Plea bargain should be possible to arrange in cases of major criminal offences. Further planned novelty is a guilty plea.
The investigation definitively proving that the act has been committed; that it is a criminal offence; and that it had been committed by the offender is required for arranging a plea bargain.
In recent years, the sphere of criminal law has been subject to constant revision. One of the changes that are being prepared will be enacted both in the Criminal Code and the Rules of Criminal Procedure1, and can extend or create new possible course of action for defendants or defence lawyers in criminal proceedings. The proposition newly considers the institution of defendant’s guilty plea and extension of possibility to declare material fact uncontested. The defendants can be motivated to plead guilty or declare the fact uncontested by the fact that those declarations will present the new point of view in determining the type and terms of punishment; or that pleading guilty should become one of the mitigating factors. As a follow-up to the former revisions, the sphere of plea bargaining will also be subject to changes.
The intended novelty in the Rules of Criminal Procedure is aimed to strengthen the positions of the parties in criminal proceedings. According to the currently effective Rules of Criminal Procedure, the institution of declaring some facts uncontested is applied only marginally; next, it is possible to make a declaration of committing a crime for the purpose of diversion. Still, such procedures are very limited and can only be applied if quite limited conditions restricted by the law are met.
The limits of those procedures derive from basic Rules of Criminal Procedure. It is not possible that the defendant’s pleading guilty could exempt the bodies participating in criminal proceeding from their obligation to investigate all the relevant circumstances of the case. Further it is basically required that the criminal proceeding should aim at due determining of criminal offence and justly punishing the offender.
The bodies participating in the criminal proceeding control that the basic regulations are fulfilled, or particularly the court, being an independent and impartial body, which during the process at law court takes into account all the facts that emerged during the criminal proceeding and the means by which they were found. With respect to the basic principles regulating the criminal proceeding it still appears appropriate to extend the defendant’s possibility of measures to implement in the course of criminal proceeding; it is also improbable that this would lead to violating the basic regulations.
Giving the defendant a chance to contribute more to the proceeding and its result can help him psychologically accept the judgement more easily and come along with the result of the criminal proceeding.
Declaring the fact uncontested
Only some facts can currently be declared uncontested in a hearing before a single judge in the cases with preliminary procedure and at the trial in summary procedure. The first possibility for that arises at committing the suspect to trial along with the criminal charge. The judge will question the defendant about the facts that are considered uncontested; at the trial, then, proving the facts stated as uncontested might be omitted, if the defendant agrees to. The second consequent possibility can be applied at the trial during the summary procedure following the simplified pre-trial proceeding.
Still, the law should newly allow the defendant to declare certain facts uncontested during the standard proceeding. The court can also refrain from proving the material facts that were agreed on by the defendant and the prosecuting attorney. Some of the material facts then would not have to be proved at the trial, and the whole case could be heard faster. The trial, though, will not be bound by the declaration in case if, in regard to other facts, some considerable arguments for doubting the content of the declaration appear. In this case, all the facts will be heard in its entirety, regardless of the issued declarations.
The change will also be reflected in the Criminal Code that would newly require the judge to consider, apart from other matters, whether the offender declared material facts uncontested while determining the type and terms of punishment. The defendant must be informed of the possibility of that process already in the served indictment.
Further institution that allows the defendant to undertake greater initiative in the criminal proceeding is plea bargaining. It was added to the Rules of Criminal Procedure in the year 2012. The investigation definitively proving that the act has been committed; that it is a criminal offence; and that it had been committed by the offender is required for reaching a plea bargain.
Should such declaration be made, i.e. that the defendant committed a crime for which he is prosecuted, and at the same time the truthfulness of the declaration should not be doubted, the defendant and the prosecuting attorney can subsequently reach a plea bargain that in the final stage must be approved by the court. The court in that case functions as an insurance against occasional excesses during the plea bargaining and determining the rates of punishment between the parties.
In practice, though, plea bargaining comes across many obstacles, therefore the institution is not used so widely. One of the obstacles is a prohibition of plea bargaining at the trial for extremely grave offence. Nevertheless, that obstacle should be removed with the novelty and it should newly be possible to reach a plea bargain even in the cases of wilful offence, for which the Criminal Code provides for a custodial sentence of up to 10 years.
Still, the revision concerns not only the suggested novelties. The necessity of having an advocate to reach the plea bargain is planned to be abandoned; it has an aim of making it more accessible from the economic point of view. The necessity of being represented by an advocate in the process of plea bargaining still will be preserved in other cases of compulsory defence according to the Rules of Criminal Procedure.
To encourage the employment of the plea bargain, the bill establishes new conditions for the content of formal charge. Along with aforementioned informing the defendant on a possibility to declare the fact uncontested, the indictment must also newly notify of the right to express one’s opinion on the circumstances of guilt and if one is interested in reaching a plea bargain or in pleading guilty at the trial, as well as if one agrees with the delineation of the fact, its legal qualification, and the proposed sentence or the protective treatment measure. The indictment must newly embody the proposed sentence along with its type and terms.
