Formalization of plea bargaining in Germany: will the new legislation be able to square the circle?

Abstract

In German criminal trials, the common law instrument of the guilty plea is unknown. Consequently, one cannot speak of plea bargaining in the strict sense. Nevertheless, informal negotiations, which center on the exchange of a confession for a sentence concession, play an increasing role in the German criminal process. It is claimed that in today’s Germany “the criminal procedure cannot be imagined without the phenomenon of informal agreements.” After years of academic debate and developing case law on informal agreements, the German Federal Parliament (Deutscher Bundestag) has now passed new legislation that regulates agreements and makes them part of the procedure. As a civil-law country, Germany’s criminal justice system is based on the notion that the prime task of a criminal trial is to find the material truth.5 Rather than deciding which of the contesting parties can present the better case, it is the court itself that has to unveil the facts of the case. Section 244(2) of the German Code of Criminal Procedure reads: “In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision.” Finding the truth is an objective goal and not subject to the interests of the defense or prosecution. Hence, an admission of guilt is not sufficient to convict the defendant. A confession is rather just one among many forms of evidence and has no procedural function as such. In particular, it is not sufficient to end or even avoid a trial. Nevertheless, one can find some kind of negotiation at all stages of the criminal process,which is comparable to Anglo-American plea bargaining. This Article outlines the development and current practice of informal procedures in Germany and discusses the new procedure introduced in 2009. Part I shows how informal agreements in Germany—comparable to plea bargaining in common-law systems—have started to be used on a wider scale. Part II explains the main reasons for the use of informal settlements in Germany. Part III discusses the procedural framework, looking at the context in which negotiations occur and the possible content of such agreements, and analyzes the main problems of such agreements. Part IV demonstrates how the German Supreme Court’s failure to restrict the informal practice finally led to federal legislation—discussed in Part V—to regulate the practice. Part VI discusses the problem that the development of an informal system, which neither the higher courts nor the legislature can prevent or control, leads to the question of the relationship between law in practice and theoretical due process principles. The final part concludes that informal settlements in Germany, as well as plea bargaining in common-law countries, are a sign of a growing chasm between theory and practice, which the new German law fails to bridge.

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ORCID for Regina E. Rauxloh: orcid.org/0000-0003-2711-1424

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