“What is the truth worth to me if I can go home tomorrow?” Agreements in German criminal proceedings do not always produce a winner.
The agony of uncertainty
Modern criminal proceedings are shaped by negotiated agreements. Criminal defense lawyers, prosecutors and courts often feel more comfortable when the essential aspects of a case have been discussed beforehand in a small circle. Ideally, everyone involved then knows before the taking of evidence begins where the trial is heading. For the defendant, the advantage lies in predictability. He learns, in essence, what he has to prepare for and can limit the risk of a draconian sentence.
Defense lawyers have an ambivalent relationship with deals and agreements in criminal proceedings. The wish of many accused persons for certainty about the outcome of their case is easy to understand. In medicine, some patients find it easier to accept a serious illness than to bear the uncertainty about its course. The same psychological phenomenon is at work in criminal proceedings. In practice, it often leads defendants to agree to a deal simply out of the restlessness of wanting to know where they stand at last. Sometimes it becomes clear in hindsight that a greater willingness to take risks would have led to better results.
The “point of no return”
Sometimes it makes sense to announce a confession to the court, for instance if the court will give a binding assurance of a suspended sentence in return. It becomes problematic if the court had privately been thinking of a prison sentence of several years but was not yet sure whether the evidence was sufficient for a conviction at all. Judges are only human. Once they have learned that a confession is on the table, their motivation to justify an acquittal in painstaking detail after a failed agreement will be low.
Once agreement talks have taken place, it is hardly possible to pretend that the possibility of a confession never existed. This is what is meant by the “point of no return”. Agreement talks always have some lingering effect in criminal proceedings, even when no agreement is reached.
The false confession and the sentencing gap
The greater danger of the deal practice is that an innocent person comes under pressure to make a false confession. This happens above all when the gap between the sentence offered for a confession and the sentence threatened in a contested trial becomes too wide. In German legal parlance this is called the sentencing gap (Sanktionsschere). The legislature and the Federal Constitutional Court have been trying for years to limit it.
How severe this pressure can be in real life is illustrated by the example of a foreign defendant. He is in pre-trial detention and receives the offer that he will be released immediately after a confession and deported straight back to his home country.
For someone who has no ties to Germany anyway, that is naturally tempting. After six months in jail he is suddenly told, you get two years suspended and you will be home tomorrow.
Under such conditions almost anyone would be prepared to confess to just about anything, even if the indictment distorts what really happened in large parts. What is the truth worth to me if I can go home tomorrow?
A defense strategy aimed at a confession within the framework of an agreement is therefore often sensible, but it is no all-purpose weapon. Whether it is the right path for a particular defendant remains a decision for the individual case. It requires experience, empathy and a confident command of the tools of the German Code of Criminal Procedure.
A historical appeal submission by Dr. Tobias Rudolph from October 2012 illustrates this dispute in a bodily injury case. The defense challenged the pressure created by the prospective sentences and disputed whether there had been a sufficient confession at all. The document is in German.
The legal basis
In 2009 the central provision on negotiated agreements was inserted into the German Code of Criminal Procedure, § 257c StPO. It is flanked by numerous provisions scattered throughout the StPO, from discussions with the public prosecutor’s office (§ 160b StPO) to the waiver of appeal, which is in principle excluded (§ 302 (1) sentence 2 StPO).
The Federal Constitutional Court considers this regime constitutional, but not unproblematic. In a state governed by the rule of law under the Basic Law, the law determines practice and not practice the law. The constitutional yardsticks are the principle of individual culpability, the duty to establish the material truth, the principle of a fair trial under the rule of law and the presumption of innocence.
Two decisions from Karlsruhe are decisive. The landmark judgment (in German) of 19 March 2013 (2 BvR 2628/10) confirmed the constitutionality of the statute but criticised a considerable deficit in its implementation in practice, one by no means confined to isolated cases. In its order of 29 April 2021 (2 BvR 1543/20) the court reaffirmed this line. In its assessment at that time, the still deficient implementation of the agreement provisions did not yet render the statute unconstitutional. What happens in practice, in other words, still does not please the constitutional judges in Karlsruhe.
