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A. Draft resolution
(open)
B. Draft recommendation
(open)
Report | Doc. 14618 | 17 September 2018
Deal-making in criminal proceedings: the need for minimum standards for trial waiver systems
Committee on Legal Affairs and Human Rights
Summary
The Committee on Legal Affairs and Human Rights stresses the importance of fair trials in criminal proceedings. It notes that in many member States, regular criminal trials have gradually been replaced by different forms of trial waiver systems (plea bargaining).
Trial waiver systems have clear potential advantages. They save resources that would be required for systematically holding full trials in open court and help the fight against organised crime by allowing prosecutors to offer “deals” to potential crown witnesses.
But trial waiver systems also have serious drawbacks. They are open to abuse by both the prosecution and the defence. In particular, the secrecy of “deal-making” undermines the public’s trust in the judiciary and the fair and non-discriminatory application of the law.
The committee therefore considers that appropriate safeguards are needed in order to ensure that member States enjoy the potential benefits that trial waiver systems may offer whilst minimising the threat to human rights. These include making the involvement of a lawyer obligatory, imposing a minimum level of investigation into the crime underlying the plea agreement and the disclosure of the results of the investigation, requiring judicial scrutiny of key elements of the plea agreement (including the credibility and voluntary nature of the underlying confession and the appropriateness of the sanction resulting from the plea agreement), limiting the extent of the “trial penalty”, prohibiting the waiver of appeal rights, and monitoring indicators of racial or wealth bias or discrimination.
A. Draft resolution 
(open)1. The Parliamentary Assembly
recalls the obligation of member States to ensure fair trials in
criminal proceedings. The safeguards foreseen in the European Convention
on Human Rights (ETS No. 5, “the Convention”), in particular its
Article 6, are designed to protect the innocent and to promote equality
of arms between the prosecution and the defence in the interest
of material justice.
2. It notes that in many member States of the Council of Europe
and in States having observer or other status with the Council of
Europe or the Assembly, regular criminal trials have gradually been
replaced by different forms of trial waiver systems (also called
plea bargaining, guilty pleas, abridged trials or summary procedures).
In a number of countries, only a minority of criminal convictions
are still based on regular trials.
3. The rapid development of trial waiver systems, in particular
in central and eastern Europe and in the successor countries of
the former Soviet Union, is partly due to efforts by the United
States to promote American-style plea bargaining as part of the
technical assistance provided to the newly established democracies
for the reform of their judicial systems. Given the marked differences
in the criminal justice systems within Europe and between Europe
and the United States, such a transposition is fraught with risks that
need to be counteracted in order to minimise abuse. In particular,
the extensive powers of the prosecution (prokuratura) in the criminal
justice systems of certain eastern European countries must be counter-balanced by
a stronger defence and a more active role of the court if “plea
bargaining” is not to deteriorate into blackmail.
4. Trial waiver systems have clear potential advantages:
4.1. they save resources that would
be required to fully and thoroughly investigate all suspected crimes
and systematically hold full trials in open court. Some less serious,
although frequently committed types of delinquency may not justify
the investment in each case of scarce law-enforcement and judicial resources
required for a regular trial;
4.2. they facilitate concentration of the limited law-enforcement
resources on well-defined priority fields of criminal activity;
4.3. they can help the fight against organised crime, money
laundering and other forms of complex criminality, where inroads
into closed criminal structures can be facilitated by the prosecutors’
ability to offer “deals” to potential crown witnesses;
4.4. they allow suspects who confess and are ready to accept
a sentence to avoid a long pretrial investigation which might restrict
their rights.
5. But trial waiver systems also have serious drawbacks:
5.1. they are open to abuse by both
the prosecution and the defence. A prosecutor may threaten a defendant
with an inappropriately harsh sentence if he or she does not confess,
even in the absence of sufficient evidence; and a defence counsel
may lure an overburdened prosecutor in a complex case into accepting
a partial confession and a mild sanction whilst disregarding other,
more serious criminal activity. Typically, the first type of abuse
victimises young and poor offenders whereas the second type benefits
wealthy white collar criminals;
5.2. by saving prosecutors the need to make their case in open
court, widespread trial waivers in time affect the authorities’
very ability to carry out solid investigations;
5.3. the secrecy of “deal-making” undermines the public’s trust
in the judiciary and the fair and non-discriminatory application
of the law;
5.4. by increasing the case-processing capacity of the criminal
justice system, without increasing its resources, plea bargaining
increases the overall number of criminal convictions. This increase
(“net-widening effect”) may be inconsistent with optimal penal policy
and the cost of any resulting higher prison population may well
negate the judicial resources saved by trial waivers.
6. The Assembly considers that appropriate safeguards are needed
to ensure that member States enjoy the potential benefits that trial
waiver systems may offer, whilst minimising the threat to human
rights, in particular the right to a fair trial.
7. It welcomes and encourages the sharing of good practices that
have already been introduced in several member States, including:
7.1. the mandatory involvement of
a lawyer (Croatia, Estonia, France, Georgia, Ireland, Luxembourg, “the
former Yugoslav Republic of Macedonia” and Switzerland);
7.2. the imposition of minimum requirements for investigations
and the disclosure of their results (Finland, Germany and Luxembourg);
7.3. the requirement of judicial scrutiny of key elements of
the plea agreement and the limitation of the differential between
the sanction resulting from a full trial and that offered as part
of a plea bargain (Germany);
7.4. the prohibition of the waiver of the right to appeal and
the possibility to revoke an agreement in certain circumstances
(Germany).
