The Constitutionality of Negotiated Criminal Judgments in Germany

Abstract

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.

The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, the proportionality of punishment, and transparency of negotiations are important values in criminal justice and that they must be respected even in the context of negotiated cases. The Court also attempts to retain control over the enforcement of its judgment by indicating that it may need to revisit the legislation’s constitutionality if courts, prosecutors, and defense attorneys continue to ignore the statutory provisions as interpreted by the Court. The Court therefore deserves praise for attempting to regulate and limit the practice of negotiated judgments. As we discuss in the Article, this is especially true if one compares the efforts of the Federal Constitutional Court to the hands-off approach of the United States Supreme Court with respect to plea bargaining.

At the same time, the Court arguably bypassed the more fundamental issues that a system of “plea bargaining” raises in the context of German criminal justice. The Court may also have failed to sufficiently consider the practical effects of its ruling on everyday negotiations in German courts. Finally, the Court probably is too optimistic in assuming that it is possible to make practitioners abide by a set of technical rules created by judicial fiat for a practice that is basically built on the consent of the parties and judges.

Keywords: German Constitutional Court, negotiated judgments, plea bargaining, criminal procedure, guilty pleas, confessions, comparative criminal procedure

JEL Classification: K14, K19, K42, K49