Criminal prosecution is an extreme crisis situation for everyone. Not only does it affect individuals, but also companies to almost the same extent. In such situations, the alternative to a public trial and a more or less uncertain verdict may be a plea bargain.
The consequences of criminal proceedings are very often drastic and irreversible. Blocked accounts, seized cars and houses, documents and data. Suspects face many questions; they are confronted with what they said to someone on the phone or wrote in an e-mail. But still, it is a legal liability that has a process for resolution.
The one against whom the proceedings are brought has means to defend themselves. One of these options is a plea bargain entered into with the prosecutor with the court’s approval. This can be an alternative solution to a public trial with an uncertain verdict.
Drawing a line under criminal proceedings
You may know it from American movies. Agents come in, take the unfortunate person to the District Attorney who offers them a deal for money and cooperation. But it looks a bit different in practice. In some cases, it is actually an effective and quicker final solution, and quite often we actually choose this procedure as part of the defence. However, nothing is for free in criminal proceedings either. The essence is the agreement between the defendant and the prosecutor, which ends the criminal proceedings for the person concerned, if approved by the court. However, one must always consider very carefully whether to accept a plea bargain, because it has its risks and limits.
A plea bargain can be an effective and quick solution to a real problem. However, it has its risks and limits and should be favourable to the accused, otherwise it lacks meaning.
The main thing that is usually forgotten is that in a plea bargain, the defendant pleads guilty to doing exactly everything that is written in the indictment. One cannot speculate that some facts did not happen and try to adjust them. The agreement then has the effect of a conviction, is approved by the court, and a judgment is delivered about it. The conviction is also recorded in registers. As a result, it is not an unofficial solution made in an office. And the possibility of appeal is significantly limited. One can only appeal in principle if the sentence does not correspond to the agreement.
However, it can happen and does happen that the court does not approve the agreement if for some reason it does not comply with the situation and regulations. This should also be kept in mind. Therefore, any efforts to negotiate a plea bargain with the prosecutor over an inappropriate sentence are futile.
Compromise solution
The agreement is preceded by a meeting between the defendant and their defence counsel and the prosecutor. Until now, the practice has been that prosecutors have strongly refused any contact with the defendant outside the filing offices. And for nearly a year now, they have been learning to communicate with us. Negotiations are necessary because it is required to first establish the willingness of both parties to enter into a deal and then also to negotiate its parameters. Basically, it is the same way of making agreements as in the civil sector.
It must be a compromise solution, yet within the relatively rigid rules of criminal law. These rules are still very inflexible in defining the types and, in particular, the terms of punishment that must be accommodated. This shows that a solution must be found: by combining options, replacing a prison sentence with a heavier fine, highlighting any positive circumstances on the part of the defendant, acting fairly.
On the other hand, there is a risk that a plea bargain will only be an option for the prosecutor if accepted by the defendant in the full scope of the accusation and if compliant with the statutory range of criminal penalties. In practice, for example, prosecutors are giving up the idea of replacing a prison sentence with some alternative because they consider it too lenient.
In short, a plea bargain is an agreement between two parties. This all is undertaken in the complex system of criminal law, with persons on the other side who make their living solely from criminal law. Therefore, the defendant should act with the support of a professional. Finally, it is also worth remembering that a plea bargain does not have to be accepted at all costs, even though both parties have considered or dealt with it. In fact, in many cases, after considering all the circumstances, it is better to defend oneself in due process to achieve a better result.
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SEIFERT A PARTNEŘI
Filip Seifert is the founder and a partner of SEIFERT A PARTNEŘI, a law firm with which HAVEL & PARTNERS cooperates on an exclusive basis in criminal law. He has more than 23 years of practice in this field. He has extensive experience in defending or representing the injured, including corporate criminal liability and related compliance issues. Filip Seifert is the founder and member of the Presiding Committee of the Union of Defence Attorneys.
