Judgment of 19 March 2013

R e a s o n s :

A.

1

The complainants challenge their criminal convictions following plea agreements made between the respective criminal court and the parties to the proceedings. The complainants in proceedings I. and II. also indirectly challenge § 257c of the Code of Criminal Procedure (Strafprozessordnung – StPO), which was inserted into the Code of Criminal Procedure by the Act Governing Plea Agreements in Criminal Proceedings of 29 July 2009 (Plea Agreements Act, Verständigungsgesetz; Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 2352) and has since provided the legal basis for plea agreements.

I.

2

1. Beginning since at least the 1970s, the use of plea agreements as an instrument to improve the administration of criminal proceedings has taken hold without an express legal basis. Plea agreements are deals between the court, the public prosecution office, the defence as well as the defendant, under which the court commits to a certain penalty, or at least a maximum penalty, if the defendant confesses. Such deals were frequently made outside of trial. Once the defendant confessed, further evidence was usually not taken, which led to a considerable shortening of the proceedings. In most cases, a judgment based on such plea agreement was not appealed; the right to appeal was often even expressly waived ([…]).

3

2. A primary reason for the great practical value of plea agreements is considered to be the steadily increasing workload of criminal courts, which, according to many, is overstretching the capacity of the courts. This development is fuelled by an increase in criminal provisions applicable to ever more areas of life, as well as the increasing complexity of cases due to economic and technological advancements and globalisation, which has led to new forms of cross-border crime. The degree of regulation present in substantive criminal law has continued to rise over the past decades; particularly in commercial law and criminal law provisions that are not part of the Criminal Code ([…]). At the same time, the increasing differentiation and complexity of criminal procedural law entails ever greater demands on the courts. As an example, the immense case-law regarding prohibitions on the use of evidence has become very difficult to assess in judicial practice ([…]). Moreover, comprehensive procedural rights offer a myriad of possibilities for the defence to delay the proceedings; in particular, challenges on grounds of possible bias, applications for the admission of evidence and the right to ask questions can be abused to this end ([…]). The trial courts are also under increasing pressure to shorten the duration of proceedings, despite all the procedural complications, so as to give effect to the requirement of speedy justice in detention matters. The fact that judges’ evaluations and the distribution of work is largely based on quantitative criteria creates additional incentives to conclude proceedings as quickly as possible, even at the expense of accepting shortcomings in quality. In response to this increased burden on the criminal courts, the Länder have not provided a corresponding increase in personnel and resources; on the contrary, the judiciary has been repeatedly subject to austerity measures ([…]).

4

3. In a Chamber decision from 1987 (Order of the Third Chamber of the Second Senate of 27 January 1987 - 2 BvR 1133/86 -, Neue Juristische Wochenschrift – NJW 1987, p. 2662 f.), the Federal Constitutional Court examined the permissibility of plea agreements in criminal proceedings from the standpoint of the principle of a fair trial in accordance with the rule of law, the guarantee of a properly functioning criminal justice system and the principle of culpability. The Court found that these principles did not rule out plea agreements between the court and the parties outside of trial regarding the status and outcome of the proceedings, which is already subject to the limits set by criminal law. However, the Court ruled out leaving the judicial obligation to investigate the truth of the matter, the application of the law to the case and sentencing principles applicable to a trial hearing, which is intended to conclude with a judgment on the defendant’s culpability, to the free discretion of the parties to the proceedings and the court. The court and the public prosecution office are therefore barred from entering into a ‘settlement’ in the guise of a judgment and from ‘turning justice into a commodity’. For example, the criminal court must not simply accept a confession made by the defendant in exchange for the promise or prospect of a reduced sentence when, in light of the proceedings at issue, it should feel compelled to take further evidence with a view towards the objective of investigating the truth and the just punishment of the offence commensurate with the defendant’s culpability. The court must also refrain from suggesting to the defendant the possibility of a mitigated sentence as a result of a confession, if such mitigation departs from the principle of punishment commensurate with culpability. The Chamber noted that the defendant’s freedom to form and express their will is protected from noticeable impairment, which is reflected in § 136a of the Code of Criminal Procedure. This requires that the defendant not be pressured into making a confession through a promise of a benefit or through deception. However, this does not rule out providing the defendant with information or making reference to the evidence or the mitigating effect of a confession if there is a substantive basis for this in the trial hearing. Based on these standards, the Chamber concluded in the case before it that there were ultimately no constitutional concerns regarding plea agreements in the specific constellation underlying the initial proceedings under review – the defendant, who was represented by a lawyer, had suggested a plea agreement when the taking of evidence was nearing conclusion.

5

4. While the Federal Court of Justice (Bundesgerichtshof) had initially rejected plea agreements […] outside trial hearings (cf., e.g., Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt 37, 298 <304 f.>; Federal Court of Justice, Order of 19 October 1993 - 1 StR 662/93 -, NJW 1994, p. 1293 f., and of 25 October 1995 - 2 StR 529/95 -, wistra – Zeitschrift für Wirtschafts- und Steuerfachrecht 1996, p. 68; BGHSt 42, 46 <48>), plea agreements made in the trial hearing were in principle approved first by the Fourth Criminal Division and subsequently by the Grand Senate for Criminal Matters of the Federal Court of Justice.

6

a) In its landmark decision of 28 August 1997 (BGHSt 43, 195 ff.), the Fourth Criminal Division held that plea agreements made in the trial hearing are permissible in principle – despite expressly recognising that the law of criminal procedure is not designed in a way to be open to settlements and that the state’s power to punish crime is not left to the discretion of the court. It additionally held that plea agreements are binding on the court, provided that they were reached in accordance with the requirements laid down by the Federal Court of Justice. According to the Federal Court of Justice, plea agreements are permissible under the following conditions: The guilty verdict may not be the subject of the plea agreement. A confession made based on a plea agreement is subject to a review of its credibility; the court may not refrain from taking evidence where it is clearly imperative. The free will of the defendant must be ensured; in particular, the defendant must not be pressured into making a confession with threats of a higher penalty or the promise of a benefit not provided for by law. Any waiver of the right to appeal is impermissible. The plea agreement itself must be made in the public trial hearing, but preliminary talks outside of the trial hearing are permitted. All parties must be involved in the plea agreement. The substantive result of the agreement must be documented in the record. The court may not promise a specific penalty, but it may promise a maximum penalty. The court may only deviate from this maximum penalty if new and serious evidence against the defendant arises; the court must state its intent to deviate in the trial hearing. The sentence may not depart from the principle of punishment that is commensurate with culpability.

7

b) In its order of 3 March 2005 (BGHSt 50, 40 ff.), the Grand Panel for Criminal Matters of the Federal Court of Justice upheld the requirements laid down by the Fourth Criminal Division for plea agreements and further clarified them by stating that the difference between a penalty following a plea agreement and a penalty following ‘adversarial proceedings’ must not be inappropriately pronounced (‘penalty gap’) and that the court could not only deviate from its promised maximum penalty on the grounds of new findings, but also when relevant factual or legal aspects that were known at the hearing had been overlooked, so long as it announced its intent to deviate on this basis. Any waiver of the right to appeal following a plea agreement is generally invalid, unless the person concerned was instructed that they were free to appeal regardless of the plea agreement (qualified instruction). The Grand Panel’s approval of plea agreements in principle was based on the need to ensure the proper functioning of the criminal justice system despite scarce resources and in line with the principle of urgency, economy of procedure and the protection of witnesses and victims. However, the Grand Panel noted that the Code of Criminal Procedure in its current form is guided by the concept of substantive truth, which the court must investigate ex officio in the trial hearing and which is largely beyond the control of the parties to the proceedings. Thus, the Grand Panel concluded that it was unlikely that the practice of plea agreements could be integrated into the current system without disruption. For this reason, the Grand Panel for Criminal Matters called on the legislator to enact statutory rules regarding plea agreements in criminal proceedings and, if the legislator decided to permit such agreements, to lay down their essential legal prerequisites and limitations for their use.

8

5. The legislator responded by enacting the Plea Agreements Act. According to the explanatory memorandum to the Government’s draft legislation (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 16/12310, p. 8), the underlying legislative concept is based on the approach that no new form of consensual conclusion of proceedings – previously unknown to the German criminal justice system – should be introduced for plea agreements in criminal proceedings, which might curtail the role of the courts, and in particular their obligation to investigate the truth. Rather, the fundamental principles of criminal procedure shall continue to apply. This means that a plea agreement must adhere to all essential procedural rules, including that the court must be satisfied that the facts of the case are correct and that any confession is credible. It must also respect the principles of a fair trial and of the right to be heard, as well as the transparency of the trial hearing and the requirement that information be provided to the public through the trial hearing and, in particular, that the court may not depart from the principle of punishment commensurate with culpability.

9

The key provision of the legislative concept – § 257c of the Code of Criminal Procedure – reads as follows:

10

§ 257c

(1) In suitable cases, the court may reach an agreement with the parties on the further course and outcome of the proceedings in accordance with the following subsections. § 244(2) remains unaffected.

(2) The subject matter of this agreement may only comprise the legal consequences which could form the content of the judgment and of the associated court orders, other procedural measures relating to the course of the underlying adjudication proceedings and the conduct of the parties during the proceedings. A confession is, as a rule, to form an integral part of each negotiated agreement. The guilty verdict and measures of reform and prevention may not be the subject of a negotiated agreement.

(3) The court announces what the content of the negotiated agreement could be. It may, on free evaluation of all the circumstances of the case and general sentencing considerations, also indicate an upper and lower sentence limit. The parties are to be given the opportunity to make submissions. The negotiated agreement comes into existence if the defendant and the public prosecution office agree to the court’s proposal.

(4) The court ceases to be bound by a negotiated agreement if legally or factually relevant circumstances have been overlooked or have arisen and the court is therefore then convinced that the prospective sentencing range is no longer appropriate to the severity of the offence or the degree of guilt. The same applies if the defendant’s further conduct in the proceedings does not correspond to that upon which the court’s prediction was based. The defendant’s confession may not be used in such cases. The court is to give notification of any deviation without delay. 

(5) The defendant is to be instructed as to the conditions for and consequences of the court deviating from the prospective outcome pursuant to subsection (4).

11

The provision expressly allows the court to reach a plea agreement regarding the further course and outcome of the proceedings in accordance with the requirements set out therein; it also states that the court’s obligation to investigate the facts of the case (§ 244(2) of the Code of Criminal Procedure) remains unaffected. This serves to ensure, in accordance with the case-law of the Federal Constitutional Court and of the Federal Court of Justice, that the requirements arising from the rule of law with regard to criminal proceedings are respected and, in particular, that the punishment is commensurate with the defendant’s culpability (cf. BTDrucks 16/12310, p. 9).

12

In addition, provisions that expressly allow the public prosecution office, during the criminal investigation, and the court, before and after the opening of the trial hearing, to ‘discuss the status of the proceedings with the parties to the proceedings, insofar as this appears suitable to expedite the proceedings’ (§§ 160b, 202a, 212, 257b Code of Criminal Procedure) were introduced. The essential content of such discussions must be recorded and the content of discussions held in the trial hearing must be included in the record (§ 273(1) second sentence Code of Criminal Procedure).

13-17

[…]

18

This framework is accompanied by other new provisions that serve to ensure the transparency of plea agreements and guarantee that any plea agreements can be reviewed by the appellate court. Pursuant to § 243(4) of the Code of Criminal Procedure, it must be stated in the trial hearing whether discussions regarding the status of the proceedings have been held between the court and the parties outside of the trial hearing – and, if so, what was discussed – and whether this included the possibility of a plea agreement.

19

[…]

20

If a judgment was preceded by a plea agreement pursuant to § 257c of the Code of Criminal Procedure, this must be stated in the written reasons attached to the judgment (§ 267(3) fifth sentence, § 267(4) second sentence Code of Criminal Procedure).

21

The provisions regarding the taking of the record of the trial hearing were expanded as follows:

22

§ 273

[…] (1a) The record must also indicate, in essence, the course, content and outcome of a negotiated agreement pursuant to § 257c. The same applies to the observance of the information and instruction requirements set out in § 243(4), § 257c(4) fourth sentence and § 257(5). If no agreement was negotiated, this must also be noted in the record. […]

23

If a judgment was preceded by a plea agreement pursuant to § 257c of the Code of Criminal Procedure, a waiver of the right to appeal is ruled out (§ 302(1) Code of Criminal Procedure). In this case, the defendant must be instructed that they are free to seek an appellate remedy (§ 35a third sentence Code of Criminal Procedure).

