Influence of the Prosecutor on the Consensual Termination of Criminal Proceedings

A consensual termination of criminal proceedings means (in general terms) the termination of criminal proceedings by reaching an agreement on the issue of the criminal responsibility of the defendant (in the broad sense of this notion, inclusive of the term “suspect”). The essence of such an agreement, which is concluded between a defendant and a public prosecutor (sometimes also with the participation of another authority or a victim), is that in exchange for a specific conduct of the defendant (usually pleading guilty) set forth in this agreement, the outcome of the proceedings becomes more favourable for him compared to the one that could have been expected otherwise.¹ Such a consensus is advantageous for both parties: not only is it beneficial for the defendant as he is served a more lenient punishment, or even in some cases held responsible for only some of the perpetrated acts, but also the state authorities conduct the proceedings more quickly and expeditiously, improving its statistical effectiveness. Such a consensus is then presented to the court as a suggested judgment finalising the proceedings. This competence may be described as the prosecutor’s impact on the intensity of criminal prosecution and on the severity of the penal response of the court. It depends on the prosecutor whether there will be a confrontation of the parties at a trial or whether the criminal law conflict will be resolved in a non-confrontational manner. Also, other institutions such as discontinuation of prosecution, pursuant to the principle of opportunism, may be included in the category of powers affecting the intensity of criminal prosecution. However, only concluding a procedural agreement binding for the court provides an opportunity for the prosecutor to exert an impact on the contents of the decision on the merits. Depending on the system, the impact that the parties have on the contents of this judgment may be significant when the court is obliged to rule on the basis of this agreement or of smaller consequence when the court is only obliged to take this agreement as a suggestion into account. The essence of the institution of procedural agreements on the issue of criminal responsibility of a defendant is not only the possibility of negotiating with the prosecutor itself but first of all the significance of this consensus for the court and resolving the case in a merit-based manner.² If the court is obliged to issue the judgment in a form agreed on by the parties, then the prosecutor may have an impact not only on what the legal and penal response should be and the course of the proceedings but also on the contents of the ultimate resolution.

The actual significance of the prosecutor’s authority to effect consensual disposition of criminal proceedings will always depend on what, within the limits of the law, may be offered to the defendant in exchange for pleading guilty. Therefore, the effectiveness and attractiveness of procedural agreements for the defendant are inherently related to other determinants of the model of accusation, including, foremost, the existence of the principle of procedural opportunism in a given legal order that enables the prosecutor to make a decision on whether, in his opinion, bringing charges (and what charges) is justifiable. This principle, combined with the rule that the court is bound not only by the scope of an indictment but also by the legal characterisation of an offence adopted by the prosecutor in the indictment, renders the prosecutor capable of offering to the defendant much more attractive concessions than in the systems that have the prosecutor act within the restricted principle of legalism and in which the legal characterisation of the offence charged to the defendant in an indictment is not binding for the court.

Despite following the assumptions of the accusation model typical for the common law tradition in numerous other cases, at the initial stage of their operations the international criminal tribunals have not adopted the procedural institution of the consensual termination of criminal proceedings—which in this model constitutes one of the most important powers of the prosecutor. Initially, no possibility of shortening the proceedings as a result of pleading guilty was provided for in the proceedings before the ad hoc tribunals. Neither was there a legal basis for concluding procedural agreements with the prosecutor. The impact of pleading guilty was restricted to it being taken into account, as a mitigating factor, at the sentencing stage. The original form of proceedings before the ad hoc tribunals in the area of pleading guilty was much more restrictive as far as the consequences of pleading guilty were concerned; as a matter of fact, they were even more restrictive than the criminal procedures of continental law states are at present. It was assumed that this component of proceedings would not be influenced by the common law model. However, characteristically for the ad hoc tribunals, the institution of pleading guilty gradually evolved, leading to the adoption of the institutions of guilty plea and plea bargaining in the form known in Anglo-Saxon states—quite opposite than other procedural institutions that evolved in the direction of the continental model.

First, nowadays, before both ad hoc tribunals if the defendant pleads guilty, there is no trial, and the case is heard in a sentencing hearing. Second, in the case the defendant pleads guilty to one or more charges, the prosecutor may conclude an agreement with the defence. This agreement may oblige the prosecutor to carry out three types of actions:

There are two institutions related to the notion of consensual termination of proceedings: a guilty plea and plea bargaining (understood as the procedure of negotiations prior to the consensual termination of criminal proceedings). These institutions are not always combined, and they may also occur in various procedural configurations, producing various effects. There are various concepts on the essence of all of the above-mentioned procedural institutions; however, what is certain, is that at the basis of any consensual termination of proceedings stands an agreement. In turn, the agreement is based on a confession of guilt or on not contesting the guilt.

In common law states, the process of concluding formal procedural agreements that terminate a case on merit-based terms has been known as plea bargaining. In the most general terms, plea bargaining is a process involving negotiations between the defendant and the prosecutor by way of which the defendant resigns of his chance for acquittal in exchange for a promise of a less severe punishment for his offences. Therefore, sometimes the process of negotiating between the parties concerning the outcome of a criminal case is referred to as “negotiated justice”.³ This usually involves the prosecutor agreeing to drop certain charges, not to bring them forward or to dismiss the proceedings to some extent, or to apply a more lenient legal characterisation of facts in exchange for the defendant pleading guilty to the charges in the form agreed with the prosecutor. These negotiations aim at a consensual termination of the criminal proceedings by executing a procedural agreement between the defendant and the prosecutor.⁴

The Anglo-Saxon procedure distinguishes various forms of negotiations regarding the form of the procedural agreement between the defence and the prosecutor (it is noteworthy that all the forms may occur in one criminal proceeding). Guilty pleas and negotiations can take place at all stages of criminal proceedings. Charge bargaining refers to the prosecutor’s ability to negotiate with the defendant in terms of the charges that could be filed. This institution will be used at the stage of an investigation and takes place solely between the prosecutor and the defendant (or more frequently, his defence attorney). It may take one of the two forms: dropping of the original charges and presenting less serious charges or dismissing some charges in exchange for pleading guilty of others. Fact bargaining takes place when the defendant agrees to stipulate to certain facts that will be more favourable for him. The prosecutor agrees to charge the defendant with a lesser crime (for example, manslaughter rather than murder) in exchange for pleading guilty to this act. In both cases, the consensus will be presented to the judge. Usually, the court is obliged to deliver the sentence suggested by the prosecutor, but it depends on a specific legal system. Even in systems in which this obligation does not occur, the judges usually grant the sentence requested by the prosecutor. Obviously, this power of the prosecutor may exist only in conjunction with the principle of prosecutorial opportunism. Applicability of the principle of legalism prevents making similar arrangements with the defendant.

