Criminal procedure is most critical for the rights of the accused. It does not surprise that criminal procedural issues often give rise to constitutional complaints by convicted persons. Yet far beyond the ordinary cases, the latest opinion of the Federal Constitutional Justices on the constitutionality of the so-called deal-proceedings according to § 257c of the German Criminal Procedure Code (StPO) has caused much attention. The constitutional complaints, which kicked off the proceedings in Karlsruhe, forced the Justices to address the very basis of criminal procedure, its structure and traditional foundations. The decision of 19 March 2013, however, testifies the disunity amongst the justices and their anxiety not to trigger a stampede in the criminal justice system. Even if the outcome is rather unspectacular, the decision is nevertheless one of the most important and fundamental judicial documents concerning criminal procedure of the last years. Because of the centrality of the issue and its relevance also for comparative criminal law, we have decided to provide this topic with the broad room it deserves and put together a special issue on the “deal-decision” of the German Federal Constitutional Court.

The much–awaited ruling of 19 March 2013 by the German Federal Constitutional Court is of great importance to the forensic practice. The Court ruled on the constitutional appraisal of the provisions on plea agreements in criminal procedures. The decision is basically convincing but not in every point of its arguments. Certain conclusions of the Federal Constitutional Court are particularly problematic because they alter the preceding legal situation substantially and have an extensive effect on the appraisal of appeal law.

The aim of German criminal procedural law is not to convict the accused at any cost. Even a guilty party can only be convicted if the criminal procedure is held in accordance with the law. If this is not possible, the German legal system accepts the risk of possibly acquitting a guilty party; it finds this more tolerable than the irregular conviction of the culprit. A criminal procedure seeks the truth. Only on the basis of a judicial conviction of the crime and its culprit may a sentence be imposed. This, though, can only be based on the so-called procedural truth. On the one hand, the past can never be reconstructed precisely; on the other hand, clarification can only be found through legal means and by following designated paths allowed by procedural law. Therefore, further investigation must cease if it is only possible to proceed by violating procedural law.

Numerous comments have already been published on the verdict of the German Constitutional Court (BVerfG) of 19 March 2013 (2 BvR 2628/10, 2 BvR 2883/10, 2 BvR 2155/11) regarding the constitutionality of the legal regulations on plea bargaining in criminal proceedings under the central provision of § 257c of the (German Code of Criminal Procedure) (StPO). The assessments range from perplexity, “mixed, but with modestly auspicious overtones” and “provisional legal security” to agreement with the decision, although only “in the approach, but not in every point of the justification.”

Negotiated agreements in criminal trials—often, somewhat deprecatingly, called “deals” in Germany—are a curious phenomenon. Such agreements informalize criminal proceedings, yet—according to the legislature—they are also restrained by the formal structure of German procedural law, through the principle of judicial investigation. The restraining of deals via procedural law seems like a futile attempt to achieve the impossible: In an inquisitorial system, the court is obliged to find the “real,” material truth by extending the taking of evidence to all facts and means of proof relevant to the decision. Neither ascertainment of guilt nor sentencing can be based merely on hypothetical facts of the case. A recent judgment of the Federal Constitutional Court on negotiated agreements has stressed that it is unconstitutional to base a conviction on facts that have been mutually agreed upon, if it is not certain that the facts are actually real. This decision hints at the problems deals pose for criminal proceedings in Germany. Despite these problems, such agreements have been very common in the last years and decades. There are many reasons for this. We are going to discuss the most important ones here.

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. The German version of plea bargaining, which had grown from the grassroots of criminal law practice, was later accepted by the Federal Court of Justice and written into § 257c of the Code of Criminal Procedure (StPO) in 2009. In light of these developments, a verdict of unconstitutionality by the Federal Constitutional Court was the final hope of those who opposed the replacement of the search for truth with a system of negotiation. The Court deflated these hopes, but at the same time refrained from giving an unconditional stamp of approval to the burgeoning practice of negotiating judgments. The Court attempted to rein in that practice by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework.