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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

Arrangement – Form of Procedure Based on Guilty Plea and Presumption of Guilt?

Meris Sillaots
pp. 76-149

1. Summary Procedure and Establishment of Clarity of Circumstances Constituting Burden of Proof in Estonian Criminal Procedure

Since July 1996, summary procedure as a form of arrangement is used in Estonian criminal procedure.1

Pursuant to § 364 of the CrPC2, summary procedure can be applied in the case of third-degree and second-degree crimes if the circumstances constituting the burden of proof are clear; the accused has fully confessed his or her guilt for the crime charged, and the accused, his or her defence counsel or if the offender is a minor, his or her legal representative, the victim, civil plaintiff and civil respondent do not object to the application of summary procedure. Summary procedure is applicable to any of the accused in a criminal case with several accused persons. Summary procedure is not applied in private prosecution cases.

Thus, § 364 of the CrPC concerning the grounds for the application of summary procedure fixes, inter alia, a requirement that the circumstances constituting the burden of proof must be clear and the accused must have fully confessed his or her guilt for the crime charged. The decision whether the circumstances constituting the burden of proof are clear and also whether other conditions necessary for the application of summary procedure are met rests with the investigator, prosecutor and court.

One possible source of problems in connection with the unequivocal discernment of the burden of proof might be the temptation of a person responsible for accomplishing a proceeding to base his or her decision on the accused’s guilty plea without adequately ascertaining its veracity. This is, to some extent, a problematic question in all those models of criminal procedure in which, one way or the other, the principle of the material establishment of truth (or in other words, the principle of investigation, the principle of instruction and inquisition) is of central importance. Namely, application of a classic scheme of arrangement, i.e. "a guilty plea in exchange for the reduction of penalty", with regard to the above models is in many aspects complicated because, as a rule, it is not allowed to treat a guilty plea here as a procedural act of disposition.3 So, for example, German criminal procedure contains the principle4 that the fact that the accused has pled guilty does not exempt the court from the obligation to establish the truth (Aufklärungspflicht; § 244 II StPO5).6

Pursuant to § 19(1) of the Estonian CrPC, the principle of thorough, complete and objective examination of the factual circumstances of the crime applies in Estonian criminal procedure. This principle can be considered analogous of the inquisitorial principle.7

As we have mentioned before, in order to apply summary procedure the circumstances constituting the burden of proof must be clear. The weight of the accused’s guilty plea in clarifying these circumstances is not manifest from the law. A question arises whether, for example, it is possible to consider the circumstances constituting the burden of proof clear also in these cases where the clarity is based mainly and dominantly on the accused’s guilty plea.

Apropos, in Germany where the court is obligated to establish the truth, the criminal procedural practice still, it is alleged, follows another way8: a way that may infringe the inquisitorial principle. It may be that the accused’s guilty plea, made on the basis of Absprache, and enabling the court to dispense with a time-consuming evaluation of evidence entails the violation of the inquisitorial principle.9

It seems likely that a similar problem may arise in Estonia where in connection with the application of summary procedure a judge may wish to make certain concessions while determining the question of proof.

Pursuant to § 56 of the Estonian CrPC, the accused’s statements, including his or her guilty plea must be verified and estimated together with other evidence of the criminal case in the regular manner. According to § 50(1) of the CrPC, the court, prosecutor and investigator, relying on the law, evaluate the evidence pursuant to their conviction that is based on thorough, complete and objective examination of the facts.

In order to decide on whether the circumstances constituting the burden of proof are clear the investigator, prosecutor and judge should be guided by the above-mentioned provisions. In connection with the clarity of the circumstances constituting the burden of proof as a condition for the application of summary procedure, a most interesting question is how the judge comes to his or her conclusion because he or she is the very person who has the final say on the applicability of summary procedure.

Stemming from the principle of "free" evaluation of evidence, the judge must himself or herself evaluate the evidence. Free evaluation of evidence implies that the answer to the question of guilt depends purely on whether the judge is convinced that the facts of the crime are reliable.10

The prerequisite for the correct evaluation of evidence and, consequently, for a just court decision is the correct identification of the facts evidencing crime.11

Therefore, free evaluation of evidence and the obligation to establish the truth are interrelated and supplement each other.12 The obligation to establish the truth must guarantee that the judge could use necessary means of cognition while evaluating the evidence.13

Understandably it is very difficult to find a unique answer to the question of the scope of the aforesaid obligation. When can we say that there is quantitatively and qualitatively enough evidence for a conscientious decision on the question of guilt?