The other type of negotiations is sentence bargaining. It takes place when the defendant agrees to plead guilty in exchange for a less serious sentence. In the case of the United States, it may be concluded between the prosecutor and the defendant, both at the stage of investigation and also at trial, when the defendant agrees to plead guilty to the charges in exchange for a more lenient sentence for which the prosecutor agrees to apply in the agreement.⁵ While usually it must be subject to court approval, in most cases it is carried on between the defence and the prosecution with little judicial review. The second variant of this institution, found in England and Wales, requires that the judge is involved in the process of entering into an agreement with the defendant.⁶ Also in Germany the judge may be involved in the negotiations from the beginning.

One should not identify the legal institution of procedural agreement with that of pleading guilty. Although these are often related, it is not a rule. Even in the legal systems in which both these institutions are known, pleading guilty does not always lead to the execution of a procedural agreement, and a legal agreement is not always based on pleading guilty (for example, in the case of the American nolo contendere—I do not plead guilty, but I do not contest this).⁷ In the American procedure, plea bargaining institution (elimination of the trial stage as a result of execution of an agreement with the prosecutor on a specific sentence) is differentiated from pleading guilty (in such a case referred to in the Anglo-Saxon system as a confession).⁸ Also in the English procedure, a guilty plea refers solely to the procedure of pleading guilty, whereas plea bargaining refers to the process of negotiations with justice authorities: both the prosecutor and the judge. Moreover, confession is differentiated from a guilty plea: whereas a confession is “a statement of fact”,⁹ a plea of guilty is a procedural institution having certain consequences. We have to remember that in return for more lenient treatment on the part of state authorities, the defendant’s concessions may vary. The defendant may promise “not to present certain evidence, to withdraw procedural motions, to cooperate with the prosecution in cases against other suspects, or not file an appeal”.¹⁰ Pleading guilty is just one in a wide range of possible concessions—the most straightforward one.

In the second group of systems (Anglo-Saxon), pleading guilty results in inability to conduct evidentiary proceedings and, in consequence, in the termination of the process of adjudicating guilt. A plea of guilty is considered to be more than a confession that admits that the accused did various acts. It becomes an equivalent of a conviction by the jury. By making this statement, the defendant consents that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. No trial takes place. The court may proceed to the stage of giving a judgment and determining the punishment.¹¹ According to the logics of adversary trial, there is no need to conduct a trial if one of the parties consented to the claim of the other; their dispute cannot be continued. Since both adversaries are no longer willing to engage in disputation, any further proceeding would exceed the goal of conflict resolution.¹² It is an extreme consequence of the application of the strict adversality principle.¹³

In Anglo-Saxon systems, the possibility to conclude a procedural agreement stresses the character of criminal procedure as a contest between the equal parties that have the authority to terminate it at any time and in a manner agreed between them. It is also a consequence of perceiving criminal proceedings as a “contest between the parties” rather than as a process of seeking the material truth by a judge.¹⁴ As there is no obligation of the court to establish the crime’s true facts, lawyers with a common law background do not think the guilty pleas and plea bargaining have detrimental effect on the goals of a criminal trial; at least they certainly do not give so much attention to the existence of such a problem as the continental lawyers do.¹⁵

The most representative example of a state where plea bargaining plays a decisive role in the functioning of justice is the United States of America. There, plea bargaining is taken to mean the negotiations between the defendant and the prosecution, held without any involvement of a judge, that result in, first, the defendant’s deciding not to claim innocence and, second, the conclusion of a procedural agreement. Due to the powers to conclude procedural agreements, the prosecutor becomes the host (master) of the proceedings, leading to conviction of the guilty of the charged offences, and decides on the merits of the judgement. Termination of criminal proceedings by way of an agreement is a common way of resolving criminal law conflicts. According to general estimates, 95 % of the criminal cases that lead to conviction are disposed of by concluding an agreement between the parties and not as a result of a trial.

In the American system, the discretion related to the procedure of negotiating a guilty plea in return for a more lenient sentence is the main manifestation of applicability of the principle of prosecutorial opportunism.¹⁶ No other state adhering to the principle of opportunism offers the prosecutor such a broad possibility for undertaking negotiations with the defendant.

The practice of plea bargaining was first introduced to the legal system by way of the case law of the US Supreme Court.¹⁷ This preceded the formulation of written rules that determine the course of the procedure. Presently, according to the federal law (Rule 11(c) Federal Rules of Criminal Procedure),¹⁸ an attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or makes a nolo contendere statement to either a charged offence or a lesser or related offence, the plea agreement may specify that an attorney for the government will

Pursuant to the federal law, the court is obliged to accept only agreements arising from charge or fact bargaining. It must adjudicate not only as to the facts covered by the indictment but also within the limits of the legal characterisation presented by the prosecutor. On the other hand, as far as sentence bargaining is concerned, the agreement concluded between the defendant and the prosecutor may pertain only to what sentence would be requested by the prosecutor. His sentence recommendation is not binding upon the judge. Moreover, any guilty plea negotiated between the prosecution and the defence is subject to judicial review and may be rejected.¹⁹ However, in practice a judge nevertheless follows the prosecutor’s recommendation in the majority of cases.

Although the prosecutor’s discretion in presenting the offer to the defendant is broad, it is not unlimited. Detailed rules for executing such agreements are meant to provide a remedy for negative consequences for the accused. First of all, the proposed agreement must comply with law and constitutional guarantees. The second principle of a key importance is that the prosecutor should not threaten to take cases to trial where no reasonable jury could find the defendant guilty beyond a reasonable doubt. Third, the sentence that may be imposed according to the information given by the prosecutor may not be considered unfair, given the characteristics of the offence. Fourth, a conviction as an alternative to a guilty plea presented by the prosecutor must not be “vindictive”. The prosecutor may not threaten a defendant with the consequence that more severe charges may be brought if he insists on going to trial and—if after plea negotiations fail—procure an indictment charging a more serious crime, as a strong inference is created that the only reason for the more serious charges is vindictiveness.²⁰ Moreover, the prosecutor should not charge defendants with offences that do not accurately characterise their conduct and are of a much more serious character or charge defendants for relatively harmless behaviour; this applies especially to cases of overcharging, where prosecutors tend to charge the maximum provable offence and all the formally available offences.²¹ Naturally, the guilty plea may not be obtained by means of force or deception (for example, by claiming untruthfully that the prosecutor is in possession of evidence proving the defendant’s guilt). It should result from a voluntary and intelligent choice among the alternatives available to a defendant, choosing between the sentence in case he pleads guilty and that when he does not.²²

