Is the plea agreement practice of the International Criminal tribunals a pathway to negotiated justice within national jurisdictions?

Author:Liviu Alexandru Lascu
Position:Agora University of Oradea - Romania
Pages:63-89
SUMMARY

Having already a long career in the Anglo-American judicial systems, the Plea Agreement is a pioneering procedure in the civil law countries. In the latest decades it became more and more attractive to the European continental countries due to the fact it makes possible a significant workload’s decongestion of the criminal law enforcement bodies as well as an easier prosecution in the other criminal files. However, there is a still remaining reluctance of the European continental legislators to employ this procedure to a wide scale of crimes and to allow negotiated justice with the perpetrators of the most severe crimes. The opponents of this concept consider this procedure as very difficult to reconcile with the traditional principles and procedural institutions of the civil law countries. Within the context of the first steps of Plea Agreement in the most European continental countries we observe an already existent and consistent jurisprudence in this respect in the proceedings of the international ad-hoc tribunals, ICTY (international Criminal Tribunal for former Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda). The expertise of the judicial bodies of these tribunals might be a valuable model of doing negotiated justice within the European continental countries at least because the patterns of their Plea Agreement are very similar. The aim of this article is to emphasize the main features of the Plea Agreement procedure in the traditional systems, common law and civil law, as well as the features of this concept as it has been implemented into the proceedings of the ad-hoc tribunals and, accordingly, to analyze the reasons for which, the expertise of these international tribunals might be a pathway to negotiated justice to the national level of the civil law countries.

 
CONTENT
Is the plea agreement practice of the international … 63
IS THE PLEA AGREEMENT PRACTICE OF THE
INTERNATIONAL CRIMINAL TRIBUNALS A PATHWAY TO
NEGOTIATED JUSTICE WITHIN NATIONAL JURISDICTIONS?
PhD. Lecturer Liviu Alexandru Lascu
Agora University of Oradea, Romania
Abstract:
Having already a long career in the Anglo-American judicial systems, the Plea Agreement is a
pioneering procedure in the civil law countries. In the latest decades it became more and more
attractive to the European continental countries due to the fact it makes possible a significant
workload’s decongestion of the criminal law enforcement bodies as well as an easier prosecution in
the other criminal files. However, there is a still remaining reluctance of the European continental
legislators to employ this procedure to a wide scale of crimes and to allow negotiated justice with the
perpetrators of the most severe crimes. The opponents of this concept consider this procedure as very
difficult to reconcile with the traditional principles and procedural institutions of the civ il law
countries.
Within the context of the first steps of Plea Agreement in the most European continental
countries we observe an already existent and consistent jurisprudence in this respect in the
proceedings of the international ad-hoc tribunals, ICTY (international Criminal Tribunal for former
Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda). The expertise of the judicial
bodies of these tribunals might be a valuable model of doing negotiated justice within the European
continental countries at least because the patterns of their Plea Agreement are very similar.
The aim of this article is to emphasize the main features of the Plea Agreement procedure in the
traditional systems, common law and civil law, as well as the features of this concept as it has been
implemented into the proceedings of the ad-hoc tribunals and, accordingly, to analyze the reasons for
which, the expertise of these international tribunals might be a pathway to negotiated justice to the
national level of the civil law countries.
Keywords: plea agreement, plea bargaining, guilty plea, negotiated justice, ad-hoc tribunals,
adversarial, inquisitorial, common law, civil law.
1. Introductory remarks
The Plea Agreement or sometimes called also Plea Bargaining is a criminal
proceeding arising from the Anglo- American judicial establishment that requires a
pragmatic attribution of criminal responsibility for a person who committed one or
more crimes, in the sense that both the prosecutor and the Defense, taking into
account the specific circumstances of the case, reach a mutually beneficial agreement.
E-mail: liviulascu@yahoo.com.
Law Review vol. III, issue 2, July-December 2013, p. 63-89
64 LIVIU ALEXANDRU LASCU
According to this agreement, the defendant accepts a self-incrimination while the
prosecutor ensures a more convenient penalty than that the defendant would
expect, if found guilty at the final judgment. Subsequently, this agreement must be
approved by the court, thus relieving the judicial authorities to conducting
adjudicative judgment according to the classical procedure. In such proceedings, in
exchange for the defendant’s admission of the alleged facts, depending on the
jurisdiction to which we refer, the prosecutor have some different bargaining tools:
he may waive some charges in exchange for the defendant’s admission of
committing others; he may offer a reduced penalty; he may offer lighter modes or
less coercive forms of penalty enforcement; he can guarantee a range of benefits
within the witness protection programs in exchange of the defendant’s self
incrimination and further cooperation for the prosecution of other criminals.
It is not completely random why this special procedure appeared in the
criminal jurisprudence of the Common Law states, also known as the adversarial
judicial systems. Here, the State, represented by the prosecutor, is only a part within
the criminal process, sharing exactly the same statute like the defendant and the
pattern of the process appears to be very similar to that of a civil process. In
addition to this aspect, the adversarial systems traditionally provided significant
procedural rights and safeguards for defendant while the State did not employ
professional criminal investigators until to a later stage1. So being, the evidentiary
activity of the State representative was quite often difficult. In addition to that,
unlike in the inquisitorial systems of the civil law countries (known also like the
European continental countries) where the professional judges render the verdicts,
in the adversarial systems they are traditionally done by a jury, whose
predictability in decisions is extremely low. Given these circumstances, the need
for compromise came naturally from the both parties, each of them trying to avoid
a risk of an absolutely unfavorable decision rendered by the jury.
Plea Agreement procedures have not only evolved over the time in the
Anglo-American systems in as much as to become a common practice, especially in
specific fields like organized crimes or corporate crimes, but due to the fact they
significantly relieve the workload of the judicial bodies, began to be more and
more attractive for the civil law systems applied in the European continental
countries. In the past time, the latest systems were characterized by a clear
disproportion between the Prosecutor and the Defense arms and also governed by
the ubiquitous principle of mandatory prosecution2. So being, until not many years
1 See, G. Fisher, “Plea Bargaining’s Triumph”, Yale Law Journal (YLJ) 109, (2000), pp. 857-897.
2 See, for example, the German Code of Criminal Procedure, Section no. 152, paragraph (2):
“Except 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 indications”, available on
http://legislationline.org/download/action/download/id/3235/file/Germany_CC_1971_amended
_2009_en.pdf.
Is the plea agreement practice of the international … 65
ago, they neither created concern for Prosecutor nor provided a legal possibility for
negotiation with the defendant.
During the last decades of the twentieth century, the situation had been
gradually changed when the majority of the European countries have amended the
procedures in the aim of rebalancing the disproportion of the arms between the
Prosecutor and the Defense by loaning some legal instruments from the
adversarial systems. The fact many European states became members of the
Council of Europe in the latest decades of the twentieth century and accordingly
the effect of the European Convention for Human Rights on the national criminal
legislations of those countries has determined, also, some significant changes in the
sense of ensuring effective rights and safeguards for defendant during the criminal
process and even of recommending a lenient conviction for the defendant who
admit the facts as result of cooperation with the judicial bodies All the above
mentioned circumstances have created a room for negotiating: firstly, because the
increasing rights and safeguards of the defendant entailed a more and more
difficult evidentiary activity for the Prosecutor, and secondly, because the
increased Prosecutors’ workload made the means of alternative resolution of the
criminal cases more attractive than ever.
2. Contrasting features of the Plea Agreement in Anglo-American and
European Continental models
Despite the fact most Anglo-American judicial systems don’t use the same
patterns of negotiated justice we can say that some common characteristics thereof
distinguish them from those adopted in the European continental countries. These
differences show us a pervasive presence of the negotiated justice in almost all
kind of criminal cases and greater bargaining tools for the prosecutor in
Anglo-American systems while a remaining reluctance in accepting the negotiation
with the defendant in the European continental countries.
The first different aspect is that related to the character of the defendant’s act of
self-incrimination. While in the Anglo-American countries this is deemed as a
defendant’s failure to invoke his/her affirmative defenses or to raise his/her
arguments in fighting the charges in exchange for the concessions offered by the
prosecutor, in the Continental pattern, it supposes an in-court confession of the
defendant. Thus the Anglo-American agreement is deemed as a quasi-contract and
the other like an informal gentlemen’s agreement3. The aspect is not almost
irrelevant because, while in the Anglo-American systems, the plea agreement is
able to avoid a trial, the Continental pattern is only able to shorten the trial.
