Judgment Based on Agreement of the Parties: Analysis from the Perspective of Practitioners’ Experience in Croatia

2.1. Plea bargaining from the perspective of Article 6 of the European Convention on Human Rights

The practice of concluding plea agreements has been under the scrutiny of the ECtHR on several occasions. Thus, in the case of Deweer v Belgium, the Court pointed out that the defendant’s consent to the imposition of a sanction without a trial would not be contrary to Article 6 European Convention on Human Rights (ECHR) if it is given in a free, explicit, and unambiguous manner.⁹ In this way, in essence, the ECtHR hinted that different consensual forms aimed at speeding up criminal proceedings are not necessarily contrary to Article 6 ECHR.

This position of the ECtHR was additionally considered and confirmed in the case of Natsvlishvili and Togonidze v Georgia.¹⁰ The Court emphasised that settlements have multiple advantages because, in addition to relieving the judicial system of a large number of cases and prisoners, they can, if applied correctly, also be a successful tool in the fight against corruption and organised crime (§ 90). Nevertheless, in this case, the ECtHR took an additional step forward because it determined two fundamental requirements by which it would assess in the future whether the concluded agreement complies with Article 6 ECHR. These criteria are as follows: (a) the defendant must accept the settlement on a completely voluntary basis, fully aware of all of the facts of the case and the legal consequences of the concluded settlement; (b) the content of the settlement, as well as the fairness of the procedure that preceded the conclusion of the settlement, must be subject to sufficient judicial control (§ 91–92).

A strong contribution to the further shaping of plea agreements in the criminal proceedings of European countries was also made within the framework of the Parliamentary Assembly of the Council of Europe which, in 2017, launched an initiative to study the application of consensual procedures in practice, including plea bargaining and the analysis of good practice, risks and problems, with the aim of making relevant recommendations for member states of the Council of Europe.¹¹ In its resolution ‘Deal making in criminal proceedings: the need for minimum standards for trial waiver systems’ of 12 October 2018, the Parliamentary Assembly stressed that appropriate safeguards are needed to ensure that member states enjoy the potential benefits that trial waiver systems may offer, while minimising the threat to human rights, in particular the right to a fair trial.¹² Therefore, it called upon all member states to implement the following safeguards, whose effectiveness will ultimately depend on the existence of a truly independent judiciary: (a) making the involvement of a lawyer obligatory, as a condition for the validity of a plea bargain; (b) imposing a minimum level of investigation into the crime underlying the plea agreement and the disclosure of the results of the investigation to enable the defendant to make an informed choice; (c) requiring judicial scrutiny of key elements of the plea agreement, regarding in particular the credibility and voluntary nature of the confession and the appropriateness of the sanction resulting from the plea agreement, and envisaging adequate accountability for intimidation, duress and other abuse in the course of plea bargaining; (d) limiting the differential between the sanction resulting from a full trial and that offered as part of a plea bargain (‘trial penalty’), thus avoiding unfair pressure on the accused while ensuring that sanctions remain within an appropriate range, and that justice is seen to be done; (e) prohibiting the waiver of appeal rights in order to ensure sufficient control, at the national level, of the actual practice of lower courts in the field of plea bargaining; (f) foreseeing the possibility of revoking a plea agreement in certain circumstances, in particular when new facts arise or become known which make the plea agreement inappropriate and require further prosecutorial action; in such a case, a confession made as part of the agreement must not be used against the defendant; (g) minimising the use of pretrial detention against persons suspected of less serious crimes by making use of alternative measures; (h) monitoring indicators of racial or wealth bias or discrimination in the reduction of sentences following guilty pleas, and taking appropriate awareness-raising, training, and, if need be, disciplinary measures to counteract any such bias or discrimination; (i) ensuring that the law-enforcement authorities and the criminal courts are properly resourced so as to avoid excessive recourse to trial waiver systems for purely budgetary reasons; and (j) ensuring proper monitoring and control by courts and law-enforcement bodies to avoid blackmail, pressure or any other manipulation aimed at compelling suspects to engage in a trial waiver system.¹³

These requirements, established at the level of the Parliamentary Assembly of the Council of Europe, certainly provide a substantial foundation for determining the minimum European standards that must be met to guarantee the conditions and prerequisites for the successful functioning of plea agreements in the European context. Taking into account that the plea bargaining procedure has its roots in the Anglo-American procedure, which significantly deviates from the minimum standards for the protection of defendants in certain European countries, it is justifiable to determine, by referring to positive European standards, the minimum guarantees intended to ensure the implementation of fair trial safeguards in the course of making a plea agreement.

2.2. Comparative legal perspective

Although the American plea-bargaining model has served as an inspiration to legislatures in a number of European countries over the last few decades, comparative legal research has focused on Italian, French, Swiss, German and Austrian law, primarily due to the geographical proximity and/or the traditional influence of the law in these countries on Croatian criminal procedural law.¹⁴ The detailed comparative legal analysis, which serves as a ground for designing the research contained in this article, has already been published¹⁵ and we will refer to it in this Section of the paper as well as in appropriate places in the following Sections.