One may frequently, however, encounter the opinion that the voluntary nature of the guilty plea often remains an illusion in the situation when, in the case of a trial by jury, the adjudicated sentences are disproportionally severe since “in practice, the defendant is under pressure of a more severe penalty if he/she insists on a public trial”.²³ Such pressure may lead to entering into an agreement by innocent persons who prefer to accept a known penalty rather than risk a more severe sentence that may be adjudicated in a trial by jury. According to the Supreme Court, even the defendant’s claim that he is innocent does not preclude conviction by the court pursuant to plea bargaining. In North Carolina v. Alford, several witnesses claimed that the defendant had committed a murder.²⁴ In face of such evidence, the defence attorney advised the defendant to settle with the prosecutor; he did so, agreeing to a sentence of 30 years of imprisonment. Although he informed the court that he made a guilty plea because its principal motivation was fear of the death penalty, and not because he had committed the murder, the Supreme Court accepted such a conduct as valid. It concluded that the courts must accept the validity of a guilty plea if it represents a voluntary and intelligent choice among the alternatives available to a defendant, especially one represented by a competent counsel, and there is evidence against him, which substantially negated his claim of innocence and he is not compelled—even if it was entered only to avoid the possibility of the death penalty.²⁵ According to the Supreme Court, criminal proceedings following such principles are compliant with the Constitution provided that the defendant pleaded guilty voluntarily.²⁶

Execution of a procedural agreement imposes certain duties on the prosecutor. If the accused consents to the agreement, it is required that the prosecutor’s plea bargaining promise must be kept. In Santobello v. New York, the Supreme Court found that “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”.²⁷ Such was the conclusion in a case in which the prosecutor agreed with the defendant that in return for the guilty plea he would withdraw original charges and would raise only one of them. However, at trial another prosecutor had replaced the prosecutor who had negotiated the plea, and he had no knowledge of the agreement executed with the defendant and brought all original charges, which prompted the court to pronounce the maximum possible sentence. In this case, the Supreme Court decided that if the prosecutor’s promise were not fulfilled, the defendant might withdraw his guilty plea. The staff of the prosecution is a unit, and each member must be presumed to know the commitments made by any other member. On the other hand, a couple of years later in Mabry v. Johnson, the same Supreme Court ruled that the prosecutor might amend the agreement and this would not amount to an “unfulfilled promise”.²⁸ This case, however, was different from Santobello in that the defendant agreed to the new proposal made by the prosecutor. In United States v. Benchimol case, the Court “opened the door” for withdrawing from the bargain by the prosecutor. Namely, it concluded that the agreement entered by the defendant may not be challenged only in specific circumstances—the prosecutor must commit himself to make a certain recommendation to the sentencing court “enthusiastically” and explain to the court its reasons for making the recommendation; namely, he must “fully and in clear words support his/her offer”, rather than in an implied manner, and demonstrate the basis for its existence; otherwise, the court is not obliged to respect such an agreement. ²⁹

The last manifestation of the development of the plea bargaining institution was addition of the following requirement: “before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea” (Rule 11(b)(3)) in the federal law. It means that regardless of the defendant’s pleading guilty of committing a crime as per the prosecutor’s version of events, it should be established whether the guilty plea is actually an informed (that is, whether the defendant knows exactly what crime he has admitted to have committed and knows its characteristics) and voluntary act. In case law, the “factual basis” is defined as “sufficient evidence at the time of the plea upon which a court may reasonably determine that the defendant likely committed the offense”.³⁰

The introduction of an obligation to examine the factual basis for pleading guilty may be a proof that the convergence of the systems in the area of procedural agreements works both ways. Not only have continental states adopted the plea bargaining institution, but also the Anglo-Saxon states have implemented the continental restriction of discretion of the court to approve procedural agreements. It is noticeable, however, that the US courts treat this obligation very superficially and the examination of factual basis most often does not result in the dismissal of the defendant’s plea or conduct of evidence discovery. This happens only in exceptional cases. It is claimed that therefore it does not constitute a reliable safeguard to ensure that the judgment will be based on real and true events.³¹

The system of justice in England and Wales differs from the American system in terms of both the form of agreements as well as the procedure of their execution.³² The main difference between these two systems is that only charge bargaining is conducted with the involvement of the prosecutor. The Code for Crown Prosecutors highlights the prosecutor’s competence to operate pursuant to the principle of prosecutorial opportunism, providing that it always depends on the discretionary decision of the prosecutor whether he brings a case to trial or suggests entering into a procedural agreement to the defendant. The Code sets down the conditions of legality of such a plea. Namely, the prosecutor should only accept the defendant’s plea if he thinks the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Moreover, the Code provides that the prosecutor should ascertain whether a defendant pleads guilty to the charges on the basis of facts that are not different from the prosecution case. In consequence, it is clear that the English system demands from the prosecutor to establish the factual basis of the case and its true facts. Prosecutors must never accept a guilty plea “just because it is convenient”.³³ It would seem that such an obligation excludes the possibility to conduct fact bargaining. Moreover, if there are any doubts as to the conformity of the guilty plea with the charges, the court is under an obligation to hear evidence to determine what happened and then sentence on that basis.