8. The Assembly calls on all member States and States having
observer or other status with the Council of Europe or the Assembly
to implement the following safeguards, whose effectiveness will
ultimately depend on the existence of a truly independent judiciary
to:
8.1. make the involvement of
a lawyer obligatory, as a condition for the validity of a plea bargain,
if need be funded by legal aid, so as to ensure that defendants,
in particular vulnerable ones such as young offenders, are treated
fairly – as required by Article 6.3.c of
the European Convention on Human Rights;
8.2. impose a minimum level of investigations into the crime
underlying the plea agreement and the disclosure of the results
of the investigation, to enable the defendant to make an informed
choice, in accordance with the right to presumption of innocence
under Article 6.2 of the Convention, and to protect the confidence
of the general public in the fairness of the criminal justice system;
8.3. require judicial scrutiny of key elements of the plea
agreement, regarding in particular the credibility and voluntary
nature of the underlying confession and the appropriateness of the
sanction resulting from the plea agreement;
8.4. limit the differential between the sanction resulting
from a full trial and that offered as part of a plea bargain (“trial
penalty”), thus avoiding unfair pressure on the accused whilst ensuring
that sanctions remain within an appropriate range and justice is
seen to be done;
8.5. prohibit the waiver of appeal rights, in order to ensure
sufficient control, at the national level, of the actual practice
of lower courts in the field of plea bargaining;
8.6. foresee the possibility of revoking a plea agreement in
certain circumstances, in particular when new facts arise or become
known which make the plea agreement inappropriate and require further prosecutorial
action; in such a case, a confession made as part of the agreement
must not be used against the defendant;
8.7. minimise the use of pretrial detention against persons
suspected of less serious crimes by making use of alternative measures;
8.8. monitor indicators of racial or wealth bias or discrimination
in the reduction of sentences following guilty pleas, and take appropriate
awareness-raising, training and, if need be, disciplinary measures
in order to counteract any such bias or discrimination;
8.9. ensure that the law-enforcement authorities and the criminal
courts are properly resourced so as to avoid excessive recourse
to trial waiver systems for purely budgetary reasons and to enable
the meaningful implementation of the safeguards recommended above;
8.10. ensure proper monitoring and control by courts and law-enforcement
bodies to avoid blackmail, pressure or any other manipulation aimed
at compelling suspects to engage in a trial waver system.
B. Draft recommendation
(open)1. The Parliamentary Assembly
refers to its Resolution … (2018) “Deal-making in criminal proceedings:
the need for minimum standards for trial waiver systems”.
2. It invites the Committee of Ministers to:
2.1. undertake a comprehensive study
on the use of trial waiver systems in the Council of Europe’s member
and observer States;
2.2. address a set of recommendations to member States designed
to ensure that in the use of trial waiver systems the threat to
human rights, in particular the right to a fair trial, is minimised.
C. Explanatory memorandum by Mr Boriss Cilevičs, rapporteur
(open)1. Introduction
1. Different types of out-of-court
settlement procedures, in particular plea bargaining (or “guilty
pleas” “summary procedures” or “abridged trials”), are widely used
in many Council of Europe member States in criminal proceedings
concerning different types of offences. As a rule, but not necessarily,
these procedures involve explicit recognition of guilt. In my work
as rapporteur of the Monitoring Committee, I was confronted with the
massive use of plea bargaining in so-called new democracies. Such
“plea bargaining” procedures can ensure a substantial acceleration
of the criminal process and save significant resources. However,
their application, which is becoming more and more widespread, also
carries serious risks as regards compliance with the “classical”
principles of the rule of law, in particular on fairness of trials.
Given the importance this practice has taken in recent years, it
is surprising that hardly any universally accepted international
standards exist in this regard.
2. The Parliamentary Assembly therefore decided to study the
application of these procedures in practice, in particular plea
bargaining, and to analyse good practices, risks and problems, with
the aim of drawing up relevant recommendations for member States.
3. My research as rapporteur on this topic
has confirmed the impressions from my Monitoring Committee experience.
The practice is even more widespread than I had realised, and, in
some cases, quite worrisome. It seems that normal trials, with all
the procedural protections under Article 6 of the European Convention
on Human Rights (ETS No. 5, “the Convention”) are slowly becoming
the exception and “deal-making” the rule. In particular, it is not completely
clear how the protections under the Convention can be applied in
practice to ensure that innocent people are not coerced into “bargains”
that will land them with a criminal record, or worse.
on this topic
has confirmed the impressions from my Monitoring Committee experience.
The practice is even more widespread than I had realised, and, in
some cases, quite worrisome. It seems that normal trials, with all
the procedural protections under Article 6 of the European Convention
on Human Rights (ETS No. 5, “the Convention”) are slowly becoming
the exception and “deal-making” the rule. In particular, it is not completely
clear how the protections under the Convention can be applied in
practice to ensure that innocent people are not coerced into “bargains”
that will land them with a criminal record, or worse.4. As agreed by the Committee on Legal Affairs and Human Rights,
on the basis of my introductory memorandum, the topic as outlined
in the title of the motion for a resolution underlying this report
(“Out-of-court settlement procedures in criminal justice: advantages
and risks”) is too wide to be covered in a single report. “Out-of-court
settlement procedures” would normally include the whole field of
what criminologists refer to as diversion, i.e. “diverting” the
response to (generally) minor criminality away from criminal sanctions
of any kind, towards treatment or care programmes, perpetrator/victim
conciliation efforts or alternative sanctions of different kinds.
Such “diversion” can intervene at a very early stage in the criminal
process, for example as soon as the police identifies a suspect,
or at a later stage, after the police has brought charges; it can
be formal or informal, it can be regulated in detail by law or left
to the discretion of police officers or prosecutors. But contrary to
deal-making practices in criminal proceedings, these alternatives
to trial do not result in criminal convictions. Instead, they divert
people away from criminal prosecution altogether. Such diversionary
strategies are clearly useful and interesting, in particular in
order to help fight prison overcrowding and “over-criminalisation”; and they raise interesting
legal and political issues in their own right. Diversion has been
criticised from two opposing sides: some see it as undercutting
the strict enforcement of the law and others as yet another example
of “widening the net” of repressive social responses to perceived
deviant behaviour. But these issues, however interesting,
should be addressed in a separate report so that the present report
does not become too broad and thereby necessarily superficial.
and they raise interesting
legal and political issues in their own right. Diversion has been
criticised from two opposing sides: some see it as undercutting
the strict enforcement of the law and others as yet another example
of “widening the net” of repressive social responses to perceived
deviant behaviour. But these issues, however interesting,
should be addressed in a separate report so that the present report
does not become too broad and thereby necessarily superficial.5. The present report on the specific issue of “deal-making”
in criminal proceedings is reflected in the new title agreed at
the committee meeting in March 2018. It is understood that different
forms of agreements in criminal proceedings involve partial or full
waivers of the defendant’s right to a normal trial.
