Abstract
The need for alternative dispute resolution and its importance is not a new discovery. Various kinds of informal agreements existed throughout the world when Alternative Dispute Resolution was not legally recognized as such. It first, however, was employed only in civil cases, and criminal justice system was exempted from it. The state undertook the responsibility to impose sanctions (which is very much the case even now) in criminal matters and the idea of informal settlement in these cases arrived much later globally. This article seeks to put some light on two systems, that is, India’s accusatorial system and Germany’s inquisitorial system of trial, and how both the countries have gradually come up with alternative dispute resolution techniques, with the primary focus being the victim–offender mediation programmes (VOMPs) and plea bargaining. The article shall give an overview of the guiding principle behind these programmes, that is, restorative justice and further trace the historical development and the present situation in both the countries. This is a comparative analysis which shall put forth the best out of both and give suggestions to improve the existing situation, while taking learning lessons from both the countries.
Overview
The relationship between the offender and the accused has developed through decades with various transitions, resulting into either victim-centric or accused-centric criminal justice systems worldwide. But this does not hold true for all traditional judicial systems. With state growing more and more powerful, the decision reached by the authorities in such cases was mainly that which was favoured by the state for its interests or the combined interests of the society than those of the victim.
Restorative, as the term suggests, is restoring someone or something to its original position. Restorative justice, therefore, would mean that the parties involved in a case should be restored to their ‘original position’, that is, when the wrongful act was not committed. This theory of justice was developed mainly after realizing that the obligation of the state is not merely to serve punishments and deter wrongful acts. It has an obligation to understand the needs of the society who is at the receiving end of these punishments, and in case of victims, compensation. Restorative justice is a method of responding to criminal behaviour by taking various aspects like the needs of the community, the victims and the offenders into consideration. 1
Victim–offender mediation programmes (VOMPs) were among the initial restorative justice methods. These programmes are designed for the needs of victims of the crime committed while ensuring that offenders feel accountable for offending the victim and the society. 2
In victim–offender mediation, the crime victims are often called, when required, for assistance and support and are given maximum information about the sanction or the development of a restorative agreement. They can also tell the criminal how the crime has affected them and to demand information about the crime. It is not always possible to involve direct contact between the offender and the victim or face to face contact with each other. 3 In case of a direct contact, the victim is usually asked to speak first during the mediation as means of victim-empowerment. The mediator assists the two parties in arriving at a mutual agreement that balances the requirements of both parties and provides a resolution to the conflict between them.
In case of victim–offender mediation prior to sentencing, a reconciliation agreement mediated between the offender and the victim can be furthered to the court and may be involved in the sentence or in the conditions of a probation order.
Victim–offender Mediation in Germany
Victim–offender mediation, which is called Täter-Opfer-Ausgleich (TOA) in German criminal law, was given a legislative nod in 1990 for the first time which in essence carries the ‘offender’s efforts to achieve a settlement with the injured party and in doing so to make good his or her offence, or to go a long way towards doing so’. 4 This settlement is preferred to desist from prosecution stage in criminal proceedings for various offences. As established in other common law countries where VOMPs are used in civil law area more, Germany is different in this regard wherein offender–victim mediation is more frequently used in criminal justice area. 5
The literal meaning of TOA is perpetrator-victim-compensation. But to put it more systematically, it means victim–offender balancing, that is, settlement of conflict and reconciliation. 6 The VOMPs seek to uphold the philosophy of restitution and reparative justice to the victim as opposed to the penal sentencing policy which is more of a deterrent nature. The normal procedure of prosecution may not involve rigorous interaction between the parties as it is practised in the mediation. 7 So the VOMPs not merely are the instruments of restorative justice but have a distinct function to allow interaction of emotions and a better understanding of the needs and problems of both the parties.
Historical Backdrop
American scholar John Langbein claimed around the 1970s that Germany is essentially a ‘land without plea bargaining’. 8 Several authors have, however, disputed this fact claiming that informal negotiations in some form have always been there. 9 This, in fact, is true for many European countries. Informal agreements developed in the late 1900s due to overload of cases, especially in Germany, where environmental and financial legislations brought forth many cases which required a lot of analysis for the courts to do in each case.
