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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 26 August 2014, 2 BvR 2172/13 [CODICES]
Abstract
Second Chamber of the Second Senate
Order of 26 August 2014
2 BvR 2172/13

Headnotes (non-official):

The first sentence of § 243.4 of the Code of Criminal Procedure contains the duty to disclose the fact that there had been no talks about a potential plea bargain (Negativmitteilungspflicht).

Summary:

I.
The appellant was sentenced by a Regional Court to four years and nine months in prison. He appealed this decision, claiming, inter alia, a violation of the first sentence of § 243.4 of the Code of Criminal Procedure (hereinafter: “the Code”), because the court had failed to disclose during the proceedings whether and if so, what kind of preliminary discussions the parties to the proceedings had engaged in. The Federal Court of Justice rejected the appeal as unfounded.

II.
The Federal Constitutional Court decided that the applicant’s constitutional complaint was well-founded, because the Federal Court of Justice’s judgment violated the constitutional prohibition of arbitrariness (Article 3.1 of the Basic Law). The decision is based on the following considerations:

Only in exceptional cases can the Federal Constitutional Court intervene against decisions by the regular courts because of a violation of the prohibition of arbitrariness. A judgment is only arbitrary if the application of the law or the procedure is under no conceivable aspect legally defensible and thus begs the conclusion that the decision was based on irrelevant considerations. The finding of arbitrariness does not contain a subjective allocation of blame. Arbitrariness rather needs to be understood objectively.

The challenged decision is based on an interpretation of the first sentence of § 243.4 of the Code according to which no disclosure is necessary if there had been no talks that aimed at a plea bargain. This interpretation violates in an indefensible and thus objectively arbitrary way the clear intention of the legislator, as identified inter alia in the Federal Constitutional Court’s judgment of 19 March 2013. While at first sight, the wording of this provision is ambiguous, a closer look at the whole provision, its context, history, object and purpose clearly shows that there is indeed a duty to disclose the fact that there had been no talks about a potential plea bargain (Negativmitteilungspflicht). This interpretation is also in accordance with the view of the Second Senate of the Federal Constitutional Court.

Languages available

Additional Information

ECLI:DE:BVerfG:2014:rk20140826.2bvr217213

Please note that only the German version is authoritative. Translations are generally abriged.