Formalisation of Plea Bargaining in Germany- Will the New Legislation be able to Square the Circle?

Abstract

Although the guilty plea is unknown in the German criminal procedure, informal negotia-tions which can be compared to plea bargaining in common law systems, play an increasing role in the German criminal process. Like plea bargaining in England and Wales, informal agreements in Germany have long been strongly criticised. After years of debate among academics and practitioners and developing case law on in-formal agreements, the German Federal Parliament has now passed new legislation which regulates agreements and makes them part of the formal procedure (Gesetz zur Regelung der Verständigung im Strafverfahren). This paper will discuss the development and current prac-tice of informal procedures in Germany and analyse the new legislation. It will argue that the German legislator has missed the opportunity to debate the underlying problems which made informal negotiations necessary in the first place.

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