The role of plea bargaining in Australia and Germany - a comparison
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III Germany
Plea bargaining in criminal matters is a common phenomenon in Germany.[86] It is “part of the social reality”.[87] Negotiations with the parties and even with the court are not rare.[88] There are various reasons for the increased use of plea bargaining in Germany. Some refer to the complexity of the cases[89] and the requirements to the reasoning in written judgements,[90] other see the increased workload in the judicial administration as a reason for the popularity of plea negotiations.[91] A reason is also seen in the increasing number of defence strategies aiming at longer trials by using the procedural rules.[92] One important advantage for plea bargaining is its efficiency for the whole judicial administration process.[93] A Plea bargaining in Germany
1 Terminology
The terminology of plea bargaining in Germany is diverse. The most often used term for plea bargaining is Absprache, meaning negotiations between two or more parties. But the term “deal” is also often used in order to give a negative connotation.[94] Plea bargaining in Germany describes the negotiations between the court, the prosecutor, the accused and its defence counsel.[95] The result of plea bargaining negotiations in a German trial is often that the accused presents a confession, which avoids a hearing of evidence. In exchange the prosecution offers to drop charges or accept lesser charges. 2 Development
The existence of plea bargaining in Germany as a judicial phenomenon can be seen as relatively new. The first fundamental decision concerning plea bargaining was presented by the Federal Constitutional Court of Germany in 1987.[96] The court held that informal negotiations as such would not infringe German Basic Law (Grundgesetz). But it did not give comprehensive guidelines for appropriate plea negotiations. In 1997 the German Supreme Court formulated in an obiter dictum the preconditions for plea bargaining negotiations.[97] Nearly ten years later in 2005 the Big Senate of the German Supreme Court decided the crucial issue concerning the effectiveness of a release on remedy in connection with a plea bargaining agreement.[98] 3 Reform approaches
After the decision of the German Supreme Court in 2005 several bills have been created in order to address the implementation of plea bargaining in the criminal procedure system.[99] Both, the German state Lower Saxony (Niedersachsen)[100] and the Federal Ministry of Justice (Bundesjustizministerium) drafted a bill.[101] Also the German Bar Association drafted a recommendation to an enactment.[102] Finally, the Federal Council of Germany (Bundesrat) introduced a bill concerning plea bargaining.[103] B Preconditions of plea bargaining in Germany
The German Federal Constitutional Court and the German Supreme Court have developed preconditions to implement plea bargaining in the criminal procedure. If the preconditions are fulfilled the result of the plea negotiations is generally binding for all parties even for the court.[104] But the court is not bound by the agreement if new factual or legal circumstances occur.[105] In such cases, it is the duty of the court to give a legal hint according to Code of Criminal Procedure (Strafprozessordnung) s 265 before departing from the plea bargaining agreement.[106] In order to understand the preconditions for plea bargaining in Germany and their underlying purpose it is necessary to introduce some guiding principles of the German Criminal Procedure Law. 1 Guiding principles of the German Criminal procedure (Prozessmaximen)
The following principles derive from the rule of law (Rechtsstaatsprinzip).[107] The rule of law is part of the German constitution.[108] These principles are not absolute, meaning that in particular cases and circumstances exceptions are possible. But still these principles can give an idea of the basic underpinnings of the German criminal procedure. (a) Principle of legality (Legalitätsprinzip) The principle of legality requires that every criminal offence must be investigated and must be prosecuted if the preconditions of a criminal offence are fulfilled.[109] Exceptions may be made if they are necessary for the functioning of criminal judicial administration (Strafrechtspflege).[110] Such exceptions are for example the release from punishment in cases of minor offences[111] or the release from punishment in exchange for the payment of a fine in cases of minor guilt.[112] (b) Principle of directness (Unmittelbarkeitsgrundsatz) As a result of the principle of directness (Unmittelbarkeitsgrundsatz) the judge in his judgement is limited to the facts discovered in the trial. The use of evidence not being introduced or not being discovered in the trial is prohibited.[113] (c) Principle of public trial (Öffentlichkeitsprinzip) The principle of public trial is one of the most important parts of the German criminal procedure. It links the trial with the public life. During the whole trial the public has to have the opportunity to follow the trial.[114] (d) Principle of oral hearing (Mündlichkeitsgrundsatz) The principle of oral hearing in the line with the principle of directness and the principle of public trial ensures that the process takes part in the public. Only the orally introduced and discussed evidence in a public trial can be part of a judicial decision.[115] Consequently, both the public audience and the lay judges are able to follow the investigation of evidence.[116] (e) Principle of inquisitorial process Germany has an inquisitorial system in criminal proceedings. It is the task of the judge to investigate the facts and evidence independently.[117] The judge acts ex officio, meaning without any dependencies to submissions or to applications. He has to find the truth and to apply the law to the facts. 2 Fair and equal treatment
The first precondition formulated by the German Federal Constitutional Court is directly linked to the rule of law. Fair and equal treatment must be provided to every criminal offender. In the opinion of the German Federal Constitutional Court this does not necessarily prohibit negotiations outside the courtroom if the prerequisites of fair and equal treatment are guaranteed.[118] A fair trail requires a particular minimum standard concerning the rule of law.[119] The confidence in the efficiency of the judicial...