The comparative legal research has shown that consensual forms corresponding to judgment based on agreement of the parties, including patteggiamento in Italian law, plaider coupable in French law, and abgekürztes Verfahren in Swiss law, are not used for more serious criminal offences, or for criminal offences of organised crime and corruption.¹⁶ Moreover, Austrian legislation, which has long served as a model for the Croatian legislature, does not provide at all for plea bargaining in criminal proceedings. One possible conclusion is that these consensual forms in comparative law serve primarily to ensure procedural efficiency and economy, and not to obtain the testimony of the defendant who will reach an agreement and then testify against his or her co-defendants in other criminal proceedings. That is to say, settlements aimed at obtaining the testimony of witnesses in other criminal proceedings are important precisely for the effective detection and proof of serious crimes, especially corruption, organised crime and terrorism.¹⁷ For this purpose, national laws provide for special consensual forms, which include mechanisms to ensure that the defendant, as a collaborator of justice, will comply with the agreement.¹⁸

The next important aspect of the regulation of plea-bargaining procedures is appropriate judicial control. Since the judgment based on agreement of the parties is rendered by the court, the question is to what extent the court can control not only the legality of the agreement, but also the adequacy of the agreed penalty. Comparative legal research has shown that strong judicial control is ensured in Italian, French and Swiss law, since the court can reject the agreement of the parties not only when it is unlawful, but also when the proposed punishment, in the court’s assessment, does not correspond to the purpose prescribed by the criminal code.¹⁹ The German regulation of Absprache is specific insofar as the court is directly involved in the negotiation and in that sense has full control over the agreement, including the agreed penalty.²⁰ In this respect, Croatian law is an exception, since, according to the established practice of the Supreme Court, the court cannot review the adequacy of the agreed punishment, even when the agreement relates to serious crimes, including organised crime and corruption.

Finally, the issue of the position of the defence when initiating the agreement and during negotiations is particularly complex, and, more recently, the question of whether the victims have been provided with an adequate role has been raised. The question of defence rights and the legal position of the victim in plea bargaining are particularly relevant from the point of view of European criminal law and a series of recent directives that regulate these matters.

4.1. Plea bargaining initiative

Some of the forms of consensual proceedings recognised in Croatian law do not envisage prior agreement between the parties, but consist of a unilateral offer by the prosecutor (e.g. a penal order). However, judgment based on agreement of the parties may, understandably, follow only upon an agreement having been reached, which becomes formalised in the act of signing a joint statement which must include the guilty plea, the agreed sentence and some other legal consequences.²⁴ The negotiations preceding the signing of the statement are not regulated by law apart from the provision stating that the parties may negotiate the terms of a guilty plea and that the defendant must have a defence counsel in these negotiations.²⁵ One of the crucial questions which remains unresolved by those provisions is who may propose the negotiations: the prosecution, the defence, or either of the two parties, as well as what the potential role of the court is in triggering the negotiations, i.e. in encouraging the parties, directly or subtly, to start negotiating.

The first subject of research in this area was which of the two parties proposes the negotiations more often and what is the most common reaction of the other party to this initiative. This issue is considered to be important primarily for two reasons: to observe how state attorneys understand their legal and social purpose, as well as to determine how attractive the negotiations are for defence attorneys, whose willingness to propose and to engage in negotiations necessarily depends on the attitudes of the state attorney.

As for the initiative of the court towards the parties to reach a formally prescribed agreement, evidence that it is taken frequently would indicate that judges largely see themselves as mediators whose role is to resolve a dispute between the parties. At the same time, evidence to the contrary would suggest that the courts take a more traditional and cautious approach. Having in mind that Croatian law, in contrast, for example, to German law, does not envisage an active role of the court in negotiations and, as a consequence, does not oblige the court to establish the facts of the case if a formal agreement between the parties has been reached, the cautious approach seems more appropriate.²⁶

In order to investigate these issues, defence counsels and state attorneys were asked whether they initiate negotiations, how often they do so, and whether the other party readily accepts their initiative. Both groups were also asked whether the other party initiates negotiations, how often it does so, and whether they readily accept the initiative. When it comes to judges, an attempt was made to explore not only whether they initiate negotiations between the parties, but also whether they do so only in the explicitly prescribed situation, i.e. as a prelude to judgment based on agreement of the parties, or whether they initiate informal negotiations as well.

With regard to the question of whether they propose negotiations to enable a judgment to be rendered based on agreement of the parties, state attorneys can be divided into two groups of equal size (10 in each). The first group are those who have never done so, while the second group comprises those who do have experience of initiating negotiations. In the second group, the majority of state attorneys (8) responded that they do so rarely or exceptionally. Those prosecutors who initiate negotiations with the defence sometimes do so even before an indictment is filed. To the next question, whether the defence initiates negotiations in order for a judgment to be rendered based on agreement of the parties, none of the state attorneys answered negatively; the majority of them either emphasised that this happens often, or did not give a direct answer, while a few (5) stated that defence counsels initiate negotiations infrequently. Most state attorneys do not reject this initiative a priori, but engage in negotiations. However, one of the respondents emphasised that state attorneys show reluctance to negotiate with the defence in a formal manner as this means they have ‘a pile of paperwork to sign’, which is ‘complicated’, as well as having trouble ensuring approval of the agreement by their superiors. Some of the state attorneys who are generally not opposed to negotiations embark on them only on certain conditions, e.g. that the defendant is not a repeat offender (4) or that the sentence proposed by the defence side is realistic (2). When a sentence is proposed by the defence, it is sometimes followed by a counter-proposal by the state attorney, i.e. ‘raising the bar’, as described by one of the respondents.