Another aspect is that of the field of application of this concept because within
the Anglo-American systems there is no restriction of negotiated justice for all kind
3 See, M. Damaška, ‘Negotiated Justice in International Criminal Courts’, in Journal of
International Criminal Justice (JICJ), 2 (2004), Oxford University Press, 2004, p. 1027.
66 LIVIU ALEXANDRU LASCU
of crimes, regardless their gravity, while most of the Continental legislators still
don’t allow negotiations with the defendants who commit the gravest crimes.
Moreover, if the former systems allow the negotiations to affect even the charges,
in the sense of their alteration or partial elimination, the latest systems accept only
some lenient penalties or less coercive ways of penalty enforcement to be
negotiated with the defendant4.
When analyzing the bargaining tools of the Prosecutor, we can see more potential
of the Anglo-American prosecutor given by the system of formal qualification of
the crimes in the Common Law countries. It creates the possibility to charge the
defendant with many crimes for one single committed fact and, accordingly, to
burden the defendant with a severe final sentence due to the system of arithmetic
aggregation of the penalties issued for each charge. So being, the threat of a severe
sentence for defendant makes a certain magnitude for the concession offered by
the Prosecutor and even a greater availability toward negotiations for defendant.
On the contrary, in the civil law countries, where the system of arithmetic
aggregation of the penalties is not allowed and sentencing the defendant for many
charges means, often, the penalty issued for the gravest charge and possibly an
increase of it (taking in account the number and the gravity of the other charges),
the room for negotiations is not very large. In addition to it, the prosecutor cannot
waive charges and even more the gravest charge which attracts the most severe
penalty.
Even though within the both systems, the court is required to approve the
agreement between the prosecutor and the defendant, the involvement of the judge is
different5. Within the Anglo-American version, it doesn’t need any implication of
the judge in the transaction and, accordingly, it doesn’t entail any obligation
excepting that of assessing the legality and proportionality of the agreement, while
the judge in the Continental systems, once the agreement has been approved and
accepted the in-court confession of the defendant, as a commitment arising from
the deal, is bound to issue a reduced sentence according to the relevant law
provision.
A final observation is on how much reliable are these agreements in these two
systems, from the perspective of the defendant. While both judges are free to
disregard the agreement, the problem is what will be the risk faced by the
defendant if it even happens? As in the Anglo-American systems the agreement is
deemed as a quasi–contract, if the prosecutor renounces on the deal or the judges
disapproves of it, then the defendant will be free of revoking the plea.
Consequently, the trial is going to proceed without any harm for defendant.
Unlike, in the civil law countries, the plea agreement means an in-court confession
and therefore, if the Prosecutor waives the deal or the judge disapproves it, the
4 Ibidem, 1025.
5 Ibidem, 1026.
Is the plea agreement practice of the international … 67
confession will remain valid and, very possible, a harsher than negotiated sentence
will burden the defendant6. Then, it is quite clear that the Anglo-American pattern
is much more reliable than that of the civil law countries because in the former
system, in the case of the agreement's breakdown, the out of court
self-incrimination of the defendant does not affect its rights and safeguards during
the trial.
Taking in consideration the above mentioned differences, plus other less
significant, of the concept of plea agreement in these two judicial systems, we can
conclude the Anglo-American model is better developed, widely practiced in all
kind of criminal cases, offers a greater potential in negotiations for the Prosecutor
and is, also, more reliable for the defendant. Moreover the mutual concessions of
the parties do not entail any involvement and obligation for the judge, thus not
affecting his/her neutrality. Thus, the perspective of the agreement’s failure does
not affect the defendant rights and safeguards during the trial due to the
followings: the out of court self-incrimination can be revoked; it has no any
evidentiary weight in the trial; it is not known by the jury; the judge remains
neutral in relation to the agreement.
In the Continental systems, plea agreement is just a pioneering procedure,
allowed only in the cases dealing with some less grave offences, without prejudice
to the charges, and involving an in-court confession which remains valid evidence,
even when the agreement is violated by the prosecutor or disapproved by the
judge.
However, despite of the features showing it as a better model in achieving an
alternative resolution of the criminal cases, the Anglo-American plea agreement is
not far away from criticism. The first is related to the asymmetrical position of the
negotiating parts, that is, the severity of the threatened penalties as well as the
greater informational and financial possibilities of the Prosecutor during the trial
and even the psychological imbalance between the parties, might lead to some
undesirable situations in which, even some innocent defendants would prefer an
agreement with the prosecutor instead of an unpredictable verdict at the end of the
trial7. This tactic of the prosecutor deliberately exaggerating the number and the
gravity of the charges in order to create a larger room for negotiations entails a lot
of criticism especially in U.S.A.. In order to prohibit such practice in U.K., the Code
for the Crown Prosecutors, explicitly provides some rules in this respect8.
6 Ibidem, 1027.
7 See M. Yant ‘Presumed Guilty: When Innocent People Are Wrongly Convicted’ (1991), Prometheus
Books, New York, p. 172.
8 See, Code for the Crown Prosecutors, Selection of charges:
6.1 Prosecutors should select charges which: a. reflect the seriousne ss and extent of the offending supported
by the evidence; b. give the court adequate powers to sent ence 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.
68 LIVIU ALEXANDRU LASCU
Some other specialists criticize this marked - oriented approach of the plea
agreement because it means an inter-party arrangement whose outcome might
negatively affect the interest of the victims and of the general public in what
regarding the transparency of criminal justice9. The lenient penalties offered by the
prosecutor might, also, create a public sense of injustice. No less important is the
discretionary power of initiating and concluding agreements of the prosecutor
which might lead to an unequal treatment for those defendants for whom, the
prosecutor doesn’t have any interest in concluding an agreement with.
Finally, the power to negotiate justice and the bargaining tools to the
prosecutor’s disposal raise a problematic issue of its role in the administration of
criminal justice. In the Common Law jurisdictions, the judge is traditionally
deemed as the best positioned in achieving the public interest in criminal matters.
However, the out of court inter-party agreements which exclude the judge from
attributing criminal responsibility and imposing penalties and the increased
case-law of this procedure show a shift of the Prosecutor into the most important
decision-maker and also make questionable this traditional role of the judge in
doing justice in criminal matters10.
Undoubtedly, the above mentioned are not necessarily systemic weaknesses of
the plea agreement procedure in the Anglo-American systems but rather found on a
case by case basis, however, the fact there are several opinions of the experts
depicting these weaknesses, demonstrates this procedure is not infallible but rather
can elicit improvements.
3. Plea Agreement in the proceedings of the international ad-hoc tribunals
3.1. The historical context of implementing the ICTY Plea Agreement
We chose to reflect on some aspects of the Plea Agreement procedure in the
jurisprudence of international ad-hoc tribunals, ICTY (International Criminal
Tribunal for former Yugoslavia) and ICTR (International Criminal Tribunal for
Rwanda) because in many respects, they were designed and appear as hybrid
courts, taking features of both traditional types of criminal trials, like currently
many other national judicial systems. It is also to mention, the Prosecutor's Office
members and the judges of these courts, in their great majority came from civil law
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 j ust to
encourage a defendant to plead guilty to a less serious one.
6.4 Prosecutors should not change the charge simply because of the deci sion 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
9 See, M. Damaška, supra note 3, p. 1028.
10 See, F. Tulkens, ’Negotiated Justice’, in M. Delmas-Marty, J.R. Spenser, European Criminal
Procedures, Cambridge University Press, Cambridge (2002), p. 74.
Is the plea agreement practice of the international … 69
oriented systems and faced for the first time in their careers with the procedure
Plea Agreement. From this perspective, we found a number of similarities between
the onset situation of implementing this procedure within the practice of the
ad-hoc international tribunals and the situation of many European Continental
countries which just implemented or are about to implement Plea Agreement
within their national legislation.
