Understanding in criminal proceedings

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The plea bargain is in German criminal procedure , in which the procedure is a court with the parties on the further progress and the result notified of the proceedings. It is regulated by law in § 257c StPO . The most common application is the agreement on the expected level of punishment in the event of a confession . The public prosecutor's office and court are often interested in such an understanding because it can greatly reduce the cost of the proceedings , in particular the duration of the main hearing . This saves the judiciary's resources and at the same time prevents the courts from being overburdened. The advantage of an understanding for the accused is that, on the one hand, he gains certainty about the outcome of the proceedings, but on the other hand, by making the confession, he also brings about a reason for reducing the sentence considerably in his favor . In addition, the defendant can save himself a long main hearing, which can sometimes be very burdensome. Aspects of victim protection (the victim may be spared an interrogation) can also speak in favor of an understanding. The legal regulation is final, secret agreements (so-called "deals") are not permitted.

Legal regulation

Subject of an understanding

The subject of an agreement may only be the legal consequences of the offense, in particular the related content of the judgment (penalty) and the associated resolutions (in particular probation resolutions in accordance with Section 268a StPO). An agreement on procedural measures (such as a partial suspension of the proceedings with regard to individual accusations in accordance with Section 154 (2) of the Code of Criminal Procedure) and the procedural behavior of those involved (such as the withdrawal of submitted evidence ) is also permitted . An agreement on the guilty verdict is just as inadmissible as an agreement on measures of reform and protection (Section 257c (2), sentence 3 of the Code of Criminal Procedure). It would therefore be inadmissible, for example, to agree that the driver's license should not be withdrawn in accordance with Section 69 of the Criminal Code or that the accused should be placed in a rehab facility without the hearing of an expert as required by Section 246a of the Code of Criminal Procedure . Despite the possibility of reaching an understanding provided by law, the court duty to provide information in accordance with Section 244 (2) StPO remains unaffected (Section 257c (1), sentence 2 StPO). What this means in concrete terms is largely unclear, because the sense of an understanding is precisely to refrain from further clarification, so that the reference in the law to the continuing duty to inform is ultimately little more than "lip service". A confession should be part of every communication (§ 257c Paragraph 2, Sentence 2 StPO). When agreeing on the penalty, a specific amount of penalty may not be agreed as a point penalty. It is only permissible to agree a framework between a minimum expected penalty (lower penalty limit) and a maximum expected penalty (upper penalty limit).

Procedure

The agreement comes about when the court submits a proposal to the parties, on which they can then comment. At the same time - even before the agreement is concluded - the accused must be instructed in accordance with Section 257c (4), (5) StPO that the court is no longer bound by the agreement under certain conditions, but that the accused's confession may then not be used . The understanding is effective when the public prosecutor and the accused agree to the court's proposal. The consent of the defense counsel is just as unnecessary as the consent of any accessory plaintiff who may be present . The understanding must always take place in (public) main negotiations , whereby preparatory non-public so-called legal talks are not inadmissible. The process and content of the communication, including the necessary instructions and notifications, must be reproduced in the minutes of the main hearing ( Section 273 (1a) of the Code of Criminal Procedure). The court may not use the sanction scissors, in particular neither promise an unjustifiably mild judgment in the event of a confession nor threaten an unjustifiably harsh judgment in the event that the accused does not make a confession. As part of the instruction on legal remedies , the chairman must also instruct the accused that he is free in his decision to appeal despite the agreement reached ( § 35a sentence 3 StPO).

effect

The notification is fundamentally binding for the court. The court may not impose any penalty that is outside of the guaranteed range of punishment. However, the court is not bound if the court has overlooked legally or actually significant circumstances or if such circumstances have arisen (for example, if it becomes known that the consequences of an accused bodily harm are much worse than initially assumed). The same applies if the further procedural behavior of the accused does not correspond to the expectation on which the understanding was based (e.g. if the accused only makes a limited confession). In these cases, a confession that has already been made may not be used. The court must inform the accused immediately if it wishes to deviate from the understanding. After an agreement, a waiver of legal remedies is excluded ( Section 302 Paragraph 1, Sentence 2 StPO).

