The agreement between the court and the parties to the proceedings is standardized in Section 257c of the German Code of Criminal Procedure (StPO). The classic case of a plea bargain is an agreement on the sentence, whereby the defendant is promised a more lenient sentence in return for a confession. However, paragraph 2 of the aforementioned provision specifies the possible subjects of an agreement:

• Legal consequences that may be included in the sentence and the associated decisions: The court may specify an upper and lower limit for the sentence after freely assessing all the circumstances of the case and the general considerations for sentencing. For example, in the hearing, a limit on the number of daily fines or a driving ban may be determined. Similarly, the discontinuation of proceedings under Sections 153, 153a StPO or a suspension on probation may be the subject of the “deal.” However, the legal consequences or range of penalties agreed upon are not binding if no agreement is ultimately reached.
• Behavior of the parties involved in the proceedings: The defendant’s waiver of, for example, (further) motions for evidence or recusal can also be agreed upon. Compensation may also be agreed upon, such as damages to the aggrieved party within the meaning of Section 46a StGB.
• Other procedural measures: This includes, for example, the partial discontinuation of proceedings with regard to individual charges.

Under Section 257c (2) sentence 3 StPO, verdicts of guilt and measures of security and reform are excluded from the agreement. The latter includes, among other things, preventive detention, the revocation of a driver’s license , and the imposition of a professional ban.

In principle, the plea bargain is binding on the court. This is the only way to ensure legal certainty. Nevertheless, Section 257c (4) sentence 1 StPO provides for certain exceptions in which the court may disregard a plea bargain that has already been concluded. Such cases exist

• if legally or factually significant circumstances have been overlooked or have arisen and the court therefore concludes that the proposed sentence is no longer appropriate to the offense or the degree of guilt;
• if the defendant’s further conduct during the trial does not correspond to the conduct on which the court’s prognosis was based.

Legal or factual circumstances that would be relevant here include statements made by the defendant that were initially overlooked and subsequently turned a simple offense into a serious case. The emergence of new evidence can also lead to the agreement being revoked. Relevant deviating conduct during the trial may include, for example, the revocation of a confession or the commission of further offenses during the ongoing trial.

If the court is no longer bound by the agreement, a confession made by the defendant within the framework of the agreement may not be used, Section 257c (4) sentence 3 StPO. The court must also immediately notify the deviation from the agreement.

The exceptions provided for are intended to ensure that, despite the agreement, a sentence appropriate to the defendant’s guilt can be imposed. Even after the agreement has been reached, it is therefore extremely important to follow the advice of a lawyer in order not to jeopardize the deal with the public prosecutor’s office.

For the plea bargain to actually benefit the defendant, it is crucial that it be carefully and strategically structured, considering both legal and tactical considerations. For this reason, a plea bargain should only be sought after thorough consultation with an experienced criminal defense attorney. They will examine the possibility of a plea bargain at an early stage of the investigation.

Before actually seeking a plea bargain, it is essential to have full access to the case files. The defense attorney must know exactly what evidence and circumstantial evidence exists against the defendant to realistically assess the possibilities and prospects of success as well as the risks of a plea bargain. If the evidence is weak or there are significant doubts, a deal could turn out to be less favorable than a trial in regular proceedings. Conversely, strong evidence can be the deciding factor in concluding a deal to avoid an even harsher sentence.

The timing of the plea bargain can be crucial to its success. As a rule, an agreement should be reached as early as possible in the proceedings in order to shorten the duration of the trial and avoid unnecessary escalation. However, it may also be tactically wise to wait for the hearing of evidence to gain a better negotiating position.