Regarding Plea Agreement procedure to ad-hoc tribunals, it should be
mentioned that it was not previewed within the original version of the Rules of
Procedure and Evidence (RPE) of the ad-hoc tribunals. The first step toward the
negotiated justice in the proceeding of the ad-hoc tribunals was the formula of Plea
Guilty. Even though not provided in the original version, since the amendment
entered into force on November 12, 1997, the RPE of these tribunals provided the
procedure of Plea Guilty (Rule no. 62 bis), which presupposes that the defendant
may plead guilty in court on some charges or on all of them, in the hope of
receiving a more lenient sentence. Following this defendant’s statement of
admission of the charges, the judge may order an in-court examination of some
other evidence, or according to the situation, even to waive any examination, and
taking in account, also, the evidence of the prosecutor’s dossier, enters a finding of
defendant’s guilt and sets a date for the sentencing hearing. There is no any
provision to oblige the judge to rendering a lenient sentence, however, given the
defendant’s statement of the admission which is deemed as a mitigating
circumstance and the fact the plea guilty really shortens the trial, a lenient sentence
is to be expected.
The Plea Agreement procedure, consisting in a confidential agreement
between the prosecutor and the defendant was introduced by amending the RPE,
only starting on December 13, 2001, eight years after the establishment of ICTY
when a series of political events did significant influence the activity of the
International Criminal Tribunal for the former Yugoslavia.
So, the era of the total reluctance of Yugoslavia led by Slobodan Milošević to
cooperation with ICTY came to an end in December 2000 when the coalition of
opposition parties came to the power in Serbia and its leader Zoran Ðinić became
the Prime Minister of the coalition government. On April 1, 2001, Slobodan
Milošević was arrested by the national authorities on the ground of corruption
during his office and couple month later, on June 29, 2001, he was handed over to
The Hague tribunal, due to the warrant of arrest on his name, issued by ICTY since
May 1999. After the Milošević's arresting, the Prime Minister Zoran Ðinić, a
steady pro-West oriented politician and willing Serbia to overcome its statute of
stigmatized among the other European countries, did a commitment of handing
over all the Serbian suspects or defendants still at large, on the name of whom,
ICTY had issued arrest warrants11. Not only the commitment of the Prime Minister
11 See, V. Peskin, International Justice in Rwanda and the Balkans, Cambridge University Press, 2008,
Kindle Edition, p. 65.
70 LIVIU ALEXANDRU LASCU
Zoran Ðinić but also the tenacious insistence of the ICTY Prosecutor Carla Del
Ponte and the constant and increasing pressure of U.S.A. and E.U. which
conditioned the granting of political cooperation and economic aid, in exchange for
Serbian government to hand over the suspects to the Hague authorities, decisively
influenced the Serbian government policy toward cooperation with ICTY. This
turning point in Serbia's relationship with ICTY created the essential premises for
negotiated justice at ICTY. For the Ðinić government, the tracking down and
apprehending the suspects hidden in Serbia still remained a difficult task, due to
the strong opposition from the nationalist Democratic Party of Serbia (DSS), the
Ðinić’s ally to the power and also, because the involvement in their protection of
some high ranking commanders of the special police unit, the Red Berets and of
the Yugoslav Army’s intelligence, still loyalist of the past regime. However, the
time when Slobodan Milošević gave them a full protection was gone and the
prospect of being captured and extradited to The Hague tribunal was increasingly
likely12.
In these conditions, many Serbian suspects, hidden or not, announced their
willingness to voluntarily surrender and to admit their involvement in the
perpetration of the crimes during the civil war, provided that the international
tribunal guarantees certain mitigating circumstances in sentencing them. In
response to this willingness of many defendants, both at large and in custody of
ICTY, the Plea Agreement had been implemented on December 13, 2001, within
the Rule 62 ter, regulating this procedure.
Not only had the Serbian suspects urged for a negotiated justice but also the
officials of ICTY had shown a special concern in adopting this procedure because it
was seen as being able to open a new perspective for ICTY activities. Once some
high ranking Serbian suspects had appeared before the court and even confessed
their involvement in the commission of the alleged facts, the international tribunal
expected to overcome a very difficult stage in achieving its purpose. Until then,
only a few trials of minor-ranking defendants were conducted and the prosecution
of the most important Serbian political and military leaders was particularly
difficult because of the lack of cooperation of the Serbian participants to the
relevant war operations.
The conclusion that implementing Plea Agreement was a really turning point
in the ICTY case-law is demonstrated by the fact that immediately after its
adoption, no less than 6 defendants already in the custody of the Hague authorities
(the Simić group) concluded plea agreements with the ICTY Prosecutor and in the
next years, other 11 Serbian defendants, still at large, voluntarily surrendered to
the International Tribunal and concluded such agreements13. Among them, it is
worth mentioning some defendants who confess their involvement in the famous
12 Idem.
13 See, Tieger, A. and Shin, M., ‘Plea Agreements in the ICTY. Purpose, Effects an Property’ in
Journal of International Criminal Justice 3 (2005), Oxford University Press, 667
Is the plea agreement practice of the international … 71
massacre of almost 7000 Bosnian Muslim men in the villages northward to
Srebrenica and thus, they brought a very important light in elucidating the case.
This policy of the ex-Yugoslav governments to convince the suspects to do a
voluntary surrender to the Hague authorities and afterward to conclude plea
agreements was successfully embraced after Zoran Ðinić’s assassination in March
2003 by his successors Zoran Živković and Vojislav Koštunica, as well as by the
reformist Prime Minister of Croatia, Ivo Sanader.
However the availability of the Serbian and Croatian governments to
cooperate with ICTY - most probably not because of a genuine willingness to do it
but of the occidental states’ pressure and their agenda of becoming E.U. Member
States - some very important figures of the Yugoslav civil war still remained at
large. The Bosnian Serbs Radovan Karadžić and Ratko Mladić as well as the
Croatian general Ante Gotovina remained hidden for many years after the
warrants of arrest on their name were issued by the ICTY, in spite of their
governments’ efforts to track them down. It should be mentioned, however, that
given their high ranking positions and involvement in the civil war, most probably
neither the ICTY Prosecutor would have been offered nor they would have been
accepted an agreement. The negotiated justice with these defendants would have
defied the objectives and mission of ICTY and would have prejudiced, also, the
memory of war’s victims and the sense of justice. Even if the Plea Agreement
procedure is provided in the content of RPE and there are no restrictions in its
application, these defendants are precisely not the right targeting people for a
negotiated justice. Most probably, they realized it, and therefore decided to remain
still hidden.
3.2. Procedural conditions and limits of the ICTY Plea Agreement
In the following, we briefly outline the provisions which enable the ICTY
Prosecutor and the defendant to conclude an agreement as set out in Rule 62 ter of
the RPE: “(A) The Prosecutor and the defense may agree that, upon the accused entering a
plea of guilty to the indictment or to one or more counts of the indictment, the Prosecutor
shall do one or more of the following before the Trial Chamber: (i) apply to amend the
indictment accordingly;(ii) submit that a specific sentence or sentencing range is
appropriate; (iii) not oppose a request by the accused for a particular sentence or sentencing
range”. Throughout the following paragraphs it is provided that the trial court is
not bound by the agreement between the parties and if the defendant wishes to
change his plea or to waive the deal, the trial court is required to disclose in open
session the confidential agreement and to follow one of the other procedures laid
down in RPE.
From the wording of the regulation above mentioned, is apparent the
conclusion that at least in the situations in which the indictment is already issued
at the moment of Plea Agreement entering into force, the Prosecutor may amend
the indictment, that is, the proposal to the court for some limits of the penalty and
72 LIVIU ALEXANDRU LASCU
even the waiving of certain charges. The court is not bound by the terms of the
parties’ agreement and therefore may question witnesses and do any other in-court
examination of evidence or, if the case, to disclose the agreement and to conduct a
classic procedure of the trial.
As mentioned above, according to the statistics of ICTY, the entering of Plea
Agreement meant a real revival of its activity because the increasing number of
resolved cases in a relatively short time and also because of the impact in the
prosecution activity, in the sense of penetrating the circle of the high rank
perpetrators still enjoying impunity. In addition to the positive aspects of this
procedure there are also some criticism of the Plea Agreement application within
the ad-hoc tribunals’ case-law and following we'll turn our attention to both these
aspects.
