Judicial Assessment of Plea Agreements

A plea agreement is a contract made by and between a public prosecutor and a defendant on what constitutes its subject matter. The subject matter of a plea agreement is specific. According to international and national legal standards, criminal sanctions, in particular prison terms, may be imposed only by courts. Thus, for various reasons, plea agreements must be assessed by courts because they provide a basis for rendering judgments.

When adjudicating on a plea agreement, the Court, i.e. a preliminary proceedings judge or the judge presiding over a trial panel or a judge sitting alone, may decide as follows in the form of a ruling: to dismiss, to accept, or to deny the plea agreement.

The Code has allowed that plea agreements may be concluded as early as at the investigation sta-ge. If an agreement is signed at that stage, then the presiding judge referred to in Art. 21, para. 4, who has been assigned to the case based on an annual judges’ roster, is competent to adjudica-te on the agreement.

If an agreement is submitted after the filing of an indictment, entered into the indictment or annexed thereto or submitted along with an objection to an indictment or motion to indict at the beginning of a hearing on the motion to indict, the judge presiding over a trial panel or a judge sitting alone will decide on it depending on whether the criminal offence is within the jurisdicti-on of the criminal panel or the judge sitting aljurisdicti-one.

Plea agreements may be submitted before the conclusion of the main hearing either in regular or in summary proceedings.

The injured party and his attorney-in-fact (if the injured party has one) are informed of a hea-ring scheduled for adjudication on a plea agreement. Naturally, a notice will be sent only if the-re is a person who was the injuthe-red party in a criminal offence which is the subject matter of the agreement.¹⁵

Injured parties have the right but not an obligation to attend along with their attorneys-in-fact hearings on plea agreements, so the Court may hold a hearing not only with the injured party be-ing present, but also if he does not appear in court although he was duly summoned. Injured par-ties’ attendance at the hearing at which a plea agreement is assessed is not compulsory nor is it a condition for holding the hearing, but it is certainly desirable and helpful.

Dismissal of plea agreement - The Code stipulates in its Article 316 when the Court shall dismiss a plea agreement. Plea agreements are dismissed in the event they do not contain the informati-on specified in Art. 314, para. 1, which we have termed “mandatory elements” of any plea agree-ment. Agreements submitted by third parties (for instance, parents, spouses, the injured party, or other close relatives) may not be dismissed; instead, a hearing is scheduled at which the Court will decide on the agreement, naturally in the presence of the parties. This implies that it is

irre-15 Đurđić,V.,Stranačkisporazumopriznanjukriviceukrivičnompostupku,Revijazakriminologijuikrivičnopravo,br.3/2009;Škulić,M.,

Sporazumopriznanjukrivice,Pravnifakultet,Beograd,2009.

levant who submits a concluded agreement to the Court for the purpose of making a decision thereon.

In its Article 316, para. 2 the Criminal Procedure Code lays down another mandatory condition for dismissing a plea agreement, which occurs if a duly summoned defendant fails to appear at a hearing scheduled for adjudication on a plea agreement. Summons to this hearing must be ser-ved on a defendant in person, which means that provisions of the Code which stipulate the per-sonal services of process apply to such cases. The Code governs the possibility of seeking an en-largement of time by a defendant. It expressly allows defendants to justify their absence from a hearing on plea agreement. As regards the exercise of rights to seek return to the previous stage in the proceedings, no provisions have been made to that effect. The Code allows return to the previous stage under some other circumstances, whereas a ruling dismissing a plea agreement may not be appealed. An analysis of the entire system of the Criminal Code shows no other case in which a defendant’s failure to appear is so strictly punished by dismissing a legal document which is by nature in his favour without granting him the right of appeal. E.g. it is reasonable to assume that by failing to appear and inform the Court of the reasons for not attending a hearing, the defendant has withdrawn from a concluded agreement. However, what if he has not with-drawn from the agreement, if reasons beyond his control have prevented him from appearing and he still supports the concluded agreement? Then, why should not he be granted the return to the previous stage in the proceedings even though the Code does not explicitly provide for it?

