The use of Procedural Agreements (often called “Plea Bargains”, “Trial Waivers” or “Negotiated Settlements”) is probably the most contentious and hotly debated issue in criminal justice around the world right now. What is not in any doubt, however, is the extraordinary global spread of this type of procedure, which has now been adopted almost everywhere, by states as diverse as China, Germany and Pakistan. A survey conducted in 2017 revealed a 300% Increase in the worldwide use of trial waiver systems since 1990 and scholars have talked about “plea bargaining’s triumphal march”. It is not difficult to understand why the procedure has enjoyed such popularity. Replacing a lengthy and contested courtroom trial by a simple agreement, represents a considerable financial saving for police, prosecution and court agencies with very limited budgets. It can shield vulnerable witnesses and victims from having to be traumatised over again by painful questions in open court, and it provides an opportunity for all concerned to engage with restorative justice processes, which have an important place in criminal procedure in Kazakhstan. Equally, as we have seen many times in proceedings in the United States, a Plea Agreement is an effective weapon against corruption and organised crime, allowing deals with minor players in exchange for them giving evidence about the major criminals. Plea Agreements are popular with many defendants too, as they provide certainty of outcome, allow them some measure of control over their fate and usually involve a sentence reduction.
But the overall picture is not a straightforward one, and critics of Procedural Agreements have offered a number of very powerful objections. First amongst these is that the procedure puts too much power in the hands of the Prosecutors to act as judge and jury, just as they did in Soviet times. Worse still, the procedure is conducted largely in secret, rather than in a transparent way in open court and we seem to be reverting back to a managerial approach (rather than a trial-based approach) to criminal process, which has proved so oppressive in the past. There is also the constant danger that prosecutors will file excessive charges so that they have the opportunity to reduce them later to facilitate a Procedural Agreement. Busy lawyers too may prefer a Procedural Agreement to a trial simply because it is quicker and more convenient for them. Moreover, the whole process can seem very coercive, at least to an innocent Defendant presented with an impossible choice between an unfair agreement which at least has the benefit of certainty, or taking the chance of a very risky court hearing which could result in a lengthy sentence or even the death penalty in some jurisdictions. Surely this is a choice that nobody should have to face? The distinguished American scholar John Langbein has even compared this coercive element in plea bargaining to the historic use of judicial torture against defendants! Research has also shown that the whole process can be used in a very discriminatory way against minorities or the disabled. It surely can never be right that anyone should be asked to bargain away their fundamental, inalienable right to a fair trial?! In the end, shouldn’t criminal procedure have the highly principled objective of investigating and discovering the truth and imposing an appropriate punishment for wrongdoing? rather than everyone simply bargaining for the best agreed outcome, whatever that happens to be, like shoppers in a bazaar?
Courts around the world have, however, approved the Procedural Agreement approach as entirely consistent with the rights of all concerned. The US Supreme Court did so famously in 1987 and the European Court of Human Rights took the same view in 2014 when it held that Trial Waiver was a common feature of European criminal justice systems and fully in the public interest. The court did, however, insist that an agreement must be established in an unequivocal manner and that safeguards should be in place. These included access to a Lawyer; assurance that the Defendant fully understood the original charges, as well as what is being agreed, and exactly what the consequences would be for him or her. It was also important to keep a full record of the Agreement and to ensure that an independent Judicial Review (or appeal) was available and that there was sufficient evidence supporting the conviction.
It is fair to say that the European Court of Human Rights has been criticised for its failure to propose more stringent safeguards as a guide for legislators, and other international bodies have offered further advice which may be useful in Kazakhstan. The United Nations Office on Drugs and Crime, together with the International Association of Prosecutors, in 2014 produced a guide called “The Status and Role of Prosecutors” which contains advice for Prosecutors on the proper use of their discretion in these cases. In 2018 the Parliamentary Assembly of the Council of Europe insisted that, in addition to the above safeguards, there should be a minimum level of investigation into the crime underlying the Procedural Agreement and the disclosure of the results of the investigation. There should also be limits on the extent of the penalty involved and nobody should be permitted to waive any essential rights, including the right to appeal the Agreement. Finally, the whole process should be carefully monitored to ensure that there was no evidence of racial or wealth-based discrimination. Some academic commentators, such as Nakibuule Kisseka, have emphasised the necessity of statutory timelines, the availability of a robust state-funded legal aid system and the requirement to show that the agreement was reached without any coercion. What unites all international commentators, however, is an emphasis on the importance of clear guidelines and a thorough review of any Agreement and the circumstances surrounding its making, by a judge in open court.
It is interesting to see how far these new international standards, now regarded as essential to the successful operation of these procedures, are met by the system for Procedural Agreements introduced in Kazakhstan in 2013/14 and regulated by Articles 612-621 of the Criminal Procedure Code. Hopefully they will also help to inform the important debate about the future of Procedural Agreements in Kazakhstan, which is now taking place.