3.3. Immediate positive effects of the Plea Agreement application
3.3.1 The cases’ workload
Among the positive effects of Plea Agreement implementation into the
jurisprudence of the ad-hoc tribunals, we can mention, without doubt, the fact it is
a very useful tool to overcome the difficulties arising from the huge workload of
cases. In the aftermath of the civil wars, have been reported cases meaning tens of
thousands of deaths in Yugoslavia, hundreds of thousands in Rwanda and
millions of people forcibly displaced from their homes in the both countries. Even
after selecting the cases and trying only the most important leaders of the
perpetrators who had committed these crimes, the number and amplitude of these
cases proved to be overwhelming for the ad-hoc tribunals, which have only three
chambers of first instance and one chamber of appeals. Moreover, the activity of
the ad-hoc tribunals is temporally limited and not just a few UN officials clearly
expressed their worrisome, the activities of these courts are very expensive. All of
these above mentioned were strong arguments to find remedies to shorten the
duration and cost of the criminal processes. In these circumstances, the Plea
Agreement procedure appeared as a very beneficial solution because, after its
entry into force, a number of defendants representing about one third of their
total14, have opted for it, decongesting thus a significant volume of pending cases.
3.3.2. The simplification of the complex cases resolution
Given the complexity of some cases, especially those of the highest ranking
military and political leaders of the perpetrators, another positive impact of the
Plea Agreement was the fact it relieved the burden of proof for the prosecutor
which otherwise proved to be extremely difficult. The classic adjudicative trial
within which the prosecutor must prove the involvement and guilt of the
14 See, Clark, J. N., ‘Plea Agreements at the ICTY. Guilty pleas and Reconciliation’ in The European
Journal of International Law, Vol. 20 no. 2 (2009) Department of International Politics, Aberystwyth
University, U.K., 415-416.
Is the plea agreement practice of the international … 73
defendants meant to the ad-hoc tribunals a huge evidentiary activity before the
court, that is, the hearing of dozens or sometimes hundreds of witnesses,
impressive forensic evidence, technical and medical reports, procurement of
documents and many others15. Taking in account the ingrained lack of interest of
the defendants’ states in cooperation with the international prosecutor as well as
the steady reluctance of the witnesses to appear before the court, the evidentiary
activity was sometimes almost impossible to be accomplished. The fact Plea
Agreement procedure raised the defendant's interest for cooperation not only
dispensed the prosecutor to conduct a huge evidentiary activity during the trial
but also offers, in the cases of other high ranking defendants, extremely valuable
evidence in demonstrating their involvement in the perpetration of the crime.
Thus, given the particular complexity of the cases brought before the international
criminal tribunals, the Plea Agreement procedure facilitated the evidentiary
activity in both cases where defendants concluded agreements and where others
defendants were to be investigated or prosecuted and in which, the former
defendants agreed to be heard as witnesses.
3.4. Controversial aspects concerning the Plea Agreement application
3.4.1. The victims lost the opportunity to be heard by the court
The first aspect of critical nature related to the Plea Agreement application in
the jurisprudence of the ad-hoc tribunals is the fact it frustrates the survivors of
massacres to have the opportunity to be heard in public trials thus to be evoked
and recorded the facts with both legal and historical relevance. Many opinions
claim that within the international criminal courts we need to glimpse some
features of the so-called transitional justice16. This kind of justice is found in the
jurisprudence of the states in the immediate aftermath of the collapse of dictatorial
regimes when some important leaders of the former regime are brought before the
courts and when, in addition to their main role of doing justice, the courts
constitute also some genuine tribunes for the victims, giving them the opportunity
to reveal in a public and formal way, the trauma and suffering they were subjected
to within the atrocities committed by the defendants. Within this kind of trials, the
number of the victims and witnesses allowed to be heard are usually much in
excess of the evidentiary threshold for the prosecutor to prove the guilt of the
defendants, but they are allowed by the courts just in the aim their confession to
serve for a fair historical assessment of the facts, separately from their evidentiary
role in the trial.
However, given the concrete circumstances of the ad-hoc tribunals’ practice,
we consider, at least some aspects of these criticisms are not sufficiently argued. In
15 See, Tieger, A. and Shin, M., supra note 14 at 668.
16 See, Marstone Danner, A. and Martinez, J. S. ‘Guilty Associations: Joint Criminal Enterprise,
Command Responsibility and the Development of International Criminal Law’ in California Law
Review, vol. 93 (2005), 90-96.
74 LIVIU ALEXANDRU LASCU
the first hand, in all the cases the procedure Plea Agreement has been applied, the
courts asked the prosecutor to provide supporting evidence both for the indicted
charges and that accompanying the confidential agreement of the parts. Although
critics argue that such evidentiary material available to the court may not be
comparable with that recorded by the court during the trials, given the lack of
cross-examination hearings during the prosecution phase, there is another aspect
that compensates for this. If we admit the historical reality of the events that
generated the perpetration of the crimes can be objectively assessed only when a
significant number of facts are brought to the light, then, the Plea Agreement
procedure in spite of its shortcomings, creates the possibility of solving a much
larger number of cases17 and of bringing to the public acknowledgement some
very important facts that contribute to the shaping of historical reality. On the
other hand, once the defendant pleas his/her guilt for the indicted charges, then it
is assumed that, in principle, it does not contradict the facts avowed by the victims
and witnesses even if the statements of those people were not taken within a
cross-examination hearing during the prosecution phase. Thus, the accuracy of the
facts depicted by the victims and witnesses shouldn’t be questioned.
3.4.2. The effect of the deal on the charges
Taking into account the seriousness of the crimes brought before the
international tribunals an anxiety arisen from both the court18 and the victims in
the sense the agreements between the parts do not profoundly affect the act of
justice by pursuing only a pragmatic calculation or a specific agenda of the
Prosecutor’s Office. The waiver of certain charges from the indictment normally
would not been justified than in recital of the lack of supporting evidence of some
elements of those crimes and the waiver shouldn’t be done as a result of the
defendant's attitude during the process. It is true that, according to the procedural
rules, the prosecutor is the only one who decides for what charges will be the
defendant brought before the court and also only one who can amend afterward
the indictment in this regard. The specialists and even the court fear19 (see the
Nikolić Case) that although the ICTY Prosecutor withdraws certain charges,
allegedly after reassessing the evidence in respect of the constituent elements of
those crimes, in fact, he/she does so in pursuing a bargain, in exchange for the
guilty plea of the defendant. Nevertheless, the aspects of entering a Plea
Agreement in Nikolić Case should be understood within the specific context of this
case because at the time the indictment was concluded and submitted to the court
the procedure Plea Agreement didn’t exist and after its adoption and the
manifestation of the defendant’s willingness to conclude a plea agreement (which
17 See, See, Tieger, A. and Shin, M., supra note 14 at 670-674.
18 Sentencing Hearing, Case Momir Nikolić, Sentencing Judgment Momir Nikolić, (IT-02-56-I),
Trial Chamber I, December 2, 2003, paragraph 65.
19 Idem.
Is the plea agreement practice of the international … 75
proved to be very useful for prosecuting other defendants), the prosecutor’s
bargaining tools were quite small. A charge of extreme gravity such as complicity
to genocide would not have allowed the prosecutors to propose as reduced
sentence as to arouse the interest of the defendant to plead guilty. Therefore, it is
likely that the amendment of the indictment meaning the withdrawal of this
charge has been made as a consequence of negotiated Dragan Nikolić’s guilty plea
rather than a reassessment of the evidentiary support for that crime. In the cases
that followed the Nikolić Case the situation was completely different because the
prosecutor had the possibility to conclude an agreement with the defendant before
drawing up the indictment and therefore there was no suspicion of withdrawing
some indicted charges in the purpose of reaching an agreement with the defendant
and thus affecting the principles and goals of the international justice. Our opinion
is this fear still exists regardless of the more or less transparent Prosecutor’s
demarches and it depends only on the good faith of the Prosecutor and its spirit of
justice that the application of Plea Agreement does not distort its aim as well as the
ad-hoc tribunals’ purposes.