The Code also prohibits presenting the accused with more charges than are necessary just “to encourage” a defendant to plead guilty to a few. In the same way, prosecutors should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

Charge bargaining in England usually takes place between the prosecutor and defence counsel outside court before the commencement of the trial. The prosecutor does not have any impact on the sentence pronounced by the judge, and for this reason he may not promise the defendant that a certain sentence will be pronounced. He may just request a specific sentence, and this may as well be the sentence agreed on with the defendant. On the one hand, the court may take into account the nature and intensity of co-operation as well as the prosecutor’s suggestions regarding the sentence. On the other hand, the Court of Appeal observed that the judge is not a “rubber stamp” to sanction whatever counsel thought appropriate.³⁴ He must not ignore other elements of the sentence. Moreover, this Court concluded that even the prosecutor himself, in the situation in which the defendant pleads guilty, is obligated to call the court’s attention to the fact of existence of specific circumstances affecting the sentence, both those of a mitigating and an aggravating nature: “It is not satisfactory for a prosecuting advocate, having secured a conviction, to sit back and leave sentencing to the defence. Nor can an advocate, when appearing for the prosecution for the purpose of sentence on a plea of guilty, limit the assistance that he provides to the court to the outlining of the facts and details of the defendant’s previous convictions. The advocate for the prosecution should always be ready to assist the court by drawing attention to any statutory provisions that govern the court’s sentencing powers. It is the duty of the prosecuting advocate to ensure that the judge does not, through inadvertence, impose a sentence that is outside his powers. The advocate for the prosecution should also be in a position to offer to draw the judge’s attention to any relevant sentencing guidelines or guideline decisions of this court”.³⁵

The process of negotiating a sentence before English courts (sentence bargaining) involving the defendant (defence counsel) and the judge usually takes place in a pre-trial hearing (the so-called plea and case management hearing).³⁶ The discussion between the judge, defence counsel and the defendant is of a confidential nature and may take place in camera, if necessary. The judge should not give an advance indication of sentence unless one has been sought by the defendant. However, the judge retains an unfettered discretion to refuse to give one. In R v. Goodyear, the England and Wales Court of Appeal concluded that “it may indeed be inappropriate for him to give any indication at all”, as “it would be unwise for him to bind himself to any indication of the sentence after a trial in advance of it, in effect on a hypothetical basis”. Both the advantages and disadvantages of this solution were analysed.³⁷ The Court of Appeal admitted that the judge’s task is difficult: “he must find the right balance between the obligation of giving indications of a sentence” that a defendant should expect, but in such a manner as not to “become involved in discussions with him/her”, “that could lead to the conclusion that he promises a specific sentence regardless of what the circumstances of the case turn out to be”, as such a conduct was considered reprehensible. For some, the judge’s involvement in negotiations of a sentence with the defendant challenges his independence. On the other hand, however, it is emphasised that the system reduces the risk of the prosecutor’s failure to comply with the agreement. The judge is the person who provides “authorised”, official information on the legal consequences in the form of a more lenient sentence.³⁸ Pursuant to the established practice of English courts, the defendant who pleaded guilty is served a less severe sentence than he would have been as a result of the trial—a defendant who admits committing an offence may count on a 20–30 % reduction in the sentence. Nowadays, this judicial practice has been given statutory basis.³⁹

While plea bargaining and “negotiating justice” are considered to be an indispensable tool of administrating justice, they are not without reservations. Although seen as useful and efficient, these methods of conflict solving are also subject to criticism: “A rich body of literature has demonstrated that criminal laws are regularly stretched or disregarded by police and prosecutors as they choose among the crimes to be investigated and charged. Prosecutors accept pleas to lesser offenses because strict application of the law would produce too harsh a result. Charges are reduced, dismissed, or not brought at all in return for cooperation from a defendant or a potential defendant that will facilitate the conviction of another, more culpable offender. Particularly as the volume of crime increases and offense categories proliferate, even serious crimes are not fully prosecuted because it might be unduly time consuming to conduct a full investigation or to defend a search or confession against a claim of illegality”.⁴⁰

Until the 1980s, negotiated justice was considered a phenomenon of the common law tradition.⁴¹ But in the course of the last 35 years, it has become accepted and introduced in most of the legal systems. Continental systems could not ignore the institution of procedural agreements as means to resolve criminal law conflicts and enhance the effectiveness of proceedings. There is no doubt that the concept of procedural agreements entered continental law states after they noticed its successful operation in the common law area.⁴² S. Waltoś wrote that “its introduction in the Polish justice system results from a belief that the imperative model of resolving disputes (…) was not a sufficiently effective means to reduce the overload of the increasing number of pending criminal cases in courts and prosecution offices”. ⁴³ As a result of the adoption of the institution of consensual termination of criminal proceedings, also in continental systems adjudicating on the basis of an agreement concluded with the prosecutor differs from adjudication in the absence of such an agreement. The main effect of concluding of a procedural agreement is the limitation, or even elimination, of evidentiary proceedings. The only task of the court in such a case is to determine whether pleading guilty is consistent with the true course of events and also whether the agreement complies with the law. However, although institutions similar to plea bargaining were introduced to the criminal procedure of states of continental tradition, it may be noticed that despite the clear impact of the Anglo-Saxon model, they are very different from this original version. The concept of consensual disposition of criminal proceedings had to be adapted to fit the basic assumptions of the already-existing criminal proceeding systems.

First, in continental states it was obvious that offenders were prosecuted by law enforcement authorities, whereas in common law states until the end of the nineteenth century this competence belonged to individuals acting as private prosecutors (citizen prosecutors). Treating the prosecution function as a private function leads to a consequence that the method of its employment is within the discretionary powers of the prosecutor. As he was the dominus litis (the master of litigation), he enjoyed a full discretion to compromise his claim. In consequence, the conceptual forms of private discretion have been applied to the office of the public prosecutor.⁴⁴ The Anglo-Saxon tradition allows the parties to the proceedings to handle the subject of the trial at their discretion. In the conflict-solving type of procedure, the spirit of laissez-faire assumes that the “goals of justice can be attained when parties are left free to select the form of proceeding which best suits their interests”.⁴⁵ In continental systems, on the other hand, it is just the opposite: from the very beginning, efforts were made to limit prosecutorial discretion. Interventionism, or aiming at the intervention of a state in order to have a criminal law conflict resolved, is what underlies this approach.

Second, as a rule, the systems of continental states give priority to the principle of legalism over the principle of procedural economics and the pragmatic approach. The prosecutor is not allowed to take any decisions as to the essence of the claim. In consequence, conducting negotiations on the legal characterisation of an offence or the contents of charges is unacceptable as the law dictates to prosecute every offence. It prevents the execution of procedural agreements in the form known in the United States, especially in the form of charge bargaining. The principle of legalism also means that the substantive criminal law is enforced accurately. Criminal prosecutions that are embedded in the style of private lawsuits seem to be indifferent to the need of accurate and effective enforcement of substantive criminal law.⁴⁶ Moreover, the compliance with these rules is controlled by the higher level in the prosecutorial hierarchy—hierarchically organised bureaucrats.

