Agreements in Criminal Proceedings
Agreements in criminal proceedings, also referred to as “arrangements” or “deals in criminal proceedings”, are understandings between the parties involved in the proceedings—particularly between the court, the public prosecutor, and the defense—regarding the outcome of the trial and the conduct of the proceedings. Over the past decades, they have increasingly gained importance in German criminal procedure and are primarily regulated by Section 257c of the Code of Criminal Procedure (StPO).
Definition and Nature of Agreements
Agreements in criminal proceedings refer to arrangements concerning the further course or the outcome of an ongoing criminal trial. The main purpose of such an agreement is often to make the process more efficient, to create predictability, and to make the outcome of the trial more foreseeable for the parties involved. Typically, within the framework of such an agreement, the defendant is promised a certain sanction or a specific trial outcome if, in return, for example, they plead guilty or waive legal remedies.
Legal Foundations
Provisions in the Code of Criminal Procedure
In 2009, a statutory framework was established by the Law Regulating Understandings in Criminal Proceedings. Since then, Section 257c StPO has been the central provision for agreements in criminal proceedings. These regulations are supplemented by Section 257b StPO (reference to possible understandings), Sections 273 and 302 StPO as well as the rules on appeals.
According to Section 257c (1) StPO, the court may, at the suggestion of the parties or ex officio, reach an understanding regarding the outcome of the proceedings under certain conditions. The provision stipulates that an understanding may only relate to the actual course and legal consequences of the proceedings. Agreements about the finding of guilt, specific elements of the offense, or the application of criminal law remain inadmissible.
Requirements and Limits
The following principles apply to understandings pursuant to Section 257c StPO:
- An understanding regarding culpable acts or their legal classification is excluded.
- The essential procedural principles (in particular the legality principle and the principle of a fair trial) may not be circumvented.
- Decisions on enforcement measures, ancillary penalties, or the allocation of costs are not negotiable.
- A confession may be part of the agreement but must be substantively reviewed.
Another central point is that an understanding primarily concerns sentencing expectations and merely sets a framework. Judicial independence and assessment of each individual case remain preserved.
Course and Effectiveness of the Agreement
Procedure for Reaching an Understanding
During the main hearing, the court, the public prosecutor, and the defense may raise the possibility of reaching an understanding. The court must inform the parties of this possibility, and an explicit instruction is required. If an agreement is reached, its essential content and underlying considerations must be recorded in the minutes (§ 273 (1a) StPO).
All essential arrangements must be precisely documented in the main hearing minutes to ensure transparency and verifiability.
Effectiveness and Contestability
An agreement remains effective as long as the underlying conditions do not lapse. If the defendant does not fulfill their obligation—for example, by failing to make a complete confession—the binding effect for the court ceases. Likewise, the court may deviate from the agreement if the actual grounds of the arrangement turn out to be incorrect or legal reasons prevent its adherence.
In any case, the court must form its judicial conviction independently and is only bound by the understanding within the limits of what is legally permissible.
Transparency and Safeguard Provisions
To prevent abuse and lack of transparency, understandings are subject to strict documentation requirements. Every attempt to reach an understanding must be reported in the main hearing. The defendant must be informed about the legal consequences, in particular the possibility of appeal. Violations of these duties can lead to the judgment being unlawful and to procedural errors in appellate review.
Criticism and Limits in Jurisdiction and Academia
Despite legal regulations, agreements in criminal proceedings continue to be the subject of critical debate. Main points of criticism include:
- Risk of “coercing” a confession: The prospect of a more lenient sentence could motivate innocent persons to confess.
- Limitation of the ex officio investigation principle: A focus on understandings could jeopardize comprehensive fact-finding.
- Deficits in Transparency: Secret arrangements or informal pre-discussions contradict the principle of public proceedings.
In its judgment of 19 March 2013 (BVerfGE 133, 168), the Federal Constitutional Court emphasized that understandings are permissible only within narrow statutory limits, but that they must not violate fundamental procedural rights such as the search for truth under § 244 (2) StPO or the presumption of innocence.
International Aspects
In other legal systems, arrangements or “plea bargains” are sometimes much broader and are a central part of criminal law practice (especially in Anglo-American legal systems). In contrast, the German model of understanding in criminal proceedings remains more restrictive and more closely tied to the principles of truth-finding and judicial independence.
Conclusion
Agreements in criminal proceedings are an important instrument for streamlining proceedings and relieving the judiciary in German law, but they are subject to detailed statutory requirements and supervision. They must not undermine the constitutional requirements for criminal proceedings and must always serve the search for truth and the protection of the defendant’s procedural rights. The strict legal requirements and the continual supervision by the courts ensure compliance with these constitutionally mandated limits.
Further Reading and Sources:
- Law Regulating Understandings in Criminal Proceedings (BGBl. I 2009, p. 2353)
- BGH, Judgment of 28.08.2014 – 2 StR 656/13
- BVerfG, Judgment of 19.03.2013 – 2 BvR 2628/10
- § 257c StPO – Understanding between the Court and the Parties to the Proceedings
This article provides a comprehensive overview of the term “agreements in criminal proceedings” under German law, taking into account the current legal situation, key case law, as well as existing criticism and international comparisons.