Allowing for the return to the previous stage in the proceedings would not violate any of the pro-visions from the Criminal Procedure Code. If a defendant justifies his absence, another hearing is scheduled. Furthermore, if we look into this issue, we are bound to ask: can one and the same agreement be submitted to the Court for assessment and adoption twice. In other words, aga-in after its dismissal. The Code does not regulate this issue; but neither does it prohibit that plea agreements be submitted to the Court for assessment once again nor does it provide for a dismi-ssal on grounds that an agreement has already been dismissed in the proceedings. Consequently, plea agreements may be resubmitted, but always and solely before the conclusion of a main hea-ring. We find that it does not run contrary to the nature and act of this criminal procedure insti-tute to legislate for a possibility of filing a motion for continuance, return to the previous stage in the proceedings (not provided for), or resubmission. In our opinion, a postponement of a sche-duled hearing and resubmission for assessment of a plea agreement dismissed due to defendant’s failure to appear at the hearing should always be allowed if those actions are taken prior to the conclusion of a main hearing.

Hearing on plea agreement - Procedure for deliberating on plea agreements and passing judicial decisions thereon is provided for in Article 315 of the Criminal Procedure Code. The Code pres-cribes that plea agreements are to be decided on at a hearing. The hearing, irrespective of the sta-ge in the criminal proceedings, is scheduled by issuing an order either by a preliminary procee-dings judge or a judge presiding over a trial panel, i.e. a judge sitting alone. The order by which a hearing is scheduled sets the date, time, and venue thereof, while a defendant and his defence attorney, the injured party and his attorney-in-fact are advised of the subject matter of the hea-ring by a special summons or notice. A public prosecutor is also served with a summons whose contents clearly state the subject matter of the hearing. If a defendant has not signed a plea agree-ment, either by himself or through his attorney, or if the agreement does not contain a decision on a restitution claim, the injured party and his attorney-in-fact must be served with the sum-mons or a notice to appear at the hearing as well as with the segment of the agreement which

covers the restitution claim. Why only the segment of the agreement which pertains to the re-stitution claim? The reason for this is that plea agreements, together with all the files which are in connection with them, must be destroyed by the Court if they are not accepted, that is, if they are denied or dismissed. Thus, by delivering to the injured party only the section of the agree-ment or a notice thereof which covers the restitution claim, he is given an opportunity to familia-rize himself with its contents in a timely manner in order to attend the hearing, while in parallel, defendant’s interests are safeguarded with regard to potential consequences resulting from the abuse of the agreement of which the injured party would be in possession in case there are regu-lar proceedings. Let us remind ourselves of all the rights a defendant has in criminal proceedin-gs in view of his defence; among others, he has the right to plead his right to silence, not to incri-minate himself, etc. Consequently, the Court should protect and must protect the rights not only of the injured party, but of a defendant as well.¹⁶

A record should be made of the hearing and its introduction should not differ from other court records, except that it should clearly state that it is a record made before a particular court at a he-aring on plea agreement. The names of people partaking in the hehe-aring should be entered in the record and it should be easily noticeable to which agreement it pertains.

The amendments carried on August 31, 2009 introduced obligatory participation of a defendant’s attorney at a hearing on plea agreement. Article 313, para. 2 of the CPC stipulates that a defen-dant must have a defence attorney as early as during the conclusion of a plea agreement or the Court will appoint him a counsel ex officio.

A defendant and his defence attorney must be present at a hearing on plea agreement. If the de-fendant has been duly summoned and he has failed to justify his absence or file for continuan-ce either personally or through his attorney, the Court will dismiss the agreement by issuing a ruling.

Failing to appear at a hearing by a selected or court-appointed defence attorney does not consti-tute grounds for dismissal of a plea agreement; instead, his absence shall be regarded in the same way as in the regular proceedings, which means that the hearing will be rescheduled and he will be summoned thereto or another attorney will be appointed, only providing the defendant does not withdraw from the agreement.

