![The Institutionalization of Plea Bargaining in Kosovo](https://www.jurist.org/commentary/wp-content/uploads/sites/3/2020/03/shutterstock_657639088.jpg)
JURIST Guest Columnist Kushtrim Tolaj is an LL.M. Candidate at the University of Pittsburgh School of Law, and has served as a staff attorney at the American Bar Association Rule of Law Initiative in Prishtina, Kosovo. Here, Tolaj discusses plea bargaining, and its role in Kosovo’s efforts to create a modern and efficient judicial system…
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A plea bargain is generally understood to be an agreement between the prosecutor and the defendant to resolve a criminal case without going to trial. Usually the defendant pleads guilty in return for a lesser charge or some special dispensation regarding the sentence. Plea bargaining is a significant legal tool used to resolve criminal cases in a timely fashion and to create a more efficient judicial system. Additionally, the potential benefits for defendants’ are enormous as the case becomes more certain and the sentencing more lenient than if it had proceeded in court.
Plea agreements took place informally in the US during the 19th and 20th centuries, without official judicial recognition. The US has used this legal tool for more than a century and a half, and the courts now recognize it as integral to the efficient administration of justice. The use of plea bargaining was first acknowledged and expressly approved by the Supreme Court in 1970. The Court in Brady v. United States held that sentencing discounts and threats of the death penalty did not challenge the voluntariness of guilty pleas. In this case, the defendant Roberty Brady was facing the possibility of a death sentence if the case went to trial, but instead he entered a guilty plea to avoid a jury-imposed death sentence. Upon acceptance of the plea, the trial judge sentenced Brady to 50 years, which was later reduced to 30. Brady appealed, seeking post-conviction relief, holding that the plea invalid as it was coerced by threat of the death penalty. The Court unanimously held, however, that sentence discounting and threats of the death penalty were not sufficient evidence of coercion.
Various governments that are struggling to improve and advance their troubled legal systems have adopted new and sophisticated rules that originate from traditions of developed countries. Since World War II, the US’s legal system has become one of the most influential legal systems in the world. An excellent example of this can be found in the adoption of the American concept of plea bargaining by countries worldwide. Kosovo is one of many nations to have adopted this legal tool. In addition to Eastern European countries, plea bargaining has now reached a diverse group of nations, from Germany, Russia and Australia to India, Taiwan and South Africa. The implementation plea bargaining systems is also being considered by countries such as China and Indonesia.
In the case of Eastern Europe, it should be noted that plea bargaining was adopted as part of broader criminal procedure reforms. Following the declaration of its independence and the adoption of a new constitution in 2008, Kosovo began to undertake a number of legal reforms. Part of its criminal procedure reform included the adoption of plea bargaining, after the concept was introduced by US legal experts, who provided advice to the government of Kosovo during this period. The institutionalization of plea bargaining in Kosovo has the potential to reduce the backlog of cases that the nation currently suffers from, thus leading to a more efficient legal system in the future.
A recent European Commission Kosovo Progress Report [PDF] reveals that Kosovo has a backlog of 211,588 cases waiting to proceed in the courts, a serious problem that has been inherited from the previous administration. With the adoption of plea bargaining, there is a widespread belief that the backlog of cases will be immensely reduced.
Plea bargaining was officially incorporated into the Criminal Code [PDF] and the Code of Criminal Procedure [PDF] of the Republic of Kosovo in 2008, by Law No. 03-L-002 [PDF] and Law No. 03-L-003 [PDF], which supplemented and amended the nation’s aforementioned provisional codes. Article 66(3) of the Criminal Code sets forth the terms and conditions under which a court “shall impose a sentence that mitigates punishment.” When doing so, “the court must consider the views of the prosecutor, the defense counsel, the defendant and the injured party as to the extent of leniency of the punishment.”