Supplementary regulations

The chairman must at the trial after the reading of the indictment set and announce prior instruction of the accused, whether calls before the start of the trial has been conducted that have a possible understanding the subject, or whether such talks have not taken place. If such conversations have taken place, he must also communicate the essential content of such conversations ( Section 243 (4), sentence 1 of the Code of Criminal Procedure). The same also applies if such conversations have been held after the start of the main hearing, but outside of the main hearing (Section 243 (4), sentence 2 of the Code of Criminal Procedure). The court can also discuss the status of the proceedings with the parties involved in the main hearing, for example to prepare for an understanding ( Section 257b of the Code of Criminal Procedure). Such a discussion as well as the notifications according to § 243 para. 4 StPO are to be included in the protocol (§ 273 para. 1, sentence 2, para. 1a sentence 2 StPO). It must also be noted in the protocol if no communication has taken place (Section 273a, Paragraph 1a, Sentence 3 of the Code of Criminal Procedure). If an agreement cannot be reached and the required negative communication according to Section 243 (4) sentence 1 StPO or the required negative certificate according to Section 273 (1a) sentence 3 StPO is missing, it cannot be ruled out, according to the meaning and purpose of the legal protection concept, that the judgment is based on a violation of § 257c StPO.

Juvenile criminal law

In principle, the provisions on communication according to Section 2 (2 ) JGG also apply to juvenile criminal law . However, certain restrictions resulting from the nature of juvenile criminal law must be observed: An agreement may only be made if the court has obtained a reliable picture of the personality of the accused young offender and the necessary educational needs. Furthermore, the presence or absence of regulatory features may that not open to discussion of the parties are (application of juvenile or adult criminal law in adolescents according to § 105 JGG, the conditions for the arrangement of educative or disciplinary measures or a decision according to § 27 JGG, the need of Juvenile punishment for harmful inclinations or the severity of guilt), cannot be made the subject of an agreement. An agreement is only permitted about the scope of the respective sanction or the amount of the youth penalty.

history

Beginnings

The communication in criminal proceedings was initially not regulated by law. The fact that there have been secret agreements on judgments in Germany since the 1970s was first revealed in an article in a specialist journal in 1982. In the 1980s, such agreements were also increasingly discussed in public. The Federal Constitutional Court decided as early as 1987 that an understanding between the court and those involved in the proceedings about the status and prospects of the negotiation was fundamentally not objectionable, but the court and the public prosecutor's office were prohibited from entering into a "settlement in the guise of judgment". The Federal Court of Justice was initially critical of agreements outside of the main hearing. With a decision of October 19, 1993, the Federal Court of Justice made it clear that a "settlement in the guise of judgment", a "trade in justice" is prohibited, which is why such agreements do not prejudice the judgment.

The BGH decision of August 28, 1997

In a judgment of August 28, 1997, the Federal Court of Justice expressly permitted collusion of judgments. The BGH set the following rules for this: The understanding must take place with the participation of all parties involved in the main hearing (although there may be preliminary discussions outside of the hearing). The court is not allowed to promise a specific punishment, but a fixed upper limit that will not be exceeded in the event of a confession. The promised upper penalty limit must be commensurate with the guilt. The court is bound by this promise, unless there are previously unknown serious issues to the detriment of the accused. The agreement of a waiver of legal remedies before the judgment is pronounced is inadmissible.