The next group examined were the defence counsels. Among them, a very small number (2) had never initiated negotiations to enable a judgment to be rendered based on agreement of the parties, while most of them have done so, with approximately the same number of those who do so often and those who do so infrequently. As for the question of whether the state attorney accepts their initiative, all of the attorneys answered affirmatively, with slightly more who stated that the state attorney does so rarely than those who say it is commonly done. One of the respondents noted that when the evidence against the defendant is strong and the defendant is considering pleading guilty, the state attorneys do not want to negotiate an agreement because ‘it is complicated and time-consuming for them’. Some of the participants clarified their response regarding the willingness of the prosecutors to engage in negotiations by emphasising that it depends on the level of the competent state attorney’s office; it seems that the Office for the Suppression of Corruption and Organised Crime (USKOK) is eager to negotiate, while the lowest level (i.e. the municipal state attorney’s office) is much less willing to do so. When asked how often the state attorney was the initiator of the negotiations, the defence counsels gave different answers. About half of them (9) responded that the state attorney never or almost never does so, which one of the respondents attributed to apathy, lack of independence, lack of willingness to take responsibility and fear of being declared corrupt. The other respondents (10) had some experience with state attorneys initiating negotiations, with half of them (5) pointing out that state attorneys do this only on rare occasions. The prosecutors’ proposals are generally well accepted by the defence counsels who took part in this research: some of them accept the proposals more often, and others only occasionally, but none of them indicated that they had never done so. One respondent usually explains to the client that ‘these are not commercial negotiations and that one cannot bargain a lot’ as ‘you are negotiating with the state, which has its own “tariffs” and there is not much manoeuvring space’. Another noted that the problem was legal uncertainty, which made it difficult to assess what the court’s decision might be if the defendant decided not to plead guilty.

One of the most interesting and thought-provoking groups of responses were those given by judges to the questions whether they had ever proposed negotiations to the parties in order to reach an agreement and, specifically, whether they had proposed negotiations to reach an agreement that would be the basis for a judgment based on agreement of the parties. Although somewhat similar, the second question was narrower, because it refers only to ‘formal’ negotiations (i.e. those that serve as a prelude to a judgment based on agreement of the parties), while the first question refers to all types of negotiations, including informal negotiations, that have, allegedly, not only survived the introduction of the formally prescribed negotiations in everyday legal practice, but thrived on them. Some of these informal negotiations take place at earlier stages of the criminal proceedings and, upon reaching an agreement, find their legal expression in the sentence proposed by the prosecutor, which is, in some cases, partially binding for the court.²⁷ However, it is not uncommon for the parties to engage in trilateral negotiations with the trial judge, which sometimes result in a gentleman’s agreement according to which the defendant will plead guilty at the trial, while the court will impose the sentence that was informally agreed on. Consequently, an even wider range of questions arises: not only is it uncertain who is allowed to initiate such informal negotiations, but it is also unclear whether this opaque practice is legally permitted in Croatian law, having in mind that it is the duty of the trial court to establish the facts of the case at a public trial.

Just under half of the judges (9) said that they never suggest any form of agreement, either ‘formal’ or ‘informal’, to the parties. Some of the noteworthy explanations for not embracing this practice were that it would be contrary to the structure of criminal proceedings or that the judge ‘must not interfere’ in consensual proceedings. In contrast, just over half of the judges (11) had – at least informally (‘extrajudicially’) – suggested to the parties that they engage in some form of negotiation, be it formal negotiations before the indictment panel or informal negotiations at various stages of the criminal procedure, including the main hearing. As for the second (‘narrower’) question, only a minority of judges (7) said that they suggested that the parties negotiate to enable a judgment to be rendered based on agreement of the parties.

To sum up, the results of our research point to the conclusion that the negotiations are most often instigated by the defence, although the prosecutor is generally willing to engage in them. However, this is only a rule of thumb as there are still a considerable number of state attorneys and even judges who are eager to propose or suggest negotiations. Moreover, the negotiations are, in practice, not restricted to those which take place before the indictment panel. Instead, they take place at various stages of the criminal procedure and sometimes involve the court itself, playing either an indirect and subtle role, or a more active one. In general, it seems that state attorneys and the court use plea bargaining rather flexibly and liberally and do not consider themselves to be particularly constrained by traditional procedural principles, such as the inquisitorial principle, which envisage the active and truth-seeking role of both the prosecutor and the court. This would mean that the Croatian system of criminal justice has been gradually turning into a model which does not rest upon a formally sanctioned main hearing as an essential keystone of criminal procedure, instead it seeks – formal or informal – ‘solutions’ to a ‘dispute’ between parties throughout the criminal proceedings. In a setting where participants actively bargain on the margins of the proceedings, with a rather vague understanding of their procedural duties and with a tendency of the court itself to initiate negotiations, the problem with plea bargaining is not only that it ‘merges the tasks of administration, adjudication, and sentencing into a single conglomerate judgment’,²⁸ but also that it involves a dispersion of responsibility between the prosecutor and the court. If such an approach in legal practice persists, additional regulatory safeguards should be put in place in order to protect both the rights of the defendant and public interest.