3.4.3. Equal treatment for defendants
The unequal treatment enjoyed by defendants in negotiations with the
prosecutor is another problematic issue which rises when applying Plea
Agreement procedure. Even if there is no any text law or principle granting
penalty reductions for the defendants based on the quantity and quality of the
information they make available to the prosecutor, nevertheless, it seems to be a
reality in some cases20. The penalties received thus by the defendants are likely to
distort the real reflection of the gravity of their acts. Following this reasoning, a
defendant who has perpetrated several crimes or was involved in planning,
ordering, aiding or abetting many such crimes is, obviously, able to provide more
valuable information than that provided by a less involved defendant. Even if for
the prosecutor, the statement of the former is more useful than that of the other, an
agreement providing for a less severe punishment for the more involved
defendant taking into account with priority the quantity and quality of the
provided information, appears as being a totally unfair treatment21. Such situation
would be contrary to the principles governing the attribution of the penalties
within the sentencing process to the ad-hoc tribunals, that is, the penalty must be
established in accordance with the seriousness of the crimes and the personal
circumstances of the defendant. So, even if the quantity and quality of the
information provided by the defendant must be taken in account as mitigating
circumstance in assessing the defendant’s conduct during the trial, it shouldn’t
20 See, Sentencing Judgment, Case Stevan Todorović (IT-95 9/1-S) Trial Chamber, 31 July 2001,
paragraph 87 and Sentencing Judgment, Case Miroslav Deronjić (IT-02 61-S),Trial Chamber II, 30
March 2004, paragraphs 246, 254, 255.
21 See, See, Tieger, A. and Shin, M., supra note 14 at 677-678.
76 LIVIU ALEXANDRU LASCU
prevail over the other aspects and to distort the punishment the defendant deserve
in relation to the seriousness of the committed crime. On the other hand, the
information of interest for the prosecutor is known in different amounts by
defendants and therefore objectively, they cannot provide the same information
even if willing to do so. Therefore, the prevalence of this criterion in the
prosecutor’s availability to propose a reduced punishment would produce serious
inequities among the defendants and a distortion of the justice’s aim. The fear that
such situations may happen in practice when the prosecutor is tempted to do so,
driven by a particular interest of solving other cases, is real and therefore, the
fairness of the justice largely depends on the conduct of the prosecutor.
3.4.4. Reduced penalties in exchange for saving time and resources
It is undoubtedly a reality, the fact Plea Agreement application exceeds from
the general principles of criminal law with respect to the sentencing process. No
doubts, a classic adjudicative criminal trial, following the standard procedure and
a sentencing process which fully comply with the seriousness of the crimes
committed and the personal circumstances of the defendant would be a noble goal
and fully consistent with the expectations of victims or their families. The reality
facing the international tribunals, however, makes it almost impossible to achieve
this goal22. On the one hand, the ad-hoc tribunals have a deadline to conclude their
trials according to the UN Security Council decisions. Their operational costs are
also very high just because of the complexity of their cases. As an echoing
confirmation in this respect, we can mention the statement of the President of
ICTY, professor Antonio Cassese within Erdemović Case23, in which, he mentioned
only a few of the many activities that require huge consumption of resources by
the international tribunal, such as: gathering a huge amount of evidence,
protection measures for the victims, organizing and deployment of processes
involving simultaneous translation in several languages, writing documents in
multiple languages, transfer from the home countries to the court seat and
providing various forms of assistance for the victims and witnesses, payment for
the specialists and experts examined. Professor Cassese emphasized the fact that
by pleading his/her guilt and avoiding the employment of resources for the above
mentioned activities, the defendant contributes undoubtedly to the achievement of
the public interest. So given this public interest in a reasonable and effective
allocation of resources for justice is competing with another public goal, that of
doing justice by convicting every breach of the criminal law, the Plea Agreement
procedure does nothing else than to achieve a compromise between them.
It must also be pointed out the fact Plea Agreement is not required and should
not be applied in all the cases the defendant displays a willingness to do an
22 Ibidem, 678-679.
23 See, Case Dražen Erdemović ( IT-96-22-A), Judgment of October 7, 1997, Separate and
Dissenting Opinion of Judge Cassese to Erdemović Appeals Judgment, paragraph 8.
Is the plea agreement practice of the international … 77
agreement. From the practice of the ad-hoc tribunals we observe that it has been
used with the aims of reducing time and resources for the trials and in determining
the defendant’s cooperation with the prosecutor when his statement was deemed
as of crucial importance in the successful prosecution of other defendants.
Conversely, in the cases of the most important political and military leaders
responsible for scale perpetration of the crimes during the conflict, concluding
such plea agreements with the defendants might profoundly affect the act of justice
and the memory of hundreds of thousands victims and would discredit the
international tribunals. If these defendants would like to admit their guilt, the
procedural rules allow them to do it before the court. This Plea Guilty procedure
does not involve a confidential agreement with the prosecutor but an in-court
confession which normally should be taken in account as a mitigating
circumstance in determining the sentence. The major purpose of Plea Agreement
is, thus, to be employed mainly in the cases of low ranking defendants as a legal
instrument for the international tribunals to fulfill the fundamental purpose for
which they were established, namely, the prosecution of the most important
persons responsible for grave breaches of the human rights during the civil wars.
Any use of this procedure in other purposes, would lie beyond the reason for
which it was adopted.
4. Plea Agreement in the proceedings of the civil law jurisdictions
As said in the above chapters, while the Anglo-American systems have already
developed a solid and thorough practice in applying the Plea Agreement
procedure, especially in U.S.A.24 where the greatest majority of the cases are solved
in this way, in the European Continental countries, the practice shows us a
remaining reluctance for implementing it in many countries as well as some
problematic issues in the countries where Plea Agreement has been adopted. In
this chapter we propose a brief comparative analysis of these issues and have
chosen seven representative countries but not only that adopted or accepted Plea
Agreements within their jurisprudence from each European Continental category,
that is, France, Italy and Germany from the group of the West European countries,
Poland and Romania from the Central and East European countries, Estonia and
Georgia belonging to the group of the ex-soviet countries.
4.1. France
In France, the Plea Agreement with the name La comparation sur reconnaissance
préalable de culpabilité (CRPC), also called plaider coupable has been introduced in the
French Criminal Procedure Code by the so called "Perben Act II" of 9 March 2004,
which was designed to adapt the French criminal justice to the evolution of
24 See, A. Alschuler, W. ‘Plea Bargaining and Its History’ in Colombia Law Review 79 (1), (1979)
pp. 1–43.
78 LIVIU ALEXANDRU LASCU
criminality. The plea bargaining procedure, previewed within Articles 495-7,
495-16 and 520-1 of the French Criminal Procedure Code is a new response to those
situations in which, according to the concrete circumstances and the spirit of the
criminal legislation, a fully adjudicative trial can be avoided. According to the
above mentioned articles, the prosecutor could make a deal with the defendant
who is suspect of committing some relatively minor crimes25 by proposing a
penalty not exceeding one year in prison in turn for the defendant’s guilty plea.
Once concluded, the deal is a subject of the approval of the president of the tribunal
de grande instance (High Court) or of another judge appointed for the former.
According to the provisions of the Article 495-11, the defendant, assisted by
his/her attorney, after concluding the agreement with the prosecutor, has to do an
in-court confession of his guilt. The judge, according to the concrete situation and
taking in account the supporting evidence of the case, can render an ordinance of
confirming the penalty proposed by the prosecutor which has the power of a final
sentence. The judge’s ordinance must be enforced immediately after its
pronouncement.
This new procedure is not very well viewed by the French practitioners. Most
of them consider it as creating the premises for the violation of defendants’ rights
and safeguards because it gives too much power to the prosecutor and would
encourage defendants to accept a sentence only in order to avoid the risk of a more
severe sentence in a trial, even if they did not really deserve it. A relevant proof of
its lack of popularity in France is the statistic of criminal cases in 201126 which
shows 77,569 criminal cases out of 513,911, representing only 15,09% of the
decisions rendered by the correctional courts, were concluded following a Plea
Agreement.
4.2. Italy
Italy was a pioneer of the European Continental countries implementing the
Plea Agreement, called patteggiamento27, as it is known among the Italian
provisions of criminal procedure since 16 February 1987 when the Article 45 point
2 of the Law no. 81, enabling legislative delegation to the Government of the
Republic for promulgation of the new Code of Criminal Procedure entered into
25 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.