The trend in mid of 1980s brought forth discussions about rights and needs of victims, but more or less they were still ignored and only found themselves serving as an evidence. 10 In 1986, a Victims’ Protection Act was passed which was a part of one of the first pilot projects in victim–offender mediation. These programmes were, however, limited to only juvenile issues and not adult criminal acts. The provisions added in the 1990s to various legal codes brought within their ambit, concepts such as victim–offender mediation, reparation, compensation, restitution and even reconciliation. Bannenberg and Britta 11 observed that the while law permitted all forms of mediation in every stage of trial, in both juvenile and adult criminal cases, laxity was on the part of police in referring the cases to mediation. In a situation where lawyers remain widely unaware of the mediation practices, public prosecutors and judges were the only hope.
The Legal Framework for VOM Programmes
It is indeed, interesting to see as to how, a system which does not recognize the guilty plea, came up with exceptions to compulsory prosecution in criminal cases. 12
The German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgements between the court and the parties. 13 However, the court still kept the rein in its hands, and disallowed any kind of informal negotiation in matters that fell outside the purview of statutory framework.
Penal order (Strafbefehl) was one of the first orders that opened doors for informal arrangements in criminal cases.
14
Section 407 of the Code of Criminal Procedure gives the prosecutor, in a case of a misdemeanour, the power to appeal for an order imposing punishment from the judge, if there is enough doubt.
15
If the accused does not appeal, the penal order replaces any further proceeding and the offender is instantly punished with a fine or a sentence on probation.
Thus, it avoids a full trial and comes very close to the guilty plea in common law systems. Hence it is not surprising that the penal order is a welcome starting point for informal negotiations. The defence counsel and prosecutor might agree that the prosecution will not bring further charges and request only a penal order if the accused is willing to accept the punishment suggested by the order.
16
Typically, the defence lawyer and the prosecutor negotiate the amount of the sanction, with the judge usually agreeing to the order suggested by the prosecution.
17
Presently, around 35 per cent of all cases are handled through a penal order, and it is realistic to assume that many of those are based on informal settlements.
18
According to section 153 of the Code of Criminal Procedure, a misdemeanour can be dismissed on the ground of insignificance by the prosecution with the agreement of the court if there is only minor culpability and no public interest in prosecution.
19
Once the trial has commenced, the court too can dismiss the case with the agreement of both the prosecutor and the defendant. This provision is also an exception to the principle of compulsory prosecution.
The common law mechanism of the guilty plea is indeterminate in German criminal trials. Therefore, plea bargaining is not there in strict sense of the term. Nevertheless, as discussed earlier, informal negotiations, centre on the exchange of a confession for a sentence concession, play a growing role in the German criminal process. As a civil law country, Germany’s criminal justice system is based on the notion that the prime task of a criminal trial is to find the material truth. So, after keen deliberations, development of judicial position (case laws), the German Parliament has enacted a new law that regulates agreements in a manner that they become a part of the procedure. Rather than deciding which of the contesting parties can present the better case, it is the court itself that has to unveil the facts of the case.
Section 244(2) of the German Code of Criminal Procedure reads:
In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision.
Position in India
As discussed in the last section, informal arrangement to resolve disputes of various kinds has always existed in some for or the other, whether in India or Germany, or any civilisation, for that matter. In India, informal settlement procedures have their roots to settlement in villages through panchayat which made the parties to a dispute, make their case informally and decide upon it based on their own customs and conventions.
But the restorative justice with certain exceptions here and there (for example, rehabilitation of juveniles), in the Indian criminal jurisprudence is more or less redundant. The reason is that the system of criminal justice in India is not a victim-oriented one.
