Plea Bargaining in Germany:
Explained by a criminal Defence Attorney

The communication between the court and the parties to the proceedings is laid down by law in § 257c German Criminal Procedure Code (StPO). The subject of a plea bargain may not only be the legal consequences that can be the content of the judgement and the associated orders but also other procedural measures in the underlying discovery proceedings and the conduct of the parties to the proceedings. According to the law, every plea bargain should include a confession. However, the guilty verdict as well as measures to safeguard and improve behaviour may not be the subject of a plea bargain.

The classic case of a plea bargain in Germany is an agreement on the sentence. In return for the confession of the person concerned, a more lenient sentence is guaranteed, which can save the judiciary a considerable amount of time and resources. Other procedural measures can be agreed instead of or in addition to a fixed sentence. This includes, for example, a partial discontinuation of the proceedings with regard to individual charges in accordance with § 154 (2) StPO.

In principle, the mutual agreement is, of course, binding for all parties involved. This is the only way to create legal certainty. Nevertheless, § 257c (4) sentence 1 StPO provides for certain exceptions in which the court can waive a plea bargain agreement that has already been reached. Such cases exist:

• If legally or factually significant circumstances have been overlooked or have newly arisen, and the court, therefore, comes to the conclusion that the envisaged sentence is no longer appropriate for the offence or guilt;
• If the further trial behaviour of the defendant does not correspond to the behaviour on which the court’s prognosis was based.

Legal or factual circumstances that would be relevant here include the realisation of a different involvement in the offence than assumed. If the plea agreement is based on the assumption that the defendant was merely an accessory to the offence, but it later transpires that he was the main perpetrator, the court may dispense with the plea agreement. The emergence of new evidence can also lead to the cancellation of the plea bargain agreement. Relevant deviating trial behaviour can be, for example, the withdrawal of the confession or the commission of further offences during the ongoing trial.

If the plea agreement does not bind the court, a confession made by the defendant as part of the plea bargain may not be utilised. The court must notify the defendant immediately of any deviation from the plea agreement. The exceptions provided for are intended to ensure that a judgement appropriate to the guilt of the accused can be passed despite the plea agreement. Even after signing the plea bargain agreement, it is, therefore, vital to follow the advice of a lawyer so as not to jeopardise the deal itself.

For the plea bargain in Germany to work in the defendant’s favour, it is crucial that it is structured carefully and strategically, taking into account both legal and tactical considerations. For this reason, a plea bargain should never be attempted without the detailed advice of an experienced German criminal defence lawyer. The defence lawyer will also examine the possibility of a deal in the early stages of the preliminary proceedings.

Before a plea bargain is actually sought, a full inspection of the files is essential. The criminal defence lawyer must know exactly what evidence and circumstantial evidence is available against the defendant to realistically assess the possibilities and prospects of success and the risks of a plea bargain. If the evidence is weak or there is considerable doubt, a plea bargain deal could turn out less favourably than a dispute in regular proceedings would. Conversely, substantial evidence can be the decisive factor in concluding a plea bargain to avoid an even harsher sentence.

The defence lawyer must try to negotiate the lowest possible sentence by emphasising mitigating circumstances, such as a confessional statement by the defendant, a willingness to cooperate or the absence of previous convictions. The waiver of certain legal remedies can also serve as a negotiating element to achieve a more favourable sentence. In addition to the main sentence, the criminal defence lawyer should also keep a close eye on the secondary consequences of the plea bargain in Germany. These include, for example, possible probation conditions, the question of entry in the criminal record or consequences under professional law. A successful plea bargain should reduce the main sentence and minimise the secondary consequences as much as possible.

The time at which the plea bargain agreement in Germany is sought can be decisive for its success. As a rule, the plea bargain should be reached as early as possible in the proceedings to shorten the duration of the proceedings and avoid unnecessary escalation. However, it can also be tactically prudent to wait for the taking of evidence first to gain a better negotiating position.