24

6. The legislative concept met with some approval ([…]), but was also heavily criticised ([…]). It is a widely-held view that the provisions regarding plea agreements do not meet the practical needs. The recording and instruction obligations and the general preclusion of a waiver of the right to appeal are perceived as making judicial work more difficult and are thus seen as a step backwards compared to the previous legal framework; it is argued that the relief to be provided by plea agreements is thereby undone, at least in part ([…]). Moreover, it is argued that § 257c of the Code of Criminal Procedure only governs ‘formal’ plea agreements, and that the statutory recording and instruction obligations and the exclusion of a waiver of the right to appeal therefore do not apply to ‘informal’ agreements or ‘gentlemen’s agreements’ made outside the trial hearing ([…]).

II.

25

1. a) The complainant in proceedings I. was sentenced, as one of four defendants, to imprisonment of six years for 259 separate counts (Tatmehrheit), which had to be considered as one single offence (in Tateinheit), of joint commercial fraud (gewerbsmäßiger Betrug) and fraud committed by a criminal gang (bandenmäßiger Betrug) together with four counts of aiding and abetting the intentional unauthorised operation of a banking business by a judgment of the Munich II Regional Court (Landgericht) dated 9 March 2010. The sentence was preceded by a plea agreement. Immediately after the reading of the indictment and the instruction to the defendant about their rights, the trial hearing was interrupted for a discussion with the aim of reaching a plea agreement. […] The presiding judge proposed that it be noted on the record that the full court had discussed the proceedings in detail with the defence lawyers and the representative of the public prosecution office in accordance with § 257b of the Code of Criminal Procedure. In consideration of the preliminary legal assessment, the defendants’ previous convictions and the prospect of confessions, the court proposed that the parties to the proceedings agree that the complainant in proceedings I. be given an aggregate prison sentence of no more than six years and the three co-defendants be given aggregate prison sentences of no more than five years and six months, two years, and four years, respectively. The public prosecution office announced that, in the event of a conviction on this scale, it would, in general accordance with § 154(1) of the Code of Criminal Procedure, discontinue pending investigations regarding a further set of criminal offences. The defendants were not instructed [as to the conditions for and consequences of a possible deviation from this deal by the court] pursuant to § 257c(5) of the Code of Criminal Procedure. The defendants, the defence lawyers and the representative of the public prosecution office declared their agreement to the court’s proposal. Subsequently, each defendant made a statement on the case, with the complainant in proceedings I. also answering questions. […]

26

b) With his appeal on points of law (Revision), the complainant in proceedings I. challenged the violation of the court’s obligation to provide an instruction pursuant to § 257c of the Code of Criminal Procedure and made a substantive complaint (Sachrüge). By order of 8 October 2010, the Federal Court of Justice rejected the appeal as unfounded pursuant to § 349(2) of the Code of Criminal Procedure. With regard to the error regarding instruction, the Federal Court of Justice made reference to an earlier decision (Order of 17 August 2010 - 4 StR 228/10 -), in which it had rejected a claim of a violation of § 257c(5) of the Code of Criminal Procedure arguing that the judgment had not been based on this error, given that the criminal division had honoured the maximum penalty envisaged in the context of the plea agreement.

27

2. a) The complainants in proceedings II. were sentenced by a judgment of 27 March 2010 of the Munich II Regional Court to imprisonment of three years and six months (complainant in proceedings II. 1) and three years and four months (complainant in proceedings II. 2) for 27 separate counts, which had to be considered as one single offence, of joint commercial fraud and fraud committed by a criminal gang together with the intentional unauthorised operation of a banking business. The sentence was preceded by a plea agreement. At the start of the trial hearing, the defence lawyer of the complainant in proceedings II. 2) had proposed a plea discussion for which the trial hearing was interrupted. During the recess, the defence lawyer, the court and the representative of the public prosecution office discussed a plea agreement. When the trial hearing was continued, the court stated that the proceedings had been discussed in detail with all parties pursuant to § 257b of the Code of Criminal Procedure. The court pointed out that, based on the court records and subject to the outcome of the trial hearing and the taking of evidence, it would consider a conviction on 27 counts of aggravated fraud considered as one single offence together with the intentional unauthorised operation of a banking business. On the basis of this assessment and the prospect of a confession by the defendants, the court proposed that the parties to the proceedings agree that the complainant in proceedings II. 1) be given an aggregate prison sentence of no more than three years and six months and the complainant in proceedings II. 2) be given an aggregate prison sentence of no more than three years and four months. The complainants were not instructed [as to the conditions for and consequences of a possible deviation from this deal by the court] pursuant to § 257c(5) of the Code of Criminal Procedure. The complainants in proceedings II., their defence lawyers and the public prosecution office expressly agreed to this proposal. […] The defence lawyers made statements on the matter, which were endorsed by the complainants in proceedings II. The findings in the judgment are based solely on these statements and the statement made by the investigating police officer as well as the results of written witness interviews conducted by the police in the form of questionnaires. These written documents were not read out at the trial hearing, but instead the participants of the trial had the opportunity to take note of the wording and the title of the documents in the so-called self-reading procedure (Selbstleseverfahren).

28

b) With their appeal on points of law, the complainants in proceedings II. challenged the violation of the obligation to instruct pursuant to § 257c of the Code of Criminal Procedure and made a substantive complaint. By order of 2 November 2010, the Federal Court of Justice rejected the appeal as unfounded pursuant to § 349(2) of the Code of Criminal Procedure. It held that the proceedings did not present any of the constellations covered by § 257c(4) of the Code of Criminal Procedure, in which the defendants must be instructed as to the legal consequences in advance. The Federal Court of Justice added that the penalties imposed did not exceed the penalties envisaged by the court. The defendants had failed to state specific reasons relating to the case that would indicate that the challenged procedural error could have affected the defendants’ conduct in the proceedings in such a way that a more favourable judgment could not be ruled out, nor were such reasons otherwise ascertainable.

29

3. a) The complainant in proceedings III. was sentenced by judgment of 15 March 2011 of the Berlin Regional Court to imprisonment of two years for two counts of aggravated robbery and criminal damage; the sentence was suspended on probation. The sentence was preceded by a plea agreement. After reading the defendants the indictment, the presiding judge had pointed out that there were essentially three options with regard to the robbery counts. The first option was an acquittal and the second option was a conviction for one or two counts of aggravated robbery, each with a minimum prison sentence of three years, following a highly contentious taking of evidence. According to the reasons attached to the judgment, in the second constellation the court ‘did not feel inclined’ to assume that the offences were less serious, given that the defendants were police officers and had committed the offences while on duty. The third option was a middle ground in terms of the consequences: If the defendants were to make confessions that would render the taking of evidence unnecessary, this could be a decisive factor in the overall assessment of whether the offences were less serious and might ultimately work in favour of the defendants. In this case, it could be expected that the aggregate prison sentences would be such that the court could suspend them on probation. During an 85-minute recess, the defendants had the opportunity to consider the court’s proposal and discuss it with their lawyers. The presiding judge urged them to decide swiftly. According to the submissions of the complainant in proceedings III., his defence lawyer warned him that he might be arrested in the courtroom if he did not agree to the proposed plea agreement. Following the recess, the defendants and the public prosecution office declared their agreement to the court’s proposal. This agreement was documented in the record. Following the general and specific instruction to the defendants pursuant to § 257c(4) and (5) of the Code of Criminal Procedure, the defendants confessed by simply confirming the indictment. The defence lawyers then declared that questions on the case would not be answered. All parties agreed not to question witnesses. Following the closing arguments and final speeches of the defendants, the court withdrew for deliberation, but then reopened the taking of evidence to ask the defendants whether they had carried their service weapons during the crimes and whether these had been loaded; the defendants confirmed that this had been the case. The findings in the judgment are based solely on the declarations made by the defendants and largely correspond to the indictment.

30

b) In his appeal on points of law, the complainant in proceedings III. asserted violations of § 244(2) and § 136a of the Code of Criminal Procedure by way of a procedural complaint; he also lodged a substantive complaint. At the request of the Public Prosecutor General pursuant to § 349(2) of the Code of Criminal Procedure, the Federal Court of Justice rejected the appeal as unfounded and stated only that in addition to the procedural complaints that the Public Prosecutor General had correctly found to be inadmissible, the appeal contained an admissible challenge regarding the application of § 257c of the Code of Criminal Procedure. This provision did not apply to this matter. The Regional Court had been entitled to remind the defendants that, in the event of a conviction, the sentencing range of § 250(3) of the Criminal Code (less serious offence) could only be applied if the defendants confessed. This did not amount to threatening the defendants with an arbitrary ‘penalty gap’. The Federal Court of Justice found a lack of sufficient evidence in the appellate submissions for any claim of impermissible pressure beyond this claimed threat; apart from this claimed threat, no such pressure had been proven.

III.

31

1. The complainants in proceedings I. and II. assert a violation of Art. 2(2) second sentence of the Basic Law (Grundgesetz – GG) in conjunction with the right not to incriminate oneself and the right to a fair trial as well as the principle of culpability; they also claim that the failure to provide them with the instruction required by § 257c(5) of the Code of Criminal Procedure prior to the plea agreement violated Art. 1(1) in conjunction with Art. 2(1) and (2), Art. 19(4) and Art. 101(1) of the Basic Law. By way of subsidiary application, they assert that § 257c of the Code of Criminal Procedure is unconstitutional on the grounds that it violates the principles of culpability and of the rule of law.

32-33

[…]

34

2. The complainant in proceedings III. asserts a violation of his fundamental rights to effective legal protection and a fair trial under Art. 2(1) and (2), Art. 19(4) and Art. 20(3) of the Basic Law. […]

IV.

35

The Federal Government stated that the provisions introduced by the Plea Agreements Act were compatible with the Basic Law. […]

36

2. The Bavarian Land Government submitted a statement on the constitutional complaint of the complainants in proceedings I. and II.; it considers them to be unfounded. […]

37

3. The President of the Federal Court of Justice submitted statements of the presiding judges of the First, Third, Fourth and Fifth Criminal Division.

38-39

[…]

40

4. The Public Prosecutor General considers § 257c of the Code of Criminal Procedure to be constitutional in principle. […]

41-43

[…]

44

5. The Court also obtained statements from the German Association of Judges (Deutscher Richterbund), the German Lawyers’ Association (Deutscher Anwaltverein) and the Federal Bar Association (Bundesrechtsanwaltskammer).

45-47

[…]

V.

48

The Court commissioned expert Prof. Dr. Altenhain, who is a professor at Heinrich Heine University (Düsseldorf), to carry out a representative empirical study regarding the practice of plea agreements in criminal proceedings. Between 17 April and 24 August 2012, the expert surveyed 190 judges working on criminal cases in the Land North Rhine-Westphalia, 117 of whom worked as criminal judges or presiding judges of a lay assessors’ court and 73 of whom worked as presiding judges of a criminal division. As a control group, 68 public prosecutors and 76 criminal lawyers were additionally surveyed.

49

According to the surveyed judges, 17.9% of criminal proceedings at local courts and 23% of criminal proceedings at regional courts were settled by plea agreements in 2011. One survey question asked the judges for their estimate of the percentage of cases in judicial practice that they believe were in breach of the statutory provisions regarding plea agreements. A little over half of the judges replied that such breaches were likely to have occurred in more than 50% of all proceedings involving plea agreements. 58.9% of the surveyed judges stated that they made more than half of their plea agreements ‘informally’, i.e. without applying § 257c of the Code of Criminal Procedure; 26.7% of the judges stated that all of their plea agreements were made informally. 33% of the surveyed judges said that they had discussed plea agreements outside the trial hearing without having disclosed this fact in the trial hearing, while 41.8% of the public prosecutors and 74.7% of the defence lawyers stated that they had personally experienced this. The disclosure obligation is considered to be excessively formalistic by a not inconsiderable share of judges. The obligation to note on the record if no plea agreement was negotiated (§ 273(1a) third sentence Code of Criminal Procedure) is frequently not observed in practice. 54.4% of the surveyed judges stated that they considered the fact that no plea agreement was made need not be mentioned on the record. 46.7% of surveyed judges do not make note of a plea agreement preceding a judgment in the reasons attached to the judgment, contrary to § 267(3) fifth sentence of the Code of Criminal Procedure. Plea agreements frequently concern the discontinuation or limitation of proceedings pursuant to §§ 154 and 154a of the Code of Criminal Procedure; in this context, the discontinuation of other proceedings not included in the indictment is often also discussed as part of so-called ‘overall solutions’. […] According to the study by Prof. Dr. Altenhain, plea agreements sometimes include elements that are expressly excluded by § 257c(2) of the Code of Criminal Procedure, such as the guilty verdict. While 61.7% of the judges declared that they always checked the credibility of confessions made following a plea agreement, 38.3% of the judges admitted that they did not always check the credibility of such confessions, but did so only frequently, sometimes, rarely or never. 35.3% of the surveyed judges stated that, in plea discussions with the defendant or their lawyer, they had not only indicated a maximum penalty or specific penalty to be expected in the event of a plea agreement, but had also indicated a potential second penalty in the event of an ‘adversarial’ trial hearing; 16% stated that they typically proceed in this manner. It is very rare that an appeal is lodged following a plea agreement. According to 27.4% of the judges, even when plea agreements were made in accordance with § 257c of the Code of Criminal Procedure, the right to appeal was expressly waived – contrary to § 302(1) second sentence of the Code of Criminal Procedure. 14.7% of the judges stated that no appeal was ‘ever’ lodged following a plea agreement; for 56.6%, this was ‘frequently’ the case (for the public prosecutors this was 5.6% and 64.8% respectively; for the defence lawyers this was 6.6% and 76.1% respectively). As many as 16.4% of the judges and 30.9% of the public prosecutors declared that they had accepted a penalty as part of a plea agreement that they considered to be too lenient. In turn, 30.3% of the defence lawyers felt that they had accepted a penalty as part of a plea agreement that was too harsh. According to those surveyed, the ‘sentencing discount’ following a confession made after a plea agreement is between 25% and 33.3% of the penalty to be expected following an ‘adversarial’ hearing.

