CYIL vol. 13 (2022)

MONIKA FOREJTOVÁ CYIL 13 ȍ2022Ȏ can trace arguments in favour of plea bargaining, but also arguments against the introduction or retention of plea bargaining. The advantage of a plea bargain is certainly the question of the speed and economy of criminal proceedings and thus the reduction of a certain traumatic period not only for the accused, who becomes an autonomous party to the case, but also for the victim (avoiding secondary victimisation). Arguments against the plea bargain can be summarised as trading in criminal justice or resignation to its enforcement. There is a certain risk of abuse by the law enforcement authorities, as it may constitute de facto coercion of confessions under threat of more severe punishment, and thus contravene the principle of non-self-incrimination ( nemo tenetur se ipsum accusare ), which is a manifestation of the principle of the presumption of innocence and the right of defence. 88 There is no doubt that the plea bargain is contrary to a long list of fundamental principles of criminal procedure, 89 since it constitutes an exception, a weakening, a limitation or even a negation of them. Also from double degree principle. 90 From a continental (Czech) point of view, a plea bargain clearly constitutes a serious interference with the principle of establishing the facts beyond reasonable doubt, the principle of searching, immediacy and orality, the free evaluation of evidence, the public and, at certain moments, the right to an impartial tribunal, as the case of Mucha v. Slovakia has shown. Similar criticisms can be made of the guilty plea . The relationship between the plea bargain and the principle of presumption of innocence is, simply put, that the presumption of innocence is a guarantee of individual protection of the accused person in the criminal process. The accused can then dispose of the guarantees arising from the presumption of innocence, i.e., they can waive it if they plead guilty. How to assess the conclusions of the ECtHR decision in Mucha v. Slovakia ? Inmy opinion, it will depend on whether the ECtHR will follow this decision in its further decision-making practice or not. It may happen that this decision will become the basis for further clarifying case law. Equally, it may happen that in a short time it will turn out to be a “blind” line of opinion, which deviates from the legislation of national states, or by some deviation due to the specific circumstances of the case (eight of the nine defendants entered into a plea bargain), and the decision-making practice will be reconsidered, as it has already happened many times. The effect of the decision under review (if strictly applied) is that the judge (Chamber) who approved the plea bargain will have to be excluded, since the plea bargain is approved in public court hearings. This will necessarily mean an increase in the number of individual judges in the relevant court. In any case, it should be borne in mind that the issue of an impartial court and the principle of impartiality are not taken lightly by the ECtHR.

88 MULÁK, J. The principle of the presumption of innocence in the European and international context. Czech Yearbook of Public and Private International Law , 2018, Volume 9, pp. 199–202. 89 MULÁK, J. Základní zásady trestního řízení a právo na spravedlivý proces. ( Basic principles of criminal proceedings and the right to a fair trial ) Prague: Leges, 2019, pp. 85–87. 90 MOICENAU, N. A. The Compliance with the right to a double degree of jurisdiction in the matter of plea agreement. International Journal of Legal and Social Order , 2021, No. 1, pp. 361–365.

158