2. Deal-making in criminal proceedings – prevalence in practice and recent trends
6. The practice of deal-making
in criminal proceedings is originally an American or, more generally,
a Common Law phenomenon. Plea bargaining took off in America around
1920, when Prohibition led to a dramatic increase in the number
of criminal offences. Bargains with suspects to plead guilty in
return for lighter punishment seemed to be the only way to cope.
After the end of Prohibition, plea bargaining remained. In 1970, the
United States Supreme Court broadly recognised the constitutionality
of this practice. After this its spread was unstoppable.
By 1980, only 19% of defendants in federal criminal cases went to
trial, and since 2010, this figure has remained below 3%. Plea bargaining
is linked to the traditional adversarial nature of criminal trials in
Common Law systems, where – as dramatised in numerous Hollywood
movies – the prosecutor and the defence attorney “fight it out”
before the jury, a fight merely moderated by the judge, who acts
as a neutral “referee”. Acquittals are not infrequent; much, if
not everything, depends on the professionalism and engagement of
the prosecutor and the defence attorney. Truth is understood as
procedural – as whatever the jury decides, in light of the evidence
put before it. By contrast, most “continental”, Roman law-based
legal systems traditionally foresee an “inquisitorial” criminal
procedure: the judge, in serious cases often a collegiate court
with one judge acting as rapporteur, actively seeks the truth, in
an “inquisitive” way, not relying exclusively on requests for evidence
introduced by the prosecution and the defence. The prosecution is
legally bound to follow the evidence wherever it may lead, in a
neutral way, both in favour and against the suspect, with the assistance
of the police. The role of the defence lawyer is basically limited
to pleading on behalf of the accused, highlighting the aspects of
the case that speak in his favour and minimising the negative ones.
Typically, in adversarial systems, the prosecution has a high degree
of discretion as to whether to prosecute at all, and if so, for
which crime. By contrast, in the continental (“inquisitorial”) legal
systems, the prosecution is bound by the “principle of legality”,
meaning that if there is sufficient evidence for a crime, charges
must be brought. In actual practice, prosecutorial discretion is
limited by different checks and balances also in the common law systems,
and the principle of legality is in turn fraught with so many exceptions
that in reality, prosecutors have considerable discretion also in
continental legal systems. Such discretion clearly opens the way
to negotiations. The wider the prosecutorial discretion, the wider
the scope for “deal-making”, for better or for worse.
After this its spread was unstoppable.
By 1980, only 19% of defendants in federal criminal cases went to
trial, and since 2010, this figure has remained below 3%. Plea bargaining
is linked to the traditional adversarial nature of criminal trials in
Common Law systems, where – as dramatised in numerous Hollywood
movies – the prosecutor and the defence attorney “fight it out”
before the jury, a fight merely moderated by the judge, who acts
as a neutral “referee”. Acquittals are not infrequent; much, if
not everything, depends on the professionalism and engagement of
the prosecutor and the defence attorney. Truth is understood as
procedural – as whatever the jury decides, in light of the evidence
put before it. By contrast, most “continental”, Roman law-based
legal systems traditionally foresee an “inquisitorial” criminal
procedure: the judge, in serious cases often a collegiate court
with one judge acting as rapporteur, actively seeks the truth, in
an “inquisitive” way, not relying exclusively on requests for evidence
introduced by the prosecution and the defence. The prosecution is
legally bound to follow the evidence wherever it may lead, in a
neutral way, both in favour and against the suspect, with the assistance
of the police. The role of the defence lawyer is basically limited
to pleading on behalf of the accused, highlighting the aspects of
the case that speak in his favour and minimising the negative ones.
Typically, in adversarial systems, the prosecution has a high degree
of discretion as to whether to prosecute at all, and if so, for
which crime. By contrast, in the continental (“inquisitorial”) legal
systems, the prosecution is bound by the “principle of legality”,
meaning that if there is sufficient evidence for a crime, charges
must be brought. In actual practice, prosecutorial discretion is
limited by different checks and balances also in the common law systems,
and the principle of legality is in turn fraught with so many exceptions
that in reality, prosecutors have considerable discretion also in
continental legal systems. Such discretion clearly opens the way
to negotiations. The wider the prosecutorial discretion, the wider
the scope for “deal-making”, for better or for worse.7. Empirical research carried out by Fair Trials International
in 90 jurisdictions shows that different types of “trial waiver
systems” have progressed enormously over the past 25 years all over
the world. Between 1990 and the end of 2015, the number of countries
with trial waiver systems increased from 19/90 to 66/90, across different
legal systems and traditions. In some jurisdictions, “deals” have
come to largely replace trials – for example in the United States.
In some jurisdictions, this process took place rapidly, over just
a few years. In the new democracies of central and eastern Europe,
and in particular in the former Soviet Union, there is a clear correlation
with efforts by US advisers to promote the American model of plea
bargaining, as was the case in Georgia under President Saakashvili.
The Georgian plea bargaining practice has been widely criticised,
for example by Thomas Hammarberg, the Council of Europe Commissioner
for Human Rights. The Georgian delegation
has kindly provided me with statistical data that show that the
number of judgments based on plea bargains has decreased since its
peak in 2010/2011 until 2017 from 16 000 to 10 000. But the 2017
number was still more than double that of judgments based on “essential
consideration” (regular trials) in the same year.
