Not every offence has to result in a long procedural battle; the legislature also shared this view. Along with the Potpourri II Act (potpourri II-wet), the procedure of prior acknowledgement of guilt was born: an out-of-court procedure in which the suspect can negotiate the final sentence with the public prosecutor, albeit after the suspect has acknowledged their guilt. The key concept in this matter is therefore the confession of guilt.
The legal conditions
To qualify for this accelerated handling of the criminal file, a number of conditions must be met. First and foremost, the law limits the scope of the procedure to offences that do not appear to be of such a nature that they should be punished with a principal sentence of more than five years of correctional imprisonment. This concerns the sentence in abstracto, not in concreto, which means that the sentence taken into account is the one the public prosecutor thinks they should request, not the actual maximum prison sentence. If this is the case, the public prosecutor can opt to propose a lower sentence than the one they thought they should request (suspended sentences, probationary suspended sentences, suspension and probationary suspension also remain possible, of course).
The law then provides for a few exclusions. For example, the procedure of prior acknowledgement of guilt does not apply to the following offences:
- Offences that would be punishable by a maximum sentence of more than twenty years of imprisonment if they were not reduced to misdemeanours;
- Rape, indecent assault resulting in death and torture by a relative or person in authority ( cf. art. 375 to 377 of the Criminal Code);
- Corruption of youth and prostitution (cf. art. 379 to 387 of the Criminal Code);
- Manslaughter (cf. art. 393 to 397 of the Criminal Code)
Finally, the most obvious condition: guilt must be acknowledged. It is important to note that a legal entity is also considered able to acknowledge its guilt. Legal entities against which the public prosecutor’s office would request a sentence cf. article 41bis of the Criminal Code (S.W.) in other words fall within the scope of this procedure.
The further course of the procedure
The initiative lies entirely with the public prosecutor; only they can decide whether the procedure of prior acknowledgement of guilt will be applied. Of course, this does not prevent the suspect or their lawyer from proposing the application themselves.
After the confession of guilt – during which the suspect must obligatorily be assisted by a lawyer – the public prosecutor will make a concrete proposal. The public prosecutor can, but does not have to, offer a sentence reduction. The proposal can be accepted immediately, but the law stipulates that a reflection period (max. 10 days) can also be requested. The suspect can also always make a counter-proposal.
If an agreement is reached, this is recorded in a settlement. This settlement contains both the facts and the sentences accepted by the suspect. If no agreement is reached, the public prosecutor can decide to bring the case before the trial judge anyway.
After the settlement has been concluded, the settlement is reviewed by the court. The court will check, among other things, whether the legal conditions have been met, and whether the settlement corresponds to the reality of the facts and their correct legal qualification. The proportionality of the proposed sentences will also be assessed. The court therefore has two options: to ratify the concluded settlement or not. The court cannot make changes. In the event of ratification, the court will pronounce the sentence proposed in the concluded settlement. If not, it rejects the request for ratification of the concluded settlement with a reasoned decision.
What about potential victims?
The victim is not a party to the procedure of prior acknowledgement of guilt. Therefore, the prior compensation of damages is not a condition within the framework of this procedure.
However, the civil parties will receive a copy of the reached agreement. Later, they will also be summoned to the hearing for the ratification of the agreement, so that they can claim compensation for their damages at this hearing. The damages are assessed within the framework of the procedure before the court.
Assistance
Assistance from a lawyer in a procedure of prior acknowledgement of guilt is not only indispensable, but also mandatory. The simplified and quick handling of criminal cases is one thing, but of course it must always be ensured that a suspect does not waive their right to access to a judge under unreasonable coercion.
If you have any questions about the procedure of prior acknowledgement of guilt, or if you wish to be assisted, please feel free to contact us.