International experience in the application of agreements in criminal proceedings

Abstract

Further study of the institution of “agreements in criminal proceedings” is appropriate taking into account three main factors: analysis of historical experience, generalization of the practice of applying current legislation and study of foreign experience: criminal procedural legislation and the practice of its application. The institution of criminal proceedings based on agreements is a successful “borrowing” of the legislative experience of other states and belongs to special judicial procedures. Perceived positively by society, as the possibility of an agreement between the suspect or the accused and the prosecutor or the victim provided by law has become a common alternative way of resolving criminal legal conflicts. In the legislation of the European Union, the procedures for making a court decision on the basis of a plea agreement are not completely identical to the practice in the legislation of the United States: the initiative of the parties in resolving the issues of prosecution is transformed by the impossibility of changing the accusation by agreement, and the “passive position” of the court in deciding the procedure for resolving the criminal case proceedings is its limited activity. The special procedure for passing a court decision on the basis of a plea agreement has a procedural legal nature, similar to continental conciliation procedures: they are based on the consent of the parties, but are not related to the conclusion of the agreement by the parties as a process of negotiations regarding its terms, formalization of the agreements reached in a certain way. The subject of agreements is agreement with the charges presented, or the punishment proposed by the prosecutor, or the simplification of the court procedure for consideration of criminal proceedings. Under the influence of the European procedural culture and practice, the agreement in the US legislation on the recognition of guilt acquires new characteristics: the court often shows wide boundaries for consideration (discretion) in imposing punishment; takes an active part in the discussion of the terms of the conclusion of the agreement by the parties; as a result of the prosecutor’s unlimited powers to make decisions regarding the conclusion of the agreement, the latter becomes similar not to a bilateral agreement between the accused and the prosecutor after adversarial negotiations, but to a unilateral determination by the prosecutor of the degree of guilt of the accused and the appropriate punishment for him.