The Georgian delegation
has kindly provided me with statistical data that show that the
number of judgments based on plea bargains has decreased since its
peak in 2010/2011 until 2017 from 16 000 to 10 000. But the 2017
number was still more than double that of judgments based on “essential
consideration” (regular trials) in the same year.8. Whilst the “American model” is itself subject to serious criticism, it is questionable
whether the transposition of the “American model” is at all appropriate
in jurisdictions with a very different legal and judicial culture,
for example in terms of the chance of acquittal when a “deal” offered
by the prosecution is refused by an accused person. The fairness
of trial waiver systems hinges on the “balance of power” between
the prosecution and the defence. This balance may be reasonably
appropriate in the United States (provided the defendant can afford
a qualified and well-motivated lawyer), but less so in the “inquisitorial”
systems in western Europe (where judges play a particularly strong
role) and not at all appropriate in the eastern European systems
of criminal procedure, which are still dominated by an overwhelmingly
strong prosecution service (“prokuratura”), in the tradition of
the former Soviet Union. Notwithstanding such compatibility issues,
the U.S. Department of Justice’s Office of Overseas Prosecutorial
Development Assistance and Training (OPDAT), established in 1991,
has provided guidance and training as part of U.S. foreign-aid efforts
after the break-up of the Soviet Union, which was strongly geared
towards promotion of plea bargaining.
it is questionable
whether the transposition of the “American model” is at all appropriate
in jurisdictions with a very different legal and judicial culture,
for example in terms of the chance of acquittal when a “deal” offered
by the prosecution is refused by an accused person. The fairness
of trial waiver systems hinges on the “balance of power” between
the prosecution and the defence. This balance may be reasonably
appropriate in the United States (provided the defendant can afford
a qualified and well-motivated lawyer), but less so in the “inquisitorial”
systems in western Europe (where judges play a particularly strong
role) and not at all appropriate in the eastern European systems
of criminal procedure, which are still dominated by an overwhelmingly
strong prosecution service (“prokuratura”), in the tradition of
the former Soviet Union. Notwithstanding such compatibility issues,
the U.S. Department of Justice’s Office of Overseas Prosecutorial
Development Assistance and Training (OPDAT), established in 1991,
has provided guidance and training as part of U.S. foreign-aid efforts
after the break-up of the Soviet Union, which was strongly geared
towards promotion of plea bargaining. 9. In order to show the magnitude of the trend, here is a table
summing up data collected by the NGO Fair Trials concerning the
timing of the introduction of trial waiver systems and prevalence
of “deals” as a percentage of all criminal convictions in member
States of the Council of Europe:
|
Country (member of the Council of Europe) |
Year of introduction of a TWS* |
% of TWS* |
|||
|
Pre-1990 |
1990-1999 |
2000-2009 |
2010-2016 |
||
|
Albania |
X |
||||
|
Armenia |
X |
||||
|
Austria |
X |
||||
|
Bosnia and Herzegovina |
X |
41% (2015) |
|||
|
Croatia |
X |
6 % (2014) |
|||
|
Czech Republic |
X |
07% (2014) |
|||
|
Denmark |
X |
||||
|
Estonia |
X |
64% (2014) |
|||
|
Finland |
X |
||||
|
France |
X |
||||
|
Georgia |
X |
8% (2012) |
|||
|
Germany |
X |
||||
|
Hungary |
X |
23% (2014) |
|||
|
Iceland |
X |
||||
|
Ireland |
X |
||||
|
Italy |
X |
4% (2008) |
|||
|
Lithuania |
X |
||||
|
Luxembourg |
X |
||||
|
Netherlands |
X |
||||
|
Norway |
X |
||||
|
Poland |
X |
43% (2015) |
|||
|
Romania |
X |
||||
|
Russian Federation |
X |
64% (2014) |
|||
|
Serbia |
X |
4% (2014) |
|||
|
Spain |
X |
7% (2014) |
|||
|
Switzerland |
X |
||||
|
“The former Yugoslav Republic of Macedonia” |
X |
||||
|
Turkey |
X |
||||
|
Ukraine |
X |
||||
|
United Kingdom |
X |
70% (2014) |
|||
* TWS = Trial Waiver Systems: plea bargaining, abbreviated trials and co-operating witness procedures
% of TWS = Percentage of cases resolved through trial waiver systems
10. The data collected by Fair
Trials may even underestimate the true prevalence of “deal-making”
in criminal proceedings, as informal types of “deal-making”, which
often precede legislative action to somehow recognise and codify
this practice, are difficult to quantify. But it is evident from
these data that the trend towards the replacement of the traditional
criminal trial by different types of trial waiver systems is very
strong. We therefore need to address the advantages and risks involved
in these practices.
3. Different types of trial waiver systems
11. In accordance with the huge
differences between legal systems, there are also different types
of trial waver systems, which also carry many different names (for
example “plea bargaining” or “guilty pleas”, “summary procedures”
or “abridged trials”). What these practices have in common is the
acceptance, by the person accused of a criminal offence, to waive
his or her right to a full trial in exchange for a counterpart promised
by the State. Among the types of trial waver system described in
some detail by the above-mentioned Fair Trials study are those involving
co-operation with so-called crown witnesses, who provide evidence against
others in return for lenient punishment for themselves. Incentives
offered by the State may concern facts (some impugned facts left
un-investigated or not taken into account in return for the recognition
of other, less serious facts by the accused); or they may concern
the charges brought by the prosecution, for an offence carrying
a lower punishment than another, related offence, for example manslaughter
instead of murder). The advantages and risks vary somewhat depending
on the type of trial waiver system in question, but many issues concern
all variations of this practice.
4. Advantages and risks of trial waiver systems
4.1. Saving scarce judicial resources
12. The main reason why trial waver
systems have had so much success is that they seem to help save
the scarce resources available for the criminal justice system by
avoiding many full-scale trials. It has been argued that especially
in countries with a high rate of low- or mid-level crime and an
under-resourced judiciary, the adoption of trial waver systems is
the best way to avoid either de facto impunity for numerous perpetrators
or the over-use of pretrial detention, when suspects are held in
detention for a long time until their trial can finally be scheduled.
