Arrangement - Form of Procedure Based on Guilty Plea and Presumption of Guilt?
| Author | Meris Sillaots |
| Pages | 76-83 |
Meris Sillaots
Arrangement - Form of Procedure Based on Guilty Plea and Presumption of Guilt?
Since July 1996, summary procedure as a form of arrangement is used in Estonian criminal procedure1.
Pursuant to § 364 of the CrPC2, summary procedure can be applied in the case of third-degree and second-degree crimes if the circumstances constituting the burden of proof are clear; the accused has fully confessed his or her guilt for the crime charged, and the accused, his or her defence counsel or if the offender is a minor, his or her legal representative, the victim, civil plaintiff and civil respondent do not object to the application of summary procedure. Summary procedure is applicable to any of the accused in a criminal case with several accused persons. Summary procedure is not applied in private prosecution cases.
Thus, § 364 of the CrPC concerning the grounds for the application of summary procedure fixes, inter alia, a requirement that the circumstances constituting the burden of proof must be clear and the accused must have fully confessed his or her guilt for the crime charged. The decision whether the circumstances constituting the burden of proof are clear and also whether other conditions necessary for the application of summary procedure are met rests with the investigator, prosecutor and court.
One possible source of problems in connection with the unequivocal discernment of the burden of proof might be the temptation of a person responsible for accomplishing a proceeding to base his or her decision on the accused's guilty plea without adequately ascertaining its veracity. This is, to some extent, a problematic question in all those models of criminal procedure in which, one way or the other, the principle of the material establishment of truth (or in other words, the principle of investigation, the principle of instruction and inquisition) is of central importance. Namely, application of a classic scheme of arrangement, i.e. "a guilty plea in exchange for the reduction of penalty", with regard to the above models is in many aspects complicated because, as a rule, it is not allowed to treat a guilty plea here as a procedural act of disposition3. So, for example, German criminal procedure contains the principle4 that the fact that the accused has pled guilty does not exempt the court from the obligation to establish the truth (Aufklärungspflicht; § 244 II StPO5)6.
Pursuant to § 19(1) of the Estonian CrPC, the principle of thorough, complete and objective examination of the factual circumstances of the crime applies in Estonian criminal procedure. This principle can be considered analogous of the inquisitorial principle7.
As we have mentioned before, in order to apply summary procedure the circumstances constituting the burden of proof must be clear. The weight of the accused's guilty plea in clarifying these circumstances is not manifest from the law. A question arises whether, for example, it is possible to consider the circumstances constituting the burden of proof clear also in these cases where the clarity is based mainly and dominantly on the accused's guilty plea.
Apropos, in Germany where the court is obligated to establish the truth, the criminal procedural practice still, it is alleged, follows another way8: a way that may infringe the inquisitorial principle. It may be that the accused's guilty plea, made on the basis of Absprache, and enabling the court to dispense with a time-consuming evaluation of evidence entails the violation of the inquisitorial principle9.
It seems likely that a similar problem may arise in Estonia where in connection with the application of summary procedure a judge may wish to make certain concessions while determining the question of proof.
Pursuant to § 56 of the Estonian CrPC, the accused's statements, including his or her guilty plea must be verified and estimated together with other evidence of the criminal case in the regular manner. According to § 50(1) of the CrPC, the court, prosecutor and investigator, relying on the law, evaluate the evidence pursuant to their conviction that is based on thorough, complete and objective examination of the facts.
In order to decide on whether the circumstances constituting the burden of proof are clear the investigator, prosecutor and judge should be guided by the above-mentioned provisions. In connection with the clarity of the circumstances constituting the burden of proof as a condition for the application of summary procedure, a most interesting question is how the judge comes to his or her conclusion because he or she is the very person who has the final say on the applicability of summary procedure.
Stemming from the principle of "free" evaluation of evidence, the judge must himself or herself evaluate the evidence. Free evaluation of evidence implies that the answer to the question of guilt depends purely on whether the judge is convinced that the facts of the crime are reliable10.
The prerequisite for the correct evaluation of evidence and, consequently, for a just court decision is the correct identification of the facts evidencing crime11.
Therefore, free evaluation of evidence and the obligation to establish the truth are interrelated and supplement each other12. The obligation to establish the truth must guarantee that the judge could use necessary means of cognition while evaluating the evidence13.
Understandably it is very difficult to find a unique answer to the question of the scope of the aforesaid obligation. When can we say that there is quantitatively and qualitatively enough evidence for a conscientious decision on the question of guilt?
According to the general principle, free evaluation of evidence could take place only after all manifest and available evidence has been exhausted. Thus, a judge cannot, for example, rely on the fact that he or she has already got an idea of the matter in case there is some more evidence that could make his or her preliminary opinion on certain circumstances of the crime questionable. This would be an inadmissible anticipation of the evaluation of evidence14. One has to agree to the position that if the objective result of the evaluation of evidence does not allow the drawing of a rationally convincing conclusion of guilt, then the subjective understanding of the judge is not sufficient15. At the same time it does not mean that that the law should and could prescribe which assumptions the judge should apply to come to a firm conclusion16.
Returning here to the role of the accused's guilty plea in providing the necessary burden of proof, the substantive quality of the guilty plea is of great importance. There is a great difference between dealing with a so-called "qualified guilty plea" incorporating both the perfect and illustrative description of the offence so that it is per se able to evoke a conscientious opinion, or with a so-called "thin guilty plea" that is typified by a mere acknowledgement that the results of the investigation are correct17.
Convicting a person on the basis of a "thin guilty plea" runs a great risk of violating the requirement for the establishment of the circumstances of the offence and, consequently, of imposing a punishment only on the basis of a suspicion. But this may raise the question of incompatibility of the corresponding way of acting with the principle of the presumption of innocence.
Understandably the value of evidence of a guilty plea is higher in the case of a "qualified guilty plea". It has been observed that because of its special substantive quality such a guilty plea may be the only ground for the court decision18.
But in evaluating a guilty plea one should always consider the fact that it may be false. A motive for entering a false guilty plea may often be, for example, a wish to get released from custody19. But there may be also other reasons for that: an abnormal mental state or apathy of the accused, or his or her wish to go to jail or to set up an alibi for a more serious crime or to get punished instead of the actual perpetrator of the crime20.
Generally one could stick to the principle that a guilty plea is adequate only in the cases where there are no fulcra that could arouse serious suspicion of the credibility and voluntariness of the guilty plea21. The court must be convinced of the reliability and credibility of a guilty plea22.
The materials of the criminal file gathered by the person responsible for the conduct of a pre-trial proceeding are the source that helps provide a clear picture of the circumstances constituting the burden of proof necessary for the application of Estonian summary procedure. On the basis of the documents of the file, a judge must decide whether these circumstances are clear. The question arises as to whther the file material can be relied upon to inform a sufficiently high quality decision.
It has been stated that experienced judges, prosecutors and defence counsels are able to anticipate the outcome of the criminal trial on the basis of the results of a thorough preliminary investigation without any need to conduct a costly full proceeding23.
Still, this standpoint could be, in principle, relied on only in cases where there is an absolute guarantee that the pre-trial investigation is conducted...
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