4.2. Reasons and motives for initiating negotiations

The provisions regulating negotiations between the parties which can lead to a judgment being rendered on the basis of agreement do not prescribe the purposes of this form of plea bargaining. In comparative legal literature, this issue has been widely discussed.²⁹ The common justification is expediency, both in terms of time and resources. This part of the research sought to examine how the respondents perceive these purposes and what their own personal motives are to engage in negotiations. This will also enable the authors to determine whether the personal motives are in line with the more general social purposes of plea bargaining. The reasons why the prosecution and the defence enter into negotiations were examined,³⁰ where state attorneys were specifically asked how much their decisions were influenced by administrative criteria set by the government. The judge’s position on informal agreements between the parties which occur once the main hearing has already begun was surveyed as well.

The answers received do not deviate much from the expectations of the researchers, i.e. they are in accordance with the commonly recognised advantages of plea bargaining. The majority of state attorneys (11) emphasise expediency as one of the guiding principles which motivate them to engage in negotiations. Some of them elaborated on this more thoroughly, stressing the reduced costs and relieving the case burden on the prosecution and judiciary. Other reasons include evaluating the mitigating circumstances, avoiding further trauma for the victim, speeding up damage compensation and avoiding changes in the law or jurisprudence. One of the state attorneys mentioned discovering the accomplices as one of the motives. As a reason for avoiding negotiations, one of the respondents stated that agreements can be ‘very different for the same crimes’ which can lead to legal uncertainty. State attorneys almost unanimously state that their decision to initiate negotiations is not affected by the fact that the General Performance Criteria for Deputy State Attorneys, which are prescribed by the Justice Minister and serve as one of the criteria for the evaluation and eventual promotion of state attorneys, ‘reward’ reaching an agreement between parties.

Among the defence counsels, the most common reason for recommending the defendant to enter into negotiations is the fact that the evidence against him is ‘clear’, i.e. that it is obvious that the trial court would convict the defendant, while the second most common reason is securing a more lenient sentence. Interestingly, one of the defence counsels stressed that in cases with a large number of co-defendants a certain number of them almost always engages in plea bargaining ‘which simply compels you to start negotiating because these are potential witnesses who can harm you in the trial. This forces us to reach a settlement’. As a factor that diminishes the defence’s willingness to negotiate with the state attorney, one of the respondents emphasised that state attorneys do not provide sufficient concessions to the defendants who plead guilty, i.e. that their offer is not any better than that which the court itself would make in the case of a conviction.

As the next group of respondents, the judges were asked whether they prefer formal agreements³¹ over other forms of reaching consensus and what the reason is for such a preference. Most judges did not give an unambiguous and definitive answer. However, one of the respondents pointed out that, on reaching a formal agreement, ‘the defendant has a greater level of security’ while, on reaching an informal agreement, it is not unusual that ‘one of the parties, most often the state attorney, files an appeal despite the agreement’. Interestingly, the judges examined did not elaborate on their preferences from the perspective of fundamental legal principles of Croatian criminal procedure, but primarily from the viewpoint of the special interests of the parties and the court itself.

To conclude, it seems that the most common motive for entering negotiations is expediency. An additional reason, from the point of view of the defence, is the awareness that the probability of conviction upon trial is high in the particular case. The disadvantages of plea bargaining, which are frequently elaborated on in comparative literature,³² were not mentioned by the respondents. However, it seems that the tendency to use agreement between the parties as a way of informally securing witness testimony can also be a motive of the state attorney for entering negotiations and offering concessions to the defendant. This is somewhat worrying, as this is certainly not the ratio legis of plea bargaining in Croatian criminal procedure.

4.3. Stage and scope of negotiations

Previous parts of the research have shown that negotiations between the parties take place not only during the proceedings before the indictment panel, i.e. in the case directly envisioned by the law, but also–to a certain extent–in various informal settings throughout the criminal process. This part of the research sought to determine the frequency of such informal agreements in relation to the formally sanctioned one. In addition, the authors attempted to determine whether the parties, either in ‘formal’ or ‘informal’ negotiations, commonly agree on some concessions which are not provided for by the law, e.g. about mitigating the legal qualification of the crime, or about granting a more lenient sentence in exchange for a witness statement against a co-defendant.

The defence counsels were asked what the subject of their negotiations with the state attorney was: was it only the guilty plea and the sentence, or was it something else as well, e.g. witness testimony in another trial or the legal qualification of the crime? About two-thirds of the defence counsels said that the subject of the negotiations was exclusively the guilty plea and the sentence, but a small number (2) had experience with negotiations in which the state attorney strove to acquire witness testimony in another criminal procedure, while a few more (4) admitted that the legal qualification of the crime was a matter of negotiations as well, which is not in accordance with the principle of mandatory prosecution³³ as one of the keystones of Croatian law. One of the respondents even stated that some of the concessions offered to defendants as prospective witnesses had been ‘contrary to the principle of fairness and justice’. Some defence counsels (2) replied that the subject of the negotiations was simply ‘everything’. On the other hand, one of the respondents shared the experience where the defendant who was charged with several crimes pleaded guilty even to those that he had not committed as the prosecutor was not willing to modify the qualification of the offence.