VI.

50

The complainants in proceedings I. and II. applied for preliminary injunctions before the Federal Constitutional Court while serving their prison sentences. By orders of 22 May 2012 and 21 June 2012, the First Chamber of the Second Senate of the Federal Constitutional Court provisionally suspended the enforcement of the respective challenged judgments of the Munich II Regional Court until a decision was rendered in the constitutional complaint proceedings or, at the latest, for six months. By orders of 22 October 2012 and 5 December 2012, respectively, the Second Senate renewed the preliminary injunctions at the request of the complainants in proceedings I. and II.

VII.

51

In the oral hearing, the Court heard from Prof. Dr. Altenhain on the empirical study regarding the practice of plea agreements in criminal proceedings conducted at the request of the Court. The Court also heard from the President of the Federal Court of Justice Prof. Dr. Tolksdorf, Public Prosecutor General Range, Presiding Judge at the Marburg Regional Court Dr. Paul, Presiding Judge at the Hildesheim Regional Court Pohl, Presiding Judge at the Hamburg Regional Court Dr. Tully and Presiding Judge at the Freiburg/Breisgau Regional Court (retired) Royen on the experience and assessments of the courts of first instance and courts of appeal. Prof. Dr. Frisch, Director of Division 1 of the Institute of Criminal Law and Criminal Procedural Law at Albert Ludwig University (Freiburg), addressed the principle of culpability and its significance for the legitimacy of punishment by the state under the rule of law and its role in criminal law as a safeguard for freedom; he also discussed the compatibility of the practice of plea agreements and § 257c of the Code of Criminal Procedure with the principle of culpability. The representatives of the complainants and representatives of the Federal Government, the German Association of Judges, the German Lawyers’ Association and the Federal Bar Association elaborated on and added to their statements. Furthermore, a representative of the New Association of Judges (Neue Richtervereinigung) made a statement on the constitutionality of plea agreements in criminal proceedings.

B.

52

Insofar as they are directed against the challenged decisions, the constitutional complaints are well-founded; they are otherwise unsuccessful.

I.

53

1. Criminal law is based on the principle of culpability (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 123, 267 <413>), which governs the entire domain of state punishment. The principle of culpability is of constitutional significance; it is rooted in the guarantee of human dignity and autonomy (Art. 1(1) and Art. 2(1) of the Basic Law) as well as in the principle of the rule of law (cf. BVerfGE 45, 187 <259 f.>; 86, 288 <313>; 95, 96 <140>; 120, 224 <253 f.>; 130, 1 <26>).

54

a) The principle of no punishment without culpability (nulla poena sine culpa) is founded on personal autonomy and an individual’s ability to act with self-determination and decide what is right and wrong based on their own free will. The protection of human dignity in Art. 1(1) of the Basic Law is based on the idea of human beings as intellectual-moral beings with the inherent aspiration to be free to determine their own being and to develop (cf. BVerfGE 45, 187 <227>; 123, 267 <413>). In the criminal justice system, Art. 1(1) of the Basic Law informs the conception of the essence of punishment and the relationship between guilt and atonement (cf. BVerfGE 95, 96 <140>) as well as the principle that only culpable conduct may be punished (cf. BVerfGE 57, 250 <275>; 80, 367 <378>; 90, 145 <173>; 123, 267 <413>). In contrast to mere preventive measures, punishment is characterised by the fact that it is – at least to some extent – aimed at just retribution for legally prohibited acts. Punishment serves to reproach the offender for misbehaving in socio-ethical terms (cf. BVerfGE 20, 323 <331>; 95, 96 <140>; 110, 1 <13>). Such a criminal law sanction would be incompatible with the guarantee of human dignity and the principle of the rule of law without a finding of individual culpability (cf. BVerfGE 20, 323 <331>; 95, 96 <140>).

55

b) The principle of the rule of law is one of the Basic Law’s fundamental principles (BVerfGE 20, 323 <331>). It safeguards the exercise of the fundamental freedoms by guaranteeing legal certainty, binding state authority to the law and protecting legitimate expectations (BVerfGE 95, 96 <130>). As one of the guiding principles of the Basic Law, the principle of the rule of law also encompasses the requirement of substantive justice (cf. BVerfGE 7, 89 <92>; 7, 194 <196>; 45, 187 <246>; 74, 129 <152>; 122, 248 <272>) and includes the principle of equality before the law as an essential premise of justice (cf. BVerfGE 84, 90 <121>). In criminal law, these elements of the rule of law are also incorporated in the principle of culpability (BVerfGE 95, 96 <130 f.>). The criminal offence and its legal consequences must be properly aligned, based on the concept of justice (cf. BVerfGE 20, 323 <331>; 25, 269 <286>; 27, 18 <29>; 50, 205 <214 f.>; 120, 224 <241>; established case-law). Any punishment must be in adequate proportion to the severity of the crime and the culpability of the offender (cf. BVerfGE 20, 323 <331>; 45, 187 <228>; 50, 5 <12>; 73, 206 <253>; 86, 288 <313>; 96, 245 <249>; 109, 133 <171>; 110, 1 <13>; 120, 224 <254>). In this sense, punishment serves the purpose of just restitution (cf. BVerfGE 45, 187 <253 f.>; 109, 133 <173>; 120, 224 <253 f.>).

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2. The aim of criminal proceedings is the enforcement of the state’s power to punish crime in order to protect the interests of individuals and of the general public by conducting proper judicial (justizförmig) proceedings and to guarantee that the fundamental rights of the person facing punishment are effectively protected. Criminal proceedings serve to protect the principle that no punishment may be imposed without culpability, which is derived from the human dignity of the individual as autonomous actor and the principle of the rule of law (cf. BVerfGE 80, 244 <255>; 95, 96 <140>), and to provide the necessary procedural safeguards. The central purpose of criminal proceedings is to establish the true facts of the case, in the absence of which the principle of substantive justice cannot be realised (cf. BVerfGE 57, 250 <275>; 118, 212 <231>; 122, 248 <270>; 130, 1 <26>). It must be established in accordance with the procedural rules that the defendant committed the offence and is culpable (cf. BVerfGE 9, 167 <169>; 74, 358 <371>). The presumption of innocence applies as long as the defendant has not been found guilty (cf. BVerfGE 35, 311 <320>; 74, 358 <371>).

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a) The state is constitutionally required to guarantee a functioning criminal justice system, without which justice cannot be achieved (cf. BVerfGE 33, 367 <383>; 46, 214 <222>; 122, 248 <272>; 130, 1 <26>). Protecting fundamental legal interests through criminal law and giving effect to criminal law in court proceedings are constitutional responsibilities (cf. BVerfGE 107, 104 <118 f.>; 113, 29 <54>). This requires that criminal offenders are prosecuted, sentenced and receive a just punishment that is commensurate with their culpability in accordance with the applicable law (cf. BVerfGE 33, 367 <383>; 46, 214 <222>; 122, 248 <272 f.>; 129, 208 <260>). The state’s constitutional obligation to guarantee a functioning criminal justice system also encompasses the obligation to ensure that criminal proceedings, once initiated, are conducted to their conclusion and that (custodial) sentences that have become final are enforced. The principle of the rule of law, the state’s obligation to protect the security of its citizens and their trust in the proper functioning of state institutions and the entitlement to equal treatment of all defendants in criminal proceedings generally require that the state’s power to punish crime is given effect, which also means that proceedings that are initiated are carried out and sentences imposed by final court decision are enforced (BVerfGE 46, 214 <222 f.>; 49, 24 <54>; 51, 324 <344>).

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b) Under the Basic Law’s concept of the rule of law, defendants must not be turned into mere objects in criminal proceedings; they must have the possibility to influence the course and the outcome of the proceedings in order to safeguard their rights (cf. BVerfGE 65, 171 <174 f.>; 66, 313 <318>).

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aa) The right to a fair trial is an essential element of the rule of law in criminal proceedings; it guarantees that defendants can exercise procedural rights and possibilities with the necessary expert support and properly defend themselves against encroachment by state bodies or other parties to the proceedings (cf. BVerfGE 38, 105 <111>; 122, 248 <271 f.>). However, this does not mean that procedural differences regarding the scope of action available to the public prosecution office and the defence based on roles allocated to each side must be balanced in every respect (cf. BVerfGE 63, 45 <67>; 63, 380 <392 f.>; 122, 248 <272>) for the sake of ‘equality of arms’ (cf. BVerfGE 110, 226 <253>); rather, it is possible to differentiate in view of the special role of the public prosecution office, which has an obligation to be objective. It falls primarily to the legislator – and then, within the legal limits, to the courts interpreting and applying the law – to determine the procedural powers and assistance to be granted to defendants under the principle of a fair trial and to set out their specific design. A violation of the right to a fair trial can only be found when an overall assessment of the entire procedural framework – including the way in which procedural law is interpreted and applied by the courts – reveals a failure to draw imperative conclusions arising from the rule of law or the abandonment of mandatory elements of the rule of law (cf. BVerfGE 57, 250 <276>; 64, 135 <145 f.>; 122, 248 <272>). In the context of this overall assessment, the prerequisites for a properly functioning criminal justice system must also be taken into consideration (cf. BVerfGE 47, 239 <250>; 80, 367 <375>; 122, 248 <272>). Proceedings that meet the prerequisites for an effective criminal justice system therefore do not violate the constitutional right to a fair trial merely because the procedural positions of the defendant are subordinated in favour of a more effective criminal justice system (BVerfGE 122, 248 <273>). The requirement of speedy justice must also be taken into account when giving specific shape to the right to a fair trial (cf. BVerfGE 41, 246 <250>; 63, 45 <68 f.>; 122, 248 <273>), since unnecessary delays in court proceedings not only jeopardise the effectiveness of legal protection (cf. BVerfGE 60, 253 <269>; 88, 118 <124>; 93, 1 <13>) and the purposes of criminal punishment, but also adversely affect the constitutional obligation to investigate the truth to the greatest possible extent, given that evidence can become distorted due to the passage of time (cf. BVerfGE 57, 250 <280>; 122, 248 <273>; 130, 1 <27>).

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bb) The defendant’s freedom to make a statement or to remain silent and the right not to incriminate oneself (nemo tenetur se ipsum accusare) are a necessary element of an order based on the rule of law and guided by respect for human dignity (cf. BVerfGE 38, 105 <113 f.>; 55, 144 <150 f.>; 56, 37 <43>). The right not to incriminate oneself is rooted in the principle of the rule of law and has constitutional status (cf. BVerfGE 38, 105 <113 f.>; 55, 144 <150 f.>; 56, 37 <43>; 110, 1 <31>). It also encompasses the right to make a statement or to remain silent in criminal proceedings. This includes that no one involved in criminal proceedings may be compelled to make a statement in which they accuse themselves of a criminal offence or to actively contribute to their own conviction (cf. BVerfGE 56, 37 <49>; 109, 279 <324>). Defendants must be able to decide autonomously and free of coercion if and to what extent they will cooperate in criminal proceedings (cf. BVerfGE 38, 105 <113>; 56, 37 <43>). This requires that they are informed of their right to make a statement or to remain silent.

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cc) As a specific manifestation of the principle of the rule of law, the presumption of innocence also has constitutional status (BVerfGE 74, 358 <371>). Firstly, the presumption of innocence prohibits measures against defendants that are tantamount to punishment as regards their effects and that procedurally treat defendants as guilty, when such defendants have not yet been found guilty under the procedural framework – which finding may not itself be final and binding. Secondly, the presumption of innocence requires that a guilty verdict can only be entered against convicted persons in legal transactions generally once their guilt has been established by final court decision (cf. BVerfGE 19, 342 <347>; 74, 358 <371>). Yet as a manifestation of the principle of the rule of law, the presumption of innocence – just like the right of the defendant to a fair trial in accordance with the rule of law – does not give rise to specific requirements and prohibitions that are set out in every detail; rather, their effects on procedural law must be determined on the basis of the circumstances. This primarily falls to the legislator (BVerfGE 74, 358 <371 f.>; cf. also BVerfGE 7, 89 <92 f.>; 57, 250 <275 f.>; 65, 283 <291>).