20
There is no separate law in this country enabling the victim to have their say in the criminal justice process. The compensation, restitution and restoration are still not very common here. The main reason is perhaps that the procedural law in the country does not provide much scope for these practices. As regards compensation, some highly inadequate and restricting provisions are available in the Sections 357–58 of the Criminal Procedure Code, 1973. The procedure to get the prescribed compensation is too cumbersome to practically help the victim. The amount of fine imposed on the offender, the main source of compensation, has remained unrevised since 1860, the year when the Indian Penal Code was enacted.
This can be seen as a complete difference to the German criminal law where restorative justice is available not only to juvenile offenders but also to adult criminals and has been set out in the form of law in various German criminal codes.
Section 320 of the Criminal Procedure Code
However, the victim and offenders can reach to settlement of the matter in accordance with the Section 320 of the Criminal Procedure Code, 1973. Compounding essentially means, a process whereby, the offender and the victim come to an agreement to put an end to the litigation. This section allows the parties to take recourse to ‘compounding of cases’ in certain offences without the permission of court and in some cases with the approval of the court. The compounding of offences is now popularly being voiced as one of the mechanisms to achieve restorative justice. There are some offences which affect individuals and do not affect the society. These types of offences can be compounded without the permission of the court under the subsection (1) of 320 of the Criminal Procedure Code, 1973. The offences under this category are: hurting religious feeling of a person, hurt, confinement, mischief, criminal trespass, adultery, defamation, etc. The offences under subsection (2) of this law contain those offences which are of grave nature and likely to affect people at large. These cannot be compounded without the permission of the court. The offences under this class include: grievous hurt, wrongful confinement, misappropriation of property, breach of trust involving heavy amount, fraud, counterfeiting, indecent behaviour towards women, etc.
Plea Bargaining
Chapter XXI A of the Criminal Procedure Code 1973 has established a procedure for plea bargaining in criminal matters in India. There is, however, a long list of reasons as to why plea bargaining actually exists, or what motivated the legislature to include plea bargaining in criminal cases. It is said that the main inspiration for this enactment is the successful system of plea bargaining used in the USA, where it was first used. There are several reasons for the enactment that were gradually felt. Some of them include the probability of most cases finally ending in acquittal, economic burden on the accused and the state, sparing the mental torture that the undertrial prisoners undergo, giving a guilty person another chance, and many more.
This section has clarified many aspects of this concept (Code of Criminal Procedure, s. 265-A). For instance, when the offence is punishable with death, or offences which invite imprisonment for a term more than 7 years. Other exceptions are some socioeconomic offences, 21 offences against women and children below 14 years of age etc. The procedure of plea bargaining is set out in Section 265-B of the Cr. P.C. 1973, which includes the duty of the judicial officer to ascertain whether the accused is aware of any such provision of plea bargaining as a matter of his right and establish his readiness to use the right to his benefit. The element of ascertaining the willingness is important to avoid any possibility of applications, involuntarily made. Other provisions of plea bargaining extend to 265-L, which lay down various procedural requirements that need to be fulfilled which are stated as under:
Mutually satisfactory disposition to be made where accused in examined in camera and his voluntariness to file the application is ascertained (Cr.P.C.1973 s. 265-C).
Method of submitting the report of the mutually satisfactory disposition made in the previous provision (Cr.P.C.1973 s. 265-D).
The manner of the disposal of the case whereby if the settlement is reached through the other two provisions, compensation is awarded to the victim by the Court and then they can be heard on the point of sentence. The court can even release the offender on probation, if the Probation of Offenders Act, 1958 allows it (Cr.P.C.1973 s. 265-E).
The judgement in terms of Section 265-E to be made in open court and the same shall be signed by the presiding officer of the court (Cr.P.C.1973 s. 265-F).
Finality of the judgement (Cr.P.C.1973 s. 265-G).
Power of the court in disposal of the plea-bargaining proceedings (Cr.P.C.1973 s. 265-H).
At the time of sentencing in this process, s. 428 of the Cr. P.C is to be followed (Cr.P.C.1973 s. 265-I).