13. But the advantages of plea bargaining are not limited to countries
with high crime rates and under-resourced law enforcement. Finland,
which cannot be suspected of belonging to this group of countries, reportedly
brought in plea-bargaining in 2015 after a number of findings by
the European Court of Human Rights of violations of the right to
a trial in due time.Ibid.
14. In many countries, the judiciary (in a wide sense, to include
both the prosecution and the courts) is severely overburdened and
understaffed. In such a situation, there are, theoretically, three
possibilities: 1) the law-enforcement bodies give up on fully investigating
and prosecuting every crime for which there is enough prima facie
evidence to justify bringing a case, and set priorities by application
of more or less objective criteria; 2) the law-enforcement bodies
try to do the impossible, but a lot of cases remain pending until
they are prescribed; and in the worst case, as unfortunately observed
in many countries, the accused, innocent or not, will have spent
a lot of time in pretrial detention in the meantime; and 3) the
law-enforcement bodies try to “cut corners” on procedure and deal
with cases without a full investigation of all related facts and
without a full trial (by using partial or full trial waiver systems).
15. Obviously, at least the first two of these possibilities are
not particularly appealing. Ideally, law-enforcement authorities
should have sufficient resources to deal with all cases in such
a way that there is no impunity and that all procedural safeguards
of regular criminal trials are respected. But in the real world,
that is not likely to happen. The unpleasant scenarios are far more
likely: the white collar crime suspect (or his well-versed, expensive
lawyer) intimidates an overworked and underpaid public prosecutor
whose job performance is measured in terms of numbers of cases resolved
or, worse, numbers of convictions obtained, by hinting at truckloads
of documents to be sifted and armies of witnesses to be heard –
whilst offering the prosecutor to plead guilty to a small fraction
of the criminal activity he or she has actually committed, in return
for a short (preferably suspended) sentence. Or – and this would
be just as unacceptable – the other way round: the small-time (or
first-time, or young) offender against whom the evidence is at best
shaky is coerced into a “deal” leading to a criminal record and
possibly some prison time, without a lawyer advising him that the
chances of acquittal would be quite good; or he is assisted by a
legal aid lawyer, again overworked and underpaid, who depends on
more cases coming his way, and is therefore loath to being perceived
as throwing sand into the cogwheels of justice. The second scenario
is particularly likely to be “successful” in countries with high conviction
rates and large spreads between minimum and maximum sentences in
their criminal codes.
16. Also, while a “deal” clearly requires less resources than
a full trial, case by case, it is not so clear that the widespread
use of trial waiver systems really does save the State resources
overall. Increasing the judicial system’s capacity to process more
cases will lead to more convictions and thus more people being sentenced to
prison. Given the high cost of imprisonment, this may well compensate
or even outweigh the resources saved by avoiding many full trials;
and as we have seen in an earlier Assembly report promoting alternative sanctions, the true cost of massive imprisonment
is not limited to the State paying for room and board of the prisoners:
the net-widening effect of trial waver systems, which enable the
State to prosecute and convict more people, produces social costs
in many other respects. By permitting prosecutors and courts to
process cases rapidly, in high numbers, plea bargaining could be
operating as a driver of mass incarceration and mass criminalisation.
the true cost of massive imprisonment
is not limited to the State paying for room and board of the prisoners:
the net-widening effect of trial waver systems, which enable the
State to prosecute and convict more people, produces social costs
in many other respects. By permitting prosecutors and courts to
process cases rapidly, in high numbers, plea bargaining could be
operating as a driver of mass incarceration and mass criminalisation. 4.2. Avoidance of full investigations and side-stepping of procedural protections for the accused
17. Trial waiver systems can help
avoid the need for the full investigation of all facts related to
an alleged crime and to take evidence. This saves judicial resources,
as mentioned above. It can also spare victims of certain types of
crime the trauma of having to testify in open court, confronting
the perpetrator and reliving the crime. This is particularly relevant
in cases concerning crimes against children and sexual offences
in general. On the other hand, trial wavers can also lead to the
(partial) impunity of the perpetrators of “complicated”, resource-intensive
(mostly “white-collar”) crimes, or, on the contrary, to the conviction
of innocent people coerced into plea bargains by the threat of much
more severe punishment in case of a full trial and the low statistical
chance of acquittal by the court. The phenomenon of innocent people
pleading guilty was extensively documented in the United States. According to the Fair Trials study, the element of coercion in plea bargaining
is the strongest when there is a particularly high perceived benefit
to pleading guilty to a lesser charge, in the form of a high sentence
differential between those pleading guilty and those going to trial
– tellingly called “trial penalty” in the American discussion. The coercion becomes almost irresistible
when the threat of the death penalty is involved, as in an American
case described by Fair Trials. Studies
have also observed a clear relationship between long mandatory minimum
sentences and the development of plea bargaining. Prosecutors openly
admit that they use harsh minimum sentences to win plea bargains.
According to the Fair Trials study, the element of coercion in plea bargaining
is the strongest when there is a particularly high perceived benefit
to pleading guilty to a lesser charge, in the form of a high sentence
differential between those pleading guilty and those going to trial
– tellingly called “trial penalty” in the American discussion. The coercion becomes almost irresistible
when the threat of the death penalty is involved, as in an American
case described by Fair Trials. Studies
have also observed a clear relationship between long mandatory minimum
sentences and the development of plea bargaining. Prosecutors openly
admit that they use harsh minimum sentences to win plea bargains. 18. Empirical research has shown that false confessions in a plea-bargaining
context are a particularly serious problem. Of 149 Americans absolved
of crimes in 2015, 65 had pleaded guilty. The
Innocence Project found that about 10% of rape and
murder convicts whose innocence they were able to prove had pleaded
guilty. These figures probably still underestimate the scale of
the problem, as exoneration work concentrates on particularly serious
crimes where sentences are long and there is more likely to be forensic evidence.