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3. The Basic Law guarantees that the parties to judicial proceedings will have their case heard by an independent and impartial judge who is neutral and has the necessary distance from all of the parties and the subject matter of the proceedings (cf. BVerfGE 4, 412 <416>; 21, 139 <145 f.>; 23, 321 <325>; 82, 286 <298>; 89, 28 <36>). In addition to the substantive and personal independence of judges (Art. 97(1) and (2) of the Basic Law), a key element of jurisprudence under the Basic Law is that judicial activity is performed by an ‘uninvolved third party’ (cf. BVerfGE 3, 377 <381>; 4, 331 <346>; 21, 139 <145>; 27, 312 <322>; 48, 300 <316>; 87, 68 <85>; 103, 111 <140>). This concept of the neutrality of judicial office is inseparably linked with the terms ‘judge’ and ‘court’ (cf. BVerfGE 4, 331 <346>; 60, 175 <214>; 103, 111 <140>). Therefore, judicial work requires absolute neutrality vis-à-vis the parties to the proceedings (BVerfGE 21, 139 <146>; 103, 111 <140>). The right to one’s lawful judge under Art. 101(1) second sentence of the Basic Law not only guarantees the right to have one’s case heard by the judge designated in the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) and the procedural rules as well as the courts’ internal allocation schemes (cf. BVerfGE 89, 28 <36>), but also guarantees that affected persons will not have their case heard by a judge who lacks the necessary neutrality due to personal or substantive relations to the parties or the subject matter (BVerfGE 21, 139 <146>; 89, 28 <36>). Such impartiality and neutrality of the judge is also required by the principle of the rule of law (cf. BVerfGE 3, 377 <381>; 37, 57 <65>).

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4. The right to a fair criminal trial, which is rooted in the principle of the rule of law and the general right to liberty, encompasses the right of the defendant to be defended by a lawyer of their choice that they trust (BVerfGE 66, 313 <318 f.>; 110, 226 <253>). While the right to a fair trial does not give rise to requirements and prohibitions that are set out in every detail, but instead must be specified by the legislator on the basis of the circumstances, it does preclude criminal proceedings that do not satisfy essential requirements arising from the rule of law (BVerfGE 57, 250 <276>; 122, 248 <272>). In light of the special significance accorded to the relationship of trust between defendants and their lawyers under the rule of law (cf. BVerfGE 110, 226 <254>), practices in criminal proceedings which – for example, due to the creation of improper incentives – are likely to undermine this trust and thus diminish the right to an effective defence are prohibited.

II.

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Based on these standards, it cannot presently be determined that the statutory provisions regarding plea agreements in criminal proceedings are unconstitutional. The legislator has only allowed plea agreements in criminal proceedings within a limited framework and has provided for specific safeguards, which, when interpreted and applied in such a way as to give them precise shape, are likely to fulfil the constitutional requirements regarding criminal proceedings (see 1. and 2. below). The fact that the Plea Agreements Act is disregarded to a not inconsiderable extent in practice does not currently give rise to a constitutionally relevant regulatory deficit (see 3. below). However, the legislator must monitor the effectiveness of the safeguards put in place to ensure that criminal proceedings are conducted in accordance with constitutional law and, where necessary, review the permissibility and conditions of plea agreements (see 4. below).

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1. According to the objective intent of the legislator (see a) below) reflected in the Act’s wording and structure, the Plea Agreements Act does not provide for a new, ‘consensual’ type of proceedings. Rather, it incorporates plea agreements into the applicable framework of criminal procedural law, with the aim of ensuring that criminal proceedings continue to serve the investigation of the truth and the determination of just punishment that is commensurate with culpability. The legislator expressly made clear that a plea agreement alone can never be the sole basis for judgment, but that the court remains bound by the obligation to investigate the facts ex officio and the legal assessment is not subject to the discretion of the parties involved in a plea agreement (see b) below). The Plea Agreements Act is an exhaustive framework regarding the permissibility of plea agreements in criminal proceedings; it thus prohibits plea agreements euphemistically described as ‘informal’ (see c) below). The legislator has provided for specific safeguards in the legal framework that ensure complete transparency and documentation of the events leading to a plea agreement and thereby allow for full scrutiny of the process by the public, the public prosecution office and the appellate court, which is considered necessary by the legislator (see d) below). Finally, the Act guarantees judicial neutrality by limiting the binding effect of plea agreements. In providing for an obligation to instruct the defendant as to this limitation, it protects their interests (see e) below).

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a) When interpreting legislation, the decisive factor is the objective legislative intent expressed in the legislation in question as it arises from the wording of the provisions and its contextual meaning (cf. BVerfGE 1, 299 <312>; 11, 126 <130 f.>; 105, 135 <157>; established case-law). Objective intent is to be determined by recognised methods of legal interpretation, i.e. the wording, systematic approach, spirit and purpose, as well as through the legislative materials and legislative history. These methods are not mutually exclusive, but instead complement one another. None of these methods takes absolute precedence over the others (cf. BVerfGE 11, 126 <130>; 105, 135 <157>). The starting point for interpretation is the wording of the legislation in question. However, the wording alone is not always sufficient for determining legislative intent. Under certain circumstances, the concept expressed in said wording and pursued by the legislator – which the courts may not oppose – only becomes clear when it is considered in the context of the spirit and purpose of the law or other aspects (cf. BVerfGE 122, 248 <283> – dissenting opinion). The courts’ task is limited to giving effect to the intended legislative concept in the specific case as faithfully as possible, including under changed circumstances (cf. BVerfGE 96, 375 <394 f.>). Under no circumstances can a judicial determination of the law fail to give effect to or otherwise distort the essential aspects of the legislative aim, and it must never replace the legislator’s concept with the court’s own concept (cf. BVerfGE 78, 20 <24> with further references). In addition, the legislative materials and the systematic approach of the law are an important indicator with regard to the question of what legislative concept underlies the law. The fundamental legislative decision derived by way of interpretation is not necessarily unclear because the wording of the provision in question is also open to other possible interpretations if these interpretations are obviously implausible. Otherwise, it would be almost impossible for the legislator to enforce the purpose of its legislation vis-à-vis the courts over the long term, given the difficulty of drafting unequivocal legislation (cf. BVerfGE 122, 248 <284> – dissenting opinion).

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b) The legislator found it necessary to regulate plea agreements in criminal proceedings because it found that the system which had emerged and become a significant, albeit controversial, part of judicial practice urgently required statutory directives so as to create legal certainty and ensure the uniform application of the law. The legislator was aware that plea agreements relating to the judgment made by the court with the parties would not be easily reconciled with the constitutional requirements applicable to criminal proceedings, particularly those regarding the investigation of the truth, punishment commensurate with culpability and procedural fairness (cf. Draft Act of the Federal Government, BTDrucks 16/12310, p. 1). Thus, the legislator’s express central aim was to integrate plea agreements into the applicable framework of criminal procedural law in a way that satisfies the constitutional requirements, without infringing the principles governing criminal proceedings – the principles of judicial investigation of the facts and of independent judicial assessment. The interpretation and application of the Plea Agreements Act must first and foremost be guided by this legislative concept. It also binds the Federal Constitutional Court, which must base its review on an interpretation that gives precise shape to a law wherever possible (regarding the specificity of criminal provisions cf. BVerfGE 126, 170 <196 f.>; see also Federal Constitutional Court, Order of the First Chamber of the First Senate of 18 December 2012 - 1 BvR 1509/10 -). While the legislator wanted to strengthen open and communicative court proceedings, it did not intend to introduce a new, ‘consensual’ type of proceedings. Rather, its aim was to ensure that criminal proceedings remain bound by the fundamental principles – rooted in constitutional law – of the investigation of the truth and the determination of punishment that is commensurate with culpability (cf. in this regard the Draft Act of the Federal Government, BTDrucks 16/12310, pp. 1, 8 f.), which is why the punishment must not be too harsh or too lenient, but must match culpability, including when it is imposed following a plea agreement (cf. Federal Court of Justice, Orders of 20 October 2010 - 1 StR 400/10 -, Neue Zeitschrift für Strafrecht – NStZ 2011, 592 <594>, and of 5 May 2011 - 1 StR 116/11 -, juris, para. 23; […]). In order to achieve this aim, the legislator not only laid down the permissible contents of plea agreements and the procedure for reaching such agreements ‘in comprehensive terms’; its legislative concept also focused on the creation of transparency, publicity and full documentation of the events leading to plea agreements. This serves to allow for effective and ‘full’ review in appellate proceedings, which the legislator considered necessary (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, pp. 1, 8 f., 12, 15, and the Federal Government’s reply to the statement of the Bundesrat, BTDrucks 16/12310, p. 22). The overall legal framework is characterised by the requirement that the events leading to a plea agreement be fully transparent (likewise Federal Court of Justice, Judgment of 29 November 2017 - 1 StR 287/11 -, NStZ 2012, S. 347 <348>, and Order of 22 February 2012 - 1 StR 349/11 -, StV 2012, p. 649 <652>). In light of this, a plea agreement must always ‘be revealed in the public trial hearing’ (BTDrucks 16/12310, p. 12)

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aa) It is expressly made clear in § 257c(1) second sentence of the Code of Criminal Procedure that the judicial obligation to investigate the facts ex officio, laid down in § 244(2) of the Code of Criminal Procedure, remains ‘unaffected’. This reflects the legislative intent to integrate the possibility of a plea agreement into the applicable framework of criminal procedural law. The wording of § 257c(1) second sentence of the Code of Criminal Procedure is unequivocal; it rules out any discretion regarding the subject matter and scope of the judicial obligation to investigate the facts charged in the indictment ex officio. It thereby emphasises that a plea agreement as such can never be the basis of a judgment; rather, the decisive factor continues to be solely the court’s assessment – which must rest on sufficiently sound footing – regarding the facts at issue (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 13). The legislator was aware of the particular features of a confession made on the basis of a plea agreement, especially the high incidence of error owing to the incentives and temptations the situation creates for the defendant and their lawyers. It knew of the risk of false confessions and therefore expressly made clear that the obligation to investigate ex officio under § 244(2) of the Code of Criminal Procedure continues to apply. Thus, the amount of evidence required to be taken under § 244(2) of the Code of Criminal Procedure remains unaffected insofar as an effective waiver of the (further) taking of evidence or applications to take evidence may not contravene the judicial obligation to investigate the facts, which continues to apply (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 13; see also Federal Court of Justice, Order of 31 January 2012 - 3 StR 285/11 -, StV 2012, p. 653 <654>; Federal Court of Justice, Order of 7 February 2012 - 3 StR 335/11 -, juris, para. 5).

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§ 257c(4) first sentence of the Code of Criminal Procedure provides that the court ceases to be bound by a plea agreement if legally or factually relevant circumstances have been overlooked or have arisen and the court is therefore convinced that the prospective sentencing range is no longer commensurate with the severity of the offence or the offender’s culpability. This provision builds upon the obligation to investigate the facts ex officio under § 244(2) of the Code of Criminal Procedure and confirms the fundamental legislative decision set out above. This applies accordingly to the criterion of ‘suitable cases’, which limits the permissibility of a plea agreement under § 257c(1) first sentence of the Code of Criminal Procedure. This criterion not only serves to limit plea agreements in criminal proceedings involving juveniles, in light of the disciplinary aspect inherent in such proceedings, it also serves to ensure that the court does not resort to premature plea discussions without first reviewing the indictment in factual and legal terms (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 10; see also BGHSt 50, 40 <49>, and Federal Court of Justice, Orders of 20 April 2004 - 5 StR 11/04 -, juris, para. 14 ff., and of 9 June 2004 - 5 StR 579/03 -, juris, para. 13 ff.).

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Given that § 257c(1) second sentence of the Code of Criminal Procedure is clarified through the reference to § 244(2) of the Code of Criminal Procedure, there was no need to additionally determine express ‘quality standards’ for a confession. This reference is sufficient to make clear that a mere formal confession that does not provide any information – especially when defendants refuse to answer questions – or the mere declaration not to oppose an indictment, which does not even constitute a confession, are not suitable foundations for the court’s independent assessment, including in the context of plea agreements. Through this reference, the legislator has also enabled the courts to take into consideration the specifics of the individual case.