As for the stage at which negotiations are usually conducted, defence counsels often stated that this is done both before and after the indictment, with more than two-thirds of them having had experience with negotiations prior to the indictment. This means that the provision authorising the parties to negotiate in a very specific setting (before the indictment panel or, exceptionally, at the preparatory hearing) is not regarded as a legal hindrance to holding negotiations even before the indictment is filed (i.e. while the investigation is still ongoing). Regarding the experiences of negotiating after the beginning of the main hearing, most of the judges (13) stated that they had encountered such cases, while about a third (7) had no such experience. Interestingly, all the judges who sometimes encounter this form of settlement between the parties stated that they had accepted it at least once. One of the judges stressed that informal agreements are much more common in everyday practice than formal ones concluded before the indictment panel. Some of the judges were not only informed of the informal settlement, but also took an active part in reaching it, for example by indicating, at the request of the parties, the sentence that could be imposed on the defendant if found guilty. Generally, the respondents do not deem such practices problematic, but one of the defence counsels rightly pointed out that in such cases ‘the judgment does not formally show that it is based on an agreement’. It should be pointed out that the discussion in the multi-professional focus group resulted in the unanimous conclusion that the possibility of negotiating and reaching agreement should be extended to the trial stage. This would, in their opinion, reduce the shortcomings of informal ‘gentlemen’s agreements’.

This part of the research confirms common knowledge that, as for the procedural stages in which negotiations are held, plea bargaining is understood extensively by Croatian legal practitioners. The fact that the Criminal Procedure Act 2008 does not mention negotiations between the parties anywhere else but in Article 360 is not generally taken as a prohibition of such proceedings. When it comes to the subject of negotiations, the participants in the research usually adhere to the legal provisions, although some do expand the scope of negotiations to further concessions not provided for by the law. This heterogeneity of practice calls for legislative action which would, ideally, rethink and reconceptualise plea bargaining in Croatian law or, at least, prohibit certain ‘dispositions’ of the parties, e.g. on the legal qualification of the offence. This would bring Croatian law closer to well-established models of plea bargaining which have already inspired the Croatian legislature, e.g. the Italian pattegiamento in which it is the role of the judge to verify whether the legal qualification of the offence is accurate and whether the proposed punishment is adequate (Article 444(2) of the Italian Criminal Procedure Act of 1988).

5.1. Adequacy and suitability of concluding a plea agreement for minor offences

The Criminal Procedure Act 2008 (CPA) recognises several different instruments aimed at speeding up criminal proceedings for less serious criminal offences punishable by a fine or up to five years’ imprisonment.³⁴ Such instruments include a penal order,³⁵ a conditional waiver of prosecution, and an unconditional waiver of prosecution.³⁶ Therefore, it can be seen that the domestic legal order provides a broader list of competing grounds through which the legislature expresses the intention to resolve a particular criminal case without a court hearing. Since a plea agreement is not limited to the fixed lower or upper limit of the gravity of the offence, the question arises as to what extent a judgment based on agreement of the parties is used as a competitive instrument to expedite criminal proceedings and whether it is a suitable tool taking into account other existing procedural instruments aimed at solving these types of criminal offences.

Observing the Croatian system of judgment based on agreement of the parties from a comparative perspective, it can be seen that different European countries principally restrict the field of application of the plea agreement to less serious criminal offences.³⁷ Therefore, it can be said that in these countries the plea agreements are primarily based on the idea of speeding up the criminal procedure in order to solve individual cases in a fast and easy way, while at the same time excluding the possibility of concluding agreements for more serious crimes. It is noticeable that the Croatian legislature deviated from European models in this respect because it enabled the conclusion of plea agreements regardless of the severity of the criminal offences, including criminal offences with elements of corruption and organised crime. This is precisely what led to the phenomenon that the prosecutor, in the process of concluding an agreement with the defendant, often tries to obtain his confession not only in order to solve the specific criminal offence, but also to use the same defendant later on as a witness in criminal proceedings against other co-defendants once he had been finally convicted before the court on the basis of the concluded plea agreement.

The research shows that a significant number of judges (9) consider a judgment based on agreement of the parties to be a good and appropriate instrument for resolving less serious criminal offences punishable by a fine or up to five years’ imprisonment. Only three judges pointed out that the domestic legal order offers other concurrent instruments aimed at speeding up criminal proceedings, in particular the penal order which, given its specifics, should be the most frequent basis for resolving the least serious criminal cases. Four judges explicitly stated that a judgment based on agreement of the parties should not be used for less serious criminal offences but that other consensual forms should be applied. Another four judges noted that they had never had a case in which a judgment was handed down based on agreement between the parties for a criminal offence punishable by a fine or imprisonment for up to five years.

The vast majority of state attorneys (16) consider a penal order to be the most appropriate instrument for minor offences, emphasising that speed of action, simplicity, and the efficiency of resolving the case are the key reasons for a penal order to have priority over judgments based on agreement of the parties. Only two state attorneys pointed out that a more suitable instrument for the least serious criminal offences is a conditional and unconditional waiver of criminal prosecution, while another two state attorneys stated that they had no experience of these cases since it was a long time since they had held the position of deputy in a municipal state attorney’s office.