For the vast majority of (lesser) crimes, false confessions under
the threat of the “trial penalty” are likely to be even more frequent.
A 2013 experimental study by Lucian Dervan and Vanessa Edkins shows that
a majority of “innocent” subjects (accused of cheating) “confessed”
as part of a “plea bargain” to avoid (minor) penalties. Another
study suggests that guilty participants are no more likely to plead
guilty if offered a bigger rather than smaller incentive. But innocent
people are more likely to make false confessions as the incentive
(i.e. the “trial penalty”) rises. This shows that limiting the “trial
penalty” (or the “rebate” for a confession), as in Germany and Spain,
is an important safeguard.
The
Innocence Project found that about 10% of rape and
murder convicts whose innocence they were able to prove had pleaded
guilty. These figures probably still underestimate the scale of
the problem, as exoneration work concentrates on particularly serious
crimes where sentences are long and there is more likely to be forensic evidence.
For the vast majority of (lesser) crimes, false confessions under
the threat of the “trial penalty” are likely to be even more frequent.
A 2013 experimental study by Lucian Dervan and Vanessa Edkins shows that
a majority of “innocent” subjects (accused of cheating) “confessed”
as part of a “plea bargain” to avoid (minor) penalties. Another
study suggests that guilty participants are no more likely to plead
guilty if offered a bigger rather than smaller incentive. But innocent
people are more likely to make false confessions as the incentive
(i.e. the “trial penalty”) rises. This shows that limiting the “trial
penalty” (or the “rebate” for a confession), as in Germany and Spain,
is an important safeguard.19. Trial waiver systems may also undermine the important function
of criminal trials of ensuring public scrutiny of the proper functioning
of the police and the prosecution, thus protecting public trust
in the criminal justice system. The wide-spread practice of plea
bargaining, which avoids the need for testing the evidence and making
a solid case in open court, can even make the police and prosecution
lose the habit and in the long run the skills needed for rigorous
criminal investigations. The reduced scope of public scrutiny can
also reduce accountability for human rights abuses (beatings, even
torture) that typically occur during the period between the arrest
and the beginning of the trial and thus weaken an important deterrent
against such abuses.
20. In this context, it is interesting to note that the prevailing
practice of plea bargains in the United Kingdom has been found responsible
for a reduced number of rape convictions. These
tend to be displaced by lesser charges after a defendant offers
to plead guilty to a lesser sexual offence. This can have devastating consequences
for the victim, for example when a charge of sex with a minor is
used instead of rape, because it suggests the victim consented.
According to Ministry of Justice records, only 38% of rape cases
in 2008 won a conviction for rape itself.
These
tend to be displaced by lesser charges after a defendant offers
to plead guilty to a lesser sexual offence. This can have devastating consequences
for the victim, for example when a charge of sex with a minor is
used instead of rape, because it suggests the victim consented.
According to Ministry of Justice records, only 38% of rape cases
in 2008 won a conviction for rape itself.21. On the other hand, it is undeniable that offering a “deal”
to a suspect who may be willing to co-operate may well enable law
enforcers to “crack open” a larger case, by obtaining evidence from
the co-operating suspect against other perpetrators, who may otherwise
be simply out of reach for law enforcement. Such tactics, when employed
fairly, can be a legitimate tool, in particular in the fight against
organised crime, and have been used extensively and successfully
in Italy (pentiti) and the
United States.
5. Necessary safeguards for the rights of the accused
22. As we have seen, trial waver
systems carry substantial risks, but they also have undeniable advantages, and
are probably simply unavoidable. Even legal systems such as the
German one, which have traditionally shunned any “deal-making” outside
the courtroom in criminal matters, have come around to recognising
this practice, albeit reluctantly. To my knowledge, legislators
in these countries have taken to regulating a de
facto practice that could simply not be eradicated.
23. Surprisingly, the European Court of Human Rights has not yet
had the opportunity to develop specific standards in this field.
To my knowledge, only two of its cases deal with plea bargaining.
In the first, Deweer v. Belgium,
the Court found a violation of Article 6.1 of the European Convention
on Human Rights, noting that “[t]o sum up, Mr Deweer’s waiver of
a fair trial attended by all the guarantees which are required in
the matter by the Convention was tainted by constraint”. In
the second case, Natsvlishvili and Togonidze
v. Georgia, the
Court accepted the validity of a guilty plea despite some worrisome
elements of the case at hand, including the waiver of the right
to appeal.
In
the second case, Natsvlishvili and Togonidze
v. Georgia, the
Court accepted the validity of a guilty plea despite some worrisome
elements of the case at hand, including the waiver of the right
to appeal.24. In view of the opportunities
provided by plea bargaining, but also its possible pitfalls, it
is important to introduce and enforce in actual practice some safeguards
that will protect the rights of the accused to the extent possible.
The purpose is to minimise the risk of human rights violations,
whilst preserving the advantages of this practice, in particular
in terms of efficiency. My fact-finding activities – in particular,
the hearing before the committee in June 2018 – have therefore focused
on collecting ideas and proposals for such safeguards, which I summed
up in the draft resolution. The aim is to properly regulate the
practice of “trial wavers”, which will not go away, whether we like
it or not. Here
are some safeguards that I suggest we recommend:
Here
are some safeguards that I suggest we recommend:5.1. Obligatory involvement of a lawyer
25. Access to a lawyer is important
even when the defendant has the benefit of a full trial. In a plea bargaining
situation, it is vital: as our experts explained during the hearing
in June, only a lawyer can advise the defendant on his chances of
acquittal in case of a trial, and only a lawyer can explain the
full consequences of entering into a deal entailing a criminal conviction.
This is especially valid in the case of minors. The involvement
of a lawyer has already been made mandatory, as a condition of the
validity of a plea agreement, in Croatia, Estonia, France, Georgia,
Ireland, Luxembourg, “the former Yugoslav Republic of Macedonia”
and Switzerland. Surprisingly, to our German expert, this
is still not the case in Germany.
