Bundesverfassungsgericht

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Legal regulation of plea bargaining is constitutional – Informal agreements are impermissible

Press Release No. 17/2013 of 19 March 2013

Judgment of 19 March 2013
2 BvR 2628/10

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 violation.

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 unconstitutional.

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.