A significant number of defence attorneys (11) indicated that they encourage their clients to enter into a plea agreement for criminal offences punishable by a fine or a sentence of up to five years’ imprisonment, especially when the defendant’s guilt can be clearly established from the case file. Four defence attorneys noted that they do not generally recommend that the defendant enter into a plea agreement for less serious offences as, in such cases, other consensual forms are more appropriate. Four defence attorneys pointed out that the application of plea agreements in minor offences is suggested to the defendant primarily depending on the quality of the evidence gathered by the state attorney. One defence counsel could not recall whether he had had a case of concluding a settlement for offences punishable by a fine or a sentence of up to five years’ imprisonment. To the explicit question whether they prefer some other form of consensual procedure instead of concluding a plea agreement, some of the defence counsels (6) prefer the defendant to admit to the offence at the hearing in accordance with Article 417(6)(7) CPA. In this situation, the court cannot sentence the defendant to a harsher sentence than that proposed by the state attorney in the indictment if the defendant has admitted the crime and expressed his agreement with the type and measure of the proposed sentence. On the other hand, some defence counsels (4) claimed that the penal order is a simple and quick way of ending criminal proceedings, which state attorneys resort to most frequently, so defence attorneys often encounter this type of agreement in their daily practice. A good proportion of defence counsels (6) prefer to enter into a plea agreement, while a smaller proportion (4) said that in their practice they prefer other consensual forms of agreement such as the conditional and unconditional waiver of prosecution.

It can be concluded that the analysed data show a rather divergent understanding of the need to enter into a plea agreement for less serious offences punishable by a fine or a sentence of up to five years’ imprisonment. The general position of state attorneys is that no plea agreement should be concluded for these minor criminal offences because there are other instruments which are easier to apply that enable the faster resolution of these least serious criminal offences, among which the most appropriate is the penal order. The state attorneys’ standpoint is supported by the majority of judges, although a good proportion of them believe that a plea agreement is a suitable instrument for resolving even the least serious of crimes. Interestingly, the defence attorneys mostly support the application of plea agreements for such crimes. Considering, however, that a plea agreement can only be reached with the consent of the state attorney and the defendant, it is clear that the reluctance of the state attorney to enter into a plea agreement in a situation where he considers the penal order to be the most appropriate instrument to solve the least serious crimes, makes it impossible to negotiate and conclude a classic plea agreement.

5.2. Concluding a plea agreement on the initiative of the court and the benefits of concluding a plea agreement for the most serious criminal offences within the jurisdiction of the Office for the Suppression of Corruption and Organised Crime (USKOK)

Judgment based on agreement of the parties, in accordance with the explicit provision of the CPA, may be rendered, at the earliest, before the indictment panel once the indictment has been filed and, at the latest, at the preparatory hearing before the trial judge (Articles 359 and 374 CPA).³⁸ Only the parties, that is the state attorney and the defendant, have the right to negotiate and conclude a plea agreement and afterwards submit to the court a signed statement for reaching a judgment based on the agreement of the parties (Article 360(3) CPA).³⁹ According to the explicit provision of the law, the court does not encourage the parties to negotiate or participate in the procedure of agreeing on the conditions of the admission of guilt and possible sanction. However, in practice, it is often heard that there are so-called ‘informal agreements’ by which the court indicates to the parties that they should try to reach an agreement and thus speed up the resolution of the criminal case, especially when it comes to a case with complicated facts and a larger number of defendants in criminal proceedings which lead, as a rule, to lengthy criminal proceedings before the court. Therefore, the interview sought to find out whether the courts in everyday practice encourage the conclusion of agreements and whether there are informal agreements, known as ‘gentlemen’s agreements’, through which, outside the legal framework, the parties agree on the conditions of concluding the agreement and consequently speeding up the finalisation of the case. In addition, a specific analysis was made, from the perspective of judges, of the expediency of concluding agreements for the most serious criminal offences, including criminal offences within the jurisdiction of USKOK.

The research conducted showed that comparative legislation and Croatian law mostly accept the idea of clear, party-driven negotiations on plea and sanction and that the court does not formally participate in the process of concluding an agreement. Therefore, the role of the court is reflected only in the later stage of the procedure, in which it exercises judicial review of the previously concluded agreement on admission of guilt and sanction. However, in Germany, the authority of the court has been established in a clear and unambiguous manner, not only is the court under an obligation to participate in the process of concluding a plea agreement, but it is also authorised to encourage negotiations on the conclusion of an agreement. Such an arrangement essentially outlines the traditional procedural idea of German criminal procedure, in which emphasis is placed on determining the material truth in criminal proceedings, a determination which is solely the responsibility of the court itself.⁴⁰ Therefore, the intention of the German legislature to express the need for the court to be an equal participant in the negotiation process is understandable, taking into account the traditional role of the court in German criminal proceedings.

Regarding the purposefulness of concluding agreements for the most serious criminal offences, a large number of judges (14) point out that a judgment based on agreement of the parties is an acceptable way to end the most serious criminal cases. Most frequently they state that they do not see the point of conducting criminal proceedings before the court if the factual situation between the parties is not in dispute. Avoiding criminal proceedings before the court saves on the costs of criminal proceedings and avoids exposing of defendants to negative consequences of a public trial. There is nothing disputable from the perspective of the victim of a criminal offence either, because the victim’s consent is a prerequisite for plea agreements when it comes to criminal offences against life and limb and sexual freedom. Other judges (6) believe that the plea agreement should be limited to criminal offences within the jurisdiction of municipal courts, because they consider that the most serious crimes often involve trafficking in justice and that the sanctions proposed by the prosecutor and defendant are too low and that prosecutors use the defendant’s confession subsequently as evidence against other defendants in the same criminal proceedings.