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In light of the legislative aim to not encroach on the principles of the judicial obligation to investigate the facts ex officio and of the court’s independent assessment, § 257c(1) second sentence can only be understood to mean that a confession based on a plea agreement must be reviewed as to its correctness. In order to take the fundamental legislative aim of making plea agreements more transparent and reviewable into account, this review must be conducted in the trial hearing by taking evidence (cf. § 261 Code of Criminal Procedure). This cannot be taken to mean that the review of a confession based on a plea agreement is subject to stricter requirements than those applicable to the taking of evidence following a confession in a conventional trial hearing. For instance, it remains permissible, subject to the general rules, to put documents to the defendant or to dispense with the reading out of whole documents. However, it is not sufficient to review a confession based on a plea agreement merely by checking it against the case files (advancing a different view at the time BGHSt 50, 40 <49>, […]), given that this is an insufficient basis for the required independent assessment of the court based on the entire content of the trial hearing (§ 261 Code of Criminal Procedure); such an understanding of the statutory framework would not give effect to the Plea Agreements Act’s purpose of creating transparency and allowing for effective review of court decisions based on plea agreements.

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This interpretation of § 257c(1) second sentence of the Code of Criminal Procedure is not called into question by the fact that it noticeably narrows the options for a plea agreement – particularly with regard to the extent to which proceedings can be shortened. This outcome does not reflect any irresolvable internal contradiction in the provision, but respects the legislator’s express aim of reconciling plea agreements with the judicial obligation to investigate the facts ex officio in accordance with § 244(2) of the Code of Criminal Procedure and the court’s independent assessment. The restriction of the practical application of plea agreements is a necessary consequence of their integration into the applicable criminal procedural law.

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bb) In accordance with the legislative aim to ensure that criminal proceedings remain bound by the principles of the investigation of the truth and the determination of punishment that is commensurate with culpability, the factual findings and their legal assessment remain beyond the reach of the parties to a plea agreement (likewise Federal Court of Justice, Judgment of 21 June 2012 ‑ 4 StR 623/11 -, juris, para. 16). The legislative purpose is directly reflected in § 257c(2) first sentence of the Code of Criminal Procedure, which expressly limits plea agreements to the ‘legal consequences’. It is also reflected in the prohibition on plea agreements concerning the guilty verdict laid down in § 257c(2) third sentence of the Code of Criminal Procedure and in the fact that the court is no longer bound by a plea agreement if the conditions of § 257c(4) first and second sentence of the Code of Criminal Procedure are met.

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In consideration of the systematic approach and the spirit and purpose of the statutory provisions, it follows from § 257c(2) first sentence of the Code of Criminal Procedure that a change in the sentencing range must not be the subject of a plea agreement, even when it relates to a special sentencing range for particularly serious or less serious offences as compared to the regular sentencing range. According to the prevailing opinion (cf. BGHSt 23, 254 <256>; 26, 104 <105>; […]), these special sentencing ranges constitute statutory sentencing rules that are not incorporated into the operative part of the judgment, with the exception of § 177(2) no. 1 of the Criminal Code. However, the legislative categories of particularly serious and less serious offences are closely associated with aggravating elements (Qualifikationstatbestände) and mitigating elements (Privilegierungstatbestände). There are no significant discernible differences between these two categories in the context of the principle of punishment that is commensurate with culpability. The typical examples listed for particularly serious offences are considered as ‘similar to the constituent elements’ (cf. BGHSt 33, 370 <374>; Federal Court of Justice, Order of 21 October 1997 - 5 StR 328/97 -, NStZ 1998, p. 91 <92>; Judgment of 7 August 2001 - 1 StR 470/00 -, NStZ 2001, p. 642 <643>; Order of 28 July 2010 - 1 StR 332/10 -, NStZ 2011, p. 167). The legislative technique complies with the requirement of specificity under Art. 103(2) of the Basic Law (cf. BVerfGE 45, 363 <371>) and the prohibition on giving consideration to circumstances that are already taken into account as statutory elements of the offence (Doppelverwertungsverbot) under § 46(3) of the Criminal Code (cf. Federal Court of Justice, Orders of 22 April 2004 - 3 StR 113/04 -, Neue Zeitschrift für Strafrecht-Rechtsprechungsreport, NStZ-RR 2004, p. 262, and of 20 July 2004 - 3 StR 231/04 -, NStZ-RR 2005, p. 373 <374>). According to the case-law of the Federal Court of Justice, a case is particularly serious if, in terms of the injustice committed and the offender’s culpability, it stands out compared to average cases to such a degree that an exceptional sentencing range is warranted (cf. BGHSt 28, 318, <319 f.>; Federal Court of Justice, Judgment of 26 June 1991 - 3 StR 145/91 -, NStZ 1991, p. 529 <530>); for a less serious case, the entire criminal act, including all subjective elements and the personality of the offender, must deviate so significantly from the average case that the application of a more lenient sentencing range is warranted (cf. Federal Court of Justice, Order of 31 August 2000 - 5 StR 349/00 -, NJW 2000, p. 3580; Judgment of 13 February 2003 - 3 StR 349/02 -, NJW 2003, p. 1679 <1680>; Order of 26 August 2008 - 3 StR 316/08 -, NStZ 2009, p. 37). Therefore, the special sentencing ranges likewise reflect the condemnation of the offence and the culpability attributed to punishable conduct by the legislator. In providing for special sentencing ranges, the legislator expresses the view that it considers it necessary to differentiate within a certain type of offence as regards the applicable sentencing ranges – similar to the differentiations based on aggravating and mitigating elements. Upon comprehensive assessment of the legislative concept underlying the Plea Agreements Act, it therefore cannot be assumed that the legislator’s intention was to relinquish this differentiation in cases involving plea agreements and to expand the term ‘legal consequence’ in § 257c(2) first sentence of the Code of Criminal Procedure to include changes in the applicable sentencing ranges.

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c) The provisions of the Plea Agreements Act constitute an exhaustive legal framework for plea agreements in criminal proceedings. So-called informal deals made outside this legal framework are not permitted.

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aa) It follows from the wording of § 257c(1) first sentence of the Code of Criminal Procedure, which only allows plea agreements ‘in accordance with the following subsections’, that any other ‘informal’ deals, bargains and ‘gentlemen’s agreements’ are prohibited. This serves to realise the legislative aim of providing clear rules through a ‘comprehensive and differentiated legislative framework’ (the Federal Government’s Draft Act, BTDrucks 16/12310, pp. 7 f., 9) in order to create legal certainty and guarantee the uniform application of the law. If the legal framework were not exhaustive, the supplementary provisions deemed necessary by the legislator, which serve to ensure the transparency and publicity of the events leading to a plea agreement, could not fulfil their purpose of allowing for effective review. However, the effective review of plea agreements is one of the legislator’s central concerns. The obligation to note in the record if no plea agreement was discussed, which is laid down in § 273(1a) third sentence Code of Criminal Procedure, was defended in the legislative proceedings against criticism by the Bundesrat. It was argued that deleting this obligation would mean that ‘an important provision would be missing that serves to document the events in the trial hearing with the greatest possible certainty and in a manner that can be reviewed in appellate proceedings in order to rule out that a plea agreement was agreed tacitly and without adherence to the formal statutory requirements’ (the Federal Government’s reply to the statement of the Bundesrat, BTDrucks 16/12310, p. 22). Finally, the aim of guaranteeing a ‘full’ review by the appellate court confirms that the legislative framework is exhaustive. This review serves to ‘help ensure that plea agreements made in courts of first instance really comply with the legislative requirements’ (explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 9).

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Given that any exercise of state power is strictly bound by law and justice (Art. 20(3) of the Basic Law), the legislator's intention to only authorise plea agreements that are within the framework of the law did not require any further explicit emphasis.

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bb) It follows from the legislative framework governing the content, conclusion and consequences of a plea agreement that an enforceable waiver of the right to appeal is ruled out, including when the parties have made a plea agreement that is in breach of the statutory provisions (cf. in this regard Federal Constitutional Court, Order of the First Chamber of the Second Senate of 5 March 2012 - 2 BvR 1464/11 -, juris, para. 21 ff.; […]). Such a plea agreement is also subject to the requirement of documentation in the record under § 273(1a) first sentence of the Code of Criminal Procedure. If a plea agreement in breach of the law was discussed and it was noted in the record that no plea agreement was negotiated in accordance with § 273(1a) third sentence of the Code of Criminal Procedure, this would be incorrect and could fall under the offence of making false records in public office (§ 348 Criminal Code).

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cc) Nor can any promises made by the public prosecution office that other pending investigations will be discontinued – for example under § 154(1) of the Code of Criminal Procedure – be binding or give rise to legitimate expectations (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 13; for a different assessment prior to the Plea Agreements Act BGHSt 37, 10 <13 f.>). It follows from the wording of § 257c(1) and (2) of the Code of Criminal Procedure that plea agreements may only concern the ‘underlying adjudication proceedings’, and that so-called ‘overall solutions’ that also incorporate other proceedings and promises the court is not competent to make are impermissible (cf. Federal Court of Justice, Order of 6 October 2010 - 2 StR 354/10 -, wistra 2011, p. 28; […]). This is the only interpretation that complies with the legislative aim of making pleas bargains transparent and reviewable. If other proceedings that do not concern the subject matter of the trial hearing are part of a plea agreement, then effective review – in particular by the public – cannot be guaranteed.

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d) One focus of the Plea Agreements Act is the guarantee of transparency and documentation of the events leading to a plea agreement, which the legislator expressly considered to be necessary, as a prerequisite for effective scrutiny by the public and effective review by the public prosecution office and the appellate court (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, pp. 1, 8 f.). In order to achieve this aim, the legislator provided for specific safeguards that are key features of the legislative framework.

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aa) In the legislator’s conception, the publicity of the trial hearing is of great significance. In requiring that the events leading to a plea agreement are comprehensively incorporated into the trial hearing, the legislator not only ensures complete transparency, but also puts a particular focus on scrutiny of the trial hearing by the public. It thereby confirms that the entire content of the trial hearing forms the basis for the court’s independent assessment, including cases in which a plea agreement is made (§ 261 Code of Criminal Procedure).

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(1) (a) One of the legislator’s priorities was to safeguard the transparency of the criminal trial hearing and the information provided to the public in the trial hearing, particularly in the case of a plea agreement; according to the explanatory memorandum, a plea agreement must ‘be revealed in the public trial hearing’ (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, pp. 8, 12). Therefore, the Plea Agreements Act provided for comprehensive transparency and documentation obligations in relation to the trial hearing. The purpose of these obligations is to incorporate into the trial hearing not only the plea agreement itself, i.e. the formal act of agreement of § 257c(3) of the Code of Criminal Procedure, but also the preliminary talks leading to the plea agreement. It is true that, according to the explanatory memorandum, ‘preparations’ of a plea agreement can take place outside the trial hearing. It is therefore possible to discuss the possibilities and circumstances of a plea agreement prior to the trial hearing (cf. BTDrucks 16/12310, pp. 9, 12). § 234(4) of the Code of Criminal Procedure requires that the essential contents of all discussions outside the trial hearing be communicated. This communication must be recorded in accordance with § 273(1a) second sentence of the Code of Criminal Procedure. In the case of a plea agreement, however, § 273(1a) first sentence of the Code of Criminal Procedure provides that the course, content and outcome of a plea agreement must be recorded. The recording obligation in connection with plea agreements is thus more extensive than what is required by § 243(4) of the Code of Criminal Procedure. This is because, pursuant to § 257c(1) of the Code of Criminal Procedure, a plea agreement as such can only be made in the trial hearing. The more limited obligation to document the discussions in preparation of a plea agreement that occur outside of the trial hearing in accordance with § 273(1a) second sentence and § 243(4) of the Code of Criminal Procedure, as opposed to the obligation to document the plea agreement as such, is in line with the legislative aim of strengthening transparency and documentation, given that a plea agreement can only be made in the trial hearing and that § 273(1a) first sentence of the Code of Criminal Procedure requires that the course, content and outcome of such plea agreements be documented. All essential elements of a plea agreement, which, in view of the legislative concept, also include any preliminary talks outside of the trial hearing, must be discussed in the trial hearing and are subject to a recording obligation under § 273(1a) first sentence of the Code of Criminal Procedure.

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(b) The following distinction must be made with regard to the contents of potential discussions of the court with the parties and the transparency and documentation requirements that apply:

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(aa) One category of talks serves only to organise the trial hearing and to prepare and conduct it in procedural terms, such as reaching agreement on the dates of the hearing. As these talks bear no relation to the outcome of the proceedings, they occur outside of the legislative concept of the Plea Agreements Act and are not affected by it. They are therefore not subject to the notification obligation under § 243(4) of the Code of Criminal Procedure.

85

(bb) The other category of talks are those which can be understood as preparation for a plea agreement; their essential contents must therefore be communicated in the trial hearing pursuant to § 243(4) of the Code of Criminal Procedure. The notification obligation applies as soon as the possibility and terms of a potential plea agreement are raised in talks held prior to or on the sidelines of the trial hearing, whether expressly or by way of implication (cf. BTDrucks 16/12310, p. 12). This is always the case when questions of procedural conduct are connected to the outcome of the proceedings and the question of expected penalties therefore arises, or discussions to this effect are likely. If there is any doubt, the information in question must be provided in the trial hearing. The content that must be communicated includes the views of the individual parties, which side raised the possibility of a plea agreement and whether the other participants approved or rejected it (cf. Federal Court of Justice, Order of 5 October 2010 - 3 StR 287/10 -, juris; […]). If the record of the trial hearing does not contain a note concerning notification in accordance with § 243(4) of the Code of Criminal Procedure, which is required under § 373(1a) second sentence of the Code of Criminal Procedure, it merely means that no such notification was made, but not that no discussions were held outside the trial hearing, as the negative probative value of the record does not extend to such an inference (§ 274 Code of Criminal Procedure) ([…]).

