NADUŻYCIE PRAWA W ZAKRESIE POROZUMIEŃ KARNOPROCESOWYCH W SYSTEMIE NIEMIECKIM
THE ABUSE OF RIGHT ON THE FIELD OF PROCEDURAL DEALS

Summary/Abstract: Plea bargaining is an area where the abuse of right occurs very often. The right to enter into negotiations in order to conclude a procedural deal can be stated and, therefore, the possibility of abusing of that right can be observed respectively. The abuse of right from the perspective of the accused person and the counsel for the defense is meant as activities which purpose is to “break down” the court, as the German science defines. The above-mentioned activities pointing to harass the court in order to force him to depart from the general procedure (hard law) and apply the consensual provisions (to consent for the soft law). It seems that introducing certain limitation with regard to the execution of specified rights can serve as a method to prevent the abuse of right on the subject field, for example motions for documentary, motions for exclusion of the judge. The abuse of right also applies to the public prosecutors as well as the judges. In view of the dominant position their abuses lead to extremely damaging consequences. Such abuses can be observed in failure to comply with the agreement conditions. In order to prevent abuse of right different sanctions are considering. The case law proposes for example mitigation of the punishment, prohibition of the use of acknowledgement of guilt, ineffectiveness of the waive of a right to appeal and restitution of the term to file an appeal.

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