Potentiality of the Existence of Plea Bargaining in the Criminal Process of Lithuania

Abstract

States of civil law tradition started to introduce institute of negotiations of the fault (called plea bargaining) which is a specific feature of common law system. It creates preconditions for discussions about feasibility of new criminal procedural form in the criminal procedure of the Republic of Lithuania. Because of the purpose to improve efficiency of the criminal procedure, it is appropriate to consider possibilities about plea bargaining existence in Lithuanian criminal process. Considering such possibilities is necessary to take into account the most important aspects: concept and types of plea bargaining, specific features of its application in other European countries, the positive and negative characteristics, the impact for the criminal process, potential model of plea bargaining in the Republic of Lithuania. Analysis of these issues allows clarifying and summarizing presumptions of the existence of plea bargaining in the criminal procedure of the Republic of Lithuania. After analysis of the literature and other states practice it has been stated that completely analogical to common law countries concept of plea bargaining cannot be adjusted in criminal process of Lithuania and continental countries. This is due to differences in two legal systems. However, interpretations of plea bargaining concept allow legislators to form a specific pattern of plea bargaining which is proper for criminal proceedings of specific country. According to the analysis of plea bargaining and its interaction with principles of criminal procedure (the right to a fair hearing, presumption of innocence, the principle of publicity, the right to direct the proceedings, the principle of justice, the principle of proportionality), the introduction of certain exceptions could eliminate possible conflict. Problematic aspects of plea bargaining has been analysed: unjust accusation, wrong confession and conviction, unjust punishment, non – disclosure of the facts in the case, regulation of guilt clause. The biggest risk of potential conflict arises between the purpose to establish the objective truth and the efficiency of criminal process by distancing defendants from the trial. The conflict is possible due to the two different legal frameworks: existence of adversarial principle in criminal proceedings of common law countries and the requirement for establishment of the truth in civil law counties. On the basis of the analysis of application of plea bargaining in criminal procedure of the Republic of Lithuania and foreign states practice such recommendations can be made: 1. In Lithuania there should exist clear legal regulations providing the application of plea bargaining in criminal procedure. Firstly, according to the seriousness of the offenses or the possible penalties limitations for plea bargaining application should be provided. Secondly, there should be limits and rules for reduction of sanctions. It is necessary to avoid disproportionately mild sentence. 2. To ensure the suspect’s right to defence and to avoid possibilities of false confessions of guilt and convictions of innocent persons mandatory participation of the counsel should be provided. 3. Regulations of plea bargaining model should provide a period to be granted for the suspect to decide about the termination of criminal proceedings with agreement.