The Criminal Code provides that, “[t]he rights of an injured party to seek the materialization of the juridical-property request from a defendant who has entered a guilty plea agreement with the public prosecutor shall not be prejudiced in any way as the result of a defendant’s agreement to enter a plea agreement.” Before filing the indictment, the prosecutor and the defendant are allowed to negotiate the terms of the plea agreement under which the defendant agrees to plead guilty in exchange for the recommendation of a more lenient punishment by the public prosecutor, “or other consideration in the interests of justice, such as the wavier of the punishment as foreseen by article 303 of this Code.” The plea bargain must be in writing, and the chief prosecutor’s office must approve it before it is offered to the defendant. The courts are not allowed to engage in the plea negotiations, but they may set a reasonable deadline for the conclusion of the negotiations to prevent delay of the procedure. The written plea agreement must contain the following specifics: the charges to which the defendant will plead guilty, whether or not the defendant agrees to cooperate, the rights that are waived by the defendant, the defendant’s liability to an injured party and the confiscation of all material pursuant to Articles 489-99 of the Criminal Code. After an agreement has been reached, the court does not permit the defendant to withdraw the guilty plea or the prosecutor to revoke the plea agreement unless the court finds that any of the aforementioned conditions are no longer fulfilled. In accordance with the code, “[t]he party seeking to withdraw from the agreement bears the burden of proof in making such application to the court.”
As the newest country in the world, Kosovo is still in the process of consolidating its democracy. The nation’s main weakness lies in its legal system. The European Union Kosovo Progress Report notes that, “[c]orruption remains prevalent in many areas and continues to be a very serious concern,” undoubtedly weakening the entire judicial architecture. “Some disciplinary proceedings against judges or prosecutors were reported, but none of them resulted in dismissal.” Fighting against corruption in Kosovo’s judicial system is vital, as unethical behaviors of prosecutors, judges and lawyers can lead to the misuse of plea agreements and a number of human rights violations. In addition to Kosovo’s modernized legal infrastructure, the most immediate step toward successful implementation of the plea bargaining system should entail the establishment of control mechanisms to ensure the proper functioning of the system.
However, potentially problematic incompatibilities exist between the institution of plea bargaining, derived from the US’s adversarial tradition, and the inquisitorial tradition that is followed in Kosovo. Jenia I. Turner in Plea Bargaining Across Borders argues that, “plea bargaining is inconsistent with the principle of mandatory prosecution, the duty of the judge to investigate independently the facts of the case, the right to a public trial, the principle of morality (or the right to confront adverse witnesses), the presumption of innocence, and the privilege against self-incrimination.” Plea bargaining allows the opportunity for the prosecutor to assume the role of the judge, which is in contradiction to the inquisitorial tradition. Moreover,
[t]he Eastern European experience suggests that countries are likely to adopt a particular model of plea bargaining based in part on the fit of the model with the country’s legal tradition and in part on the influence of the foreign adviser. Difficulties may arise, however, when a country chooses a model because of foreign political influence and without due regard to the models likely to fit with the adopting legal system.
Consequently, it is of paramount importance for Kosovo to try to adapt this rule to its current legal conditions and values to make it successful. The American Bar Association Legal Profession Reform Index for Kosovo [PDF] highlights that, “there is still considerable resistance to the use of plea bargaining from judges, prosecutors, and advocates.” Therefore, intensive awareness programs and targeted trainings are extremely necessary for plea bargaining, and its positive benefits, to take hold in the country.
Kushtrim Tolaj received his bachelor’s of law degree from the University of Prishtina in Kosovo, in 2009. Tolaj has worked as a project coordinator for Iniciativa Vizionare Rinore, a Kosovar NGO, as a coordinator of legal education reform and as a staff attorney at the American Bar Association Rule of Law Initiative in Prishtina. Tolaj has also worked as a Customs Agent for the Republic of Kosovo.
Suggested citation: Kushtrim Tolaj, The Institutionalization of Plea Bargaining in Kosovo, JURIST – Dateline, Apr. 15, 2012, http://jurist.org/dateline/2012/04/kushtrim-tolaj-kosovo-plea-bargaining.php.
This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org