According to the general principle, free evaluation of evidence could take place only after all manifest and available evidence has been exhausted. Thus, a judge cannot, for example, rely on the fact that he or she has already got an idea of the matter in case there is some more evidence that could make his or her preliminary opinion on certain circumstances of the crime questionable. This would be an inadmissible anticipation of the evaluation of evidence.14 One has to agree to the position that if the objective result of the evaluation of evidence does not allow the drawing of a rationally convincing conclusion of guilt, then the subjective understanding of the judge is not sufficient.15 At the same time it does not mean that that the law should and could prescribe which assumptions the judge should apply to come to a firm conclusion.16

Returning here to the role of the accused’s guilty plea in providing the necessary burden of proof, the substantive quality of the guilty plea is of great importance. There is a great difference between dealing with a so-called "qualified guilty plea" incorporating both the perfect and illustrative description of the offence so that it is per se able to evoke a conscientious opinion, or with a so-called "thin guilty plea" that is typified by a mere acknowledgement that the results of the investigation are correct.17

Convicting a person on the basis of a “thin guilty plea” runs a great risk of violating the requirement for the establishment of the circumstances of the offence and, consequently, of imposing a punishment only on the basis of a suspicion. But this may raise the question of incompatibility of the corresponding way of acting with the principle of the presumption of innocence.

Understandably the value of evidence of a guilty plea is higher in the case of a "qualified guilty plea". It has been observed that because of its special substantive quality such a guilty plea may be the only ground for the court decision.18

But in evaluating a guilty plea one should always consider the fact that it may be false. A motive for entering a false guilty plea may often be, for example, a wish to get released from custody.19 But there may be also other reasons for that: an abnormal mental state or apathy of the accused, or his or her wish to go to jail or to set up an alibi for a more serious crime or to get punished instead of the actual perpetrator of the crime.20

Generally one could stick to the principle that a guilty plea is adequate only in the cases where there are no fulcra that could arouse serious suspicion of the credibility and voluntariness of the guilty plea.21 The court must be convinced of the reliability and credibility of a guilty plea.22

The materials of the criminal file gathered by the person responsible for the conduct of a pre-trial proceeding are the source that helps provide a clear picture of the circumstances constituting the burden of proof necessary for the application of Estonian summary procedure. On the basis of the documents of the file, a judge must decide whether these circumstances are clear. The question arises as to whther the file material can be relied upon to inform a sufficiently high quality decision.

It has been stated that experienced judges, prosecutors and defence counsels are able to anticipate the outcome of the criminal trial on the basis of the results of a thorough preliminary investigation without any need to conduct a costly full proceeding.23

Still, this standpoint could be, in principle, relied on only in cases where there is an absolute guarantee that the pre-trial investigation is conducted accurately, thoroughly and correctly as required in a state applying the rule of law.

If the judge finds that the circumstances constituting the burden of proof are not clear and, therefore, an essential ground for the application of summary procedure is missing, he or she may return the criminal case for the pre-trial proceeding in the regular manner (§ 375 2) of the CrPC). But if, in the judge’s opinion, the circumstances are clear, he or she brings the accused to trial in summary procedure (§ 375 1) of the CrPC) which essentially means that on the basis of the evidence contained in the file the judge believes that the accused is guilty. Accordingly, the question of guilt of the accused at trial is, in principle, decided because no substantive trial of the case (evaluation of evidence and judicial discussions) takes place in summary procedure.

2. Summary Procedure and Presumption of Innocence in Estonian Criminal Procedure

In Estonia, the principle of the presumption of innocence is regulated at the level of the Constitution. Pursuant to § 22 of the Constitution of the Republic of Estonia, no one shall be adjudged guilty of a criminal offence until a conviction by a court against him or her enters into force. Consequently, the presumption of innocence terminates with the enforcement of a conviction. But a conviction must rely on the evidence on the basis of which it was established that the person is guilty of committing the crime.24

If, before the trial of the criminal case in the regular manner (a full-length proceeding), a judge, relying on the documents of the file gathered in the pre-trial proceeding, expressed his or her opinion that the circumstances constituting the burden of proof are clear and that the accused at trial is guilty then obviously there would be no doubt that it there was a violation of the principle of the presumption of innocence. But if a judge acts, in essence, in the same manner while applying summary procedure then can we say that there is no infringement of the same principle?

Formally it can be asserted that the rules for the application of summary procedure are provided by the law and, therefore, a judge is in summary procedure cases entitled to decide on the question of guilt of the accused at trial on the basis of the documents embodied in the criminal file (§ 387 (1) 1)).

But here we should recall § 22 of the Estonian Constitution stating that no one shall be presumed guilty of a criminal offence until a conviction by a court against him or her enters into force.

A judge establishing that it is possible to apply summary procedure expresses, in essence, his or her opinion that he or she is, on the basis of the criminal file, convinced of the guilt of the accused (as a condition allowing the instigation of summary procedure the circumstances constituting the burden of proof must be clear). As a counter-argument it can be said that such an opinion might not be final. A hearing of the case (although not substantive) is still conducted in summary procedure cases (§ 383 of the CrPC). In the course of the hearing the judge may, in principle, change his or her opinion, and pursuant to § 385 of the CrPC a judge may choose from four different options. For example, if any suspicion arises while the court is adjudging the case then pursuant to § 263(1) or § 387(1)2) of the CrPC, the court may issue an order rejecting summary procedure, and return the criminal case to the prosecutor for the continuation of the regular criminal proceeding.