26 See, ‘Les chiffres clés de la Justice – 2012’, Ministère de la Justice, Secrétariat general, Service
support et moyens du ministère sous-direction de la Statistique et des Études 13, place Vendôme - 75
042 Paris Cedex 01, available on http://www.justice.gouv.fr/art_pix/chiffres_cles_2012_
20121108.pdf.
27 See, Borasi, Ivan, Il patteggiamento. Approcio di sistema alle implicazioni procesuali, Altalex
Editore, Ebook format, chapters I-II
Is the plea agreement practice of the international … 79
force and as it was reshaped in the Article 444 of the Italian Code of Criminal
Procedure as amended by the Law no. 134 of June 12 2003. Summarizing its
content we can see an opportunity for the defendant to conclude an agreement
with the prosecutor when he/she deems that the punishment that would,
concretely, be handed down is less than five years imprisonment. In turn for
his/her guilty plea, the prosecutor may offer a reduced sentence, an exempt from
the payment of the proceedings fees, a drop of some charges or a change of them
with other less severe. Basically, the Italian bargaining is not about the charges but
about the sentence in the sense, once concluded and approved, the penalty can be
reduced by one third. The deal between the prosecutor and the defendant must be
submitted to the Court. The judge is not bound to this deal and after assessing the
evidentiary support of the Plea Agreement, he/she can disapprove it, if the
evidence shows the defendant’s guilt is not sufficiently proved, or in the case, if
proved to be guilty, the proposed punishment for defendant is too lenient. If the
defendant is deemed guilty and there is proportionality between the committed
facts and the proposed punishment, the judge must approve the agreement. The
Italian rules of criminal proceedings provide the possibility for this sentence of
approval the plea agreement to be appealed before the Corte di Cassazione (Court of
Cassation), the highest Italian court which rules only on assessing the legality of
procedure and the interpretation of the law.
Even though the Italian practitioners have much more expertise than other
European colleagues in negotiating justice and even a reshaping of the relevant
law provision according to the practice requirements, they still consider this
procedure as very difficult to reconcile with the Italian traditional procedural
institutions. A conclusive opinion on this matter is done by the Italian highest
court, Corte di Cassazione in its sentence 15 Cassazione Penale (1990) 47, in which, the
negotiated admission of guilt was deemed as a ‘hypothetical judgment’28.
4.3. Germany
The German approach to doing negotiated justice was the most original among
the European Continental countries because, in spite of its obvious presence in the
practice, there was no legal provision providing expressly a Plea Agreement
procedure since May 2009 when the German Federal Parliament adopted a new
provision of the German Criminal Procedure Code, Section 257 c named
Negotiated Agreement which explicitly acknowledged plea bargaining. Until then,
the so called Absprachen (The Agreements) emerged in practice without statutory
authorization and, paradoxically, not being bound by some legal limits of the
penalties to the offenses on which the plea guilty was negotiated, such agreements
could be encountered in many kinds of criminal cases, even in those involving
serious crimes like drug trafficking and homicide. This is an aspect which
28 See, G. Lattanzi, E. Lupo, ‘Codice di Procedura Penale’, Vol. VI, Giuffré, Milano, 1997, p. 205-215.
80 LIVIU ALEXANDRU LASCU
demonstrates a less concern of the practitioners in harmonizing their work with
the procedural principles but rather in achieving their main goals. Due to the fact
that until the explicit adoption of plea agreement in the German Criminal
Procedure Code a practice in this respect has been already outlined, the law
provision did nothing more than to legislate something which became almost
usual. In this respect, it worth mentioning some characteristics of the German
Negotiated Agreement, as previewed in the Section 257 c: there is no provision
limiting the application of plea agreement to only some kind of offenses or to the
offenses with a specific limit of penalty previewed by the law; an in-court
confession shall be an integral part of any negotiated agreement; the measures of
reform and prevention, may not be the subject of negotiation; on free evaluation of
all the circumstances of the case as well as general sentencing considerations, the
court may indicate an upper or lower sentence limit and the agreement will come
into existence only if both the prosecutor and the defendant agree with the
sentence limit proposed by the court; if legal or factually significant circumstances
have been overlooked in the agreement, the court is not bound of it and may enter
a trial following the classic procedural rules and then the defendant’s confession
may not be used, a fact the court shall notify to the parties.
As a conclusion, we must remember the former German approach because of
its originality and ingenuity to find a way of doing negotiated justice by
interpreting the criminal procedure in the sense that something which is not
expressly prohibited may be permitted as well as the current formula which does
not limit its application only to some less serious crimes and which protects the
defendant’s right of not self-incriminating, in the case the agreement fails.
However, due to the fact that Plea Agreement has some inaccuracies with the
traditional principles of criminal procedures it is not very popular with the
German specialists29.
4.4. Poland
Since 1998, Poland has also had a kind of plea agreement30 which proved to be
a very original one because according to the Article 387 paragraph 1 of the
Criminal Procedure Code of Poland, the agreement is not concluded in the pre-trial
phase of the process but during the hearings before the court. The plea agreement
is applicable only to the misdemeanors punishable by no more than 8 years of
29 See, B. Schüneman, ‘Wohin treibt der deutsche Strafprozess’ in Zeitschrift für die ge samte
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.
30 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.
Is the plea agreement practice of the international … 81
imprisonment. The procedure allows the defendant, until the conclusion of the first
examination at the first-instance hearing, to submit a motion for a decision
convicting him and sentencing him to a specified penalty or penal measure
without evidentiary proceedings. It is called also the procedure of ‘voluntary
submission to a penalty’ and allows the court to pass the agreed sentence without
reviewing the evidence. The proposed penalty will be accepted by the court and
afterward enforced only if the prosecutor, the victim and the court, all of them,
agree on it. Nevertheless, the court may not accept the terms of proposed plea
agreement, in spite of the fact they were already agreed by the victim and the
prosecutor and may suggest some changes. If the defendant agrees with the court
requirements and submits a new penalty proposition accordingly, the court must
approve it and render the sentence according to the plea agreement. Even if the
Polish Plea Agreement supposes an all parties deal during the trial and apparently,
there is no reason for appealing the sentence, all of them, the prosecutor, the
defendant and the victim have, also, the right to appeal. We can mention, as a very
interesting feature of this procedure, the key role that has been assigned to the
victim because he/she appears as a veritable ‘auxiliary prosecutor’. Is well known
the fact in Polish criminal proceedings the victim can ask and may act as an
‘auxiliary prosecutor’ and therefore, among the other similar procedural rights, the
victim gains also the right to appeal, exactly like the official prosecutor. Finally, if
the Plea Agreement represents, among the others, a concession to the defendant in
exchange for his/her conduct, in the sake of the fairness of the justice act, the
increased role of the victim within the Plea Agreement procedure appears as being
welcomed.
4.5. Romania
The new Code of Criminal Procedure of Romania into force since February 1,
2014 explicitly previews the procedure of plea agreement31. According to it, during
the pre-trial phase of the criminal process, from the incentive of both the defendant
and the prosecutor, can be concluded an agreement of defendant’s admission
his/her guilt for the charges, or only for part of them, in exchange for a lenient
punishment. In Romania, the bargain is not about the charges but only about the
sentence that is, a reduced penalty or less coercive forms of penalty enforcement
like, for example, the suspending of its enforcement. The written consent of the
supervisory prosecutor is necessary as a precondition to conclude the plea
agreement. According to the law provision, concluding such agreement is
prohibited for the most serious crimes for which the criminal law previews a
punishment of more than seven years imprisonment. In order of guaranteeing the
legality and the interest of the defendant within negotiations, the law previews as a
31 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.
82 LIVIU ALEXANDRU LASCU
binding rule, the defendant to be assisted by an attorney. The plea agreement in its
written form and accompanied by evidentiary support is submitted to the court of
first instance. The judge, once receiving it, commences a public but
non-contradictory session in which invite the prosecutor, the defendant and
his/her attorney to make opening speeches. After the hearings and examination of
the evidentiary support of plea agreement, the court takes a decision which can be:
a sentence of convicting the defendant to a punishment no more severe than that
proposed in the agreement, if the legality of proceedings, the rights of defendant
and the proportionality between the gravity of the facts and the severity of the
penalty are provided; a disapproval of the plea agreement and the return of the
criminal file to the Prosecutor’s Office if there is not enough evidentiary support
for demonstrating the guilt of the defendant, the agreement overlooked some legal
requirements or, the proposed penalty is too much lenient in comparison with the
committed facts. Whatever of the both above mentioned decisions of the court of
first instance would be rendered, the defendant and the prosecutor can appeal it.
