In Germany ‘plea bargaining’, which used to be in the shadows of informality, has moved out into the field of regulated, transparent and controllable formal procedure.

Plea bargaining is an accord in a criminal case between a prosecutor and a defendant where the defendant agrees to ‘plead guilty’ or ‘not to contest guilt’ in exchange for some dilution of the punishment. This is a common practice in the criminal procedure code of England, Canada, the US and nearly all of the British Commonwealth.

In Germany and most of continental Europe, ‘plea bargaining’ was not known. However, at present, with rapid globalisation, European and American criminal justice systems have become identical. Trials in Germany and elsewhere in Europe have become longer and more adversarial.

Multifaceted prosecutions for white-collar crimes are coming before the courts in greater numbers, and prosecutors have begun to offer concessions to defendants not to contest their guilt.

Informal Negotiations

The German criminal justice system is unique and has served as a model for a number of other civil law countries around the world. After years of carefully and thoroughly articulated debates and developing case law on informal agreements, the German Federal Parliament (Deutscher Bundestag) passed a legislation that regulates agreements and makes plea bargaining part of the practice.

Germany’s criminal justice system is based on the notion that the prime task of a criminal trial is to find the material truth. The law is aimed at preserving the principle of substantive truth. Only if the court is convinced that the offence has been fully investigated and there are grounds for believing that the admission of guilt is genuine, can the judgment follow.

In Germany, mere ‘formal admission’ — as practised in the US and Canada in which the defendant only admits guilt but does not make any statement about the facts — does not suffice for a judgment.

Thus in German law, the accused cannot steer clear of the conventional trial procedure by pleading guilty. The court is responsible for ascertaining that all evidence needed to discover the truth about the case is produced at trial. Consequently, even when the defendant has confessed, the court may have to call witnesses and take other evidence in order to find out to what extent the defendant appropriately interconnected the facts of the case.

In a nutshell, it is the court itself that has to unveil the facts of the case.

Good concept

Over the last three decades, plea bargaining is becoming a widespread practice in justice systems around the world.

It is well known that the Indian legal system is struggling to find its feet, because of the huge backlog of pending cases and under trials. Bargain pleas are a good concept.

When the police have investigated a case thoroughly and collected clinching evidence, any sensible criminal would be advised to go in for a bargain plea, and get a scaled-down punishment. Lawyers then cannot play tricks with the system and the accused will get a better deal.

(The author is former Europe Director, CII, and lives in Cologne, Germany.)

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