engleski

Court settlement between parties in contemporary criminal procedural law

Negotiation between parties in criminal procedure is analyzed here as a mutual way of finalizing criminal procedure. Procedures, which in themselves contain a strong consensual element, are dealt with. These are a part of negotiated justice in a wider sense which is a fundamental link amongst various legal solutions in certain national legislatures. Mentioned is the negotiation among parties within a framework which needs to point out basic differences between Anglo-American and European continental conceptions of that legal institute. Under continental law, these are procedures in which a hearing is not carried out, but rather the court reaches a meritorious decision usually at the preparatory hearing or eventually during investigation or at a special hearing for sentencing criminal law sanctions. This occurs after hearing the parties, and on the basis of files and without presenting particular evidence. It is assumed that there is agreement between parties on the legal qualification of acts and/or punishments. Regarding the application of these procedures, unification does not exist because some procedures can be implemented for minor criminal offences and for others, there is no limit regarding the seriousness of the criminal act. Within consensual types of criminal procedures falls the French procedure of coming to the hearing upon previous admission of guilt, the Italian application of punishment upon request by the parties, expression of guilt and negotiating guilt in Bosnia and Herzegovina and verdicts on the basis of agreement among parties in Croatia. The Swiss summary procedure which represents original agreement solution with reduced public main hearing also belongs to this type of procedure. It seems that the penetration of consensual elements in the area of criminal law is unavoidable together with a warning that this penetration has to be harmonized as best possible with the traditional legal procedural principles and values of continental European Law. Uncritical acceptance of ‘contractual’ criminal procedural solutions with broad ‘bargaining’ possibilities appears to be unacceptable regardless of the nature and seriousness of the criminal act.

criminal procedure ; consensuality ; plea bargaining ; negotiated justice ; negotiations between parties

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