The common law system allows the waiver of jury trial of the charged offences and immediately skip to sentencing (plea bargaining). However, this stands opposite to the situation in the civil law countries, where plea bargaining is essentially absent. As noted in this piece before, it is interesting to observe the whole trajectory of the development of plea bargaining in Germany, which is a civil law country, and was quite infamously known as ‘land without plea bargaining’.
Judiciary’s Response
Judiciary in India, at first, started with a reluctance to accept the plea of guilt on the basis of plea bargaining. The reason stated was that it was against public policy as it was more an inducement done to lure him into lesser sentence.
22
This trend continued for time in many cases that came afterwards. The apex court had shown its anguish over the process of plea bargaining in the following words
23
:
In our opinion, it is very wrong for a court to enter into bargain of this character. Offences should be tried and punished accordingly to the guilt of the accused. If the court thinks that leniency can be shown on the facts of the case, it may impose a lighter sentence. But the court should never be party to a bargain by which money is recovered for the complainant through their agency.
This observation was made in 1968 when such concepts were not thought of properly. Also in 1980, the court held that plea bargaining is against the constitutional spirit and also, illegal. On the other hand, around 10 years before this judgement came,i there was a case where the Supreme Court recognized the concept and awarded a lenient sentence to a student who admitted his guilt. 24 It was only around the 1990s that this trend finally started changing and the court had more of liberal approach towards the process. It is said that the first inclination seen on the part of the Supreme Court of India towards plea bargaining can be seen in the case of Rajinder Kumar v. State. 25
Comparison of the Indian and the German System
Plea bargaining has been a common practice in Germany since the 1980s which is much before when it happened here. From a comparative perspective, several key features of German law and practice of plea bargaining stand out. In certain serious cases, bargaining occurs after the investigation has been shut and formal charges have been framed and filed with the court. 26 This means that the police and prosecution have compiled all the evidence they need to present the case at trial. Because the file is available to the court and the defence as soon as the investigation is completed, this helps to guarantee that the accused and the victim have a fair understanding of the case before they negotiate a resolution. 27
Another feature of German plea bargaining is the active role that judges play in the process. German judges discuss the case with the parties and specify what sentence might be suitable in light of the facts stated in the file and during the deliberations. 28 They also validate that the admission of guilt parallels to the facts in the investigative file, and if they have any doubts about the case after the discussions, they have both the duty and the ability to investigate the facts autonomously for example, by calling witnesses during the main proceeding, which occurs even in negotiated cases. 29
Also, German prosecutors are legally prohibited from negotiating plea bargaining in charges, in grave offences, because they are bound by the principle of mandatory prosecution in such cases and because the plea-bargaining provision of the Criminal Procedure Code expressly bans agreements concerning the guilt of the accused. 30 This is the situation in India as well, where plea bargaining is expressly prohibited in certain cases involving women and children below 14 years of age and other socioeconomic offences. In case of Germany, however, the final decision on the charges rests with the judges, who can (and often do) convict on charges different from those set out.
Prosecutors also have comparatively minor influence over the negotiated sentence in Germany. 31 This is different from situation in India where prosecutor plays a major role in ascertaining that the parties know their rights as to plea bargaining and makes the case before the judge. However, in both the countries, Judges play an important role and the final decision as to charges and sentencing rests with them.
Therefore, the most notable element of plea bargaining in both India and Germany is the judge’s active role in helping the parties to reach a mutually agreeable decision.
Limitations of VOMPs and Plea Bargaining
The trend around the middle of twentieth century was that the most scholars and courts around the globe considered plea bargaining as more of a lazy form of prosecution that resulted in unwarranted lenience for offenders. 32
Advocate K.P. Pradeep has beautifully given a very descriptive criticism of plea bargaining which gives a critical approach to the idea of victim–offender mediation in general.