But from the aspects of the presumption of innocence the cases in which the investigator or prosecutor commences informal negotiations before the accused has pled guilty are, in fact, somewhat problematic.

Although, pursuant to law, the prerequisite for the application of summary procedure is the fact that the accused has pled guilty, the informal negotiations for the application of summary procedure may still start prior to the confession of guilt. An investigator or prosecutor may either directly or allusively propose to commence informal negotiations. This can be done, for example, in the form of acquainting with or reminding of one’s rights in the course of which the accused is, inter alia, informed of the possibility to use summary procedure and of its advantages for him or her, or the pertinent allusion is made to the defence counsel of the accused. The law does not forbid explaining to the accused the principled possibility of applying for summary procedure. At the same time one cannot ignore the fact that in the above-mentioned case the direct aim of the explanation is to obtain the accused’s guilty plea. But this aim may be induced by another reason – with the help of a guilty plea the prosecutor may overcome the difficulties of providing evidence. Such enlightenment may be especially “efficient” in the case of the accused who is held in custody. Understandably such behaviour of the person who is responsible for the conduct of a proceeding cannot be regarded de lege lata correct. By way of comment it is hereby interesting to note that the working group preparing a new draft of the Estonian CrPC has found it rational to amend the regulation of summary procedure. According to the proposed amendment, summary procedure could also be applicable prior to the accused’s full confession of guilt.25

Thus, the presently valid legal regulation does not exclude that a guilty plea is actually the result of informal negotiations and fulfils the necessary condition for the application of summary procedure and commencement of formal negotiations.

With regard to the aforesaid it should be mentioned that if the person responsible for the conduct of a proceeding puts inadmissible pressure on the accused to make him or her plead guilty then that person is not guided by the principle according to which the accused must be presumed innocent until his or her conviction by a court.

3. Arrangement and Principle of Nemo Tenetur Se Ipsum Accusare

In connection with the application of arrangement it is certainly important to bear in mind that together with the violation of the principle of the presumption of innocence one may infringe another principle. Namely, pursuant to § 22 of the Constitution of the Republic of Estonia no one shall be compelled to testify against himself or herself. Stemming from this constitutional principle, the suspect has the right to silence (nemo tenetur se ipsum accusare). Pursuant to the provisions of the Estonian CrPC, making statements is a right not a legal obligation of the suspect (§§ 351, 56, 57). In order to actually guarantee the right to silence, the fact that the suspect remains silent must not have a negative influence on the evaluation of evidence and imposition of a punishment. This principle of free choice of the accused to testify is one of the fundamental principles of criminal procedure in the states following the rule of law.26

It has been alleged that arrangements in criminal procedure rely directly on self-incrimination in exchange for the concessions by the prosecutor: the suspect may benefit only when he or she incriminates himself or herself.27 In other words, arrangement does not come into question and the accused does not have the option to negotiate the results of the proceeding unless he or she is ready to plead guilty.28 If the accused wants to benefit from arrangement he or she must plead guilty at a relatively early stage of the proceeding. One view is that in this case the accused may be under psychological pressure insofar as he or she must choose whether to abandon his or her constitutional rights in criminal procedure or accept the risk of a presumably more severe punishment.29 It has been alleged that the accused at trial who does not cooperate will be punished more severely in the case of his or her conviction than in the case of a lege artis full proceeding.30

The accused is under remarkable pressure especially in these cases when the initiative to commence arrangement negotiations comes from the person conducting the proceeding.31

Thus, it can be maintained that there is a discrepancy with the principle of nemo tenetur se ipsum accusare in all cases where the accused is compelled to conduce to his or her conviction.32

According to another understanding, we could talk about the infringement of the principle of nemo tenetur se ipsum accusare only in those cases when the pressure on the accused to enter into the agreement was so great that his or her situation seemed opeless and no other decision was possible.33

Although, in principle, we could agree to the latter standpoint it still should be mentioned that in every concrete case the requirement of voluntary abandonment of the right to remain silent must be followed very closely.

4. Arrangement (Absprache) and Presumption of Innocence in German Criminal Procedure

The inquisitorial principle valid in German criminal procedure obligates the court as well as the prosecutor’s office to ascertain the facts of the crime to the last legally relevant detail. The court and the prosecutor’s office may not limit their obligation to establish the truth by the fact that in the course of arrangement they accept without any verification everything that the accused presents as the subject of the circumstances.34 The guilty plea of the accused at trial does not exempt the court from the obligation to establish the truth (§ 244 II of the StPO). The guilty plea made by the accused at trial on the basis of the agreement may not serve as the basis for the judgement unless it is sufficiently comprehensive and in compliance with the content of the criminal file and the results of the evaluation of evidence so that the further establishment of facts may be abandoned without violating the principle of the presumption of innocence and the principle of judicial inquiry at that. In the case of a suspicion, the relevancy of the guilty plea must be checked by the further evaluation of evidence.35