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(cc) The plea agreement itself must be made in the trial hearing, which guarantees that documentation required by the legislator under § 273(1a) first sentence of the Code of Criminal Procedure takes place and therefore ensures that full review is possible. Based on the spirit and purpose of the documentation requirements, the ‘essential course and content’ within the meaning of that provision includes, in particular, who initiated the talks and the content of the individual ‘contributions’ of all parties and the judges, particularly concerning the underlying facts and expected outcome ([…]).

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(2) Moreover, it follows from the legislative aim to make plea agreements part of the public trial hearing that the legislator has accorded particular significance to public scrutiny.

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The principle of publicity laid down in § 169 of the Courts Constitution Act is intended to enable scrutiny of the judiciary by members of the public who are not involved in the proceedings; it is a reflection of the democratic idea. Public scrutiny of the judiciary resulting from the possibility of the public to observe trial hearings, which is a historical institution introduced to prevent arbitrary acts by the authorities ([…]), is a democratic requirement. The statutory possibility of concluding plea agreements, which tend to be negotiated in a confidential atmosphere, lends additional weight to such scrutiny. The legislator took this into account by providing for a notification obligation in § 243(4) of the Code of Criminal Procedure (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 12).

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The public can only exercise scrutiny if it receives the information necessary to assess whether a plea agreement is appropriate. This is the only way to ensure that the judicial decision-making process remains transparent and court decisions can be understood by the general public, including when plea agreements are involved. It is necessary to fully maintain public confidence in the state’s ability to ensure public security and order through effective criminal prosecution ([…]) and to guarantee justice in the individual case and equal treatment of all.

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(3) Incorporating the events leading to a plea agreement into the public trial hearing also serves to safeguard the function of public trial hearings as the sole basis of judicial assessment. According to the legislative intent, this function of the public trial hearing is to remain unaffected. The legislative materials expressly emphasise that the court’s assessment of the facts at issue always remains necessary and that a plea agreement as such can never be the basis of a judgment (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, pp. 8, 13). The court makes its assessment based on the entirety of the trial hearing (cf. § 261 Code of Criminal Procedure). This principle is significant, particularly with regard to lay judges, who exercise their judicial office fully and have the same voting rights as professional judges in the trial hearing (§§ 30 and 77(1) of the Courts Constitution Act). It follows from § 257c(4) of the Code of Criminal Procedure that the legislator intended plea agreements to be binding on the court, even if only to a limited extent. The legislator therefore had to ensure that lay judges are directly involved in the events leading to a plea agreement, insofar as they take place in the trial hearing, and otherwise receive comprehensive information for other discussions pursuant to § 243(4) of the Code of Criminal Procedure. Otherwise, it would be impossible for the lay judges to make an informed decision regarding the plea agreement – in particular the resulting promise of a maximum penalty and the announcement of a minimum penalty – or the terms of a judgment rendered following a plea agreement or after failed efforts to reach a plea agreement. Thus, § 257c of the Code of Criminal Procedure expressly provides that ‘the court’ – and not just the presiding judge or the professional judges – can negotiate a plea agreement with the parties to the proceedings. This rules out the possibility of imposing maximum penalties that are binding under § 257c(4) of the Code of Criminal Procedure without the involvement of the lay judges.

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bb) By requiring that the public prosecution office approve a plea agreement, the legislator accords the public prosecution office an active role in realising the legislative aim of guaranteeing effective scrutiny of plea agreements.

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It falls to the public prosecution office to help ensure the lawfulness of the course and outcome of the proceedings. With its obligation to remain objective (§ 160(2) Code of Criminal Procedure), it serves as a guarantor for the rule of law and lawful proceedings; as the representative of the prosecution, it ensures the effective administration of criminal justice ([…]). This role of the public prosecution office is not limited to the trial hearing in the court of first instance; it continues to fulfil the same tasks in appellate proceedings (cf. § 296(2) and § 301 Code of Criminal Procedure). This status of the public prosecution office is reflected in the provisions of no. 127(1) first sentence and no. 147(1) of the Guidelines for Criminal Proceedings and Proceedings to Impose a Regulatory Fine (Richtlinien für das Strafverfahren und das Bußgeldverfahren – RiStBV).

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When it comes to plea agreements, scrutiny by the public prosecution office is of paramount importance because the defendant and the court will be subject to certain obligations – albeit with some limitations – with regard to the potential outcome of the proceedings. The involvement of the public prosecution office in plea agreements thus primarily serves to ensure their lawfulness (cf. also Federal Court of Justice, Order of 5 May 2011 - 1 StR 116/11 -, juris, para. 23 f.; Federal Court of Justice, Order of 12 July 2011 - 1 StR 274/11 -, Strafverteidiger – StV 2011, p. 645 f.; Federal Court of Justice, Judgment of 9 November 2011 - 1 StR 302/11 -, juris, para. 45). The Plea Agreements Act is based on the expectation that the public prosecution office will refuse to support unlawful practices related to plea agreements – in line with its role as the ‘guardian of the law’ ([…]). Given the public prosecution office’s obligation to follow instructions and its reporting obligations, uniform standards for its approval of plea agreements and the exercise of the right to appeal can be set and enforced. The public prosecution office is not only required to deny approval of an unlawful plea agreement. It must also appeal judgments that are based on unlawful plea agreements; for example, where the unlawful nature of the plea agreement was not initially discernible to the public prosecution office. Given the great significance the legislator has attached to upholding the constitutional requirements for criminal proceedings, including with regard to plea agreements, violations of the requirements laid down in the Plea Agreements Act will typically be of great significance (cf. also no. 147(1) first sentence Guidelines for Criminal Proceedings and Proceedings to Impose a Regulatory Fine) and the public prosecution office therefore must ensure that such cases are reviewed by an appellate court. It may also be appropriate for the Public Prosecutors General to put a particular focus on this task.

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cc) Finally, the safeguards provided for in the Plea Agreements Act pursue the aim of allowing for the effective and full review of judgments based on plea agreements by the appellate court.

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(1) This review is intended to help ensure that ‘plea agreements made in courts of first instance are actually negotiated in compliance with the legislative requirements’ (explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 9). Accordingly, the legislator did not exclude or limit the right to appeal following a plea agreement, so as to incorporate plea agreements into the applicable criminal procedure in a way that is compatible with the requirement that punishment be commensurate with culpability and the resulting obligation to investigate the truth (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, pp. 1 f., 8 f; see also the statement of the Federal Government regarding the Bundesrat’s Draft Act, BTDrucks 16/4197, p. 12). […] The Committee on Legal Affairs of the Bundestag rejected the possibility of waiving the right to appeal after providing a defendant with a separate qualified instruction as to their rights, which was initially part of the Federal Government’s Draft Act, in order to ensure that the defendants can consider in peace and without pressure whether they wish to file an appeal (cf. the Federal Government’s Draft Act, BTDrucks 16/12310, pp. 6, 15 and recommendation and report of the Committee on Legal Affairs, BTDrucks 16/13095, pp. 7, 10). The legislator deliberately departed from the drafts and did not restrict the right to appeal judgments based on plea agreements in the Plea Agreements Act. Instead, the Plea Agreements Act goes beyond the decision of the Grand Criminal Division of the Federal Court of Justice (BGHSt 50, 40 ff.) – on which the legislative concept was largely based – and generally rules out a waiver of the right to appeal following a plea agreement (§ 302(1) second sentence Code of Criminal Procedure); it additionally protects the possibility of review in appellate proceedings by requiring that the defendants be instructed as to their rights.

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(2) Comprehensive transparency and documentation requirements serve to ensure the effectiveness of review. These safeguards cannot be regarded as mere formal rules. Guaranteeing a ‘full’ review of judgments based on plea agreements requires comprehensive transparency of the events leading to a plea agreement in the public trial hearing and their complete documentation in the record. Thus, the wording of the provisions, the systematic approach of the framework and the legislative materials clearly show that the legislator only considers plea agreements to be permissible if the transparency and documentation requirements are met. The legislative concept therefore must be seen as an inseparable unity of authorisation and limitation of plea agreements with concurrent controls in the form of notification, information and documentation requirements. In this regard, the procedural provisions, as well as those provisions defining the permissible content of plea agreements and the reference in § 257c(1) second sentence of the Code of Criminal Procedure to § 244(2) of the Code of Criminal Procedure all pursue the aim of minimising the risks to compliance with the constitutional requirements regarding criminal proceedings that are associated with plea agreements. The rules on transparency of the events leading to a plea agreement in the public trial hearing, their documentation and the possibility of effective review by the appellate court are core aspects of the legislative concept.

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(3) A violation of the transparency and documentation requirements therefore generally leads to the unlawfulness of a plea agreement. If the court proceeds with such an unlawful plea agreement, then an error in the judgment due to this violation of the law generally cannot be ruled out, given that the plea agreement on which the judgment is based is itself tainted with error. This interpretation is in line with the function of these requirements in the legislative concept underlying the Plea Agreements Act. The fact that violations of the procedural safeguards for plea agreements are not absolute grounds for appeal on points of law [under § 338 of the Code of Criminal Procedure] does not preclude an interpretation of § 337(1) of the Code of Criminal Procedure according to which the appellate court will only be able in exceptional cases to rule out the possibility that the violation of transparency and documentation requirements – which, according to the legislative intent, are core elements of the concept of protection underlying the Plea Agreements Act – has affected the judgment (regarding violations of § 258(2) and (3) Code of Criminal Procedure cf. BGHSt 21, 288 <290>; 22, 278 <280 f.>).

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(4) If no plea agreement is reached and the statement required by § 243(4) first sentence of the Code of Criminal Procedure regarding such discussions (cf. Federal Court of Justice, Order of 5 October 2010 - 3 StR 287/10 -, wistra 2011, p. 72 f. = StV 2011, p. 72 f.) is not made, or if it is not noted in the record whether a plea agreement was discussed as required by § 273(1a) third sentence of the Code of Criminal Procedure, then given the purpose and legislative concept of protection, it likewise generally cannot be ruled out that the judgment is based on a violation of § 257c of the Code of Criminal Procedure ([…]), unless there are exceptional reasons for the absence of any doubt that there have been no discussions on the possibility of a plea agreement at all ([…]). If there has been a violation of the transparency and documentation requirements, it cannot be clearly ruled out in most cases that the judgment is based on an unlawful ‘informal’ plea agreement or other discussions to this effect.

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e) While it follows from § 257c(4) of the Code of Criminal Procedure that the court is (only) generally bound by a plea agreement that complies with the legal requirements, the provision also provides that the court is no longer bound by a plea agreement if the court finds, after agreeing to the plea agreement, that the sentencing range envisaged in accordance with § 257c(3) second sentence of the Code of Criminal Procedure is not (or no longer) commensurate with the offence and the offender’s culpability. § 257c(4) of the Code of Criminal Procedure thus reflects the legislator’s intent to refrain from encroaching on the court’s independent assessment. The prohibition on the use of evidence in § 257c(4) third sentence of the Code of Criminal Procedure is a rule that serves to protect defendants who make a confession with the expectation that the plea agreement will be respected and thus do not exercise their right to remain silent, thereby providing a basis for their conviction. Finally, § 257c(5) of the Code of Criminal Procedure provides that the defendant must be instructed as to the preconditions and consequences of a deviation by the court from the envisaged outcome. This provision serves to allow the defendant to make an autonomous decision regarding the risk associated with participation in a plea agreement. The legislator wanted to thereby ensure the fairness of the plea agreement procedure and provide wide-ranging protection for the autonomy of the defendant – as confirmed by its reference to the aim of allowing the defendant to make an autonomous decision (cf. the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 15). The prospect that the court will set a binding maximum penalty in the context of the plea agreement and that the defendant can thus influence the outcome of the proceedings means that the defendant is faced with particular incentives and temptations. This poses a risk to the right not to incriminate oneself, which is addressed by the requirement to instruct defendants as to their rights in accordance with § 257c(5) of the Code of Criminal Procedure. If the obligation to instruct defendants as to their rights has been violated, it therefore must be assumed in the appellate proceedings that the confession, and thus the judgment, is based on failure to instruct the defendant. This assumption can only be rebutted if it can be found that the defendant would also have made the confession if they had been properly instructed (regarding a violation of § 136(1) second sentence Code of Criminal Procedure, which is of similar significance for the right not to incriminate oneself, cf. BGHSt 38, 214 <226 f.>). This is the only way to ensure that the protection afforded by the obligation to instruct has the desired effect.