In this moment is too early to assess the impact of Plea Agreement in the
criminal jurisprudence of Romania but some remarks related only to its legal
background can be done. It appears to be in the trend of European Continental
model, applied only for some less severe crimes, with scarce bargaining tools for
the prosecutor and involving an in-court confession of the defendant.
4.6. Estonia
Since 1 September 2011 when the amendments of the Criminal Procedure
Code adopted on 23 February 2011 entered into force, Estonia has its own Plea
Agreement32 which is actually called Alternative Proceedings (Articles 233- 238). It
supposes a request of the defendant to the Prosecutor’s Office to follow this
procedure, according to which the court may adjudicate a criminal matter by way
of alternative proceedings on the basis of the materials of the criminal file without
summoning the witnesses or other qualified persons. Alternative Proceedings is
prohibited for the most serious crimes for which the punishment of life detention is
previewed, as well as for the cases where several defendants are accused and at
least one of them does not consent to the application of alternative proceedings. If
the defendant and the prosecutor consent to the application of alternative
proceedings, the Prosecutor's Office prepares the statement of charges which is
going to be included in the criminal file and the file shall be sent to the court.
Once the criminal file was received and the session was opened, the judge
announces the commencement of examination by the court and makes a proposal
to the prosecutor to make an opening speech. The prosecutor gives an overview of
32 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.
Is the plea agreement practice of the international … 83
the charges and the evidence which corroborates the charges and which the
prosecutor requests to be examined by the court. After assessing the legality of the
proceedings, the judge shall ask whether the defendant understands the charges,
whether he/she confesses to the charges and whether he/she consents to the
adjudication of the criminal matter by way of alternative proceedings. If all the
necessary conditions are fulfilled, the judge commences the hearings and the
participants in the court session shall rely only on the materials of the criminal file.
If a judgment of conviction is made by way of alternative proceedings, the court
shall reduce the principal punishment to be imposed on the accused by one-third
after considering all the facts relating to the criminal offence.
A short comment on this Estonian Alternative Proceedings is the fact that the
bargaining tools of the prosecutor are very scarce. He/she cannot propose a kind
or a limit of penalty as long as the law previews a reduction of one-third of the
punishment and this is to the disposal of the judge. This procedure does not follow
a pattern of Plea Agreement in its European Continental variant but rather it is a
variant of the guilty plea proceedings which commences during the Pre-Trial phase
of the process.
4.7. Georgia
The Plea Agreement was introduced in Georgia in 2004 and despite its statute
of ex-soviet country, until then under a strong influence of the civil law system,
basically the new adopted Georgian plea bargaining, in most respects, is inspired
by the Anglo-American models33. It consists of an alternative and consensual way
of criminal case settlement without an in-court confession of the defendant who
agrees to plead guilty in exchange for a lesser charge or for a more lenient sentence
or, according to the case, for dismissal of certain related charges (Article 209 of the
Criminal Procedure Code of Georgia). The Georgian procedure is based on the
principle of the free choice of the defendant, equality of the parties and protection
of his/her rights and safeguards. The defendant has the right to reject the plea
agreement at any stage of the criminal proceedings before the court renders the
judgment and the use in the future of the information provided by the defendant
under the plea agreement against him is explicitly prohibited. In concluding the
agreement, the prosecutor is obliged to take into consideration the public interest,
the severity of the penalty, and the personal characteristics of the defendant and as
a guarantee of these aspects, the procedure previews the consent of the
supervisory prosecutor as necessary precondition to conclude plea agreement and
to amend its provisions. The court is not bound by the agreement and if the
presented evidence is not sufficient to support the charges or if other requirements
33 See, Alkon, C, ‘Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal
Justice Systems?’ in Transnational Law & Contemporary Problems, a Journal of University of Iowa
College of Law, vol. 19, Spring 2010, 363-369.
84 LIVIU ALEXANDRU LASCU
stipulated by the Criminal Procedure Code of Georgia are violated by the
agreement, the judge can return the case to the prosecution, not before offering to
the parties the possibility to change the terms of the agreement. If the court satisfies
itself that the defendant fully acknowledges the consequences of the plea
agreement, he/she was represented by the defense council, his/her will is
expressed in full compliance with the legislative requirements without deception
and coercion, also if there is enough body of doubtless evidence for the conviction
and the agreement is reached on legitimate sentence - the court approves the plea
agreement and renders guilty judgment. If any of the abovementioned
requirements are not satisfied, the court rejects to approve the plea agreement and
returns the case to the prosecutor. Another important aspect which deserves to be
mentioned is the position of the victim in relation to the plea agreement. Under
Article 217 of the Criminal Procedure Code of Georgia, the prosecutor is obliged to
consult with the victim prior to concluding the plea agreement and to inform
him/her about this and is, also, obliged to take into consideration the interests of
the victim and as a binding rule, to conclude the plea agreement only after the
damage is already compensated.
As a conclusion, we can see a very unusual and courageous legislative action
from the Georgian legislator when adopting this procedure in very relative terms
with the Anglo/American Plea Agreement, in spite of the judicial tradition
inspired by the civil law systems and the lack of adversarial expertise in the
Georgian criminal jurisprudence.
5. Is the Plea Agreement procedure of the ad-hoc tribunals a model for the
European continental legal systems?
As we have seen in the previous chapters, the pattern of Plea Agreement
adopted by the ad-hoc tribunals is very similar in most respects to those applied in
the civil law judicial systems and differs from those adopted in the Common Law
states. The latter states have applied the concept for several decades and it is now
employed in the criminal files without restrictions on the types of crimes or their
severity because it creates the opportunity to avoid the process and not only to
shorten it. Moreover, in the case the agreement fails, the defendant’s right of not
self-incriminating does not suffer because the Anglo-American Plea Agreement
does not suppose an in-court confession. So, considering these issues, we conclude
that, although there is not still an outlined pattern of the Plea Agreement of the
civil law countries, the ad-hoc tribunals have applied in their practice a very
similar model to those applied in these countries. As the ad-hoc tribunals’ practice
in this regard is longest, we try to analyze whether it can be a model for the
European continental states which have already adopted the concept or might it be
a model of regulation for those countries which have not yet adopted Plea
Agreement into their criminal legislation.
Is the plea agreement practice of the international … 85
5.1. With regard to the types and gravity of the crime
As we can see, the most of the European continental countries do not allow the
Plea Agreement to be applied in the cases dealing with the most severe crimes,
most probably because the concept is seen as a tool able only of shortening those
criminal cases which do not entail a real challenge in proving the guilt of the
defendants, the so called start-end criminal files, which otherwise, would uselessly
require time and resources following a classic trial. Moreover, a lenient penalty for
a defendant committing a serious crime, as a consequence of his/her plea
agreement concluded with the prosecutor, is hard to be accepted by the justice
seekers of these countries because it would be rather seen as a betrayal of the
justice than a pragmatic approach of doing it. In spite of this prejudice, the RPE of
the ad-hoc tribunals does not ban the concluding of plea agreement for the most
serious crimes, most probably because, almost all the crimes under their
jurisdiction are deemed as extremely serious. On the other hand, the range of the
defendants’ involvement in the crimes perpetration is the key issue in attributing
the criminal responsibility and therefore, if the ad-hoc tribunals have not a wide
range of offenses from which to select the less serious kinds when concluding plea
agreements they have definitely much more possibilities to qualify the
involvement of the defendants into the crimes commission. The ad-hoc tribunals
offer a rich jurisprudence regarding the modes of attributing the criminal
responsibility because in addition to the traditional modes encountered in the
national jurisprudences like direct commission, incitement, aiding or abetting34 we can
find also the planning, ordering35, the participation to the famous joint criminal
enterprise36 and the superior responsibility for the crimes committed by his/her
subordinates37. All these modes of criminal responsibility create a wide range of
labeling the degree of the defendant’s guilt according to his/her involvement into
the crimes commission and therefore, not having too many choices regarding the
kinds of crimes, the prosecutor has many possibilities to assess the defendant’s
modes of responsibility according to its involvement.