As in German practice of criminal procedure the judge is also, to a greater or lesser extent, a participant in the Absprache36, the result of Absprache negotiations depends in many aspects on what the judge “promises” in one or the other case as to the possible result of the proceeding including the punishment. The problem here is to what extent the court’s offer to impose a milder punishment on the accused at trial, made before his or her guilt has been proved pursuant to the procedure prescribed by law, is in compliance with the principle of the presumption of innocence. As is known, the principle of judicial inquiry is connected with the requirement that until the court is not convinced of the contrary, the accused must be presumed innocent.37

The aim of the principle of the presumption of innocence, valid in Germany, is to avoid that no one is treated as a guilty person until a legally regulated proceeding proves his or her guilt. The effect of the aforesaid principle ceases only when a conviction by a court against him or her enters into force.38

Critics of the Absprache-practice have expressed their views in legal literature stating that the process of Absprache is to some extent the reversion of the principle of the presumption of innocence into the principle of the presumption of guilt.39 Such attitude is foremost based on the fact that the accused, in order to enter into the agreement, must offer something in the form of a guilty plea to the person conducting the proceeding.40

Generally, the attitude of German scholars toward the relations of Absprache and the presumption of innocence is divergent.

For example, A. Eich is of the opinion that "a guilty plea in exchange of a more lenient sentence" characterising Absprache violates the principle of the presumption of innocence already due to the fact that there is no corresponding legal regulation on it in German criminal procedure and, thus, the guilt of the accused is established by a proceeding not regulated by law.41 A. Eich holds that the judge relies on the accused’s guilt already at the beginning of Absprache-negotiations although because of the incomplete evaluation of evidence the guilt cannot yet be proved. Consequently, the judge acts on the basis of the presumption of guilt. A. Eich is sure that the infringement of the presumption of innocence is obvious here.42

According to T. Rönnau, violation of the presumption of innocence becomes apparent, inter alia, from the aim of Absprache to considerably shorten the full proceeding.43 This aim is achieved, as T. Rönnau asserts, primarily by the incomplete establishment of the facts and, as a rule, an unverified or inadequately verified guilty plea is considered sufficient enough.44

T. Rönnau holds that in the case of Absprache a guilty plea carries too much weight in both establishing the facts of the crime and sentencing.45 According to T. Rönnau’s allegation, a guilty plea is not an absolutely reliable piece of evidence, it is just one of many other pieces of evidence which is of no superior or inferior value. A guilty plea does not have preference in the system of evidence.46

As to the view of the critics that in the case of Absprache the presumption of innocence is reversed into the presumption of guilt and that the court presume the accused’s guilt, there are authors who disagree to that.47

Thus, G. Gerlach is of the opinion that by criminal procedural Absprache the presumption of innocence is not reverted into its opposite.48 But at the same time he still considers it necessary to point out that the institutions conducting the proceeding must avoid infringing the presumption of innocence by not aspiring too precipitately to enter into the guilty plea agreement.49

In R. Tscherwinka’s opinion, it is not correct to conclude that in Absprache cases the court presumes that the accused is guilty50 because in connection with Absprache one must consider many reservations, including, for example, the reservation of preliminary opinion, the reservation of the substantive quality of a guilty plea, the reservation of the hypothetical course of the proceeding and others.51 Therefore, R. Tscherwinka denies the existence of a conflict between Absprache and the presumption of innocence.

A. Janke believes that there is no infringement of the presumption of innocence if certain aspects are respected by arrangement negotiations.52 For example, in A. Janke’s opinion it is, inter alia, important who initiates arrangement. According to A. Janke, the presumption of innocence might be violated if the subjects of the proceeding representing the state addressed the accused at trial at the first occasion after the commencement of the full proceeding with the wish to enter into the arrangement agreement although there is no sufficient ground to presume that the accused at trial is guilty.53 But if the initiative to enter into the agreement comes from the accused at trial or his or her defence counsel, then it is in compliance with the presumption of innocence.54 A. Janke holds that despite the willingness to enter into the Absprache-agreement the court may, as in the case of a "regular" proceeding, be open to assess the issue of guilt differently.55

W. Siolek alleges that with regard to the presumption of innocence the stage of the proceeding plays a very important role.56 Agreements at early stages of the proceeding, i.e. before the evaluation of evidence, are in W. Siolek’s opinion inadmissible as they violate the presumption of innocence.57

In conclusion it should be noted that despite the fact that Absprache exists and functions in the practice of German criminal procedure, there is still no unanimity as to its compliance with the principle of the presumption of innocence.58

5. Guilty Plea and Presumption of Innocence in Criminal Procedure of United States

Criminal procedure of common law systems operates as a party process that is based on the principle of disposition. The prosecutor and the defence counsel are the opposing parties to the procedure and may dispose the public penalty-requirement (penalty law), while the judge as an impartial third party observes that rules of fairness be followed.59