Unlike the presence of a defendant and his attorney, the presence of a public prosecutor is not mandatory and the hearing may be held in his absence, naturally on condition that he has been duly summoned. We would like to confirm that such a legislative solution is the correct one. As an authorised representative of the state, the prosecutor has, within the limits of the law, perfor-med his official duty. He has endorsed the agreement, affixed a seal and set his hand thereto and officially submitted it to the Court. Should his presence be obligatory under such circumstan-ces? It is not, but it would be desirable, in the first place because reasons which have led him to

16 Simović,M.,PojednostavljeneformepostupanjaukrivičnomprocesnompravuBiH,ProceedingsoftheConference“Pojednostavljaene

formepostupanjaukrivičnimstvatimaialternativnekrivičnesankcije“,Srpskoudruženjezakrivičnopravnuteorijuipraksu,Beograd,

2009;Nikolić,D.,Sporazumopriznanjukrivice,Beograd,2009;Bejatović,S.,Sporazumopriznanjukriviceidrugepojednostavljene

forme postupanja u krivičnom procesnom zakonodavstvu Srbije kao instrumenat normativne efikasnosti krivičnog postupka,

ProceedingsoftheConference“PravnisistemSrbijeistandardiEvropskeunijeiSavetaEvrope”,PravnifakultetKragujevac,2009,

knjigaIV,str.85-106;Đurđić,V.,Stranačkisporazumopriznanjukriviceukrivičnompostupku,Revijazakriminologijuikrivičnopravo,

br.3/2009;Škulić,M.,Sporazumopriznanjukrivice,Pravnifakultet,Beograd,2009

conclude a plea agreement that has such contents need to be explained orally. Judges would al-most always need clarifications and require that doubts and ambiguities be resolved in connec-tion with the porconnec-tion of the agreement which covers the proporconnec-tionality between concessions made by the prosecutor and defendant and reasons which he was guided by.

Not only a prosecutor, but a defendant and his defence attorney, may withdraw from a plea agree-ment before the conclusion of the first hearing. Under such circumstances, the Court should deny the agreement since it is no longer concluded voluntarily. The Court may not, even if it wan-ted to, accept an agreement if either of the parties has withdrawn therefrom. The Court does not judge whether or not the parties have signed and concluded the agreement and thus may no lon-ger dispose of it. On the contrary, as long as the Court has not accepted the agreement, it is has not taken legal effect in any wider context except between the parties. The Code does not grant the parties the right to withdraw from a plea agreement, but this right indirectly arises from a si-tuation stipulated in the Code, that the Court will dismiss an agreement if a duly summoned de-fendant fails to appeal at a hearing on plea agreement.

When holding a hearing on plea agreement, the Court verifies in a suitable and proper manner all the circumstances which allow it to make a decision on the merits of a plea agreement, or on its adoption or denial. In order to perform this duty professionally and conscientiously, the Court must not by any means approach a plea agreement in a bureaucratic or formalistic manner, wit-hout adequate verification and answers which will satisfy the judge and help him form value jud-gments so that he could make a decision professionally, fairly and in accordance with the law.

Assessment of plea agreement elements - The very procedure for deliberating on a plea agreement at a hearing should develop in such a way that the Court should also state for the record, in ad-dition to general information on the type of the record and persons who are present there, that the agreement has not been dismissed and that the hearing may be held. After having stated that conditions for holding a hearing have been satisfied, the judge advises a defendant of all of his rights with regard to the proceedings. In particular, he cautions him of his right to a defence and the right to a defence counsel, informs him about the contents of the agreement and in de-tail explains to the defendant and informs him of all the consequences which will arise from an accepted agreement, especially that a judgment will be passed based on the agreement and wit-hout holding a trial, thus giving all the elements of the agreement legal effect as well as an enfor-cement clause, which entails the right to enforced execution. Regardless of the contents of a plea agreement which is considered at the hearing, the defendant is informed as follows: that there will be no main hearing; that no evidence will be presented; and that if the agreement is accepted, he pleads guilty to having committed acts which qualify as a criminal offence; as well as that he has no right of appeal against a judgment which will contain the complete subject matter of the agreement and by which he will be sentenceed and ordered to fulfil other obligations. Therefore, not only will he be presented with the meaning and nature of his guilty plea and appeal waiver, these will be explained to him, meaning that after the agreement has been accepted and become final, he may no longer appeal his judgment.¹⁷

