Plea bargaining: a new trend in European criminal proceedings

It is an agreement between the prosecutor and the defendant where the defendant pleads guilty (and therefore simplifies the work of the authorities) in exchange for a more lenient sentence.

There are three types of plea bargains: (i) a charge bargain, in which the defendant pleads guilty only to a less serious offence (e.g. a defendant charged with robbery pleads guilty to theft only) and a charge is filed only for a less serious crime; (ii) a sentence bargain, in which the defendant pleads guilty to all charges in exchange for a lesser sentence, and (iii) a fact bargain, in which the defendant and the prosecutor agree on which facts will be served as evidence before the court and which will not.

Regulation in the Czech Republic and other European civil law countries

Plea bargaining is currently regulated in 27 European civil law countries. The models of plea bargaining in individual European jurisdictions are all based on sentence bargaining and usually differ only in the following: (i) whether the plea bargain applies to all offences (including the most severe ones) or only to minor offences; (ii) whether the defendant needs to be represented by a defence attorney; and (iii) what advantage (penalty deduction) can be agreed with the prosecutor.

In the Czech Republic, there is currently a major initiative by the Bar Association and the Supreme Prosecutor's Office to support the conclusion of plea agreements between prosecutors and defendants, which resulted in 2020 in an important amendment to the Code of Criminal Procedure. The amendment enables (i) the use of plea bargaining for all criminal offences (including the most severe ones), (ii) the reduction of a sentence by up to one-third below the penalty rate, and (iii) the conclusion of an agreement in less serious cases without a defence attorney.

The Czech authorities believe that more relaxed rules will make plea bargains more attractive for both defendants and prosecutors, speeding up the rather sluggish Czech criminal justice system. Although the number of plea agreements is not expected to reach the level of the United States, where more than 90 % of all criminal cases are resolved by plea agreements, the aim is to at least approach other European jurisdictions such as Italy, Poland, Spain and Bulgaria, where plea bargaining is an important complement to standard criminal proceedings.

White-collar crime and plea bargaining

Despite all the negative aspects that opponents of plea bargaining usually cite, such as the risk of poor policework or innocent defendants pleading guilty under pressure from the prosecutor, we believe that plea bargains have great potential to be used particularly in white-collar crime cases of both management members and corporations. Besides lighter sentences, avoiding publicity, defamation and social stigma, keeping uninvolved parties out of the case and getting everything over with quickly are some of the main benefits of negotiating a plea.

Despite the controversies surrounding plea bargains, there is clearly a growing trend to introduce them into European jurisdictions and use them in practice. From the defendant's point of view, this is not just an opportunity to negotiate a more advantageous sentence, but also to avoid lengthy proceedings. Knowing the chances of victory at trial and the boundaries for plea negotiations is the key when deciding whether to sign the agreement with the prosecutor or not. Therefore, no plea bargain should be concluded without the presence of an experienced lawyer.

author: Rudolf Bicek