The decision of the Grand Senate of March 3, 2005

With a resolution of March 3, 2005, the Grand Senate for Criminal Matters of the Federal Court of Justice confirmed that rulings are generally permissible and compatible with the applicable criminal procedure code. However, limits arise from the principle of fair trial and the principle of guilt. The court should therefore not rush to resort to an agreement of a judgment without actually having dutifully checked the indictment on the basis of the files and in particular also legally. The confession, which is usually made when a judgment is agreed, must be checked for reliability. The court must be convinced of its correctness. For this purpose, the self-incriminating confession, which is not subject to any particular doubts in the individual case, must at least be so specific that it can be checked whether it is in accordance with the file situation in such a way that no further clarification of the facts is necessary. A mere empty formal admission, however, is not enough. The guilty verdict cannot be the subject of a judgment agreement. The difference between the sanction in accordance with the agreement and the sanction to be expected in a "controversial procedure" must not be so great (" sanction gap") that it is unjustifiable in terms of penal assessment and can no longer be explained with an appropriate mitigation of the sentence due to a confession. This applies both in the event that the sanction promised without consultation exceeds the acceptable level, so that the defendant is exposed to unacceptable pressure, as well as in the event that the result of the penalty reduction is below the limit of what is still considered guilty Sanction can be accepted. A waiver of legal remedies could not be agreed. A waiver of legal remedies by the accused after the verdict has been pronounced is only effective if he has been informed beforehand that he can appeal without prejudice to the agreement (“qualified legal remedies”). At the same time, the BGH emphasized that the verdict agreements were increasingly moving in the direction of an inadmissible quasi-contractual agreement between the court and the other parties to the proceedings, although the code of criminal procedure in its current form is based on the model of material truth. The BGH therefore appealed to the legislature to regulate the admissibility and, if so, the essential legal requirements and limitations of judgment agreements by law.

The law of understanding

With the law regulating mutual understanding in criminal proceedings of July 29, 2009, the legislature introduced the legal regulation of mutual understanding and thus complied with the appeal of the Federal Court of Justice in its decision of March 3, 2005.

Deviations from the legal regulation in practice

In October 2012, Karsten Altenhain , professor and chair holder at the University of Düsseldorf , presented the results of a study that he had carried out on behalf of the Federal Constitutional Court in an oral hearing before the Federal Constitutional Court. It was about compliance with the legal provisions in agreements in criminal proceedings . He interviewed 330 judges , public prosecutors and defense lawyers from North Rhine-Westphalia . Almost 60% of the judges surveyed stated or admitted that they made the majority of their agreements without the required logging. Only 28% of the judges stated that they checked whether the negotiated confession is credible. The media also reported critically about agreements.

The decision of the Federal Constitutional Court of March 19, 2013

The Second Senate of the Federal Constitutional Court ruled on March 19, 2013 that the Understanding Act, in particular Section 257c of the Code of Criminal Procedure, was constitutional. The principle of guilt anchored in the Basic Law and the associated duty to research the material truth as well as the principle of fair, constitutional proceedings, the presumption of innocence and the court's duty of neutrality exclude the handling of truth research, legal subsumption and the principles of sentencing at the free disposal of those involved in the proceedings and the court. Understandings between the court and those involved in the proceedings about the status and prospects of the main hearing, which promise the defendant an upper penalty limit in the event of a confession and announce a lower penalty limit, carry the risk that the constitutional requirements are not fully observed. At the same time, the legislature is not simply barred from allowing agreements to simplify procedures. At the same time, however, he must take adequate precautions to ensure that the constitutional requirements are met. The legislature has to continuously check the effectiveness of the intended protective mechanisms. If it turns out that they are incomplete or unsuitable, he has to improve in this respect and, if necessary, to revise his decision on the admissibility of criminal procedural agreements. The Understanding Act ensures compliance with the constitutional requirements in a sufficient manner. The considerable deficit in the implementation of the Understanding Act does not "currently" make the statutory regulation unconstitutional. With the provisions of the Understanding Act, however, the approval of understandings in criminal proceedings was finalized. So-called informal agreements taking place outside of the statutory regulatory concept are not permitted. It follows that a waiver of legal remedies is ineffective even if the judgment is based on an “informal agreement”. The control of the mutual agreement procedure by the public prosecutor's office is of particular importance. Obligation to follow instructions and reporting requirements made it possible to set up and enforce uniform standards for granting consent to understandings and for exercising the right to appeal. The public prosecutor's office is not only required to refuse consent to an illegal understanding. In addition, she has to appeal against judgments which - for example initially unrecognized by the public prosecutor - are based on such agreements.