From legal discussion to negotiated agreement
Legal discussions and reviews of the state of the proceedings are possible at every stage. During the investigation one talks to the public prosecutor’s office or to the tax authority’s penalty and criminal matters unit (§ 160b StPO), for instance about partial discontinuations, an application for a penalty order or questions of jurisdiction. In the intermediate proceedings the factual and legal position is discussed before the case is admitted for trial (§ 202a StPO), after admission the state of the proceedings (§ 212 StPO) and during the trial itself the current status of the case (§ 257b StPO).
The dividing line between the mere organization of the external course of proceedings and a negotiated agreement in the legal sense is important. The external framework may be discussed freely, an opening statement, the day on which the defendant will make his statement, the schedule which the presiding judge coordinates with the parties in extensive proceedings (§ 213 (2) StPO). Discussions relating to a negotiated agreement begin only at the moment when a link is established between the defendant’s procedural conduct and a possible outcome of the proceedings, typically between a confession and the length of the sentence. From then on, the statutory transparency duties in particular must be observed. The agreement itself must be reached in the public trial with all parties involved. The initiative may come from any side. Both the defendant and the public prosecutor’s office must expressly consent to a proposal, mere silence is not enough.
The duty of disclosure
The linchpin of transparency is the duty of disclosure. If discussions relating to a negotiated agreement take place outside the trial, during a break in the judges’ chambers or beforehand on the telephone, the presiding judge must disclose their essential content in the public hearing (§ 243 (4) StPO). And not merely the fact that talks took place at all. What must be disclosed is who took part, which side raised the question of an agreement, which positions the participants took and whether these met with approval or rejection.
The Federal Court of Justice recently reaffirmed these requirements once more. In an order of 10 August 2023 (3 StR 93/23) the Third Criminal Panel set aside a judgment of the Regional Court of Trier because the presiding judge had disclosed the sentencing range held out in prospect but had not disclosed the prosecutor’s statement or the discussion about downgrading the charge to aiding and abetting. The Federal Court of Justice made clear that the duty of disclosure applies in full even if the talks ultimately fail. Shortly afterwards the Federal Constitutional Court cemented this line. Merely disclosing the outcome of a legal discussion does not satisfy the constitutional requirements (order of 8 November 2023, 2 BvR 294/22).
These duties exist not only towards the public and the press that may be sitting in the courtroom. They also apply towards the defendant. It is the court itself, and not only his defense counsel, that is meant to inform him of the content of the legal discussions.
What may be agreed and what may not
To prevent the courtroom from turning into a bazaar, the legislature has precisely delineated what may be the subject of an agreement. Permissible subjects are the legal consequences, individual procedural measures and the procedural conduct of the parties. The court may promise an upper and a lower limit of the sentence, never a precise sentence. It may guarantee suspension on probation together with the length of the probation period and conditions, it may discuss ancillary penalties, a driving ban and, according to the case law of the Higher Regional Court of Nuremberg, the length of a period during which no new driving licence may be issued. With the consent of the public prosecutor’s office, it may exclude individual offenses or parts of the charge under §§ 154, 154a StPO. The main consideration expected in return is the confession, which the statute frames as a “should” requirement without defining its quality in more detail. The waiver of individual, specifically defined motions or their withdrawal may be added.
Beyond reach, by contrast, are the verdict on guilt and the findings of fact, shifts of the statutory sentencing range, the ordering of measures of rehabilitation and incapacitation, and the waiver of appeal (§ 302 (1) sentence 2 StPO). The confiscation of the proceeds of crime also belongs here, because it is a mandatory ancillary decision that leaves the court no discretion. Refraining from confiscation under § 421 StPO is possible only under the statutory conditions of that provision and with the consent of the public prosecutor’s office. Package solutions spanning several sets of proceedings are likewise excluded. The court can promise only what lies within its own power. The public prosecutor’s office may announce a discontinuation in other proceedings, but the court must make clear that this announcement does not share in the binding effect.
The Federal Court of Justice has drawn the line particularly clearly when it comes to waiving motions for evidence. In an order of 10 January 2024 (1 StR 413/23) the First Criminal Panel set aside a judgment of the Regional Court of Stuttgart which had tied a lenient sentencing range to the condition that the defendant waive all motions for evidence in return. Such a blanket waiver is incompatible with the defendant’s status as a subject of the proceedings and with the court’s duty to investigate the facts of its own motion. Individual, specifically defined motions, on the other hand, may be the subject of an agreement as long as the duty to investigate is preserved. In the end there is always an element of give and take in all of this.
