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Despite a serious implementation deficit, the legal provisions on plea
bargaining in criminal trials are currently not yet unconstitutional.
However, the legislature has to continually assess the effectiveness of
the safeguard mechanisms that ensure compliance with the constitutional
requirements and, if necessary, improve them. So-called informal
agreements, which take place outside of the legal framework, are not
permissible. This is what the Second Senate of the Federal
Constitutional Court decided in a judgment that was delivered today. At
the same time, the Federal Constitutional Court reversed the ordinary
courts’ decisions which had been challenged by the complainants because
it found violations of the Constitution in the respective proceedings
and remitted the cases for a new decision.

The Decision is Essentially Based on the Following Considerations:

1. The complainants challenge their convictions for criminal offences
following plea bargains between the court and the parties to the case.
In the proceedings 2 BvR 2628/10 and 2 BvR 2883/10, the constitutional
complaints are also directed against § 257c of the Code of Criminal
Procedure (Strafprozessordnung – StPO), which was added by the Act on
the Regulation of Plea Bargaining in Criminal Proceedings of 29 July
2009 (Gesetz zur Regelung der Verständigung im Strafverfahren, in the
following: Verständigungsgesetz
– Plea Bargaining Act).

2. The constitutional complaints are well-founded insofar as they are
directed against the challenged decisions; with regard to the remaining
part, they are unsuccessful.

a) Criminal law is based on the principle of individual guilt, which has
constitutional status. This principle is anchored in the guarantee of
human dignity and personal responsibility (Art. 1 sec. 1 and Art. 2 sec.
1 of the Basic Law (Grundgesetz – GG), as well as in the principle of
the rule of law (Art. 20 sec. 3 GG). The government is obliged under the
Constitution to ensure the functioning of the criminal justice system.
It is the central concern of criminal proceedings to establish the real
facts of a case, without which it is impossible to implement the
substantive principle of individual guilt.

The right to a fair trial guarantees defendants to exercise their
procedural rights and to adequately ward off infringements – especially
those from governmental entities. It is primarily the task of the
legislature to design these procedural rights. A violation of the right
to a fair trial only exists if an overall assessment of the law of
procedure shows that conclusions which are compulsory under the rule of
law have not been drawn, or that rights which are indispensable under
the rule of law have been waived. In the context of this overall
assessment the requirements for a functioning criminal justice system,
including the obligation to ensure the speedy conduct of proceedings,
have to be kept in mind as well.

The right against self-incrimination and the presumption of innocence
are anchored in the rule of law and have constitutional status. In
particular, the defendant has to be in a position to decide under no
constraints and independently whether and if so, to which degree he or
she participates in the criminal trial.

b) Against this backdrop, it is true that plea bargains bear the risk
that the constitutional requirements are not fully adhered to. However,
under the Constitution the legislature is not a priori precluded from
permitting plea bargains in order to simplify proceedings. In order to
meet the constitutional demands, the legislature deemed it necessary to
establish explicit legal requirements for plea bargains, which, while
significant in practice, have always remained controversial. With the
Plea Bargaining Act, the legislature did not introduce a new
“consensual” class of proceedings, but integrated plea bargains into the
existing system of criminal procedure.

aa) The Plea Bargaining Act points out explicitly that the court’s
obligation to investigate the facts ex officio remains untouched. The
legislature thus clarified that a plea bargain as such can never
constitute the sole basis for a judgment, but that what is necessary is
still exclusively the court’s own conviction. Furthermore, it is
imperative that the plea bargain-based confession be verified. Insofar
as this limits the practical scope of plea bargains, it is the
inevitable consequence of introducing them into the current system of
criminal procedure. Moreover, the legal analysis can also not be
modified in the context of a plea bargain; this includes the adjustment
of penalty ranges for particularly serious or minor cases.

bb) The Plea Bargaining Act comprehensively governs the permissibility
of plea bargains in criminal proceedings. It thus prohibits what are
euphemistically called “informal” approaches during plea bargaining.
Furthermore, it limits the plea bargain to the subject-matter of the
trial. So-called “package solutions”, in which the prosecution promises
to close other investigations, are thus not permissible.

cc) Transparency and documentation of plea bargains are key aspects of
the regulatory approach. This is meant to ensure an effective control by
the public, the prosecution, and the court of appeals. Notably, the
actions in connection with the plea bargain have to be comprehensively
incorporated into the – usually public – trial. This fact also confirms
that even after a plea bargain, the judges’ conviction has to derive
from the hearing as a whole.