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2. The Plea Agreements Act is compatible with the Basic Law. The Basic Law does not, from the outset, rule out plea agreements in criminal proceedings (see a) below). The legislator has put in place sufficient safeguards to guarantee that plea agreements remain within the limits of the constitutional requirements applicable to criminal proceedings (see b) below).

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a) While plea agreements in criminal proceedings affect the constitutional requirements for criminal proceedings (see aa) below), the legislator is not precluded from allowing plea agreements if it provides for the necessary safeguards to ensure their constitutionality (see bb) below).

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aa) Criminal proceedings must give effect to the principle of culpability; they also must not depart from the goals pursued thereby – that the truth be investigated to the greatest possible extent and that an independent and neutral court assess the facts and the law. The best possible investigation of the true facts and the correct application of the substantive law to the facts of the case are based on the premise that the court does not pursue its own interests with regard to the outcome of the proceedings, which would go beyond the objectives of the proceedings, and that the court is bound by law and justice (Art. 20(3) of the Basic Law). The requirement that punishment be commensurate with culpability, including in the individual case, gives effect to the mandate of equality before the law as one of the fundamental premises of justice. Differing degrees of culpability provide legitimation for differentiated legal consequences, thereby ensuring the necessary equal treatment of defendants in criminal proceedings.

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(1) The constitutional principle of culpability is not subject to legislative discretion (cf. BVerfGE 123, 267 <413>). This does not preclude allowing law enforcement authorities the possibility to refrain from prosecuting someone, namely in cases of minor crime in which the peaceful legal order is not seriously affected and criminal punishment is not required to offset culpable behaviour, such that there is no public interest in a conviction or such interest can be met by ensuring compliance with the fulfilment of certain conditions and/or instructions. Such exceptions must not call into question the validity of the principle of culpability and always require a statutory provision, such as the one created by the legislator in §§ 153 ff. of the Code of Criminal Procedure. As exceptions from the constitutional duty of the state to assert its power to punish crime, they must be clearly delimited and require separate legitimation (regarding the restrictions of the investigation of the facts cf. BVerfGE 33, 367 <382 f.>; 46, 214 <222 f.>; 49, 24 <54>; 51, 324 <344>; 129, 208 <260>; Federal Constitutional Court, Order of the First Chamber of the First Senate of 22 August 2000 - 1 BvR 77/96 -, NStZ 2001, p. 43 <44>).

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(2) The obligation to investigate the truth to the greatest possible extent is an essential element of the principle of culpability; as such, it is not subject to legislative discretion. It is the defining aim from which criminal proceedings must not stray. However, it is for the legislator to determine in what ways and by what means it ensures that the principle of culpability is given effect. For uncomplicated cases with clear facts – such as a defendant caught in the act or a confession made during the investigation that is consistent with the results of the investigation – the legislator is not precluded from creating a simplified procedure for the judicial assessment regarding the guilt or innocence of the defendant and the consequences thereof without requiring a public trial hearing and the formal taking of evidence, as provided for in § 407(1) and (2) of the Code of Criminal Procedure for summary penal order proceedings, provided that such simplified procedures adhere to the principles of the rule of law ([…]). If the documents and evidence in the files enable the judge to make an assessment regarding the correctness of the facts underlying the charges against the defendant, it is not constitutionally required to conduct a public trial hearing in order to obtain a sound basis for the guilty verdict, the legal assessment or the sentencing, provided that the defendant has the power to compel the court to conduct a public trial hearing by making a simple declaration (cf. BVerfGE 25, 158 <164 f.>; Federal Constitutional Court, Orders of the Third Chamber of the Second Senate of 14 February 1995 ‑ 2 BvR 1950/94 -, NJW 1995, p. 2545 <2546> and of 4 July 2002 - 2 BvR 2168/00 -, NJW 2002, p. 3534 with further references).

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(3) However, the principle of culpability rooted in the Basic Law and the corresponding obligation to investigate the truth, the requirement of a fair trial in accordance with the rule of law, the presumption of innocence and the courts’ obligation of neutrality prohibit leaving the investigation of the truth, the application of the law to the case and sentencing principles to the free discretion of the parties to the proceedings and the court. The court may not freely decide whether to comply with the obligation to investigate the truth and whether to depart from the requirement of punishment that is commensurate with culpability by concluding contract-like agreements with the parties. The court and the public prosecution office are precluded from agreeing to a ‘settlement’ in the form of a judgment, they may not take part in ‘the commodification of justice’ (cf. Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 27 January 1987 - 2 BvR 1133/86 -, NJW 1987, S. 2662 <2663>), nor may they arrange for a specific verdict or specific punishment in collaboration with the defendant. The bodies applying the law in practice may not shape criminal proceedings set out by the legislator in a way that gives rise to such transactional forms of handling cases.

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On the other hand, the Basic Law does not preclude non-binding discussions of the facts and the law between the court and the parties. An open and communicative manner of conducting proceedings can be conducive to the process and is therefore a natural requirement of the proper conduct of proceedings today. For example, legal discussions with the aim of reaching a plea agreement and informing defendants about the preliminary assessment of the evidence or the mitigating effect of a confession do not raise constitutional concerns. In particular, such communications during the proceedings do not call into question the court’s impartiality, provided that they remain transparent and do not exclude any party.

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bb) Plea agreements between the court and the parties to the proceedings as to the status and outcome of the trial hearing, which promise the defendant a maximum penalty in case of a confession and envisage a minimum penalty, risk not fully complying with constitutional requirements. Nevertheless, the legislator is not per se prohibited from allowing plea agreements to simplify proceedings. However, it must provide for sufficient safeguards to ensure compliance with constitutional requirements and must monitor their effectiveness on an ongoing basis. If such monitoring reveals that the safeguards are incomplete or unsuitable, the legislator must remedy these shortcomings and, where necessary, reverse its decision in favour of plea agreements in criminal proceedings. (cf. BVerfGE 110, 141 <158> with further references).

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b) The Plea Agreements Act sufficiently guarantees compliance with the constitutional requirements.

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aa) Pursuant to § 257c(2) first sentence of the Code of Criminal Procedure, the subject matter of a plea agreement is limited to the legal consequences which could form part of the judgment and of the associated court orders, other procedural measures relating to the course of the underlying adjudication proceedings and the conduct of the parties during the proceedings. Plea agreements that concern the guilty verdict and measures of reform and prevention [such as psychiatric confinement] are prohibited by 257c(2) third sentence of the Code of Criminal Procedure. § 257c(3) second sentence of the Code of Criminal Procedure allows the court to indicate a maximum and minimum penalty when announcing the possible content of a plea agreement while freely assessing all circumstances of the case and the general sentencing considerations; however, this does not mean that the Plea Agreements Act releases the court from its obligation to observe the sentencing rules. The legal framework thus not only effectively rules out plea agreements concerning the guilty verdict, as required by the principle of culpability, it also ensures that the sentencing principles that follow from the requirement that punishment be commensurate with culpability are not left to the discretion of the participants. The court is not allowed to replace the assessments of the legislator with its own by way of a plea agreement. In this regard, it must be noted that the statutory sentencing ranges are of great importance, as they express the gradations of different offences based on the degree of injustice done, with differentiated punishments depending on the offence in question and the associated penalty (cf. BVerfGE 27, 18 <29>). The constituent elements and the legal consequences are interrelated and must be duly reconciled based on the idea of justice. On the one hand, the punishment imposed is informed by the normative value of the legal interest violated and the offender’s culpability. On the other hand, the severity of an offence – the degree of injustice accorded to it by the legislator’s binding assessment – can typically only be derived from the penalty. The penalty is therefore significant for categorising, assessing and interpreting the constituent elements of an offence (BVerfGE 25, 269 <286>; 27, 18 <29>). The gradations of punishment under criminal law can only be understood and justified when considered in a differentiated assessment of the degree of injustice associated with different offences (BVerfGE 27, 18 <29>). Within a certain type of offence, the differentiated assessment of the degree of injustice is primarily reflected in the aggravating and mitigating elements. However, the special sentencing ranges for particularly serious and less serious cases are also part of this gradation, even though they constitute sentencing rules according to prevailing opinion ([…]). The legislator is not precluded from using this legislative technique (cf. Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 14, 177 <182>). Yet when the legislator, in introducing such special sentencing ranges, has expressed that it considers differentiation with regard to the penalties to be necessary, this assessment is binding on the bodies applying the law.

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bb) The Plea Agreements Act is also in line with the principle of culpability insofar as it prohibits shortening the proceedings at the cost of investigating the truth. As set out above, the possibility of reaching a plea agreement does not release the court from its obligation to investigate the facts of the case ex officio. A confession must not become a ‘tradeable commodity’; it can only be accepted as the basis for the promise of a maximum penalty when it can be reviewed – either in and of itself or through questioning. A confession made in connection with the promise of a maximum penalty in the trial hearing, which forms the basis of the judicial assessment regarding the defendant’s guilt or innocence and the consequences thereof, must be reviewed as to its truthfulness, given that such promises can prompt the defendant to make a (partially) false confession.

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cc) In establishing a rule that the court ceases to be bound by a plea agreement [under certain conditions] (§ 257c(4) Code of Criminal Procedure), the legislator has also specified the limits to the court’s obligation to honour the promises made. These limits derive from the principle of culpability, the court’s obligation to investigate the truth and its obligation of neutrality and the presumption of innocence. It is thereby ensured that a plea agreement ceases to be binding if it turns out in the course of the trial hearing that the envisaged sentencing range is no longer appropriate to the severity of the offence or the offender’s culpability.

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dd) The Plea Agreements Act also meets the requirement, rooted in the principle of procedural fairness, that the defendant be able to decide autonomously whether to give up the protection of the right not to incriminate themselves, agree to a plea agreement and forfeit their right to remain silent. Criminal procedural law generally gives effect to the interest in safeguarding the defendant’s freedom to make decisions at all stages of the proceedings. For example, the obligation to instruct the defendant about their rights and the freedom [of the defendant] to form and express their will are laid down in the general provisions of §§ 136 and 136a of the Code of Criminal Procedure and – as a further example – with regard to the investigation in § 163a(4) second sentence of the Code of Criminal Procedure and the trial hearing in § 243(5) first sentence of the Code of Criminal Procedure. Given that these safeguards apply even with regard to the general decision of whether and in what manner to testify, they are all the more important when it comes to the matter of whether to plead guilty, especially in view of the incentives and temptations the defendant is faced with in the context of a plea agreement (cf. B. II. 1. e) above). In light of this, the instruction provided for in § 257c(5) of the Code of Criminal Procedure about the scope of the binding effects of a plea agreement and the consequences if a plea agreement fails is of particular significance, which must also be taken into account in any appellate proceedings.

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It is equally significant that the right not to incriminate oneself bars the court from offering the defendant the prospect of mitigating the punishment following a confession when such mitigation departs from the principle of punishment commensurate with culpability. As a result, the defendant must not be pressured to make a confession by the promise of a benefit that is not provided for by law, nor by deception or threats. This is already reflected in § 136a of the Code of Criminal Procedure (cf. Federal Constitutional Court, Preliminary Examination Committee, Order of 19 October 1983 - 2 BvR 859/83 -, NStZ 1984, p. 82; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 27 January 1987 - 2 BvR 1133/86 -, NJW 1987, p. 2662 <2663>). This protection applies all the more for a defendant whose confession in the trial hearing determines the outcome of the proceedings.

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ee) The Plea Agreements Act contains comprehensive safeguards to ensure that the decisive events leading to a plea agreement are integrated into the trial hearing and are documented, and it provides the public prosecution office with means to ensure that rule-of-law standards are observed by making plea agreements contingent upon the consent of the public prosecution office; this is complemented by effective review through legal remedies (cf. B. II. 1. d) above). The legislator thereby addresses the risk of a shift in the motivation of the court that is associated with the possibility of shortening proceedings by means of a plea agreement and takes into account the incentive of the defendant to make a (partially) false confession that results from the promise of a substantial mitigation of the sentence if they confess. It also counters the risk that the court, the public prosecution office and the defence could pursue the same interests to the detriment of the defendant. These procedural safeguards, at least in their combined effect, give rise to the expectation that the risks for the rule of law posed by plea agreements will be controlled. There is no need to decide here whether any specific safeguard is indispensable under constitutional law as long as a sufficient level of protection is guaranteed.

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ff) Finally, the legislator has decided unequivocally that ‘informal’ agreements relating to the criminal court judgment are impermissible. According to § 257c(1) of the Code of Criminal Procedure, plea agreements regarding the further course and outcome of the proceedings are only permissible in accordance with the subsequent subsections in that provision. Intransparent and unregulated ‘deals’ that cannot be reviewed are constitutionally prohibited in criminal proceedings, since they risk running counter to the principle of culpability, the obligation to investigate the truth arising therefrom, and the principle of a fair trial inherent in the principle of the rule of law; the legislator clearly has rejected such practices.