34 See, ‘Modes of liabilities: commission and participation’, in OSCE-ODIHR /ICTY/UNICRI
Project “Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National
Jurisdictions”, Developed by International Criminal Law Services, 33, 41, 69, available on
http://wcjp.unicri.it/deliverables/training_icl.php.
35 See, Badar, M. E., ‘Participation in crimes in the jurisprudence of the ICTY and ICTR’, Routledge
Handbook of International Criminal Law (eds. William A. Schabas, Nadia Bernaz), Routledge, (2011), 246,
247-248.
36 See, Cassese, A., ‘The Proper Limits of the Individual Criminal Responsibility under the
Doctrine of Joint Criminal Enterprise’ in Journal of International Criminal Justice 5 (2007), Oxford
University Press, 2007,109-133.
37 See, Ambos, K. ‘Superior Responsibility’ in The Rome Statute of the International Criminal Court:
A Commentary, Vol. I, (eds. Cassese, Gaeta & Jones, 2002) J.R.W.D. Jones Publisher: Oxford University
Press, 806-853; Meloni, C, ‘Command Responsibility, Mode of Liability for the Crimes of Subordinates
or Separate Offence of the Superior?’ In Journal of International Criminal Justice 5 (2007), Oxford
University Press, 619-637.
86 LIVIU ALEXANDRU LASCU
Nevertheless, it’s not quite clear whether the Prosecutor’s Offices of the ad-hoc
tribunal really looked only for the law ranking or less involved defendants for
concluding plea agreement with, like in the national jurisdictions of the civil law
countries. Most probably the prosecutor didn’t propose an agreement to Slobodan
Milošević or Ratko Mladić due to their position and involvement in the crimes
perpetration but other high ranking defendants like Biljana Plavsić, the former
president of Republika Srpska have concluded such agreements. We think,
therefore, that in the ad-hoc tribunals jurisprudence there is not too much
scrupulosity in dissociation the group of the high ranking defendants, not eligible
for negotiation from the rest of the defendants. The ad-hoc tribunals have a specific
mission and a limited time to accomplish it and therefore they can’t underestimate
the advantages offered by a high ranking defendant’s confession in the context of
the evidence’s scarcity or the cases’ complexity.
Regarding the learning from the ad-hoc tribunals’ jurisprudence in doing
negotiated justice in the cases involving serious crimes, we think there is at least
one positive aspect to be taken in account. If the legal system does not accept a
negotiated justice with the most heinous criminals, as seen in the most European
continental countries, than is not necessary to prohibit through the law de plano
negotiations with the defendants who participated in the perpetration of those
crimes. It would be wiser to create the possibility to tackle the less involved or law
ranking perpetrators for negotiating their guilt plea and afterward to use them as
witnesses in order to secure proving the guilt of the most important perpetrators.
Thus, we think when prohibiting the negotiating justice with the perpetrators of
the most severe crimes it would be better for the legislators to take in account not
solely the abstract gravity of the crime but also the degree of participation and the
personal circumstances of the defendants and to leave a room for negotiation with
the less involved perpetrators, despite the seriousness of the crime.
5.2. With regard to the complexity of the criminal files
As presented in the previews sections, one of the main reasons to implement
Plea Agreement procedure into the proceedings of the ad-hoc tribunals was to
simplify the complex cases resolution by using the defendant guilty plea in two
different aims: the quick resolution of the case in which the defendant conclude a
plea agreement; the use of this defendant as witness in other criminal cases. This
double role of the Plea Agreement was employed in disentangling some very
complex and sensitive criminal files of the ad-hoc tribunals. Therefore, the choice
of most European continental countries of not allowing this procedure in the very
complex criminal cases is incomprehensible. The American commentator Jeffrey
Toobin38 has considered the solving of the criminal files concerning organized
crimes or corporate crimes quite unimaginable without the using of the Plea
38 See, Toobin, J., ‘End Run at Enron’, in The New Yorker, 27 October 2003.
Is the plea agreement practice of the international … 87
Agreement for the law ranking perpetrators. The same positive outcome of the use
of this procedure in the jurisprudence of the ad-hoc tribunals in tackling the very
complex crimes under their jurisdiction, like genocide, crimes against humanity
and war crimes makes us to conclude, Plea Agreement is extremely valuable in
solving the crimes committed in a systemic context39. These kinds of crimes are
committed by a more or less formal hierarchical structure of the perpetrators
following a specific pattern: while the crime is conceived and orchestrated by the
high ranking members of the group, the low rank members, in pursuing the
instructions of their superiors, perpetrate the material acts of the crimes. Thus,
applying the classic formulas of attributing the criminal responsibility, the high
ranking members of the criminal group would never make responsible, grace of
the fact, they didn’t do any material act of the crime and sometimes there is even a
structural remoteness between them and the place where the crime has been
committed. Demonstrating their involvement in the crime’s perpetration is, thus,
an extremely difficult task or even impossible without the cooperation with the
prosecutor of the low ranking perpetrators. As the most European continental legal
systems don’t give the legal possibility to do such deal with the perpetrators
involved in committing the most complex crimes like those above mentioned, in
spite of their low ranking position within the criminal group or of their small
contribution to the crimes’ perpetration, they do anything else than frustrate the
prosecutors of having an extremely useful tool in prosecuting the high ranking
members of the criminal group, that is, the Plea Agreement with the low ranking
members.
5.3. The bargaining tools of the prosecutor
In the aim of raising the interest of the defendant to conclude an agreement
with the prosecutor, as a necessary precondition, the latter must have at its
disposal some significant bargaining tools. Even if, in the Nicolić Case, the ICTY
prosecutor amended the indictment by waiving the charge of complicity of
genocide for Dragan Nicolić, we cannot say, as a general rule, the ICTY prosecutor
has the power to waive charges in turn for the defendant’s guilty plea. However,
for the Prosecutors’ Offices of the ad-hoc tribunals there still remain enough
bargaining tools given the wide range of time for the penalties of imprisonment
which can be imposed to the defendants. Actually, the statutes and the RPE of the
ad-hoc tribunals don’t preview limits for the penalties. Even though the Plea
Agreement can be subjected of the judge’s disapproval in the case he/she found an
unfair leniency to the negotiated punishment, the fact that the prosecutor can
propose a substantial reduction of the imprisonment time for defendant, still
remains a strong bargaining tool. This is not a similar situation in the most of
39 See, Vogel, J., ‘How to determine Individual Criminal Responsibility in Systemic Contexts:
Twelve Models’ (English version) in Cahiers de Defense Sociale, (2002), 152-169.
88 LIVIU ALEXANDRU LASCU
European continental countries where not only is the withdrawal of some charges
not permitted, thanks to the omnipresent principle of mandatory prosecution, but
even the reduction of the punishment is not at the prosecutors’ fully disposal
because most of the legislations impose certain limits in reducing the penalty as
result of the agreement. Moreover, some legal systems left the entire decision of
penalty reduction in the hands of the judge, leaving thus almost no bargaining tool
at the prosecutor’s disposal. All of these aspects show us the insignificant role
assigned by the civil law legal systems for the Plea Agreement procedure, that is,
only for some minor criminal cases where given the willingness of the defendant to
assume his/her guilt, it seems useless to spend time and resources within a classic
trial.
6. Final remarks
Taken from the Common Law legal systems, the Plea Agreement procedure
began to be implemented in continental European states especially in the last
decade and is already a common practice within the ad-hoc international criminal
tribunals ICTY and ICTR since 2001. Even if the models adopted in these
mentioned jurisdictions differ from those encountered in the Anglo-American
systems being applied until now only in minor criminal cases and not just to avoid
the trial but actually to shorten it, most likely, in the future, after the assessment of
its application in practice proves to be positive one, the procedure will be
expanded to the cases involving serious crimes and the limits of negotiating will be
allowed a wider range. So far, the issue of justice negotiation is inconsistent with
certain traditional principles and institutions of the criminal proceedings in the
civil law countries and is still hard to digest for some specialists.
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