The majority of state attorneys (9) say that they have not encountered a situation where the court proposes that the parties enter into a plea agreement. However, although they denied such a possibility because the law itself does not consider it, they emphasised that an informal proposal for the parties to try to reach an agreement often comes from the court. Some state attorneys (5) explicitly confirm that, in their experience, they regularly come across the court’s proposal that the parties should try to agree on the terms of the plea and sanction. Thus, some judges suggest concluding an agreement when they have in mind a sanction (e.g. a suspended sentence) that would be more difficult to justify, and indirectly suggest that the parties enter into an agreement so that they do not have to write an explanation of the judgment that could be demanding. There are also situations when, after presenting part of the evidence at the hearing, the court warns the parties that a conviction is obvious, so the defence accepts an agreement. A significant number of state attorneys (6) point out that, in practice, informal agreements in a way take place when the court asks the parties ‘will you agree?’ One reason for such a court proposal is the aim of the judges to complete their judicial norm as soon as possible, which is counted in the number of judgments passed. Therefore, state attorneys believe that the possibility of concluding an agreement should be explicitly extended up to the trial.

Answering the question about whether the court encourages the conclusion of a plea agreement, the defence counsels are practically divided. One part of the defence counsels (11) explicitly point out that they have never come across the court’s proposal for a plea agreement. The other part (9) emphasises that the court often proposes that the parties conclude a plea agreement in order to resolve a specific case as quickly as possible. Thus, some point out that the court, as a rule, proposes this to the defendants to exert pressure on the defendant by warning that he could be punished more severely if he does not agree to a plea agreement. Others point out that the court often informally proposes concluding an agreement when a conviction is obvious, but where a large amount of evidence would still have to be presented before the judgment is passed, which, however, would not change the situation in favour of the defendant.

Based on the conducted analysis, it is evident in practice that there are situations where the court informally encourages the parties to enter into a plea agreement. Although the judge does not participate in the plea negotiations, he is still involved in the plea agreement, which means that an ‘informal’ agreement on how to end criminal proceedings occurs in judicial practice. There is also an opinion and an interest in favour of allowing the plea agreement to exist in the later stages of criminal proceedings, so as to allow the parties to have more space to conclude an agreement, and it is clear that such a trend exists in practice. This issue was also discussed in the focus groups with judges, state attorneys, and defence attorneys. All participants express the common view that such a practice exists, but they are of the opinion that it does not need to be formally prescribed by law since, in some procedural situations, it is simply in the interest of all participants so to act because it speeds up the procedure. Ultimately, judicial practice already does so, as it allows an agreement to be concluded outside the current legal framework. Therefore, it would be advisable to prescribe at least a general norm allowing the court and parties to discuss and, in suitable cases, to reach an agreement on the further course and outcome of the criminal proceedings.

5.3. Judicial review of the plea agreement

6.1. Position and role of the victim

The traditional concept of plea bargaining implies an agreement between two parties in criminal proceedings–the prosecutor and the defendant–so the logical question is whether the victim’s involvement in the process is needed and justified. However, in criminal law of the European Union, there is a clear tendency to strengthen the role of the victim and strengthen the possibility of his or her active participation in the criminal procedure,⁵⁷ which are crucial determinants of Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime.⁵⁸ Member states are expected to facilitate the referral to mediation and other restorative justice services,⁵⁹ which may include various consensual forms, and this implies adequate protection of the interests of victims in these procedures. The interests of victims can be protected only if the possibility of their effective participation in consensual procedures is prescribed by law. From this point of view, the victim should have the right to protect his or her interests in the plea-bargaining procedure. This can be done by involving the victim in court proceedings, as in French and Swiss law, and even by giving the victim a decisive role, as in Swiss law, where the victim can prevent an agreement between the parties.⁶⁰ As Rauxloh emphasises, ‘it is widely accepted that active participation of victims in proceedings plays an important factor in the healing process as it empowers the victims and restores their dignity’, and ‘this healing and empowering effect is of course lost if the trial is avoided by a bargained guilty plea’.⁶¹

In Croatian criminal procedure, victims are not included in the negotiations procedure which may result in an agreement between the parties. The state attorney does not have to obtain their consent to negotiate with the defendant, except in cases of criminal offences against life and limb and against sexual liberties, for which a prison sentence of more than five years may be imposed.⁶² This is a kind of compromise solution that sought to reconcile, on the one hand, the objections that the victim is not a party to criminal proceedings and should not be involved in the negotiations,⁶³ and, on the other hand, modern trends of strengthening the victim’s position in criminal procedure and restorative effects.⁶⁴ One of the most important rights of a victim, acting as the injured party in criminal proceedings, is the right to file a claim for indemnification, which allows for faster compensation than waiting for litigation.⁶⁵ Therefore, the statement on the agreement, which serves as a basis for the judgment based on agreement of the parties, should contain a statement of the defendant on any submitted claim for indemnification.⁶⁶

The conducted research shows that the majority of judges interviewed (11) believe that the victims have been given an appropriate role in the process of rendering a judgment based on agreement of the parties. Only four judges explicitly stated that this is not the case – three of them because the victim’s consent is required only in relation to a narrow circle of criminal offences, and one of them because the parties’ negotiations take place with the public prosecutor, so neither the court nor the victim has much knowledge of them. However, the majority of judges (14) believe that the interests of the victim are adequately protected in the process of reaching agreement. One respondent believes that the interests of the victim are not sufficiently protected in practice, because the victim is ‘secondary’ in the procedure, and another believes that the victims are ‘never sufficiently’ protected.