Third, continental courts are obliged to seek the material truth. In continental systems, pleading guilty never means releasing the prosecutor from the obligation to collect evidence required to prove the guilt beyond any doubt. The basis for any kind of determination shall be the established “true fact situation” (Article 2 § 2 CCP). Therefore, the court’s approval of the agreement in a form that is not consistent with the material truth is unacceptable. While representatives of the Anglo-Saxon legal science also admit that the elimination of the trial stage may lead to the permanent impossibility of disclosing all facts pertaining to the committed crime, or even other crimes, they do not go as far as the representatives of the continental system as to claim that “in such a situation, the trial may be distorted, and the decisions taken may even mean distortion of justice”.⁴⁷

Fourth, a hierarchical structure of the office of the prosecutor inhibits the development and use of plea bargaining. The prosecutor’s subordination to his superiors does not allow him to handle the subject of the trial at his discretion or to take decisions freely. The less autonomy parties have to decide on their criminal case, the less possibilities there are to conclude agreements. As prosecutors are organised into “echelons”, a decision to settle a case in a consensual way is always subject to control of the higher level of hierarchy. Interestingly, although (or maybe because) “the initial decision-makers are closer to the messy details of life, including human drama, and therefore can less readily be immunized from individual aspects of cases”, the final decision belongs to “the top officials” who understand universal matters.⁴⁸

And last, the prosecutor is not able to ensure that the court adjudicating in a case will follow the legal characterisation suggested in the indictment, as the court is unrestrained in its legal evaluation of the facts that are charged in the indictment and it is only the factual scope of the indictment that is binding.

The obligation of the court to accept the agreement and pronounce the sentence requested by the prosecutor—after certain terms and conditions have been met—is anyway the main indication of the prosecutor’s impact on the consensual termination of a case.⁴⁹ As a result of the necessity to retain the basic assumptions of criminal proceedings, continental systems do not give the prosecutor many opportunities to offer major concessions to the defendant in return for a guilty plea. There is also another factor that is mentioned in the literature, which contributes to the fact that continental states do not need plea bargaining in such an extent as Anglo-Saxon courts. It is because the need for plea bargaining for non-trial disposition is not as urgent in the continental procedure. Continental trial procedure is more rapid and efficient than American procedure, and crime rates lower. Therefore, continental law can insist on a full trial for virtually every felony case.⁵⁰

Procedural agreements are commonly found in Germany, but their form is different than that of the solutions known from the common law states. The first group of agreements is connected with the institution known as resitutive discontinuation of a case. An agreement may be executed at various stages of the proceedings: between the defendant and the prosecutor at the stage of an investigation and between the defendant and the judge at the trial stage. The first type of arrangements includes agreements on lesser offences (misdemeanours). On the basis of § 153a StPO, in a case involving a misdemeanour, the public prosecution office may, with the consent of the accused and of the court competent to order the opening of the main proceedings, dispense with preferment of public charges and concurrently impose conditions and instructions upon the accused (such as to pay a sum of money to a non-profit organisation, the victim or the Treasury). The public prosecution office sets then a time limit within which the accused is to comply with the conditions and instructions. If the accused complies with the conditions and instructions, the offence can no longer be prosecuted as a misdemeanour.⁵¹

Dispensing is only possible if the charges are of such a nature as to eliminate the public interest in criminal prosecution and if the degree of guilt does not present an obstacle. Moreover, the proceedings may be discontinued only when the prosecutor collects evidence sufficient to bring an indictment. The execution of such an agreement must always be approved by the court, which accepts the prosecutor’s decision to discontinue the proceedings, provided the aforementioned preconditions are met and upon finding whether pleading guilty is consistent with the true course of events. If it is not, trial must take place.

Also, the court may conditionally discontinue the proceedings, if public charges have already been preferred, with the approval of the public prosecution office and of the indicted accused, up until the end of the main hearing and concurrently impose the conditions and instructions. However, during the hearing the findings of fact should be examined.

Moreover, it cannot be denied that there is also the practice of concluding quasi-formal agreements, not rooted in any legal regulations. As a result of such agreements both at the investigation stage and at trial, the defendant is able to negotiate some concessions with the prosecutor (or the court)—either a lower sentence or a suspended sentence—in return for pleading guilty. In the beginning, there were doubts as to, in the light of lack of statutory basis, whether such informal agreements are, first, admissible, and second, in any way binding for the court. The Federal Supreme Court (der Bundesgerichtshof) replied to both questions in the affirmative. It found that although such agreements are not provided for in the criminal procedure regulations, their execution does not violate the Constitution.⁵² However, since they are not law based, the law does not guarantee their enforceability and automatic approval by the court. On the other hand, in another verdict the Federal Court emphasised that the court’s failure to meet the conditions set out in such agreements is in conflict with the concept of a fair trial. This Court has also developed very detailed guidelines specifying the circumstances in which procedural agreements may be accepted by the court. Primarily, they provide that each time a procedural agreement is executed, the court first needs to make sure that the defendant’s right to a fair trial has been complied with and that there has been no infringement of the principle of the material truth.⁵³

On the one hand, the advantages of consensual termination of proceedings in this form cannot be overlooked. This mode of non-prosecution saves the prosecutor’s and the court’s time. The case does not go to trial. The offender saves the time and costs of trial. Much more important to him, he is spared the stigma of criminal conviction.⁵⁴ On the other hand, such conditional non-prosecution has been criticised in Germany because it does constitute a form of plea bargaining, and without any statutory basis. The offender or his lawyer haggles with the prosecutor, offering to waive judicial proceedings and accept a lesser “sanction” in exchange for lighter treatment (non-prosecution). The practice has also been criticised for allowing wealthy offenders, in particular white collar criminals, to buy their way out of criminal proceedings (as a Freikaufverfahren).⁵⁵

During works on the introduction of the institution of procedural agreement to the Polish procedure, the concepts based on plea bargaining were decidedly rejected; instead, institutions following continental models (including the Italian model) were implemented, with the reservation that they could only be applied in relation to specific offences.⁵⁶

There are two institutions in Poland that may be included in the category of procedural agreements terminating the case in a merit-based manner: a motion for a conviction without conducting a trial (Article 335 CCP, which may be applied after termination of the investigation) and motion for a decision convicting an accused without evidentiary proceedings, also known as voluntary submission to penalty (Article 387 CCP, applied during trial).

