal law, but underlined also that without a statutory basis it would be difficult to justify the ongoing practice of agreements • Necessity to draw a clear line between the legislative power and the judicial power and held that the judicial power in forming criminal procedural law through interpretation had reached its limits • In fact, the Supreme Court with elaborating the set of conditions outlined above had created law and had crossed into the power of the parliament • In the wake of this decision the German parliament moved to prepare a statutory basis for agreements. A draft which was presented 2006 after a couple of revisions passed Parliament in 2009 and went into force mid 2009 Sentence Bargaining Beijing 2011

The legal framework of agreements • § 257c (1) The court may … in suitable cases conclude agreements on proceedings and the result of proceedings with the parties. (2) Subject of such an agreement may only be such legal consequences which may be imposed in a verdict … A confession should be part of any agreement. • (4) The agreement is not binding if legally or factually important factors had been overlooked or have emerged after the agreement was concluded … . The confession of the defendant in such cases may then not be admitted as evidence • Transparency of decision-making • §243 IV GCPC: the president of the court announces in public whether talks about agreements have been held and if an agreement has been concluded • The agreement has to be covered by the minutes of the trial process $273 I, 2 GCPC • The written justification of the judgment must deal with the agreement (§267 III, IV GCPC) • An immediate declaration of not appealing the judgment may not be introduced after conviction (§302 I, 2 GCPC) • § 35 III GCPC: the court has to inform the convicted person explicitly on the possibility that despite an agreement the judgment may be appealed Sentence Bargaining Beijing 2011

Agreements and the search for the truth • §257c says that §244 II, 1 GCPC remains in force (§244 II, 1 says that the court in the pursuit of finding the truth has to extend taking of evidence to all those facts and evidence which are relevant for the decision • Some voices spoke in favor of restricting this principle in the case of agreements, justified with the principle of consent, which is assumed to be tightly related to the general idea of settling conflicts and restoring peace (Rechtsfrieden) • However, the legislator decided in favor of the conventional goal of complete and full investigation (a decision, which in fact is not in line with the purpose of agreements, that is economizing) Sentence Bargaining Beijing 2011

Agreements, guilt and sentencing theory • The sentencing theory of „Margins“: theoretical basis of agreements • The theory of margins says: • A sentence corresponding to guilt may be chosen from a (narrow) range of sentences determined within the range of penalties carried by the offence statute • Minimum and maximum sentence still justified by guilt • The court may agree to the minimum which is still carried by guilt Sentence Bargaining Beijing 2011

Confession • What is the role of the confession in reducing the sentence • In fact, seen from sentencing theory and the basic theory of criminal law which says that punishment must be carried by guilt, it is not convincing that a confession given in exchange for reduction of the penalty should have a stronger impact on reduction of the penalty than a confession which is given outside of talks about an agreement • On the contrary, a confession given immediately and without bargaining should weigh heavier when it comes to a decision about punishment • Insofar, sentencing reductions as a consequence of a confession given as part of an agreement may not be justified by the confession itself • Sentencing discount is solely explained as a consequence of lessening the complexity of the case and saving resources of the judicial system Sentence Bargaining Beijing 2011

Transparency • Despite the rules enacted to protect transparency and the principle of a public trial the essence of agreements, in particular the procedural parts will continue to remain hidden • Talks about agreements do not have to be carried out in public, but only the essential parts of the agreement have to be presented in open trial • Trust in the judiciary would not be strengthened if such talks would be held in open trial • The bazaar like nature of agreements and bargaining about the length of a possible sentence do not fit into the picture of the judiciary that is characterized by neutrality, objectivity and the rule of law Sentence Bargaining Beijing 2011

Which cases are suited to agreements? • The law is silent about that question and cannot be answered without salient contradictions as regards basic standards of criminal procedure • Cases suited to agreements are those where the defendant may offer reduction of complexity • Simple cases will not qualify • Cases with a confession given immediately after arrest or defendants who go to trial without a defense council will systematically be excluded from agreements • With introducing the element of “cases which are suited to agreements” the legislator has evidently expressed the view that there will be a systematic difference made between cases which will profit from agreements and cases which will not • Not every defendant will be offered an agreement and with that a sentencing discount The principle of equal treatment is violated (and results in the verdict of unconstitutionality) if cases are treated differently without a legitimate ground explaining such differential treatment • The main ground justifying differential treatment in sentencing concerns personal guilt and seriousness of the criminal offence • The theoretical basis of agreements points to the sentencing theory of “margins” as outlined earlier (Spielraumtheorie). This theory says that several penalties may be considered to correspond to personal guilt and with that assumes discretion of the judge in imposing a criminal sentence (within a narrow range of guilt corresponding criminal penalties) • However, although if accepting the theory of margins the problem remains of whether within the margins opened the implementation of discretion may be based on acceleration of the trial process Sentence Bargaining Beijing 2011

Deviation from an agreement on sentencing • Deviating from an agreement on sentencing in case the court on the basis of the proceedings comes to the conclusion that another assessment of the case must result in more severe punishment • The law states that in the case of a deviation from an agreement the confession is not admissible as evidence • This rule was introduced in order to implement the principle of confidence which applies to such decisions made by public institutions to the advantage of citizens • In general, a defendant may trust that the court will not deviate from what was promised in an agreement • This is also in line with the fair trial principle • However, protection is limited as the standards of the “fruits from the poisened tree” does not apply in German criminal procedural law and the court therefore may use all evidence which is generated as a consequence of making a confession Sentence Bargaining Beijing 2011

Conclusions • The law on agreements in force since 2009 demonstrates the problem of maintaining basic standards of criminal procedure and criminal law in the pursuit of acceleration and simplification • Acceleration and simplification create conflicts with truth, full investigation and the principle of guilt • In principle the reform will result in another criminal process than the one which was developed in the 19th century, a process which will be guided essentially by cost-effectiveness considerations and by pragmatism. Sentence Bargaining Beijing 2011

Reform of the Criminal Trial in Germany – The Introduction of “Sentence Bargaining”