criticism

The existing legal regulation is exposed to critical objections. The objection is that the German criminal process - unlike the Anglo-American criminal process , in which comparisons between the public prosecutor's office and defense are permitted and customary - is fundamentally hostile to comparisons, which is why the legal regulation of mutual understanding is a "fundamental change in the code of criminal procedure, which with the The principle of the duty to provide information is difficult or incompatible ”. In addition, there is a risk that, contrary to Section 261 of the Code of Criminal Procedure , the judgment will no longer be based on the epitome of the main hearing, but on the understanding that the regulation as a whole is “poorly thought out”. Specifically, it is criticized that the consultation procedure leads to injustices, because it prefers the perpetrators, who offer "agreement material", and because it establishes a "special procedure" for economic, environmental, tax and narcotics criminal matters. It is further criticized that the lay judges are marginalized, that the prohibition of an understanding of the guilty verdict can easily be circumvented by “discussions about the application of the principle of doubt ” and that the consultation procedure is detrimental to the reputation of the constitutional state. The principle of the public was also "violated in its foundations". Finally, considerable pressure could be exerted on the accused to make a confession, because the denial of an understanding carries a high risk for the accused, which contradicts the principle of freedom from self-incriminations ( nemo tenetur se ipsum accusare ).

However, this criticism is countered by the fact that a judgment accepted by all parties involved creates legal peace , which is a legitimate aim of criminal proceedings. In addition, an agreement leads to legal force soon , enables a speedy enforcement , usually avoids an appeal procedure and saves time and costs. The duty to provide information also does not require the collection of superfluous evidence: if the court is convinced of the facts on the basis of the defendant's confession, Section 244 (2) of the Code of Criminal Procedure no longer requires further evidence to be collected. By reaching an understanding, the defendant does not conclude a contract with the court, but submits to the court. Since the accused would gain legal certainty through an understanding , his position would be strengthened. Section 257c StPO can therefore be easily reconciled with the judicial duty to provide information, which is also shown by a comparison with the penalty warrant procedure: although here, too, the defendant, by not making an objection, achieves that no evidence is taken, but that he gains certainty about the punishment never expressed doubts about the constitutionality of the penal order procedure.

literature

  • Müller Jahn: The Taming of the Shrew - Current legislative proposals for the verdict agreements in criminal proceedings. In: YES. 2006, p. 681ff.
  • Bernd Schünemann : Weather signs of the downfall of German legal culture - The verdict agreements as a swan song for the legal binding of the judiciary and the profession of our time for legislation. Berlin 2005, ISBN 3-8305-1031-4 .
  • Helmut Satzger & Florian Ruhs, Understanding in Criminal Proceedings, Chapter 29, in: Jan Bockemühl (Ed.), Handbook of Specialist Attorney Criminal Law, 7th edition, Cologne 2018
  • Klaus Leipold: Latest case law on understanding in criminal proceedings. (= NJW -Spezial. 24/2010), p. 760.
  • Susanne Niemz: Agreements on verdicts and victims' interests - in proceedings with participation in an accessory prosecution. (= Mainz writings on the situation of crime victims. Volume 49). Nomos, Baden-Baden 2011, ISBN 978-3-8329-7222-6 .
  • Susanne Niemz: Rationalization and Participation in the Criminal Justice System. Judgment agreements and victim interests in proceedings with participation of an accessory party. Beltz Juventa, Weinheim / Basel 2016, ISBN 978-3-7799-3264-2 .
  • Werner Schmidt-Hieber : Understanding in criminal proceedings. CH Beck, 1986, ISBN 3-406-31262-4 .
  • Götz Gerlach: Agreements in criminal proceedings - A contribution to the legal consequences of failed agreements in criminal proceedings. Peter Lang, Frankfurt am Main 1992, ISBN 978-3-631-45088-8 .
  • Henning Rosenau: The agreements in German criminal proceedings. In: Henning Rosenau, Sangyun Kim (Hrsg.): Penal theory and criminal justice . Peter Lang, Frankfurt am Main 2010, ISBN 978-3-631-61000-8 , p. 45 ff.
  • Florian Ruhs: Legal remedies for understandings: The fate of unlawful understandings in the revision and retrial proceedings . Nomos, 2018, ISBN 978-3-8487-5275-1
  • Juli Peters: verdict agreements in criminal proceedings. oapen.org/download?type=document&docid=396136