According to the first provision, a state prosecutor may attach to the indictment a motion to convict the accused for a misdemeanour (a lesser offence) that he is charged with without conducting a trial and to impose a specified penalty if circumstances surrounding the commission of the misdemeanour do not raise doubts, and the attitude of the accused indicates that the objectives of the proceedings will be achieved despite of lack of a trial. Only Article 335 § 2 CCP can be applied by a prosecutor. This provision additionally makes it possible to limit gathering of evidence not only at the stage of court proceedings but also at the stage of investigation. This is possible when the defendant’s explanations do not raise any doubts, and conditions are met to file a motion for conviction without a trial. The only advantage the defendant derives from this agreement is that it will allow him to avoid a lengthy procedure and a public trial. In practice, however, this often works differently: the prosecutor proposes a specific sentence he will recommend to the court, provided the defendant pleads guilty.⁵⁷

The second provision states that until the conclusion of the first examination at the first-instance hearing, the accused who is charged with a misdemeanour may submit a motion for a decision convicting him and sentencing him to a specified penalty or penal measure without evidentiary proceedings. The court may grant the motion of the accused to issue a decision convicting him only when the circumstances surrounding the offence and the guilt of the accused have not given rise to doubt and the state prosecutor and the injured party do not oppose. In this case, the prosecutor’s role is limited to the possibility to oppose to the agreement. He has no influence on the merit-based decision.

Both of these provisions stipulate that in the case of concluding of a procedural agreement, the court itself does not carry out the evidentiary proceedings, but is obliged to examine, on the basis of the evidence collected in the course of investigation, whether there are reasonable grounds to find the defendant guilty beyond any doubt of the offence he has been charged with. The court may not accept such an agreement if there are doubts pertaining to the guilt of the defendant or the circumstances surrounding the commission of a crime. Beginning on the 1st of July 2015, the institution of voluntary submission to penalty is going to be applicable to all offences (both misdemeanours and crimes). As the Explanatory Report to the Act amending the CCP concludes: “there is no convincing reasons, why the institution of voluntary submission to penalty should not be applied to the most serious offences. We could even argue that the risk of incorrect decisions, resulting from an “instrumental” admission of guilt, is relatively lower in the case of crimes than it is in the case of lighter misdemeanours”.

Both of these institutions provide for “a shortened form of handling a case”. Their practical application is limited by the following two requirements: first, both of these institutions can be applied only “when the circumstances surrounding the offence and the guilt of the accused have not given rise to doubt”. It is not required that the court has no doubts pertaining to a given case, because if such doubts are negligible from the point of view of the defendant’s criminal responsibility, then sentencing is still possible. Second, an agreement between the prosecutor and the defendant must not pertain to the legal characterisation of facts; it should always arise from “the agreed factual circumstances and be a reliable reflection of the act that the defendant is validly charged with”.⁵⁸ Only the prosecutor’s commitment pertaining to the contents of the motion he will submit to the court in case the defendant expresses his consent may be the subject of an agreement, never the negotiations on the quantity and the type of charges (due to obvious limitations dictated by the principle of legalism). The relation between the guilty plea and the possibility of concluding of a procedural agreement is a characteristic feature of the Polish system. None of the aforementioned provisions of the Code of Criminal Proceedings instructs that the guilty plea is a precondition for concluding such an agreement. It can only be based on the remaining evidence (for example, catching the defendant in the act) that the court may assess whether the defendant is the perpetrator of an offence. However, whereas in reference to the contents of Article 335 CCP it is found in literature that it is not necessary to obtain the defendant’s statement,⁵⁹ there is no such consent relative to Article 387 CCP. Some authors recognise that the defendant’s consent for the prosecutor filing a motion with the court to have the defendant convicted without a trial establishes the presumption of pleading guilty.⁶⁰ As a result, it may be noticed that particularly the institution provided for in Article 335 of the CPP resembles the nolo contendere statement known from common law states.

The amendment of September 2013 has also empowered the prosecutor to use compensatory (restitutive) discontinuation in cases set forth in the new Article 59a of the Criminal Code (CC). This provision enables the discontinuation of the investigation as requested by the victim in relation to having the damage and/or harm caused by the offence remedied by the accused. This, however, needs to be the act of a person who has not been so far convicted for any act involving violence and an act that constitutes an offence carrying a risk of penalty of imprisonment of up to 3 years and—in the case of an offence against property—with a threat of imprisonment up to 5 years. This remedy for damage and/or compensation for harm needs to take place prior to the commencement of the evidentiary proceedings during the first main trial; it may, thus, take place in the course of investigation. The amendment assumes, therefore, that the discontinuation may take place already in the course of investigation, pursuant to the prosecutor’s decision, and also when the case is heard before the court—in a case when the conditions for the discontinuation have been met after an indictment has been brought in. Article 59a § 1 CC focuses on the moment that the loss (harm) has been remedied by the accused rather than the moment of the victim’s submission of the request for discontinuation of the proceedings. The ratio legis of this provision was the lack of purposefulness of further trial in a situation where the loss has been remedied by the perpetrator.

The provision is not yet in force, but yet it has awakened serious criticism. First, the incorporation of this provision into the Criminal Code, rather than into the CCP, by the legislator is somewhat surprising. The basis for discontinuation specified in Article 59a CC is of a procedural, not of a substantive, nature.⁶¹

Another issue that is still not entirely clear is the question as to whether Article 59a CC is a manifestation of procedural opportunism.⁶² This provision does not make any references to the social (public) interest, reasonable basis to proceed or any other criteria typical for opportunism that could be subject to assessment by a prosecutor or court. Neither does it contain any premises involving beyond-any-doubt guilt or negligible guilt that occur in the institution known from § 153 StPO. Moreover, the legislator used a definite phrase “it shall be discontinued” in Article 59a. This means that when the premises of paragraph 1 of this provision are met, the discontinuation of proceedings is mandatory. There is no room left for a discretionary prosecutor’s decision. On the one hand, the lack of a broad margin for discretion by the procedural authorities supports equal treatment of citizens, but on the other, the facultative nature of discontinuation seems to be an essence of opportunism, differentiating restitutive discontinuation from simple discontinuation due to negative procedural premises. It is only in paragraph 3 of this provision where we find the information that the provision shall not be applied if there are exceptional circumstances that justify the decision not to discontinue proceedings in cases when this would compromise the objectives of the punishment. However, on the basis of the considerations presented in the previous chapters, pertaining to the interpretation of the evaluative premises, it can be distinctly seen that it is an example of the so-called “relative obligatority” rather than opportunism.

From the perspective of the consensual disposition of proceedings, it is important that the statute does not require pleading guilty. It is noteworthy, however, that this provision uses the term “perpetrator”, which, in the context of pending proceedings, suggests that there are no doubts as to who committed the offence and what should be treated as attributing the guilt to this person. Moreover, the requirement of an earlier remedy of damage implies that the accused accepts his responsibility.