Although an American guilty plea may be presented in the form of the confession of guilt, it will also be enough if the accused answers “yes” to the judge’s question whether he or she thinks that he or she is guilty of a charge against him or her.60

In connection with the aforesaid it should be stressed that an American guilty plea of the accused is not a proof, it rather reminds of the abandonment of a claim in civil procedure.61 There is no inquisitorial principle in American criminal procedure. The presentation of evidence is the task of the parties. Therefore, the accused’s guilty plea makes any further examination of evidence redundant62, i.e. a guilty plea makes the phase of the proceeding that ascertains the guilt unnecessary. The process directly enters into the stage of “measuring” the punishment.63

A negative feature of plea bargaining observed in legal literature is that in situations where it is rather difficult for the accused to prove his or her innocence the prosecutor exerts more pressure on the accused to plead guilty.64 The result of this is that where the chance to be acquitted in the course of the full proceeding is highly probable, the state exerts the greatest pressure on the accused to avoid a full proceeding.65

Plea bargaining allows the prosecutor’s office to have a coercive measure at its disposal65 which makes most of the accused, including those innocent, surrender and rather agree to a more lenient punishment than take the risk of undergoing a full proceeding that may end in a more severe penalty.66

In this case lawyers of criminal law do not support the approach according to which the accused must be presumed to be innocent until he or she is convicted by a court. Considerations as to the possible terms of a guilty plea presuppose that the accused is considered to be, at least hypothetically, guilty.67 Therefore, plea bargaining often relies on assumptions and prediction that only a full proceeding can affirm. It is absolutely obvious that in such a proceeding the risk of making a false decision is much greater, especially if the offer of state organs is tempting and it is difficult for the accused to prove his or her innocence.68

Radical critics say that plea bargaining violates the principle of the presumption of innocence pursuant to which the accused must be presumed innocent until a court has proved him or her guilty. It is said that the promise of the prosecutor’s office to the accused to get away under more favourable conditions influences him or her to plead guilty whereas his or her decision is not voluntary any more.69

6. Guilty Plea and Presumption of Innocence in Italian Criminal Procedure

In Italian criminal procedure, an arrangement process similar to Anglo-American plea-bargaining might be of interest. Pattegiamento is a procedure in which the accused and the prosecutor may, on the basis of the accused’s guilty plea, agree on the punishment and request the court to impose a corresponding sentence (Article 444 1c.p.p.).70

The parties may submit the relevant request until the opening of the full proceeding in a first-stage court (Article 446 1c.p.p.). Pattegiamento is applicable even if only one of the parties, either the prosecutor’s office or the accused files the request with the court (Article 444 2c.p.p.; Article 446 4c.p.p.). And in case the prosecutor rejects the proceeding, he or she must give the reasons for that (Article 446 6c.p.p.).

The main aspect of pattegiamento is that it allows disposition with regard to the guilt and punishment. Thus, it is plea bargaining in its real sense.71 Atto di libera disposizione (“Act of Free Disposition”) of the accused is characteristic of pattegiamento.72 Legal regulation does not allow some scope of freedom of decision to the judge, it only gives him or her a chance to reject the whole request in the case of a different opinion.73 The concrete documents presented for deciding serve as the basis for judicial review. Judicial review is, in fact, limited to finding possible legal errors in classifying the criminal case, also in determining the range of punishment.74

In connection with pattegiamento it has been noted in legal literature that not only a guilty person who tries to reduce his or her penalty but also an innocent person who is afraid of social “side-effects” of the full proceeding or who thinks that his or her defence prospects are not good may choose pattegiamento.75

Pursuant to Article 27 II of the Italian Constitution, the accused shall be presumed innocent until a conviction by a court against him or her enters into force. Scholars have expressed some doubts on whether it is possible to ascertain the accused’s liability without a full proceeding and, consequently, without the evaluation of evidence.76 At the moment of decision-making within patteggiamento there are only documents of the preliminary investigation, the relevant proposal and the consent of the parties at the disposal of the court. It has been opined that the accused’s proposal or consent to the prosecutor’s offer may in no case be regarded as a guilty plea that could be fixed in the court decision. It is held that the decision must be based on the judge’s conscientious opinion that would exclude acquittal or the opposite to conviction.77 It is also held that by abandoning the right to the full proceeding, the accused acknowledges the evidential force of the documents of the preliminary investigation, and consequently, there is no infringement of Article 13 of the Italian Constitution. Pursuant to the aforesaid approach, the accused submits himself or herself to the punishment that he or she conscientiously regards acceptable.78

The fact that the agreement of the parties is strictly binding on the judge is considered a weakness of pattegiamento. Such validity is not in compliance with the constitutional guarantees of judge’s independence.79 It has been opined that Italian arrangement procedure apparently reveals the violation of the presumption of innocence.80

Conclusion

In the near future Estonian society will have to choose which model of criminal procedure to prefer. Thereby the problem as to what extent and on what conditions the Estonian new regulation of criminal procedure should embody “competitive” and “consensus” elements in it and to what extent should it stick to the principle of a so-called inquisitorial process must be decided.