Surprisingly, to our German expert, this
is still not the case in Germany.26. Also, for this essential safeguard to function, legal aid
lawyers provided to impecunious defendants must be properly remunerated
so that they can afford to spend the time necessary for the effective
representation of the defendant’s interests, and they should not
be in a situation of dependency regarding the prosecution, which
should be prevented from influencing the selection of public defenders
or legal aid lawyers.
5.2. Minimum requirements for investigations and the disclosure of the results of the investigation
27. The risk of a situation in
which an innocent person is coerced into entering a plea bargain,
by a prosecutor who was unable to collect sufficient evidence for
a conviction following a normal trial, must be minimised. One possibility
to minimise such abuses would be to make the validity of plea agreements conditional
upon fulfilment of minimum standards regarding the investigation
of the facts and the evidence found, and on the disclosure of the
results of the investigation to the suspect and his or her lawyer.
Disclosure of the results of the investigation enables the defendant’s
lawyer to properly assess the chances of acquittal in case of a
trial. Such disclosure would also help dissipate the impression
that trial wavers in criminal proceedings are suspect “backroom
deals”, an impression which undermines public trust in the judiciary. According
to the Fair Trials study, disclosure requirements in favour of defendants
who have indicated an interest in a trial waiver already exist in
Luxembourg and in Finland. Such good practices deserve to be spread to
other jurisdictions.
5.3. Requiring judicial scrutiny of key elements of the plea agreement
28. In order to prevent abuses
at the level of the police or the prosecution, a minimum amount
of judicial scrutiny of the results of the “bargaining process”
must be ensured. The scrutiny must also cover the procedure followed
– in particular, the court must obtain confirmation from the defendant
that the trial waiver was truly voluntary. This confirmation should
be obtained by the court in the absence of the prosecutor, to avoid intimidation.
Judicial scrutiny should also encompass the credibility of the confession,
which is usually part of the agreement. The court must be convinced
of the truth of the confession, a mere formal admission of the crime
should not be considered sufficient.
29. According to the German Law on agreements in criminal proceedings
(Verständigungsgesetz), based on
a Grand Senate judgment of 3 March 2005, the self-incriminatory
confession must be sufficiently detailed and concrete so as to allow
verification of its conformity with the results of the investigation
as reflected in the case file. This means that an empty “formal
confession” or “slim confession” is not a sufficient basis for a conviction.
The Federal Constitutional Court requires that the veracity of all
confessions made in the framework of a “deal” must be verified during
a court hearing, in other words not merely by a verification of
the file. The process of verification must be documented in such
a way that further investigative steps do not appear to be necessary.
According to the German Federal Constitutional Court, these transparency
and documentation requirements belong to the “core” of statutory
regulation and must be implemented carefully in practice. These requirements
are designed to prevent so-called “informal agreements”, which are
the most exposed to the risk of abuse. Nevertheless, according to
the Fair Trials study, a judicial “plausibility check” for the confession underlying
the “deal” is not required in many jurisdictions permitting trial
wavers. In the United States, it is even permissible that a defendant
accepts a conviction without admitting the factual basis of the
charges (so-called “Alford plea” ); which leads
to numerous cases in which prosecutors entered into plea deals with
full knowledge that a defendant is in fact innocent. By
contrast, German law strictly prohibits “fact bargaining”. Even
judgments based on plea bargains must be in conformity with the
trial objective of search for material truth.
the self-incriminatory
confession must be sufficiently detailed and concrete so as to allow
verification of its conformity with the results of the investigation
as reflected in the case file. This means that an empty “formal
confession” or “slim confession” is not a sufficient basis for a conviction.
The Federal Constitutional Court requires that the veracity of all
confessions made in the framework of a “deal” must be verified during
a court hearing, in other words not merely by a verification of
the file. The process of verification must be documented in such
a way that further investigative steps do not appear to be necessary.
According to the German Federal Constitutional Court, these transparency
and documentation requirements belong to the “core” of statutory
regulation and must be implemented carefully in practice. These requirements
are designed to prevent so-called “informal agreements”, which are
the most exposed to the risk of abuse. Nevertheless, according to
the Fair Trials study, a judicial “plausibility check” for the confession underlying
the “deal” is not required in many jurisdictions permitting trial
wavers. In the United States, it is even permissible that a defendant
accepts a conviction without admitting the factual basis of the
charges (so-called “Alford plea” ); which leads
to numerous cases in which prosecutors entered into plea deals with
full knowledge that a defendant is in fact innocent. By
contrast, German law strictly prohibits “fact bargaining”. Even
judgments based on plea bargains must be in conformity with the
trial objective of search for material truth.30. But even the German rules, which seem to be reasonably protective
of the interests of innocent defendants, do not appear to be applied
correctly in practice. According to a 2012 study prepared at the
request of the Federal Constitutional Court (Bundesverfassungsgericht),
which was called upon to scrutinise the constitutionality of the
above-mentioned Law (Verständigungsgesetz),
almost 60% of the judges polled in the study admitted that the bulk
of the agreements they dealt with were not properly documented and
only 28% of the judges indicated that they verified the credibility
of the agreed confession. As the Fair Trials study presents Germany
as one of the countries in which judges in cases involving trial
wavers may take a comparatively more active role in examining evidence
for verifying the defendant’s confession, I am quite worried about the situation in
this respect in other jurisdictions, where the judges’ duties are
less clearly defined than in Germany.