The majority of the interviewed state attorneys also believe that victims are accorded an appropriate role in the process of rendering a judgment based on agreement of the parties. Only two believe that this is not the case because the consent of the victim is not required in all cases, and one respondent stressed that the consent of the victim should always be required. A large number of respondents said that they often ask for the consent of the victim, even when the law does not require it, if the circumstances of the case so require, for example in the case of a particularly cruel robbery. In addition, the majority of state attorneys believe that the interests of the victim are adequately protected, and only one pointed out that this depends on each state attorney individually, i.e. how careful he or she will be in his or her actions. Only one state attorney stated that he did not consider it a good solution for the victim to block the negotiations by denying consent. In addition, concerning protection of the victim’s interests, it should be pointed out that the majority of state attorney respondents believe that the defendant’s willingness to accept the victim’s claim for indemnification influences their decision to enter into agreement: seven believe that it influences it greatly, five that it does have an influence, one that it may have an influence, three that it has an influence in the case of certain crimes (primarily in economic crimes and property crimes), and only three consider it has no influence at all. This shows that state attorneys, in general, do take into account very specifically the victim’s interest in the compensation of damages when they decide to enter into negotiations with the defendant.

The generally positive attitude of the respondents towards the position of the victim in the negotiation procedure is supported by the analysed responses to the question whether they have ever received any complaints from victims due to their non-involvement in the procedure. The analysis shows that such complaints are rare. The majority of judges (17) have never been in a situation where the victim objected because he or she was not involved in the agreement process. One judge concluded that the reason may be that victims, i.e. the injured parties, are not invited to the session of the indictment panel at which the judgment is rendered on the basis of an agreement. Two judges had each received a victim’s complaint, and only one respondent stated that in several cases, primarily concerning property offences, a victim objected to the agreement in writing because the agreement often contained only partial acceptance of the claim for indemnification. No state attorney has ever received a complaint because the victim was not involved in the sentencing procedure based on agreement of the parties. The majority of defence counsels (17) were never in a situation where the victim objected because he or she was not involved in the procedure of rendering a judgment based on agreement of the parties. Only one respondent had experienced a victim objecting, in relation to a claim for indemnification, while two respondents heard that others had had such experiences.

Therefore, it can be concluded that, although the majority of respondents believe that the victim’s position in the procedure of rendering a judgment based on agreement of the parties is properly regulated and that victims’ interests are well protected, state attorneys tend to extend the victim’s consent to agreement to other criminal offences as well, particularly when the circumstances of the case support it. The fact that victims’ objections are rare shows that this is good practice. However, the few complaints made were mostly related to claims for indemnification, which should be considered an important part of the statement on the agreement of the parties. Even more attention should therefore be paid to this, particularly by state attorneys.

6.2. Procedural and defence rights

The procedural position of the defendant in the procedure of rendering a judgment based on agreement of the parties is complex, on account of many issues related to consensual justice in general, which imply a waiver of some important guarantees of a fair trial. However, when answering the general question on how efficiently defence rights are guaranteed in the plea-bargaining procedure, respondents pointed out several specific issues. In general, great importance is given to mandatory assistance by a defence counsel, which is explicitly prescribed in French and Swiss law,⁶⁷ as well as in Croatian law.⁶⁸

The majority of Croatian judges (19) believe that all defence rights are effectively ensured in the agreement process, and five explicitly emphasised the importance of mandatory defence. The majority of the interviewed defence counsels (12) believe that all defence rights are effectively ensured in the process of rendering a judgment based on agreement of the parties. Three defence counsels believe that rights are guaranteed at the normative level, but that there are problems in practice, and several respondents consider that there are problems at the normative level as well, primarily due to the matter being underregulated. In general, defence counsels pointed out the following problems: (a) the existence of state attorney tariffs in relation to the proposed penalties, which reduces the possibility of negotiation; (b) the settlement is reduced to a ‘take it or leave it’ offer, in the sense that there are no real negotiations; (c) there are inequalities in the handling of similar cases, and the conduct of state attorneys can be arbitrary in rejecting the defence’s initiative to negotiate; (d) the limited ability of the defence to inspect case files; and (e) the defendant’s limited ability to be involved in negotiations if he or she is in pre-trial detention. The problems stated under (a), (b) and (c) confirm that the proclaimed right of the defendant to agree on the punishment and other criminal law measures,⁶⁹ which is a peculiarity of Croatian criminal procedural law,⁷⁰ is more of a possibility, depending on the readiness of the state attorney to negotiate, than an actual defence right.

The very specific difficulties that the defence encounters in relation to negotiations and reaching an agreement, which were pointed out by defence counsels, call into question the generally positive attitudes of all three groups of respondents on defence rights in the procedures of reaching an agreement of the parties.