Taking into account the traditions of the Estonian legal culture (belonging to the continental European legal space), it would evidently be not the best idea to follow to the full extent, for example, the Anglo-American adversarial (party-) procedure model in shaping the Estonian new regulation of criminal procedure. At the same time, bearing in mind the present-day requirements, it would still be expedient to consider the introduction of certain elements characteristic of adversarial procedure.

In spite of the fact that, for example, “elements of consensus” go better with the adversarial procedure, they can be transferred to the (reformed) inquisitorial procedure as well.81

From the aspect of shaping the procedural forms based on arrangement, the determination of the role of the accused’s guilty plea in criminal procedure is, in principle, of great importance. It must be decided whether a guilty plea can be regarded as a “procedural act of disposition”. This means that one must find an answer to the question whether and in which cases, in principle, to allow to interpret a guilty plea as abandonment of contesting the charge, and whether, on the basis of that, to allow to desist from further evaluation of evidence. Naturally, in this case the role of a judge in criminal procedure must be determined accordingly. For example, in case it is prescribed that the judge is liable for the “right” court decision, the determination of the object of the dispute may not be left at the discretion of the parties.82

If we stick to the requirement that the truth must be established (inasmuch the establishment of truth in criminal procedure is possible at all), then it is necessary to specify whether and to what extent the circumstances constituting the burden of proof must be established prior to the commencement of arrangement negotiations. Hereby one should consider the fact that a so-called procedural economy nearly always means the relinquishment of the establishment of truth to a lesser or greater degree. One should also bear in mind that aspirations to consensus through co-operation are good for the accused who has pled guilty or is ready to plead guilty. But if a person who wants to prove his or her actual or specious innocence has the same kind of aspiration then this may blemish his or her position.83 It should also be stressed that in the case of the forms of procedure based on arrangement as compared to a traditional (full) proceeding, there is a greater danger that innocent persons are convicted as these forms of procedure are, as a rule, in many aspects based on the presumption of guilt of the accused at trial.

As the forms of procedure should be shaped in such a way that the fundamental rights of the suspect, accused and accused at trial were as little as possible blemished, so is it important to bear in mind, while working out the forms of procedure based on arrangement, whether and in which cases the suspect, accused and accused at trial could relinquish his or her rights (including the presumption of innocence) on the basis of the principle of disposition.

If, for example, the accused at trial may, in principle, himself or herself decide whether to use his or her right to remain silent stemming from the principle of nemo tenetur se ipsum accusare, then with regard to the principle of the presumption of innocence this does not apply. The presumption of innocence as a manifestation of a state based on rule of law and human dignity should be non-disposed because its observance is, inter alia, in the public interests.84 If to stick to the standpoint that human dignity is something inalienable and if to bear in mind that the cores of the presumption of innocence are in human dignity85 then it is understandable why we cannot abandon the presumption of innocence.

Notes:

*1 This procedure can be, in a sense, considered a “relative” of Anglo-American plea-bargaining or pattegiamento characteristic of Italian criminal procedure or Absprache valid in German practice of criminal procedure. (E. Kergandberg. “Expedience of Arrangement in German and Estonian Criminal Care”). – Juridica International II, 1997, p. 82.
*2 CrPC = Criminal Procedure Code of the Republic of Estonia.
*3 W. Schmidt-Hieber. “Die gescheiterte Verständigung”. – Neue Zeitschrift für Strafrecht, 1988, 7, p. 304.
*4 As is known, the so-called inquisitorial principle is applied in German criminal procedure. See T. Kleinknecht, L. Meyer-Gossner, Strafprozeدrdnung, Gerichtsverfassungsgesetz, Nebengesetze und ergänzende Bestimmungen, 43. neubearbeitete Aufl., (München: Beck, 1997), Rdn. 11 zu § 244; C. Roxin. Strafverfahrensrecht. Ein Studienbuch, 22. völlig neubearb. Aufl., (München: Beck, 1991) p. 77.
*5 StPO = Strafprozeدrdnung (Criminal Procedure Law).
*6 W. Schmidt-Hieber, supra note 3 p. 304.
*7 E. Kergandberg. Sissejuhatus kohtumenetluse õpetusse (Introduction to the Theory of Judicial Procedure). Tartu: 1996, p. 71.
*8 G. Gerlach. “Absprachen im Strafverfahren. Ein Beitrag zu den Rechtsfolgen fehlgeschlagener Absprachen im Strafverfahren” in Europäische Hochschulschriften: Reihe 2, Rechtswissenschaft; Bd. 1249. (Frankfurt am Main; Berlin; Bern; New York; Paris; Wien: Lang, 1992) p. 61.
*9 Ibid. p. 61.
*10 G. Jerouschek. “Wie frei ist die freie Beweiswürdigung? Überlegungen zur Genese, Funktion und zu Perspektiven eines Strafprozessualen Rechtsinstituts” (1992) Goltdammer’s Archiv für Strafrecht 509; S. Bertram. Die richterliche Beweiswürdigung im Strafprozess: eine Studie zu Wesen und Funktion des strafprozessualen Grundsatzes der "freien Beweiswürdigung" sowie zu den Möglichkeiten und Grenzen einer Revision in Strafsachen; zugleich ein Beitrag zum Verhältnis von Kriminalistik und staatlicher Strafrechtspflege, (Lübeck: Römhild, 1992) p. 203; C. Roxin, supra note 4 p. 79.
*11 S. Bertram, supra note 10 p. 176.
*12 Ibid. p. 176.
*13 Ibid. p. 180.
*14 Ibid. p. 181.
*15 C. Roxin, supra note 4 p. 79.
*16 Ibid. p. 79.
*17 A. Janke. Verständigung und Absprachen im Strafverfahren. Inaugural-Dissertation zur Erlangung der Doktorwürde an der Rechtswissenschaftlichen Fakultät der Friedrich-Schiller-Universität Jena. Vorgelegt von Alexander Janke aus Stuttgart, 1995, p. 105-106.
*18 Ibid. p. 105.
*19 S. Bertram, supra note 10 p. 357.
*20 C. Roxin, supra note 4 p. 81.
*21 H. Schäfer. “Rechtsgespräch und Verständigung im Strafprozess”. – Deutsche Richterzeitung, 1989, August p. 295.
*22 Ibid. p. 294.
*23 J. Bode. “Bekanntmachung abgesprochener Entscheidungen im Strafverfahren”. – Recht und Politik, 1988, 3, p. 148.
*24 E. Kergandberg. Sissejuhatus kohtumenetluse õpetusse (Introduction to the Theory of Judicial Procedure). Tartu: 1996, p. 67.
*25 E. Kergandberg. Kokkuleplus Saksa ja Eesti kriminaalhoolekandes (Expedience of Arrangement in German and Estonian Criminal Care). – Juridica, 1997, 8, p. 394.
*26 A. Janke, supra note 17 p. 155.
*27 W. Hassemer. “Pacta sunt servanda - auch im Strafproze׿”. – Juristische Schulung, 1989, 11, p. 892; W. Siolek. Verständigung im Strafverfahren - eine verfassungswidrige praxis! – Deutsche Richterzeitung, 1989, 9, p. 327.
*28 N. Oberholzer. Absprachen im Strafverfahren - pragmatische Entlastungsstrategie oder Abkehr vom strafprozessualen Modell? – Schweizerische Zeitschrift für Strafrecht, 1993, p. 163.
*29 W. Siolek. Verständigung in der Hauptverhandlung, 1. Aufl., (Baden-Baden: Nomos Verl.-Ges., 1993) p. 136.
*30 F. Denker/R. Hamm. Der Vergleich im Strafprozess. (Frankfurt am Main: Alfred Metzner Verlag, 1988) p. 54.
*31 T. Rönnau. Die Absprache im Strafproze׮ Kiel: Nomos-Recht, 1990, p. 185.
*32 N. Oberholzer, supra note 28 p. 169.
*33 G. Gerlach, supra note 8 p. 69; W. Siolek, supra note 29 p. 138; A. Janke, supra note 17 p. 161.
*34 J. Seier. Der strafprozessuale Vergleich im Lichte des § 136 a StPO. – Juristenzeitung, 1988, 14, p. 683.
*35 K-H. Koch. Absprachen im Strafprozess. – Zeitschrift für Rechtspolitik, 1990, 7 p. 252.
*36 See: R. Hassemer, G. Hippler. Informelle Absprachen in der Praxis des Deutschen Strafverfahrens. – Strafverteidiger, 1986, 8, p. 362. It has been observed in legal literature that, as a rule, three parties (i.e. the prosecutor’s office, court and defence counsel /accused) must take part in arrangement negotiations. (F. Denker, R. Hamm. Der Vergleich im Strafproze׮ (Frankfurt am Main: Alfred Metzner Verlag, 1988) p. 96).