I am quite worried about the situation in
this respect in other jurisdictions, where the judges’ duties are
less clearly defined than in Germany.31. The German Constitutional Court, in a judgment of 19 March
2013, found
the Law itself to be generally in conformity with the Constitution,
but not its application. The Constitutional Court therefore called
upon the legislature to closely watch relevant developments and
take appropriate measures in order to prevent the occurrence of
an unconstitutional practice. Our German expert, Professor Beulke,
noted during the hearing in June that in the wake of the Constitutional
Court’s restrictive judgment, the practice of plea bargaining before German
courts has diminished considerably. Its main field of application
is now economic (“white collar”) crime, which requires complicated,
resource-intensive investigations and where penalties are fairly
lenient anyway, by comparison to crimes against the person.
found
the Law itself to be generally in conformity with the Constitution,
but not its application. The Constitutional Court therefore called
upon the legislature to closely watch relevant developments and
take appropriate measures in order to prevent the occurrence of
an unconstitutional practice. Our German expert, Professor Beulke,
noted during the hearing in June that in the wake of the Constitutional
Court’s restrictive judgment, the practice of plea bargaining before German
courts has diminished considerably. Its main field of application
is now economic (“white collar”) crime, which requires complicated,
resource-intensive investigations and where penalties are fairly
lenient anyway, by comparison to crimes against the person.5.4. Limiting the “trial penalty”
32. As we have seen, a high differential
between the sanction resulting from a full trial and that offered
as part of a plea bargain (“trial penalty”) can result in strong
pressure coercing defendants into a “deal” when they are innocent,
or when the evidence against them is scant. An excessive “rebate”
also risks fostering a public perception that the judiciary fails
to uphold the rule of law. The German Supreme Court in Criminal
Matters (in the above-mentioned Grand Senate judgment of 3 March
2005) has therefore stipulated that the sanction imposed by way
of an agreement must not deviate from that to be expected after
a full trial to the extent that the general rules of sentencing
would be violated. This means that the agreement must not foresee
a sentence that would be below the limit of what is still acceptable
in view of the gravity of the crime and the degree of guilt of the
defendant, even taking into account the generally accepted ground
for reduction of the penalty for a defendant who has admitted to
his or her crime.
5.5. Prohibiting the waiver of appeal rights
33. In order to maintain the possibility
of redressing possible procedural and other violations in the process of
“deal-making”, the possibility of an appeal against the verdict
must remain open. This is why the German Code of Criminal Procedure
(as amended by the above-mentioned Verständigungsgesetz)
explicitly excludes the waiver of the right to appeal as part of
the agreement. By contrast, the European Court of Human Rights, in
its Natsvlishvili and Togonidze v. Georgia judgment,
has accepted that no appeal to a higher court against the plea-bargaining
agreement was possible, finding that by accepting the plea bargain,
Mr Natsvlishvili had knowingly waved his right to an ordinary appellate
review. Therefore there was no violation of Article 2 of Protocol
No. 7 to the European Convention on Human Rights (ETS No. 117).
However, on the other hand, without the possibility of appellate
review, it will be difficult for the higher courts to enforce the
safeguards under the Convention (including those required by the
European Court of Human Rights). This would undermine the principle
of subsidiarity underlying the Convention and in time lead to the
Court itself being obliged to “police” the national lower courts’
application of plea bargaining rules.
5.6. Possibility to revoke an agreement in certain circumstances
34. In order to safeguard the principle
of material justice underlying criminal procedure, the court must
be able to revoke the agreement when legally or factually important
circumstances were overlooked or have newly arisen and the court
is therefore convinced that the agreed sanction is no longer appropriate.
5.7. Prohibiting the use of a confession as evidence after the failure or revocation of an agreement
35. The right to a fair trial requires
that a confession made in the framework of negotiations about an agreement
in criminal proceedings must not be used as evidence if the agreement
fails or is revoked. This safeguard against the possible “entrapment”
of a suspect is expressly foreseen in the German Code of Criminal Procedure
as amended by the Verständigungsgesetz (paragraph
257c IV 3).
5.8. Counteracting racial and social inequality
36. Studies in the United States
show that there is a strong racial disparity in the reduction of
sentences following guilty pleas. In view of the increasingly diverse
composition of the population in many European countries, such risks
of discrimination also exist in Council of Europe member States.
This should be counteracted by appropriate training and sensibilisation
mesures and by ensuring that relevant data is collected and acted
upon.
37. Also, as a consequence of social inequalities, poorer suspects,
who cannot afford to pay bail, are likely to be under greater pressure
to plead guilty in order to get out of pretrial detention. Again,
this must be countered, to the extent possible, by measures to reduce
the abuse of pretrial detention.
6. Conclusions
38. “Trial waivers” (or “deal-making
in criminal proceedings”, or “plea bargaining”) have certain undeniable advantages,
but they can also cause some real dangers for the rights of the
defendant and for the rule of law. The question does arise how fair
trials rights can be protected if there is no trial. There
are few international standards, if any, to regulate a practice
that is expanding rapidly across the member States of the Council
of Europe, and beyond. Trial waiver systems are in many more recently
democratic jurisdictions an “American import”, hard-sold through
assistance programmes offered by the United States. The question
inevitably arises whether such an “import” really suits criminal
justice systems with such different traditions as those, for example,
in former Soviet countries, where the Prokuratura is still feared
for its overwhelming powers, where courts almost never acquit, and
where defence lawyers still mostly play a marginal role.
There
are few international standards, if any, to regulate a practice
that is expanding rapidly across the member States of the Council
of Europe, and beyond. Trial waiver systems are in many more recently
democratic jurisdictions an “American import”, hard-sold through
assistance programmes offered by the United States. The question
inevitably arises whether such an “import” really suits criminal
justice systems with such different traditions as those, for example,
in former Soviet countries, where the Prokuratura is still feared
for its overwhelming powers, where courts almost never acquit, and
where defence lawyers still mostly play a marginal role.39. As we have seen, the dramatic development of the practice
of plea bargaining in many European countries has some advantages
and some disadvantages. The disadvantages can and must be contained
by the introduction of appropriate safeguards. Some such safeguards
are suggested in the draft resolution. In the absence, so far, of
strong guidance from the European Court of Human Rights (see paragraph
23 above), I also believe that it would be appropriate for the Committee
of Ministers to develop some guidelines, which could take the form
of a recommendation to member States, as suggested in the draft
recommendation to the Committee of Ministers.