Strengthening the court’s jurisdiction could also make plea bargains more frequent. If the head of the jury panel decides, with regard to the circumstances of the case, that reaching a plea bargain would be appropriate, he notifies the defendant, the prosecuting attorney, and, if needed, the injured, of that. If the defendant and the prosecuting attorney adopt an affirmative attitude, the trial can then be suspended or adjourned in order to reach a plea bargain. The consent of the injured is not required.
The decision whether plea bargaining is appropriate will not be made only by the defendant and the prosecuting attorney, but the court will also newly be able to intervene in the process. The opportunity to arrange a plea bargain even at the trial can much contribute to reaching it. After the pre-trial proceeding is completed and the indictment is submitted, the defendant in result has an overview of all the facts that he is accused of and all the evidence that were proposed to prove them. At the same time he will know what sentence is proposed by the prosecuting attorney. The defendant at this point should already know all the material facts that might help him in deciding whether it is appropriate to arrange a plea bargain.
If the plea bargain is not arranged or consequently reached, the court will not take into account that the defendant has plead guilty or that the plea bargain has already been arranged. The bodies in charge of the criminal proceeding would again be responsible for proving that the act has been committed; that it is a criminal offence; and that it has been committed by the offender. Despite that, the defendant’s pleading guilty can be taken into consideration, if he requests that his admitting to having committed a crime in order to arrange a plea bargain should be regarded as a guilty plea.
The guilty plea represents a completely new institution that in effect follows on from plea bargaining. Guilty plea is broader in content that declaring certain facts uncontested, since it concerns the overall qualification of the fact, be it from the legal of factual perspective. Still, the sentence is not being passed, and consequently the plea bargain is not reached. The guilty plea, though, will be taken into account in determining the type and terms of punishment, and it can influence the extraordinary reduction of the term of imprisonment.
If the defendant and the prosecuting attorney agree on being guilty in committing the fact for which the defendant is prosecuted and, alongside agree on the legal qualification of that fact, in the next proceeding the issue of guilt will not be looked into in the same extend to which the defendant declared it; and the proceeding will continue mainly in order to pass a just sentence. Still, it will depend entirely on the court whether it will accept the defendant’s guilty plea or not. If the guilty plea will not be in consent with the material facts, the court will not accept it.
Giving the defendant a chance to contribute more to the proceeding and its result can help him to psychologically accept the judgement more easily and come along with the result of the criminal proceeding. Last but not least, the institutions could contribute to solving the crime more quickly, and thus shorten the proceeding. It can be concluded that the novelty is a step in the right direction.
But we should be mindful that the new institution can also pose some risks for the defendant. It is possible that the bodies in charge of the pre-trial proceeding can bend the new legal regulation to the defendant’s disadvantage. “Profiteering” with the issue of guilt gets in the way, and the bodies in charge of the criminal proceeding attempt to force the defendant to plead guilty or plea bargain with a view to simplifying the further proceeding and facilitating the search for means of evidence needed to unequivocally prove the material facts of the criminal proceeding.
Abandoning the defendant’s obligation to have an advocate to arrange the plea bargain can also be pose some risks. The position of the defendant and the prosecuting attorney in the criminal is not equal at least from point of speciality, and it appears exactly the same in the process of plea bargaining. To what extend is the defendant capable of considering all the facts and results of the plea bargain himself when he communicates only with the prosecuting attorney remains questionable. In any case, the participation of an advocate both in considering the appropriateness of the plea bargain and in reaching it is indispensable, even though it will apparently be abandoned in the essence of the novelty.
Although we can acknowledge the attempt to give the defendant more opportunities to intervene in the criminal proceeding, we should not leave out of account how those alternative ways are in fact applied to practice. For instance, more than about a year ago the Attorney’s General office and Czech Bar Association signed the Memorandum of Cooperation.
Its aim is to support the mutual communication between the prosecuting attorney and an advocate, especially in the sphere of diversions of criminal proceedings and further plea bargains. Still, regardless of the Memorandum and definite advantages of diversions and plea bargains, it is not so widely applied to practise. It is to be hoped that extending the portfolio of disputes resolving could break the ice between the prosecuting attorneys and the advocates and that it will indeed enter into everyday legal practise.
1 Bill of 25.4.2019 which changes Act No. 40/2009 Coll., Criminal Code, as amended, Act No. 141/1961 Coll., on criminal proceeding (Rules of Criminal Procedure), as amended, and Act No. 418/2011 Coll., on criminal liability of legal bodies and proceedings against them, as amended.
By Lukas Duffek, Managing Associate, and Linda Coufalova, Junior Lawyer, Rowan Legal