Plea bargain: when can you make one?

What is a plea bargain?

A plea bargain is one of the departures in criminal proceedings in which the defendant agrees to plead guilty in exchange for a more lenient approach in determining punishment. It is a legal institution known mainly from American movies. It was only introduced in our country in 2012.

Why was the plea bargain introduced?

The plea bargain was introduced in the Czech Republic in response to the need for a more efficient and quicker resolution of criminal cases. Traditional court processes tend to be very lengthy and costly. The plea bargain allows for faster processing of criminal cases, thus reducing the burden on the courts and speeding up the administration of justice.

When it is possible to negotiate a plea bargain

Where possible, the accused must be informed of the possibility of concluding a plea agreement during the pre-trial phase, i.e. before the indictment is filed. This is the stage at which the investigation and the gathering of evidence takes place. The public prosecutor and the accused (or his/her lawyer) can negotiate a plea bargain, which must then be approved by the court.

However, it can be negotiated after the indictment has been filed and can also be negotiated during the trial before the court of first instance (including the main trial). Logically, this possibility ceases after the court has pronounced its judgment.

Who can initiate the agreement

A plea bargain is most often initiated by the prosecutor. If this seems to be the most appropriate solution, it is a recommended procedure. However, an agreement can also be requested by the opposing party, represented by the accused himself or by his defence counsel. However, the accused has no legal right to enter into a plea bargain. Whether the prosecutor agrees to it is entirely at his discretion.

The accused is not required to have a lawyer when negotiating a plea bargain (except in cases of indispensable defence or where the accused is a juvenile). However, we would strongly recommend that you retain a defense attorney in this case. This is because a lawyer will ensure that your rights are respected throughout the plea bargaining process. In addition, he or she will also help you understand your rights and what the consequences of pleading guilty and entering into a plea agreement will be.

In what cases is this possible

The main condition of a plea bargain is that the accused must plead guilty to the offence for which he or she is being prosecuted. This can be a misdemeanour or a felony, but not a particularly serious crime (i.e. a crime for which the upper limit of imprisonment is at least 10 years). A plea bargain also cannot be concluded if the accused is prosecuted as a fugitive.

How it works

The public prosecutor and the accused (or his/her defence lawyer) meet for a joint plea bargaining session. The victim may also attend this meeting. If they agree on a deal, the prosecutor presents it to the court.

The plea agreement must include:

• Identification of the prosecutor, the accused and the victim: The name, surname, date of birth, residential address of the accused and the name of the prosecutor who concludes the agreement.
• Date and place of the agreement.
• Description of the offence for which the accused is being prosecuted: Detailed description of theoffence, its circumstances, when and where it was committed.
• Description of the offence: The legal qualification of the offence under the Criminal Code (e.g. Section 205 theft).
• Agreed type, amount and method of execution of the sentence: Specification of the sentence agreed by the parties, including the type of sentence (e.g. imprisonment, suspended sentence, fine); the duration of the sentence (e.g. 2 years imprisonment suspended for a probationary period of 3 years) and other conditions, if any (e.g. corrective measures, participation in rehabilitation programmes).
• Extent and method of compensation for damages or non-pecuniary harm or unjust enrichment: Specification of whether and how the accused will compensate for the damages or unjust enrichment, the amount and method of payment (e.g. lump sum, instalments).
• Statement by the accused: An explicit statement by the accused that he or she has committed the act for which he or she is being prosecuted. Acknowledgement that the accused understands the consequences of his/her plea and entering into the agreement.
• Signatures: Signature of the accused, the accused’s defence counsel (if present), the public prosecutor and, where appropriate, the victim’s signature (if present and agreeing to the plea agreement).

Once the agreement is signed, the prosecutor submits it to the court for approval.

What about the victim

If the victim has a claim for compensation, this can be included in the plea agreement. Another option is that the court decides on the compensation directly, together with the approval process of the agreement itself.

Plea bargain and trial

Once the plea agreement has been signed, the prosecutor files a motion with the court to approve it. The court may reject the plea agreement on the basis of procedural defects (e.g. if the sentence is excessive). However, the court itself cannot modify the agreement in any way. The other option is to order a public hearing to decide whether to approve the plea.

The prosecutor and the defendant must attend this meeting. In practice, the prosecutor reads out the agreed plea agreement and the accused can then comment on it. What is particularly important here is whether the accused fully understands the content of the agreement and did not sign it under duress, etc. In addition, the court takes into account the offence itself and the proposed sentence, as well as the interests of the victim. On the basis of the consideration of these factors, the court shall, by order, approve or disapprove the agreement.

Disapproval of the agreement does not necessarily mean the end. It may be reworked or redrafted with new terms. If disapproved, it is also possible to file a complaint against the order.

How to lodge a complaint against the resolution

A complaint must be lodged with the authority against whose order it is made within three days of notification or service of the order. The complaint may be submitted in writing, or orally on the record or electronically. It shall have suspensive effect only where the law expressly so provides.

The authority that issued the decision will only decide on the complaint in the case of so-called self-medication, i.e. in the case where it fully upholds the complaint. In all other cases, the superior authority decides.

Summary

Plea bargaining is an effective tool that speeds up criminal proceedings and reduces the burden on the courts. It allows defendants to plead guilty usually in exchange for a lighter sentence, which benefits both parties. The plea bargaining process involves careful negotiations between the accused, the prosecutor and, where appropriate, the victim, and requires court approval.