A violation of the duty to provide transparency and documentation will
generally render a plea bargain that has nonetheless been concluded
illegal. If a court adheres to such an illegal agreement, it will
frequently not be possible to exclude the possibility that the judgment
was based on this violation of the law.

Of particular importance is the monitoring by the prosecution. The
prosecution is not only obliged to refuse to agree to an illegal plea
bargain, but also has to lodge appeals against judgments that are based
on such an agreement. The fact that the prosecution is a hierarchical
system and has reporting obligations makes it possible that this
monitoring capacity can be exercised according to consistent standards.

dd) Finally, the Plea Bargaining Act stipulates that the defendant be
instructed under what circumstances and with which consequences the
court can deviate from the result which it had offered as a prospect.
This instruction is meant to put the defendant in a position to decide
independently about his or her cooperation in the plea bargain. If the
duty to instruct has been violated, on appeal it will regularly have to
be assumed that the confession and thus the judgment were based on this

c) The Plea Bargaining Act sufficiently ensures the compliance with the
constitutional requirements. The fact that the implementation of the
Plea Bargaining Act falls considerably short of these requirements does
not, at present, render the legal provisions unconstitutional.

aa) The legal regulatory concept would only be unconstitutional if the
envisaged protection mechanisms were so fragmentary or otherwise
insufficient that they would promote the illegal practice of “informal”
plea bargains, i.e. that the deficit in implementation would be
determined by the norm’s structure.

bb) Neither the result of the empirical study nor the statements given
in the course of the constitutional complaint proceedings make a
compelling case for the assumption that structural flaws of the
regulatory concept have led to the present implementation deficit. There
are various reasons for this. The empirical study names as the main
reason the provisions’ “lack of practicality”. This suggests a hitherto
insufficiently developed awareness that there must be no plea bargains
without compliance with the requirements of the Plea Bargaining Act.

d) The legislature has to keep a close eye on the future developments.
If the legal practice continues to deviate to a large extent from the
legal stipulations, and if the Plea Bargaining Act proves to be
insufficient to overcome the implementation deficit, the legislature
will have to counteract the misguided development with adequate
measures. If this remained undone, it would lead to a situation that is

3. The decisions by the ordinary courts that were challenged with the
constitutional complaints are incompatible with the Basic Law’s
requirements for plea bargaining in criminal proceedings.

a) The decisions that were challenged by the complainants in the
proceedings 2 BvR 2628/10 and 2 BvR 2883/10 violate their right to a
fair trial in according with the rule of law and infringe their right
against self-incrimination. In general, a plea bargain can only be
reconciled with the principle of a fair trial if, before its conclusion,
the defendant has been instructed about its limited binding effect on
the court. If a confession that was made pursuant to a violation of this
duty to instruct is incorporated into the judgment, the judgment is
based on the violation of a fundamental right, except if it can be
excluded that the inaccurate instruction was the reason for the
confession, because the defendant would have made the confession even if
he or she had been correctly instructed. The court of appeals needs to
make specific determinations on this.

b) The decision by the Regional Court that was challenged in the
proceedings 2 BvR 2155/11 violates the constitutional principle of
individual guilt because the Regional Court sentenced the complainant
largely on the basis of a formal confession that had not been verified.
Furthermore, the judgment was based on a plea bargain that had
determined the content of the conviction in an impermissible way. In
this case, the line to an unconstitutional infringement of the right
against self-incrimination had also clearly been crossed. The Regional
Court combined a difference between the two penalty limits in question –
a difference which in itself was already excessive – with the assurance
to suspend the sentence on probation, which was only possible because
the penalty range was changed to a minor case.


(Press release of the Federal Constitutional Court no. 17/2013 of 19th March 2013)


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