*37 T. Rönnau, supra note 31 p. 141.
*38 Kleinknecht-Meyer, supra note 4, Anhang 4, MRK, Artikel 6, Rdnrn. 12 and 15.
*39 F. Denker, R. Hamm, supra note 30 p. 53; C. Nestler-Tremel. Der Handel um die Funktionstüchtigkeit der Strafrechtspflege.– Deutsche Richterzeitung, 1988, August, p. 294; W. Hassemer, supra note 27 p. 892; T. Weigend. Abgesprochene Gerechtigkeit - Effiziens durch Kooperation im Strafverfahren? – Juristenzeitung 1990, 17, p. 777.
*40 G. Gerlach, supra note 8 p. 64.
*41 A. Eich, Die tatsächliche Verständigung im Steuerverfahren un Steuerstrafverfahren. Zulässigkeit, Rechtsnatur, Auswirkungen, Strategien. Köln: Verlag Dr. Otto Schmidt KG, 1992, p. 115.
*42 Ibid. p. 115.
*43 T. Rönnau, supra note 31 p. 177.
*44 Ibid. p. 177.
*45 Ibid. p. 218.
*46 Ibid. p. 91.
*47 See G. Gerlach, supra note 8 p. 65; R. Tscherwinka. Absprachen im Strafprozess in Europäische Hochschulschriften: Reihe 2, Rechtswissenschaft; Bd. 1745 (Frankfurt am Main: Peter Lang, 1995) p. 101, 107; Janke, supra note 17 p. 154.
*48 G. Gerlach, supra note 8 p. 67.
*49 Ibid. p. 67.
*50 R. Tscherwinka, supra note 47 p. 101.
*51 Ibid. p. 102
*52 Janke, supra note 17 p. 154.
*53 Ibid. p. 153.
*54 Ibid. p. 153.
*55 Ibid. p. 154.
*56 W. Siolek, supra note 29 p. 127.
*57 Ibid. p. 129; 131.
*58 In addition to the issue of the conformity of Absprache with the presumption of innocence, the conformity of Absprache with various other criminal procedural principles (including, for example, the conformity with the principle of legality, the principle of immediacy, the principle of publicity, the principle of equal treatment, the principle of fair procedure) continue to be the objects of discussions.
*59 T. Rönnau, supra note 31 p. 270.
*60 K. F. Schumann. Der Handel mit Gerechtigkeit: Funktionsprobleme der Strafjustiz und ihre Lösungen - am Beispiel des amerikanischen plea bargaining. (Frankfurt am Main: Suhrkamp, 1977) p. 77; Rönnau, supra note 31 p. 272.
*61 M. Damaska. Der Austausch von Vorteilen im Strafverfahren: Plea-Bargaining und Absprachen. – Strafverteidiger, 1988, 9, p. 398.
*62 K. F. Schumann, supra note 60 p. 201.
*63 M. Damaska, supra note 61 p. 398.
*64 American experience shows that the accused is offered a more favourable “deal” in situations where it is more difficult to prove his or her guilt. (Weigend, “Abgesprochene Gerechtigkeit - Effizienz durch Kooperation im Strafverfahren”. – Juristenzeitung, 1990, 17, p. 780.
*65 T.M. Massaro. Das amerikanische Plea-Bargaining System: Staatsanwaltschaftliches Ermessen bei der Strafvefolgung. – Strafverteidiger, 1989, 10, p. 457.
*66 T. Rönnau, supra note 31 p. 278.
*67 K. F. Schumann, supra note 60 p. 186.
*68 T. Rönnau, supra note 31 p. 278.
*69 H.J. Dielmann. “Guilty Plea” und “Plea Bargaining” im amerikanischen Strafverfahren - Möglichkeiten für den deutschen Strafprozess?. – Goldammers`s Archiv für Strafrecht, 1981, p. 569.
*70 c.p.p. = Codice di procedura penale. See: Italienische Strafprozessordnung mit Nebengesetzen. Zweisprachige Ausgabe. Übersetzer und Herausgeber: M.W. Bauer, B. König, J. Kreuzer, R. Riz, H. Zanon. Bozen: Verlagsanstalt Athesia, 1991.
*71 W. Siolek, supra note 29 p. 235.
*72 M. Maiwald, A. Ippoliti. Eine neue Strafprozeدrdnung für Italien. – Juristenzeitung, 1989, 19, p. 877.
*73 W. Siolek, supra note 29 p. 235.
*74 Ibid. p. 236.
*75 C. Marx, A. Grilli. Der neue italienische Strafproze׮ – Goldammers`s Archiv für Strafrecht, 1990, p. 506.
*76 S. Sinner. Der Vergleich im neuen italienischen Strafverfahren und die deutsche Diskussion um Absprachen. – Zeitschrift für Rechtspolitik, 1994, 12, p. 482.
*77 Ibid. p. 482.
*78 Ibid. p. 482.
*79 Siolek, supra note 29 p. 237.
*80 Ibid. p. 237.
*81 K. Tiedemann. 13 Thesen zu einem modernen menschenrechtsorientierten Strafproze׮ Zeitschrift für Rechtspolitik mit ZRP, 1992, 3 - Gesetzgebungs - Report 108.
*82 T. Weigend. Die Reform des Strafverfahrens. (1992) Bd. 194 Zeitschrift für die gesamte Strafrechtswissenschaft p. 498.
*83 Gabriele Wolfslast. Absprachen im Strafproze׮ – Neue Zeitschrift für Strafrecht, 1990, 9, p. 416.
*84 C.-F. Stuckenberg. Untersuchungen zur Unschuldvermutung. (Berlin: de Gruyter, 1997) p. 60.
*85 Siolek, supra note 29 p. 131.






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