THE PLEA AGREEMENT — A NEW WAY OF NEGOTIATED JUSTICE IN THE EUROPEAN JUDICIARIES
AbstractThe aim of this article is to emphasize the main features of the Plea Agreement procedure in the European traditional systems, common law and civil law, as well as the features of this concept as it has been implemented into the proceedings of some European countries and, accordingly, to analyse the reasons for which, the expertise of these already implemented procedures might be a pathway to solve many shortcomings of the national jurisdictions.
See, G. Fisher, â€œPlea Bargainingâ€™s Triumphâ€, Yale Law Journal (YLJ) 109, (2000),
See, for example, the German Code of Criminal Procedure, Section no. 152, paragraph (2): â€œExcept as otherwise provided by law, the public prosecution office shall be obliged to take action in the case of all criminal offenses which may be prosecuted, provided there are sufficient factual indicationsâ€, available on http://legislationline.org/download/action/download/id/3235/file/Germany_CC_1971_amended_2009_en.pdf
See, M. Damaška, â€˜Negotiated Justice in International Criminal Courtsâ€™, in Journal of International Criminal Justice (JICJ), 2 (2004), Oxford University Press, 2004, See M. Yant â€˜Presumed Guilty: When Innocent People Are Wrongly Convictedâ€™ (1991), Prometheus Books, New York,
See, Code for the Crown Prosecutors, Selection of charges: 6.1 Prosecutors should select charges which: a. reflect the seriousness and extent of the offending supported by the evidence; b. give the court adequate powers to sentence and impose appropriate post-conviction orders; c. enable the case to be presented in a clear and simple way. 6.2 This means that prosecutors may not always choose or continue with the most serious charge where there is a choice. 6.3 Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one. 6.4 Prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard. 6.5 Prosecutors must take account of any relevant change in circumstances as the case progresses after charge. Available on http://www.cps.gov.uk/publications/code_for_crown_prosecutors/charges.html
See, M. Damaška, supra note 3,See, F. Tulkens, â€™Negotiated Justiceâ€™, in M. Delmas-Marty, J.R. Spenser, European Criminal Procedures, Cambridge University Press, Cambridge (2002),
See, A. Alschuler, W. â€˜Plea Bargaining and Its Historyâ€™ in Colombia Law Review 79 (1), (1979)
At the moment of its adoption in 2004, the Article 495-7 of the French Criminal Procedure Code provided a limit of punishment of 5 years imprisonment for the crimes which could be a subject of plea agreement. The Article 495-7 has been amended on 13 December 2011 and the limit of punishment has been removed excepting the cases of intentional or unintentional, physical or sexual assault for which, some limits of punishments still remained.
See, â€˜Les chiffres clÃ©s de la Justice - 2012â€™, MinistÃ¨re de la Justice, SecrÃ©tariat general, Service support et moyens du ministÃ¨re sous-direction de la Statistique et des Ã‰tudes 13, place VendÃ´me - 75 042 Paris Cedex 01, available on http://www.justice.gouv.fr/art_pix/chiffres_cles_2012_20121108.pdf
See, Borasi, Ivan, Il patteggiamento. Approcio di sistema alle implicazioni procesuali, Altalex Editore, Ebook format, chapters I-II
See, G. Lattanzi, E. Lupo, â€˜Codice di Procedura Penaleâ€™, Vol. VI, GiuffrÃ©, Milano, 1997,
See, B. Schüneman, â€˜Wohin treibt der deutsche Strafprozessâ€™ in Zeitschrift für die gesamte Strafrechtswissenschaft, 114 (2002), p. 570. Paradoxically, in spite of the fact the author Bernard Schüneman is one of the most bitter opponent of introducing plea agreement into the German legislation, he had to admit in his research that 91 per cent of the judges, 90 per cent of the prosecutors, and 53 per cent of the defence lawyers expressed a preference for informal agreements rather than trial in cases involving evidential difficulty.
See, the Criminal Procedure Code of Poland, Act of 6 June 1997, Article 387 para. 1-5, (English version) available on http://legislationline.org/download/action/download/id/4172/file/Polish% 20CPC%201997am% 202003 en.pdf
See, the new Criminal Procedure Code of Romania as adopted by the Law no.135/2010, published in the Official Monitor of Romania no. 486 of July 15, 2010 and modified by the Law no. 255/2013 published in the Official Monitor of Romania no. 515 of August 14, 2013, Articles 478-488.
See, the Criminal Procedure Code of Estonia, passed on 12.02.2003 published in the Riigi Teataja I 2003, 27, 166 entered into force on 01.07.2004, Articles 233- 238, (English version) available on http://legislationline .org/download/action/ download/id/4709/file /Estonia_CPC_am2013_en.pdf
See, Alkon, C, â€˜Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?â€™ in Transnational Law & Contemporary Problems, a Journal of University of Iowa College of Law, vol. 19, Spring 2010.