Plea Bargaining; Defence Rights
| Author | Karsten Gaede |
| DOI | 10.1350/jcla.2008.72.2.485 |
| Published date | 01 April 2008 |
| Date | 01 April 2008 |
| Subject Matter | German Federal Court of Appeal [Ordinary Jurisdiction] (Bundesgerichtshof—BGH), 3rd Criminal Senate |
German Federal Court of Appeal
[Ordinary Jurisdiction]
(Bundesgerichtshof—BGH),
3rd Criminal Senate
Plea Bargaining; Defence Rights
Decision of 14 August 2007: Case 3 StR 266/07
Keywords European Convention on Human Rights, Article 6; Imparti-
ality; Self-incrimination; Germany
The defendant had been convicted on various counts of embezzlement
and (attempted) fraud. The 3rd Criminal Senate of the BGH heard his
appeal, which primarily concerned questions of procedure.
In a pre-trial hearing in preparation for the main hearing (Hauptver-
handlung) a former counsel of the defendant stated that he was aiming
for a maximum sentence of three-and-a-half years’ imprisonment. After
the Public Prosecutor had rejected this proposal, the Presiding Judge
indicated that a confession, which would spare a full hearing, was in his
opinion a mitigating factor even without a ‘formal’ pre-judgment bar-
gain between all parties (as recognised by the BGH, see Decision of 3
March: Case No. GSSt 1/04 (2005) 69 JCL 499 at 501). The defendant, the
Presiding Judge emphasised, should consider whether he should not
‘entrust his fate to the court’. After a consultation, counsel answered
that the defendant ‘will entrust his fate to the court’ and that ‘no
witnesses would have to be called’. When the main hearing started the
defendant did not confess. Some weeks later the defendant was detained
and held on remand. The defendant discharged his counsel and B
became his new counsel. The Presiding Judge then phoned B and
indicated that a maximum sentence of three-and-a-half years’ imprison-
ment was no longer guaranteed, but still an option. The Presiding Judge
asked counsel basically whether he ‘would have to call witnesses for the
main hearing’. After B had assured the Presiding Judge that the defend-
ant would now confess, the defendant was released from remand by the
court. Shortly before the scheduled hearing, B resigned and indicated
that his colleague H would uphold the former arrangement. H then was
appointed as counsel for the defendant by the court. When the main
hearing started anew, the defendant again decided not to confess. Im-
mediately after the first hearing was closed, the Presiding Judge phoned
B and said that, in the case of a conviction, under the given circum-
stances, a sentence of imprisonment for seven or eight years was real-
istic. He indicated that he ‘remained open’ if there was a need for further
discussion by the defence. Four days after this call the defendant was
imprisoned on remand again. A motion challenging the impartiality of
the Presiding Judge because of a legitimate fear of bias was rejected. The
109The Journal of Criminal Law (2008) 72 JCL 109–112
doi:1350/jcla.2008.72.2.485
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