Die strukturelle Parteilichkeit des Strafrichters unter besonderer Berücksichtigung des Verständigungsverfahrens

Abstract

The German law on plea bargaining (Verständigungsgesetz) is unique in comparison to its counterparts in other legal systems as it allows the judge to initiate the plea bargaining procedure in addition to negotiating the sentence with the prosecutor and the defense counsel. Due to the design of the judge's role in the German law on plea bargaining the principle of judicial impartiality - being one of the oldest and most significant principles in criminal procedure - faces considerable challenges. Up until now, legal scholars and practitioners have discussed the issue of judicial partiality mainly as a symptom of the plea bargaining practice rather than its structural origins. Moreover, it is a widespread conviction that the right to challenge a judge for fear of bias as provided in section 24 of the German Code of Criminal Procedure serves as an adequate means to ensure judicial impartiality. The work at hand assesses the principle of judicial impartiality from the perspective of criminal procedure and constitutional law as well as from the viewpoint of legal history. In addition to the legal-normative analysis, the different role of the judge in an inquisitorial and adversarial procedure is discussed in the context of the political science theory of a reactive and proactive state. Comparing the role of the judge in German, Italian and US-American plea bargaining, the safeguards for implementing the principle of judicial impartiality in an inquisitorial and adversarial legal system are further elaborated. Finally, the work contributes to the legal policy debate by seeking for alternatives to conceptualize the role of the judge in plea bargaining in compliance with the principle of judicial impartiality.