New legislation on plea bargaining introduced in the beginning of this year

The possibility of plea bargaining was introduced to the Finnish legal system in the beginning of this year. Plea bargaining is a new procedure by which a defendant can agree to plead guilty to a particular charge in exchange for a more lenient sentence. Legislation regarding plea bargaining was approved in August 2014, and the changes entered into force on 1 January 2015.

The key changes were made to the Criminal Procedure Act and the Criminal Code of Finland. The objectives of the reform were to allocate the national authorities’ resources in a more sustainable way, to render the actions of the authorities more effectively and to expedite both the pre-trial phase of the criminal process (including the preliminary investigation conducted by the police and the prosecutor’s consideration of charges) and the court proceedings.

The reform is significant in regard to legal protection and fundamental rights, and it was strongly criticised during its drafting. The Finnish legal system has never before included any regulation regarding plea bargaining, and, therefore, no practice exists on the topic. However, the Criminal Code has already before provided grounds for reducing the punishment such as reconciliation between the perpetrator and the injured party, other attempts of the perpetrator to prevent or remove the effects of the offence or his or her attempt to further help in investigating the offence. In the legal praxis, the threshold for the reduction of punishment has been set quite high, and, therefore, reduction has seldom been used.

The reform allows the prosecutor to, at its own or an injured party’s initiative, begin drafting a proposition for sentencing. In the proposition for sentencing, the offender agrees to plead guilty to the charge and the prosecutor undertakes to demand sentencing from the mitigated penal scale. The prosecutor may also undertake not to prosecute one or several suspected crimes.

The negotiations during the plea bargaining only relate to the punishment, not the alleged or actual facts of the offence. The parties to plea bargaining are the prosecutor and the defendant, who as a rule, is represented by a lawyer. Plea bargaining and the drafting of a proposition for sentencing both require that the injured party has no demands in the matter and has agreed to plea bargaining. The proposition for sentencing is handled in a court, under the plea bargaining proceedings, which are more simplified than normal court proceedings.

If several defendants are responsible for the same crime, the main rule is that they should all agree on plea bargaining. This can be departed from if the actions of one defendant are independent to the extent that, taking into consideration procedural economy, his or her case can be handled separately.

Plea bargaining can only be offered when a defendant is suspected of a crime carrying a maximum sentence of six years’ incarceration. It cannot be offered in respect of some particular offences, such as homicide, causing bodily injury and sex offences that violate a person’s right of sexual-determination or where the victims are children. When the prosecutor assesses the possibility of plea bargaining, he or she must take into account the costs of and time used in a trial. The drafters of the law considered plea bargaining to be most useful in extensive white-collar crimes that are difficult to solve as they may include both complicated legal and factual scenarios.

The benefit of plea bargaining for the injured party is that the injured party’s claims for compensation can quickly be handled within the plea bargaining proceedings and because of the guilty plea, the claim is usually undisputed by the defendant. As for defendants, they are encouraged to accept a plea bargain because doing so will not only reduce their sentence but also allow them to avoid the harm and stress caused by a lengthy trial.

Guaranteeing the defendant’s legal protection during plea bargaining was widely discussed during the drafting of the legislation. The new legislation includes a safeguard for situations where plea bargaining is unsuccessful and the prosecutor does not make a proposition for sentencing after the defendant has pleaded guilty. In such case, the defendant’s statements made during the plea bargaining are inadmissible in a later criminal trial. On the other hand, the judgments given in plea bargaining proceedings are not binding on other courts, although the court may use such a judgment as evidence and assess it according to the principle of a court’s freedom to evaluate evidence.

One of the key elements of plea bargaining is to ensure that the guilty plea was given willingly and correctly, meaning that the guilty plea represents the facts. The court will follow the proposition for sentencing if it considers that there is no reasonable doubt as to the willingness and correctness of the guilty plea. When evaluating this, the court will take into account the material from the preliminary investigation. A guilty plea is therefore not a formal ground for a judgment. Instead, the court must first evaluate whether the guilty plea can be accepted as a ground for a guilty sentence.

The court is bound by the type of crime presented in the proposition for sentencing and therefore the defendant cannot be sentenced for a more serious crime than that presented. The parties may present their own views on the punishment, but ultimately it will be decided upon by the court according to the mitigated penal scale. In practice this means, that a plea bargain can only lead to a sentence that is two thirds of the statutory maximum sentence for each crime.

Because the new legislation on plea bargaining implicates significant questions of principle, the Parliament has required the Ministry of Justice to follow up on and evaluate how the legislation on plea bargaining is being applied and implemented and to provide the Law Committee with a report on how the legislation functions by the end of 2017.