Controversial deals

The defendant wants a light punishment. The court and state prosecutors want a quick trial. And so the bargaining begins.

"You have talks with the other side that can take place everywhere - in one's office, the court's hallways, the lunchroom and in the courtroom," says criminal defense attorney Jürgen Sauren from Cologne. He describes the deal-making process as a way to reach a single but mutually desirable result.

Over the years, plea bargaining has become more common in Germany. Yet Edda Wesslau, a professor of criminal law at the University of Bremen, believes these informal negotiations represent a threat to the German justice system.

"The way it has spread and the mechanisms by which it has spread are rather like what happens with corruption," she told DW. "Everyone says, 'Why should I be the idiot who plays according to the rules?' Everyone else is doing it and are only benefitting from doing so."

In 2009, trial regulations were amended to include plea bargaining. The new rules said that deals could be negotiated regarding the severity of the sentence but not over the verdict. In order to ensure that the process of holding the trial remained public, everyone involved was entitled to give an opinion on the deal and had to agree to it. The defendant had to be informed of his rights.

Inadequate regulations

But doubts surrounding plea bargains have not been put to rest. Wesslau insists that Germany's parliament was dishonest when it wrote that judges were still obliged to find out the truth of a case.

"[As a judge], I would be wanting to shorten a trial through a deal, and I would want to avoid having to go through the whole process of hearing all the evidence. That certainly has an effect on the process of finding out the truth of a case." Even the presumption of innocence is affected, Wesslau says. "If one wants to enter into a deal, one is already assuming that the prosecution's case is true."

Critics also note what they call the "penalty gap." That "gap" has to do with the judge's ability to threaten the defendant, either with a particularly light sentence for a confession or a particularly heavy one if the defendant fights the case. That, says Wesslau, puts the judge in a position that is against the principle under which he or she is supposed to be an independent, neutral party. The judge is even allowed to propose the deal in order to shorten the trial.

"He's no longer neutral if he agrees to a deal in which the premise is, 'This is the perpetrator, more or less as described by the prosecution,'" Wesslau says.

Other models?

In Anglo-Saxon countries, things are different. There, plea bargaining takes place between a defendant and the prosecution. The judge merely checks whether the deal was legal and voluntary.

Wesslau considers the rules in Italy, while not perfect, to be better than those in Germany. There, the judge has to decide if the deal conforms with the facts of the case - in other words, that someone isn't confessing to things that are absurd. He also checks that the sentence is still appropriate and that the confession was voluntary.

"The judge makes sure that no one is taking advantage of anyone else - especially of the defendant," says Wesslau.

Swiss judges have a similar function. "Deals there can only be made for offenses which carry prison sentences of less than five years," she said.

Plea bargaining takes place in almost every European state. Even in Austria, one of the last countries without plea bargaining, a law is being planned to introduce it.

Traditional practices

In practice, old-fashioned, informal deals continue to be reached in Germany, says Sauren. "The deals are rarely as formal as the law requires," he said.

Neither Sauren nor Wesslau believes that the constitutional court will ban such deals when it announces its ruling on Wednesday (20.03.2013), although Wesslau thinks it will require improvements. Regardless, she doesn't believe a ban would help.

"That's another similarity with corruption," she said. "If you make a law that corruption is illegal, and these are the penalties, you still don't get rid of it."