The end of the pro forma confession
For a long time many trial courts regarded the proceedings as done once a confession had been recorded. The Federal Constitutional Court has put a stop to this (order of 20 December 2023, 2 BvR 2103/20). Despite a negotiated agreement, the court’s duty to investigate the facts of its own motion continues to apply in full. The deal does not replace the taking of evidence. Every confession must be examined for its accuracy and internal consistency.
The case decided concerned proceedings before the Local Court of Halle on the charge of withholding social security contributions through bogus self-employment. The defendant had a brief statement read out by his defense counsel and otherwise made only vague remarks about the events. The court checked this confession only cursorily against the file and convicted him. Karlsruhe set the judgment aside. An empty pro forma confession cannot support a judge’s conviction. Merely comparing it with the paper file is not enough. In the specific case it would have been natural to examine some of the alleged bogus self-employed workers as witnesses. Documents and further questions to the defendant were also available as means of verification.
For the defense this leads to a sobering insight. The classic strategy of having the briefest possible statement read out in order to shield the client from cross-examination has become legally risky. An empty pro forma confession cannot support a conviction and inadequate investigation or evaluation of the evidence can lead to the judgment being set aside.
Binding effect, deviation and the prohibition on use
If the agreement is validly concluded, it binds the court, and only the court (§ 257c (4) StPO). Defense, defendant and public prosecutor’s office are not legally bound, even though the court’s expectations weigh on their conduct in practice. This binding effect is not absolute. The statute describes its lapse as follows.
“The court shall cease to be bound by a negotiated agreement if legally or factually significant circumstances have been overlooked or have newly arisen and the court is therefore convinced that the sentencing range held out in prospect is no longer commensurate with the offence or the degree of guilt.”
This applies, for instance, if a significant prior conviction comes to light, if the offense was more brutal than the file suggested or if the confession turns out to be false. The binding effect may also lapse if the defendant’s further procedural conduct does not correspond to the conduct that formed the basis of the court’s prognosis, for instance if he does not make the announced confession. The defendant must be instructed about this possibility before every agreement (§ 257c (5) StPO). The court must disclose any deviation without delay (§ 257c (4) sentence 4 StPO). A mere revocation by the public prosecutor’s office is not sufficient.
If the binding effect lapses after the defendant has already confessed, the statute imposes a strict prohibition on use. The confession may not be used against him (§ 257c (4) sentence 3 StPO). The court may not include this confession in forming its conviction. It is not enough merely to leave it unmentioned in the written reasons for the judgment. In practice, this prohibition is nevertheless of rather theoretical significance. A judge who has heard a detailed confession can hardly erase it entirely from his mind. Whether he really keeps it out of his reasoning can hardly be checked from the outside as long as the written reasons do not mention it and the conviction rests on other evidence. By then at the latest, the impartiality of the court is likely to be lost. The collapse of an agreement after a confession has already been made remains a worst-case scenario for the defense. After a successful appeal on points of law, the new trial court is not bound by the earlier agreement. Whether the earlier confession may be used, however, depends on the specific course of the proceedings and cannot be answered in the same way after every reversal of a judgment.
Particularities in white-collar and criminal tax law
In ordinary criminal law the agreement is often simple in structure, a confession in exchange for a suspended sentence. In white-collar and criminal tax law it reaches its greatest complexity. Mountains of files running to tens of thousands of pages, years of investigation by the tax investigation office and internationally nested structures effectively force all parties to the negotiating table. Every euro is fought over, because the amount of tax evaded determines both the sentence and the confiscation of assets.
This is where the tax assessment procedure under the Fiscal Code meets the criminal procedure under the StPO. Tax law has long known the factual settlement, the tatsächliche Verständigung, an agreement between the tax authority and the taxpayer on past facts that are difficult to clarify. Where the cash records are deficient, for example, the parties agree on an estimated uplift and base the assessment on an estimated additional turnover (§ 162 AO). This agreement concerns the factual basis and leaves the legal consequences under tax law untouched.