Frequently Asked Questions
What duties of cooperation exist with agreements in criminal proceedings?
Within what are known as understandings (agreements) in criminal proceedings, especially pursuant to § 257c StPO, duties of cooperation exist for both the court and the parties to the proceedings. The court is obliged to fully disclose the essential content of the proposed understanding, including the underlying facts and legal opinions, in the minutes and during the main hearing. The public prosecutor, the defendant, and the defense must each declare their consent or refusal to the proposed agreement. The presence of the defendant and their defense counsel at the hearing concerning the agreement is also mandatory. In addition, all parties are required to present all facts that are essential for the understanding completely and truthfully. If any party, particularly the defendant, violates these cooperation duties—by making untruthful statements, for example—the agreements reached may become invalid and subsequently be revoked. In such cases, the court may later withdraw from the understanding.
What are the consequences of violations of the transparency and documentation obligations in agreements in criminal proceedings?
A violation of the transparency and documentation obligations under § 257c (4), (5), and (6) StPO can have serious procedural consequences. The court is obliged to fully document and discuss in the public main hearing all essential circumstances, content, and the procedure of the agreement, particularly the defendant’s statement and the linked undertakings. If these requirements are breached—due to insufficient or missing documentation, concealment of understanding contents, or informal agreements outside the main hearing—this can constitute an absolute ground for appeal (§ 337 (1) StPO). The typical result is the reversal of the judgment on appeal and remand to a different criminal division or another court. The strict transparency requirements serve to protect the procedural rights of the defendant and ensure that no agreements are made without judicial oversight and without an opportunity for review by the appellate court.
How are the admissibility and content of an agreement in criminal proceedings reviewed?
The admissibility and content of an understanding in criminal proceedings are reviewed at several stages. First, the court checks during the main hearing whether the proposed content of the agreement complies with applicable law (especially § 257c StPO). Agreements on the verdict, guaranteed sentences, or on procedural effects outside the statutory framework—such as promises to discontinue other proceedings or to exclude necessary procedural measures such as pretrial detention—are inadmissible. The content of the understanding is also recorded in the minutes of the main hearing and is thus open to review by appellate courts (appeal, revision). The case law of the Federal Court of Justice (BGH) also sets strict limits for permissible agreements; confessions, in particular, must not be coerced by impermissible means. The review also includes whether the confession was made voluntarily and can be verified in substance.
Can agreements reached be revoked subsequently?
Agreements in criminal proceedings are generally binding but may be revoked under certain conditions. According to § 257c (4) sentence 3 StPO, the court—as well as the other parties—may withdraw from the understanding if unforeseeable circumstances arise that impair the expected protection of legitimate expectations (e.g., if the defendant concealed essential facts or made false statements, or the situation changes significantly). Consequently, the court must inform the parties, give them an opportunity to comment, and inform them of the possibility of withdrawal. Furthermore, if the court withdraws from the understanding, the defendant’s previous confession may not be used against them, in order to guarantee the principle of a fair trial.
To what extent is a confession part of the agreement and how is the evidence evaluated?
A confession is regularly a central feature of an understanding in criminal proceedings, as sentencing is often tied to the submission of a credible confession. However, despite the agreement, the court is obligated to critically assess the confession and independently verify whether it is substantively accurate and can be considered under the principle of free evaluation of evidence (§ 261 StPO). Simply making a confession as agreed does not release the court from its duty to clarify the actual facts and to exhaust all necessary evidence if doubts about the confession’s veracity arise or new facts emerge. Within the reasoning for the judgment, the court must transparently explain to what extent it regards the confession as credible and how this contributed to the decision.
What legal remedies are available against a judgment based on an agreement?
The same legal remedies are available against a judgment based on an agreement under § 257c StPO as against any other criminal judgment, particularly appeal and revision. The Code of Criminal Procedure provides for special grounds of appeal in cases where rules on understandings have been violated. For example, if transparency obligations are breached, faulty understandings are absolute grounds for appeal. In the appeal brief, it may be argued that the understanding did not comply with legal requirements, such as where prohibited promises were made or documentation was incomplete. The appellate court will then review whether the judgment can be upheld despite the alleged procedural violation. An unlawfully obtained confession in connection with an agreement can also lead to the reversal of the judgment.
Who bears responsibility for the legality of agreements in criminal proceedings?
Both the court and the other parties are responsible for ensuring compliance with legal requirements for agreements. Primarily, it is the presiding judge’s responsibility to properly document the understanding and fulfill all transparency and information duties. The public prosecutor and the defense must ensure that no inadmissible arrangements are made. The defendant, in turn, is responsible for fulfilling their obligations in the context of the understanding, particularly making a truthful and complete confession (if agreed). Ultimately, however, it is the court that must examine the legality and effectiveness of the understanding and take the necessary procedural steps in the event of violations.