The example of this institution is particularly valuable from the point of view of the prosecutor’s role in a consensual termination of the criminal proceedings—first, because the Polish procedure has adopted a structure of a restitutive discontinuation of proceedings known from the German trial. The prosecutor has gained a new instrument for influencing the merit-based judgment. More importantly, the prosecutor’s power is not controlled by the court. He may discontinue the criminal proceedings on the merits with a binding adjudication. It also proves that the convergence of solutions occurs not only between various legal traditions but also within the same legal tradition and between specific national systems. The success of the procedural institution in one of the states (which has also borrowed it from another legal system) becomes a basis for its implementation in the legal system of another state. Second, from an objective perspective, it implements the components of the principle of opportunism even if this was not the authors’ intention (and from what we hear, it was not).⁶³

In the continental model of consensual termination of criminal proceedings, the prosecutor has never achieved such a high level of impact on the course of the trial as in the common law model, where the prosecutor’s role goes far beyond negotiating the penalty for the charged offence.⁶⁴ The prosecutors in the latter systems have become some of the main de facto adjudicators of criminal trial. Both of these models, however, share the common goal of enhancing the effectiveness of administration of justice and preventing waste of financial and time resources. What differentiates them, however, is the type and scope of concessions they are willing to make for the sake of effectiveness of proceedings, at the cost of the principle of prosecutorial legalism and the material truth. Assuming that common law and continental law traditions present only “ideal models”, as they do not exist in a pure form in any state, we may also assume that at one end of this continuum is the institution of plea bargaining unrestricted by any rules, and at the other end there is a system where it is not possible for the prosecutor to influence the course of a trial in any way or to offer procedural concessions to the defendant as a consequence of his pleading guilty. The scope of prosecutorial competence consensually to dispose of criminal proceedings as a result of execution of an agreement with the defendant in each legal system currently constitutes a hybrid between these two extremes.⁶⁵

Administration of justice on the basis of an agreement concluded between the prosecution and the defendant has both advantages and disadvantages. On the one hand, this institution is praised for accelerating the course of the criminal trial, yet on the other, it is criticised for the “leniency of administration of justice” that results in imposing penalties that are disproportional to the social danger of an act in a manner that violates the judicial sentencing principles and involves the justice into “haggling” over the sentence.⁶⁶ Certainly, both these advantages and disadvantages of consensual termination of a case may be applied to the practice of international criminal tribunals. However, due to the function of these tribunals and the role they are intended to play, as well as the type of offences falling under their jurisdiction, certain aspects may be evaluated differently.

From the earliest days of international criminal tribunals, there were some doubts as to the possibility of application of the plea bargaining institution in the form known from Anglo-Saxon states.⁶⁷ There was a strong opposition against the possibility to allow for concluding of procedural agreements that would lead to the elimination of trial.⁶⁸ Avoiding a trial and moving directly to the determination of sentence—as characteristic of proceedings organised as a contest of two partisan cases—was undesirable in international criminal tribunals. Several arguments against such a possibility have been repeated most frequently.

First, consensual termination of the proceedings was considered to be in conflict with the tribunals’ obligation to determine the material truth as it would lead to preventing the disclosure of historical truth pertaining to committed crimes. Attention was drawn to the fact that the conclusion of a binding agreement between the prosecutor and the defendant may not be in compliance with the actual course of events. That, in turn, would lead to administration of justice pursuant to the version of events negotiated by the parties and not based on the facts of the case. The tribunals were principally established to secure the right to truth and reveal factual circumstances of committed crimes. The historical role to be played by them was not compatible with expedited handling of cases and exculpation of defendants. The ICTY’s judges have emphasised many times that the trial plays an irreplaceable role as the forum for disclosing historical truth and enables the victims to participate in the process of punishing the guilty ones.⁶⁹ They highlighted that the quality of the justice and the fulfilment of the mandate of this Tribunal, including the establishment of a complete and accurate record of the crimes committed in the former Yugoslavia, should not be compromised by avoiding the stage of trial and promoting guilty pleas. It has been observed that the “bipolar pressures”, a “clash of conflicting positions” tends to “relativize, or weaken, both-including the courts’ intended educational message” and the “didactic objective central to the mission of international criminal courts”.⁷⁰

The second factor giving rise to doubts relative to the implementation of the consensual institutions on the international criminal justice forum was the reluctance to give the prosecutor too much power to affect the contents of a merit-based judgment. When procedural agreements were first introduced, it has been indicated that this institution (especially in the form of charge bargaining) renders the judge incapable of deciding on the defendant’s guilt and transfers this competence to the prosecutor.⁷¹ Undoubtedly, having been granted the competence to dispose of criminal proceedings consensually, the prosecutor acquired the power to affect the contents of a verdict and sentence.⁷² Having the power to decide on the contents of charges that will be brought, and being able to bring evidence to support them, the prosecutor in fact takes over some of the powers of an independent court. As a result of his decision, only some of the crimes charged to the perpetrator will come to light. The prosecutor becomes sort of a “barrier” that allows only certain cases to “pass” to the judge. He also determines the scope of the historical truth disclosed in the trial. The prosecutorial competence to decide, de facto, on the contents of the resolution on the criminal responsibility of the defendant brings the trial closer to the inquisitive model, vesting collection of evidence and decisions on the scope and form of criminal responsibility in the hands of a single person.⁷³ The prosecutor’s powers before international tribunals are already significant: on his own initiative, he can initiate criminal proceedings and conduct them against persons selected by himself. If the competences to negotiate procedural agreements were also granted to him and the obligation to approve such agreements by the court was imposed, the prosecutor of the international criminal tribunal would become the most prominent person in the international administration of justice—a one-person inquisitive tribunal of justice, adjudicating in the most serious crimes of international law.