Plea bargaining undercuts the requirement of proof beyond reasonable doubt and that plea negotiation is substantially more likely than trial to result in the conviction of innocent. Plea bargaining results in unjust sentencing. This practice turns the accused’s fate on a single tactical decision, which, they say, is irrelevant to desert, maintain that plea-bargaining results in unwarranted leniency for offenders and that it promotes a cynical view of the legal process. (K.P, 2012)
Also, there are some very specific points of criticism as discussed by Neustart. 33
The VOMPs cannot be expected to give desired settlement where certain behavioural characteristics become so adamant to be changed, in an accused.
Often concerned are violence-dominated relationships where the male partner uses violence as a means of demonstrating his power. In these constellations, the man again and again arrogates the right to enforce his interests, wishes and desired by means of physical violence.
in the case of petty offences.
in the case of clearly psychosocial problems of the accused person resulting from the offence, which requires support and/or a long-term supervision.
Similarly, even plea bargaining is not totally devoid of problems. Some of these problems are exclusive to the Indian scenario, while some affect both the systems. Some of the problems include the issue of the extent of involvement of judges in the process of plea bargaining. In the Indian context, the court is not involved in the ‘satisfactory disposition process’ (Cr.P.C. 1973 s. 265-D). But on the other hand, the mode of conveyance of the report of the disposition made is not clear, while the submission of report is mandatory as per the provision. This is opposite to the situation is Germany where the judge has an active role right from the beginning and the role of other actors in the process is quite less.
Another issue in India regarding this process is the exploitation of the accused if he is an indigent. It is not all win-win situation for him as he is supposed to give up his right to trial and, often, he is subjected to the whims of his advocate.
One of the major lacunae in the plea-bargaining law remains that there is no clarity about the situation when parties fail to reach a settlement which is contrary to law. The law provides only three scenarios where the court can reject the application but power of rejecting the settlement is not provided to the judge. Germany has a beautiful model of plea bargaining where they have preserved their inquisitorial model of trial by keeping the judge’s active role intact where the negotiation is rigorously watched by the court and has the final say in the settlement reached. But it cannot be negated that the judge in India, in these cases, still has an upper hand in the whole process since the provisions have been made to deliver justice in the society, which is judiciary’s prime role.
There is also ambiguity regarding as to at what stage shall the plea be filed. The provisions, on a careful reading from Section 265-B, Section 265-D to sections 207–218 and also sections 228, 240 and 251 of Cr.P.C 1973, state that the proper stage for the plea-bargaining process to start is after the charge is framed. 34
Suggestions and Conclusion
The underlying principle of restorative justice in both India and Germany remain the same. The models adopted by both the countries differ only in matters pertaining to the different systems of criminal justice. Germany did not relinquish its basic system in any way, and hence, the judge’s role in any type of negotiation is the most important one. However, the law is definitely less ambiguous and more structured in Germany, than in India as discussed in the last section. In light of the earlier discussion, there are some recommendations to execute the process more smoothly and in a fair manner in India:
The key to success of any law that has been made for the benefit of people, needs to be made aware of, to them in a way that they are able to understand the need and implications of such laws.
Provisions like plea bargaining should be informed to the undertrial prisoners by the Superintendent of jails and the probation officers.
A major role in this regard could be played by the Legal Services authority of the various states and the country.
The accused should be informed of the benefits of the provisions.
Judges are the ultimate decisionmakers in both the countries, even in negotiated settlements. Their role in a negotiated settlement is even more crucial as they must remove any legal discrepancies in the settlement reached by the parties to the matter. In plea bargaining cases, the decisions as to the sentence and its proportionality to the offence is to be ascertained by the court.
Therefore, a judge should be a neutral arbiter and must adjudicate on the principles of restorative justice. He should also not ignore the victim totally and may provide compensation for the loss suffered by him. Hence, they are required to understand the method and the objectives behind the whole process of plea bargaining and other forms of alternative dispute resolution.