17 See:ProceedingsoftheRegionalConferenceNew Trends in Serbia’s Criminal Procedure in a Regional Context (Normative and Practical Aspects),OSCEMissiontoSerbia,Belgrade,2012

Quality of defendant’s guilty plea - In order to be able to embark on making an assessment as to the validity of a plea agreement, the Court must, at a hearing on plea agreement, ascertain whet-her or not certain conditions existed or were present when the agreement was concluded, as well as a) whether or not the defendant knowingly and voluntarily admitted to the criminal offence(s) which are covered by the agreement.

Guilty plea – entered knowingly and voluntarily - Assessing whether or not a defendant has knowingly admitted to a crime in a signed plea agreement means to establish if such an admissi-on was made by a mentally competent persadmissi-on. What is required with regard to defendant’s men-tal state means that his ability to think and reason about the outside world of differences and facts, or about himself and his actions, needs to be established. It practically refers to an ordinary state of mind in which a person is aware of his existence. Defendant’s mental state as a conditi-on for accepting his plea agreement actually represents an assessment of his mental competence.

Mental competence is a set of elements pertaining to person’s cognition and volition which make him capable of understanding, reasoning, and forming decisions about his actions and of con-trolling them. Thus, in order for the condition of competence to be satisfied, there need to be two elements, the state of mind and the will.

With regard to the state of mind, the same ability, i.e. the cognitive element, exists as well in tho-se offenders who are able to reason and understand the effects of their actions – acts which they committed. To put it more simply, it means that an offender is capable of understanding the act he committed, primarily in its natural sense, proceedings from the actions – acts or omissions which lead to a certain consequence, as well as what his act represents and what its effects are in the society. The state of mind is not only an element of competence; it is also an element of gu-ilt and all forms thereof, either positively or negatively. It should be mentioned that “competen-ce” is a legal category whose existence is presumed and any conclusions thereon are made by the Court based on defendant’s conduct as a whole, while the lack of competence must always be as-certained, which is done by expert witnesses in the field of neuropsychiatry. Offenders are dee-med competent when they are able to comprehend the effects of their act as well as when they are capable of controlling their actions. Competence may be multilayered. However, only per-sons who are undoubtedly mentally competent should be allowed to enter into plea agreements.

In respect of conclusion of plea agreements, it should be said that international legal standar-ds apply to this procedure, including as well the right to a fair trial guaranteed under Article 6 of the European Convention. Among other rights, it guarantees the right to effective participa-tion in the proceedings. Consequently, it means that in these proceedings as well, a defendant must understand the very nature and contents of a plea agreement. He must be aware of the ri-ghts he waives and the obligations he undertakes which will be translated into legal effect of a judgment and the right of the State to enforce such a judgment. The defendant must be aware of all the benefits he gains from the plea agreement, which we have already pointed out. In parti-cular, the defendant must be aware that he waives his right to seek legal remedy and

In respect of conclusion of plea agreements, it should be said that international legal standar-ds apply to this procedure, including as well the right to a fair trial guaranteed under Article 6 of the European Convention. Among other rights, it guarantees the right to effective participa-tion in the proceedings. Consequently, it means that in these proceedings as well, a defendant must understand the very nature and contents of a plea agreement. He must be aware of the ri-ghts he waives and the obligations he undertakes which will be translated into legal effect of a judgment and the right of the State to enforce such a judgment. The defendant must be aware of all the benefits he gains from the plea agreement, which we have already pointed out. In parti-cular, the defendant must be aware that he waives his right to seek legal remedy and