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3. While the deficiencies in the implementation of the Plea Agreements Act are considerable, they do not currently result in it being unconstitutional.

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a) It is true that the representative empirical study by Prof. Dr. Altenhainer, the statements made by the experts in the oral hearing, the written statements on the constitutional complaints and the existing case-law of the highest courts demonstrate that the statutory requirements in a large number of cases are disregarded by the courts, the public prosecution office and the defence, and that the appellate courts have not always sufficiently fulfilled their assigned task of reviewing the practice of plea agreements. However, it cannot yet be concluded from this empirical finding that the safeguards laid down in the legal framework to guarantee adherence to the constitutional requirements have failed as a result of its design, which would lead to it being declared unconstitutional.

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b) A legal provision that is on its own is unobjectionable, but results in violation of constitutional law when applied only amounts to a violation of the Basic Law when the unconstitutional practice is attributable to the provision itself, i.e. if it is a structural regulatory deficit that leads to this practice. The fact that the legislator has allowed plea agreements resulting in judgments which may pose a risk to the realisation of the principle of culpability due to their basic structure cannot be considered such a deficit here. Such a view would disregard the fact that the legislator made such plea agreements contingent on comprehensive supplementary safeguards that are designed to ensure adherence to the constitutional requirements for criminal proceedings (cf. also BVerfGE 81, 123 <129 f.>; 83, 24 <31>; 118, 212 <231 f.>). The legislative framework would only be unconstitutional if the safeguards were so fragmentary or otherwise insufficient as to be conducive to ‘informal’ agreements in violation of the Basic Law, i.e. if the deficiencies in the implementation of the legal framework were determined by its structure.

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c) Such a structural regulatory deficit cannot be identified at present. The reasons for the considerable deficiencies in implementation, which are by no means limited to individual cases, are complex; according to current findings, they are not due to a gap in protection in the legal framework. The legal framework has been faced with conditions marked by an increasing degree of complexity, a constant expansion of substantive criminal law and ever more differentiated requirements for the conduct of criminal proceedings, and had the difficult task of bringing to order a practice that had developed over the course of three decades and had already taken hold. Compared with the long-standing and increasingly widespread practice of plea agreements that were not provided for by statutory law – as is also reflected in the case-law of the Federal Court of Justice – the period in which the statutory safeguards have applied has been very short, which indicates that the implementation of the strictly circumscribed and formalised form of statutory plea agreements in line with the legislative framework has not been concluded; in particular, the great importance of the safeguards provided therein has not been fully internalised in legal practice. This is supported by the fact that there are statements in legal scholarship that can be understood to mean that the legal framework is not exhaustive and that the safeguards, in particular those in § 273(1a) and § 302(1) second sentence of the Code of Criminal Procedure, do not apply to ‘informal’ practices outside of the scope of § 257c of the Code of Criminal Procedure ([…]). There is also the not infrequent assessment of the safeguards as ‘impractical’, which disregards the fact that ensuring adherence to the constitutional requirements is one of the key tasks of criminal procedural law. This view fails to recognise that in the state under the rule of law as laid down in the Basic Law, the law determines practice and not the other way around.

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d) Neither the results of the empirical study nor the statements made in the constitutional complaint proceedings compel the assumption that structural shortcomings of the legislative framework are the cause of the deficiencies in its implementation. Rather, the empirical study identifies a ‘lack of practicality’ as the primary reason for disregard of the provisions. Elements that are frequently considered to be impractical are the limitation of the permissible content of plea agreements, the transparency and documentation requirements – especially the requirement in § 273(1a) third sentence of the Code of Criminal Procedure to note in the record whether a plea agreement was discussed – and the prohibition to waive the right to appeal. These are precisely the rules that are designed to ensure adherence to the constitutional requirements. In the study, many defence lawyers stated that the legal framework ran counter to the ‘nature of the deal’, which is informal. This suggests insufficient awareness that the Plea Agreements Act does not permit any agreement that does not comply with its requirements. Therefore, the results of the empirical study do not support the assumption that structural shortcomings are rooted in the legislative framework. Rather, they indicate that there are misunderstandings driven by vested interests and efforts to circumvent the legal framework due to the perceived impracticality of its safeguards.

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4. Although the current deficiencies in the implementation of the Plea Agreements Act do not lead to it being unconstitutional, the legislator must carefully consider further developments. If the judicial practice continues to disregard considerable parts of the legal framework and if the substantive and procedural safeguards are insufficient to remedy the established deficiencies in implementation and thereby fail to satisfy the constitutional requirements applicable to plea agreements in criminal proceedings, the legislator must take suitable measures to counteract these problems (regarding the legislator’s duty to monitor and revise or adjust statutes cf. BVerfGE 25, 1 <12 f.>; 49, 89 <130>; 95, 267 <314>; 110, 141 <158, 166>; Federal Constitutional Court, Order of the Third Chamber of the First Senate of 24 November 2009 ‑ 1 BvR 213/08 -, Gewerblicher Rechtsschutz und Urheberrecht – GRUR 2010, p. 332 <334>; Order of the Second Chamber of the First Senate of 27 January 2011 - 1 BvR 3222/09 -, NJW 2011, p. 1578 <1582>). If the legislator then fails to do so, the legal framework would become unconstitutional.

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5. In the light of the interpretation of ordinary law underlying this decision, the Plea Agreements Act does not allow any practices in criminal proceedings that run counter to the constitutional requirements. The provisions of the Plea Agreements Act are therefore not declared to be incompatible with the Basic Law, nor is there any reason to limit them by way of an interpretation in conformity with the Constitution. § 79 of the Federal Constitutional Court Act therefore does not apply here.

III.

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The challenged court decisions are incompatible with the constitutional requirements regarding plea agreements in criminal proceedings.

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1. The decisions of the Munich II Regional Court and of the Federal Court of Justice challenged by the complainants in proceedings I. and II. violate the complainants’ right to a fair trial in accordance with the rule of law and are incompatible with their right not to incriminate themselves (Art. 2(1) in conjunction with Art. 20(3) of the Basic Law). Following the failure to instruct the defendant about the conditions under which the court would cease to be bound by a plea agreement and the consequences therefrom (§ 257c(5) Code of Criminal Procedure), the Federal Court of Justice, when reviewing whether the judgments of the Munich II Regional Court were based on this violation of the law, failed to recognise the fundamental significance of the obligation to instruct pursuant to § 257c(5) of the Code of Criminal Procedure for the right to a fair trial and the right not to incriminate oneself.

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a) A plea agreement is generally only compatible with the right to a fair trial if the defendant has been instructed, before the plea agreement is concluded, that the court is only bound by it under certain conditions. This obligation to instruct does not lose its significance, much less become obsolete, because a confession made as a result of a plea agreement may not be used when the court ceases to be bound by the plea agreement under § 257c(4) third sentence of the Code of Criminal Procedure. This is because the obligation to instruct the defendant serves to ensure that the defendant is fully informed about the implications of their participation in a plea agreement, of which a confession is an integral part, before entering into such an agreement (cf. also the explanatory memorandum to the Federal Government’s Draft Act, BTDrucks 16/12310, p. 15). This is the only way to ensure that the defendant can decide autonomously whether to (continue to) make use of their right to remain silent or whether they wish to agree to a plea agreement.

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It is true that the defendant must decide whether and, if so, how they will testify, the possibility of a plea agreement notwithstanding. However, the prospect of a plea agreement creates a procedural situation in which the defendant can actively influence the outcome of the proceedings through their conduct. Unlike in a conventional trial hearing, the defendant can, by means of a confession, obtain a promise from the court regarding a maximum penalty that is in principle binding, and thus achieve certainty regarding the outcome of the proceedings. Thus, from the defendant’s perspective, they can only exercise their right not to incriminate themselves if they relinquish the opportunity to reach a plea agreement that is binding on the court and thereby a (supposedly) certain maximum penalty. The expectation that the court will be bound by the plea agreement is the reason and basis for the defendant’s decision to cooperate in the proceedings. It creates significantly more powerful incentives and temptations than is the case, for example, in the scenarios of § 136(1) or § 243(5) first sentence of the Code of Criminal Procedure, in which no maximum penalty is at issue. The defendant therefore needs to know that the binding effect is not absolute, but that the court may instead cease to be bound by the plea agreement under certain conditions – which the defendant must likewise be informed about. This is the only way for the defendant to autonomously assess the implications and risks of a plea agreement. The obligation to instruct laid down in § 257c(5) of the Code of Criminal Procedure is therefore no mere formal rule, but a central safeguard of the principle of a fair trial and the right not to incriminate oneself under the rule of law.

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b) The decisions of the Federal Court of Justice fail to recognise this special function of § 257c(5) of the Code of Criminal Procedure. A plea agreement concluded without first instructing the defendant in accordance with this provision in principle violates their right to a fair trial and their right not to incriminate oneself. If the plea agreement concluded in breach of the obligation to instruct remains in effect and the confession made on the basis of this agreement is incorporated into the judgment, this is affected by the fundamental rights violation resulting from the breach, unless it can be ruled out that the failure to instruct the defendant led to the confession because the defendant would also have made the confession even if they had been properly instructed. The appellate court must establish specific findings in this regard. To the extent that the Federal Court of Justice argues in both cases that the court did not cease to be bound by the plea agreement under § 257c(4) of the Code of Criminal Procedure, this does not help answer the question of whether the judgments are based on a violation of the autonomy of the defendant precisely because of the use of confessions made following a breach of the obligation to instruct. With regard to the complainants in proceedings II., the Federal Court of Justice also found that the judgment was not based on a violation of § 257c(5) of the Code of Criminal Procedure given that the defendants had failed to state specific reasons relating to the case that would indicate that the challenged procedural error could have affected the defendants’ conduct in the proceedings, nor were such reasons otherwise ascertainable. In so doing, the Federal Court of Justice fails to recognise the fundamental significance of § 257c(5) of the Code of Criminal Procedure for the principle of a fair trial and the right not to incriminate oneself. It cannot be ruled out that the Federal Court of Justice would have reached a different decision in both cases if it had applied the standards discussed above. Therefore, the challenged decisions of the Federal Court of Justice must be reversed and the matters are remanded to the Federal Court of Justice.

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2. The decisions of the Berlin Regional Court and of the Federal Court of Justice challenged by the complainant in proceedings III. violate the complainant’s fundamental rights under Art. 1(1) and Art. 2(1) in conjunction with Art. 20(3) of the Basic Law.

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a) The judgment of the Berlin Regional Court violates the constitutional principle of culpability and its associated obligation to investigate the truth to the greatest possible extent because the Regional Court accepted a mere formal confession given while largely refusing to answer questions as the basis for a conviction, without examining its truthfulness in the trial hearing. In order to do so, it would have had to take evidence with the aim to make the defendant independently substantiate the confession. Here, the only ascertainable examination by the court was a question as to whether the defendants had carried their service weapons during the offences and whether these had been loaded, which was answered. A confession that merely refers to the indictment is not a suitable basis for a plea agreement, as there is no basis for assessing its credibility (§ 257c(1) second sentence in conjunction with § 244(2) Code of Criminal Procedure). Furthermore, the challenged judgment is based on a plea agreement that impermissibly puts the guilty verdict at the court’s discretion by linking a guilty plea ‘to the charges of the indictment’ with a waiver of applications to take evidence ‘on the defendant’s culpability’ and also involves a change in the sentencing range. Therefore, the judgment amounts to a ‘commodification of justice’, which is prohibited under the Basic Law.

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Moreover, this ‘commodification of justice’ is based on an infringement of the complainant’s right not to incriminate himself, which is unacceptable under constitutional law. It is irrelevant whether, in the event of a conviction without a prior plea agreement, the minimum penalty envisaged for each of the serious robbery offences the defendant was charged with was three years – according to the official statement of the presiding judge of the criminal chamber in the appellate proceedings – or whether an aggregate prison sentence of four years was considered, as submitted by the complainant. What is decisive is the gap between the promised maximum penalty in the event of a plea agreement on the one hand and, on the other hand, the sentence to be expected if the defendant were convicted in a conventional trial hearing; this gap cannot be justified in light of the requirement that punishment be commensurate with culpability. Admittedly, the question of when an infringement of the right not to incriminate oneself becomes unconstitutional cannot be precisely calculated in mathematical terms. In the present case, however, this point was clearly exceeded, given that the gap between the two penalties is excessive on its own, as well as the fact that the defendant was offered the prospect of suspending the sentence on probation, which was only possible due to the promised change in the sentencing range to a less serious case (§ 250(3) Criminal Code).

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b) For these reasons, the judgment of the Berlin Regional Court must be reversed; the same applies to the decision of the Federal Court of Justice, which perpetuated the fundamental rights violation. The matter is remanded to the Berlin Regional Court.

C.

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