Other suggestions include the need to remove the ambiguities in the present law and bring in more robust provisions like mandatory informing of the plea-bargaining provisions to the accused by the court when he first comes for the trial. Also, a provision should be inserted in the code for the protection of victims from any kind of harassment or pressure and that might be considered a disqualification for plea bargaining. Also, provision of plea bargaining under Section 265-A-L may be amended to appoint recognized meditator for mediation and conciliation exercises in the process who may coordinate these exercises. Also, victim–offender mediation panels could be organized to provide the platform to both victim and the accused to negotiate and protect their own interests and rights.
To sum up, it is important to finally discuss, what lies in the foundation of all these programmes, that is the spirit of restoration of the accused and the victim, to their original position. However, restorative justice in India can be said to nearly absent since the system is definitely not victim-centric and there is no separate law for victims is made, that would serve the objectives of criminal justice. The process of plea bargaining, for example, favours the victim to an extent in which role of the accused becomes very prominent. Therefore, restorative justice would be really achieved if the interests of victims are also properly take care of. It can be safely concluded that at least, in India, the laws added time and again in the code are mostly accused-centric. Both India and Germany can learn a lot from each other’s systems. However, as said earlier in the piece, the system is more structured in Germany in terms of well-defined laws, also keeping in mind the civil law nature of the country’s system. It should be always borne in mind, that justice, finally is what is served to both the parties to the dispute. Taking care of interests of one and ignoring the other can never be the ultimate objective of restorative justice, or justice in any form.
Footnotes
2
Id.
3
Id.
4
Federal Ministry of Justice, Criminal Justice in Germany, Facts and Figures 39–40 (2009).
5
T. Trenczek, Victim-Offender Mediation in Germany-ADR under the Shadow of the Criminal Law, 13 Bond L. Rev. i (2001).
6
Id.
7
Id.
8
9
R.E. Rauxloh, Formalization of Plea Bargaining in Germany: Will the New Legislation Be Able to Square the Circle? 34(2) Fordham Int. L. J. 296 (2010).
10
Bannenberg & Britta, Victim-Offender Mediation in Germany in Victim-offender Mediation In Europe: Making Restorative Justice Work 251–57 (Leuven University Press, 2000).
11
Id.
12
Supra note 9.
13
Entscheidungen Des Bundesgerichtshofes in Strafsachen [Bghst], Bghst 195 (BGH—Federal Court of Justice, 1997).
14
W. Schmidt-Hieber, Vereinbarungen im Strafverfahren [Informal Arrangements in Criminal Proceedings]. NJW 1017, 1017 (1985).
15
STPO (German Criminal Procedure) (1987).
16
J. Herrmann, Absprachen im Deutschen Strafverfahren [Agreements in German Criminal Proceedings], 31–32 Archivum Iuridicum Cracoviense, 55–56 (2000).
17
B. Schumann, Abspachen im Strafverfahren?—Grundlagen, Gegenstände Und Grenzen [Agreements in Criminal Proceedings?—Foundations, Objects and Limits], 153, 461 (1990).
18
Id.
19
Supra note 15.
20
21
The socioeconomic offences that are excluded include offences under the dowry prohibition Act, Commission of Sati Prevention Act, The Indecent Representation of Women (Prohibition) Act, 1986, The Immoral Traffic (Prevention) Act, 1956, Protection of Women from Domestic Violence Act, 2005, The Army Act, 1950, The SC and ST (Prevention of Atrocities), 1989 and many more.
22
Kasambhai, AIR 1980 SC 854.
23
Madanlal Ram Chandra Daga v. State of Maharasthra, 3 SCR 34 (1968).
24
State of Karnataka vs. Benoy Thomas, 397 ILR 186 (KAR 1977).
25
Rajinder Kumar Sharma and Anr. v. The State and Anr, 63 DLT 682 (1996).
26
Supra note 15.
27
28
Id.
29
Id.
30
Supra note 15.
31
Id.
32
J. Sikri, Reforming Criminal Justice System: Can Plea Bargaining be the Answer? Education for Educators Program on Plea Bargaining. 8.5. (National Judicial Academy, 2007).
34
S. Bharadwaj, Fundamentals of Plea Bargaining and Its Expanding Horizons (Suvidha Law House, n.d.).