Third, the reluctance to allow a consensual termination of criminal proceedings is affected by the gravity of the crimes dealt with by the tribunals. It is hard to imagine that in a case of genocide, crimes against humanity or crimes of war, the prosecutor could ignore the violation of law in return for the defendant pleading guilty and having the proceedings expedited. Their very raison d’être is to have the persons most responsible for serious violations of international humanitarian law held accountable for their criminal conduct—not simply a portion thereof. A purposeful refusal to prosecute such crimes—to exclude criminally relevant facts from judicial scrutiny—would be inconsistent with the very reason the tribunals were established for—to bring gross human rights violations to justice.⁷⁴

On the other hand, the most fundamental argument in favour of application of the plea bargaining method of convincing the court about the defendant’s guilt has always been that “there are too many criminals and not enough prosecutors, court and prisons”.⁷⁵ Plea bargaining minimises time the prosecutor spends on a case: less time spent on a case means more cases that can be handled with the available restricted budget. This argument is especially relevant in the case of trials pending in Anglo-Saxon states where a defendant’s guilt is decided by the jury. This is not only very expensive but also time consuming, as there is much evidence to be presented. The pressure to end a case rapidly and convict a defendant grows in cases that are factually complex and therefore require a lot of time and funds. For certain, cases heard by international criminal tribunals are by nature much more time consuming than those heard before national courts.⁷⁶ This argument has been emphasised in the current line of adjudication of the ad hoc tribunals: voluntary admission of guilt that saves the International Tribunal the time and effort of a lengthy investigation and trial should be rewarded as it also saves resources of the Tribunal (which are limited, as has been noticed in numerous judgments issued under a guilty plea).

The efficiency argument is of a particular importance, the more complex are the rules of procedure. There is a correlation between eagerness of investigative organs to conclude a bargain and the level of complexity of criminal proceedings. For this reason, the guilty plea has become so significant in common law states where not only the rules of conducting a trial (combined with the rules for interrogating witnesses and the principles of admissibility of evidence), but also the rules governing the disclosure of evidence procedure, demand to deploy considerable resources in the conduct of trial. Thus, while the need for shortening criminal proceedings—not at any price, but at a significant one anyway—may be noticed in those states, it is not as conspicuous in the states where the criminal procedure is simpler and decisions are not made by the jury.⁷⁷ Indeed, the procedure before international criminal tribunals is complicated and time consuming. This has to do both with the level of complexity of procedural regulations and the scope of the examined factual situations, as well as with the need to offer adequate trial guarantees, both for the defendant and the victims. Considering the above, the search for methods to shorten such proceedings seems only like a natural response. The evolution of the consensual model of termination of criminal proceedings is best exemplified in the practice of the ICTY. For the Tribunal’s judges, preventing costly and lengthy trials turned out to be more important than complying with the initial assumptions that required the Tribunal to search for the material truth in a conscientious manner.⁷⁸ But this happened only after the Tribunal’s effectiveness turned out to be the basic prerequisite of its further functioning and the ultimate deadline for completion of all the cases heard by the Tribunal had been set. As a result, there may be no doubt that the solution finally adopted is not a reflection of a planned and intentional development of the criminal trial but rather a manifestation of the pragmatic approach, a necessity arising from the threat that administration of justice will become paralysed, confronted with cases too numerous to be resolved by one tribunal established to deal with violations of international law.

It is noteworthy that the role of procedural agreements in the course of the criminal trial may not be limited solely to the acceleration of the proceedings or to financial savings. It has also been demonstrated that procedural agreements may play a special role in ensuring fulfilment of the social function of the administration of justice by alleviating conflicts occurring as a result of a crime and in the achievement of procedural justice. As such, they may constitute a fundamental step on the way to reconciliation.⁷⁹ This function of agreements could not be underestimated in the case of international tribunals. The international administration of justice system was established, in part, as a measure for the maintenance of international peace and security and fulfilling the aims of the so-called post-conflict justice. Especially in the areas of international conflicts, where people who used to fight on opposite sides are still living next to each other, the revealing of the historical truth and achievement of reconciliation must be the key objectives of all actions undertaken by these tribunals.⁸⁰ The goal of re-establishing peace and justice cannot be achieved unless the victims of international crimes are satisfied with the proceedings as well as with the outcome of the process.⁸¹ Perhaps, stigmatisation of perpetrators and disclosure of truth about the conflicts and crimes should be more important than arriving at severe convicting sentences in a narrow range of cases. Providing the defendant with an opportunity to express regret in public, to explain the reasons for the commission of crimes and to provide information on other crime perpetrators lays the foundations for reconciliation between fighting parties. In their case law, the international tribunals started stressing the significance of guilty pleas as they provided to the prosecutor extensive information necessary for sketching the real picture of a conflict and for understanding why crimes have been committed. Guilty pleas became important for the purpose of establishing the truth in relation to committed crimes. The judges pointed out that the will of co-operation of the defendant may become the only chance for the prosecutor to reveal information that he could not have obtained otherwise (in this or other cases).⁸² The defendant’s explanations often turn out to be of key importance for the case to be finalised with a conviction. Particularly valuable is information pertaining to the existence of a causal link between events and specific decision-makers. In this way, procedural agreements often became the method of arriving at the material truth.⁸³ The ICTY judges on many occasions stressed that “discovering the truth is a cornerstone of the rule of law and a fundamental step on the way to reconciliation: for it is the truth that cleanses the ethnic and religious hatreds and begins the healing process”.⁸⁴ Moreover, one more argument cannot be neglected—offering major concessions to the perpetrators encourages them to conclude agreements with the prosecutor of the tribunal.

It is, therefore, very important to find the right balance between the advantages and disadvantages of a consensual termination of criminal proceedings. Pleading guilty may certainly provide valuable information about crimes and the circumstances surrounding their commission, but this information should not be “traded” for the victims’ sense of justice. Similarly, effective and rapid conviction and saving of resources can never be treated as an overriding goal, with justice not being sought at all.⁸⁵

During the trials before the International Military Tribunals in Nuremberg and in Tokyo, none of the defendants pleaded guilty. The charters of those tribunals provided that the Tribunal asked each accused whether he pleads “guilty” or “not guilty” after reading out the indictment in court (Article 24 Nuremberg IMT Charter and Article 15(b) IMTFE Charter). In the absence of the case law related to this issue, it is not known what consequences could have arisen from such a statement—whether it would have been possible to shorten or eliminate the discovery of evidence or to reduce a sentence.

The history of consensual termination of a case before the ad hoc tribunals is a history of a struggle between two legal traditions. Despite the fact that the procedure of these tribunals is based to a large extent on the principles borrowed from the legal systems of common law states, the model of consensual disposition of a case has not been adopted in the form known from these states. In the initial period of its functioning, the policy of the ICTY assumed a total elimination of procedural agreements from the procedure before the Tribunal.⁸⁶ The possibility of eliminating or shortening the trial as a result of pleading guilty was not taken into account. But with the passage of time and appearance of new problems related to lengthy trials, and also in the face of ultimate deadlines for completion of the work by both the ad hoc