Web links

Individual evidence

  1. Georg Küpper: Conflict or Consensus. In: HFR. 14/2007.
  2. ^ Lutz Meyer-Goßner, Bertram Schmitt: Criminal Procedure Code: Courts Constitution Act, subsidiary laws and supplementary provisions. 57th edition. 2014, ISBN 978-3-406-66043-6 , § 257c Rn 3.
  3. BVerfGE 133, 168 , 223
  4. Nowak: On the admissibility of understandings in juvenile criminal proceedings . In: JR . 2010, pp. 248, 256.
  5. Detlef Deal ( pseudonym for Hans-Joachim Weider): The criminal procedure comparison. In: StV , 1982, pp. 545-552.
  6. Pig from the ice . In: Der Spiegel . No. 45 , 1988 ( online ). Simply flabbergasted . In: Der Spiegel . No. 32 , 1989 ( online ).
  7. BVerfG, decision of January 27, 1987, Az. 2 BvR 1133/86. In: NJW , 1987, pp. 2662-2663.
  8. BGH, judgment of September 23, 1991, BGHSt 37, 298–305
  9. In: NStZ , 1994, p. 196.
  10. BGH, judgment of August 28, 1997, Az. 4 StR 240/97, BGHSt 43, pp. 195–212.
  11. BGH, decision of March 3, 2005, Az. GSSt 1/04, BGHSt 50, pp. 40–64.
  12. Press release No. 71/2012 - Oral hearing in the matter of "Agreements in criminal proceedings". Federal Constitutional Court, October 4, 2012, accessed November 8, 2012 .
  13. ^ Wolfgang Janisch: Many judges ignore criminal law. In: Süddeutsche Zeitung. November 2, 2012, accessed November 8, 2012 .
  14. Gudula Geuther : The deal with the truth. Deutschlandfunk.
  15. Deal in the criminal process: "It was all so wrong" . Spiegel Online ; a Berlin ex-police officer reports in an interview how he was pressured and coerced into a false confession
  16. 2 BvR 2628/10, 2 BvR 2883/10, 2 BvR 2155/11, BVerfGE 133, 168–241
  17. ^ Lutz Meyer-Goßner, Bertram Schmitt: Criminal Procedure Code: Courts Constitution Act, subsidiary laws and supplementary provisions. 57th edition. 2014, ISBN 978-3-406-66043-6 , § 257c marginal number 3, 11
  18. ^ Fischer : StGB . 58th edition. 2011, ISBN 978-3-406-60892-6 , § 46 Rn 118ff.
  19. Greedhook. In: JZ , 2013, p. 1038.
  20. ^ Friedrich-Karl Föhrig: Small Criminal Judge Breviary. 2nd Edition. 2013, ISBN 978-3-406-65127-4 , p. 35.
  21. Lorenz Leitmeier: § 257c Abs. 1, S. 2 in conjunction with § 244 Abs. 2 StPO ?! hrr-strafrecht.de