Plea bargain i Tyskland och Italien - En granskning utifrån grundläggande principer inom svensk straffprocessrätt

Sammanfattning: Plea bargaining can briefly be described as the possibility for the defendant to confess to one of several charges or to a less serious charge, in return for the prosecution dismissing other charges. This is commonly referred to as charge bargaining unlike sentence bargaining where, in exchange for the defendant confessing, the prosecution agrees to a lenient sentence and requests that it be imposed by the court. Plea bargaining as a part of criminal procedure is alien to Swedish law, as the prosecutor in accordance with the rule of mandatory prosecution is obliged to enter into legal proceedings as soon as the documentary evidence is such that he or she can expect a conviction. The exceptions related to the rule of mandatory prosecution have not been regarded such as to allow for this type of pre-trial settlements. In practice, it seems as if a suspect’s cooperation in the criminal investigations against him or her, in certain cases has been considered within the grounds for mitigation of a sentence, which are to be found in chapter 29 § 5 BrB. The cooperation of the accused has first been taken into account by the court whilst determining the sentence, which is why the proceeding shall not be confused with sentence bargaining. The Swedish law provides no possibility for the prosecutor or the court to negotiate with the suspect about a mitigation of the sentence. If the national law does not contain regulations that allow for a confession or the will to cooperate to be rewarded in criminal respect, then, in accordance with the European Convention the investigating authorities cannot make such an offer. According to the European Convention the suspect also has the right to remain silent during the whole investigation and shall therefore not be forced to contribute to the investigation of his or her own crime. Today both Germany and Italy have their own forms of plea bargaining. In both countries the development of a possibility to reach agreements in the criminal process has been regarded as necessary to be able to cope with the increasing number of cases and cases being more complex and internationalised. The agreements reached through the German form of plea bargaining, Verständigungen, vary both when it comes to form and contents. However, it is common that the defendant offers to confess at trial and that the court in exchange indicates an upper and a lower sentence limit which it is committed to abide to, when determining the sentence. An alternative is also that the prosecutor agrees that a number of charges will be dismissed in exchange for a confession to other crimes. In Verständigungen the court plays an active part in the negotiations and thus the court and the defence are the real negotiating parties. Italian plea bargaining, or patteggiamento, gives the prosecution and the defence the possibility to negotiate and reach an agreement concerning an appropriate sentence, which they then request to be imposed by the judge. Through such an agreement the ”regular” sentence can be reduced by up to one third. For patteggiamento to be applicable, basically no admission of guilt is required from the defendant. If the court comes to the conclusion that the defendant is guilty and considers the deal to be legitimate, the court becomes tied to the sentence that the parties earlier agreed to. Neither patteggiamento nor Verständigungen seems to be fully compatible with the fundamental principles applying to Swedish criminal procedure and therefore is unlikely to be incorporated in Swedish criminal proceedings in a satisfying way. However, both the Italian and the German versions of plea bargaining illustrate problematic areas and also show innovative and interesting solutions to some of the procedure-principle problems which the legislature earlier has expressed concerning plea bargaining.