Plea Bargaining in Germany—Doctoring the Symptoms without Looking at the Root Causes
| Published date | 01 October 2014 |
| Author | Regina E. Rauxloh |
| DOI | 10.1350/jcla.2014.78.5.941 |
| Date | 01 October 2014 |
| Subject Matter | Comments |
392 The Journal of Criminal Law (2014) 78 JCL 392–406
doi:10.1350/jcla.2014.78.5.941
Plea Bargaining in Germany—Doctoring the
Symptoms without Looking at the Root Causes
Regina E. Rauxloh*
Keywords Agreement Act; German Constitutional Court; Informal
criminal procedures; Criminal justice principles; Judiciary and prosecution
acting outside legislation
German criminal procedure is inquisitorial in nature and thus based on the
notion that the substantial truth, rather than the procedural truth, is
established in the courtroom. The idea that both the facts of the case and
the appropriate sentence could be negotiated between the parties is alien to
the German criminal justice system. Nevertheless, in Germany too, the
practice of informal agreement has spread rapidly into all branches of
criminal procedure. The essentials of this practice can scarcely be
distinguished from Anglo-American plea bargaining. An admission of guilt
is submitted in exchange for a promise of sentence reduction or other
concessions, such as better prison conditions, non-custodial sentences or
even the dismissal of another criminal procedure. The agreement is
negotiated mostly between the prosecution and defence, with or without
the initial participation of the trial court and the defendant. Very often part
of the agreement is a waiver of appeal. Even though the inquisitorial system
in civil law countries does not have a plea procedure, once the confession
has been submitted, there is usually no further hearing of evidence. Thus,
a confession shortens the trial considerably. In Germany, this practice has
been developed outside legislation and case law for at least four decades.
After a number of attempts to limit the practice by the German Supreme
Court (Bundesgerichtshof) as well as by the Federal Constitutional Court
(Bundesverfassungsgericht), in 2009, the legislator finally passed the Bill for
the Regulation of Agreements in the Criminal Procedures,1 attempting to
legalise and regulate settlements without infringing the core principles of
criminal procedure. Empirical research shows, however, widespread
disregard of any relevant case law or legislation.
After the oral hearing in November 2012, in March 2013 an eight-judge
panel of the Second Senate of the Federal Constitutional Court once again
discussed the legality of negotiations outside the trial hearing.2 In each of
the three applications, which had been combined, the applicants had been
convicted after an agreement with the court and now challenged both the
constitutionality of the new legislation as well as individual convictions.
The question of out-of-court settlements has to be considered as one of the
most important issues in modern criminal procedure law since the entry
into force of the German Criminal Procedural Code in 1871.
* Associate Professor at Southampton Law School, Highfield Campus, University of
Southampton; e-mail: r.e.rauxloh@soton.ac.uk.
1 29 July 2009, entered force on 4 August 2009. Gesetz zur Regelung der Verständigung
im Strafverfahren (BGBl I S. 2353).
2 BVerfG, 2 BvR 2628/10 (19.3.2013).
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