The amount of tax evaded determined in this way is not binding on the criminal court. It must establish the evasion independently and on the basis of conclusive evidence, in case of doubt in favor of the defendant. Simply adopting the tax estimate in the criminal judgment is impermissible. In practice, the settlement under tax law and the agreement under criminal procedure therefore often have to be synchronised. And even then, what Karlsruhe has said about confessions applies. Not everything can be confessed. An amount of evaded tax presupposes a legal assessment under tax law which cannot be confessed with a blanket “yes, I plead guilty”. What is needed is a statement on the method of evasion. Where a voluntary disclosure is under consideration, the picture shifts once again, because entirely separate conditions of validity apply there.
No buying one’s way out through a tax settlement
For a long time the defense argued with § 73e (1) of the German Criminal Code. If the tax claim had been satisfied through a factual settlement with the tax office and had thereby been extinguished, the criminal court could no longer order any confiscation going beyond it. The First Criminal Panel of the Federal Court of Justice has put an end to this strategy (order of 17 September 2025, 1 StR 258/25).
A factual settlement in the tax assessment procedure does not, as a rule, extinguish the substantive tax claim that goes beyond it. It relates to the facts and is not a remission of the true tax debt. The tax claim arises by operation of law. If the result of the settlement falls short of the true financial advantage, the excess claim continues to exist. The criminal court determines the expenses saved independently for the purposes of confiscation and orders confiscation of the difference. Even a final tax assessment that is too low does not prevent this. To be distinguished from this are payment, set-off and independent remission or equity decisions, which may have to be taken into account under § 73e of the Criminal Code.
How precisely the Federal Court of Justice deals with the figures is shown by the case itself. The Regional Court of Kiel had inadvertently applied the 2012 income tax table to later years as well. The Federal Court of Justice recalculated. For 2016 the further confiscation was dropped. For 2015 the amount fell to 262.69 euros. In total, 9,545.63 euros remained. Anyone defending in tax criminal cases must be prepared for this. A favorable settlement with the tax office does not cap the confiscation under criminal law. Apart from that, refraining from confiscation under § 421 StPO comes into consideration only under the statutory conditions of that provision and with the consent of the public prosecutor’s office.
A deal guarantees no freedom
That an agreement is no free pass is illustrated by proceedings before the commercial crime chamber of the Regional Court of Munich II in February 2026 (press release of the court, in German). An entrepreneur from the district of Starnberg had handled mask deals worth millions with the Federal Ministry of Health during the pandemic and channelled the proceeds past the German tax authorities through a company domiciled in Switzerland. During the trial a negotiated agreement under § 257c StPO was reached, in the course of which he confessed.
He was sentenced to an unsuspended aggregate prison term of five years and ten months for tax evasion in nine cases, weapons offenses and obtaining false official identity documents. The confession and the burden of pre-trial detention counted in his favor. The enormous amount of tax evaded, the relevant prior convictions and the not inconsiderable criminal energy weighed more heavily. The chamber did not recognize the diplomatic immunity of the Republic of São Tomé and Príncipe that he had claimed, because no accreditation in Germany existed. A deal defines the parameters of punishment within a given framework. It does not protect against many years in prison when the loss and the criminal energy are high.
There is another ambivalence, and it begins with the court. The courts are frequently overburdened. This gives the defense lawyer a peculiar power. He can almost force the court into a deal, simply because the capacity is lacking to try a case to the very end and to pursue every difficult question of fact and law. From the perspective of the rule of law this is often unsatisfactory, but as a weapon in the hands of the defense it is nonetheless effective.
Rejecting an agreement also has its price. If the facts are investigated in full depth, further offenses may come to light. In one case that has stayed with me, the court took a closer look at a single point and in the end no longer needed the whole estimate, because the entrepreneur’s complete handwritten second set of books was found under his bed, in shoeboxes. All that remained was to evaluate it.
The line of court decisions from 2013 to 2026 can be summarised at a glance.
What matters
There is nothing wrong with an open word, as long as those involved speak honestly with one another and the defense lawyer states his position openly. A defense lawyer must be ready for conflict. Conflict is nevertheless not always the means of choice.
In my experience, deals and agreements are usually favorable for clients when the judges know that they are dealing with an experienced defense lawyer who works at a high legal level, knows the file well and is ready for conflict at any time. Then they do not even try to take advantage of the defendant or his lawyer. What is decisive, therefore, is thorough preparation for the trial, early submissions during the investigation in which one’s own perspective becomes visible, and a finger pointed at the errors in the other side’s evidence.
A defense worthy of the name therefore always requires courage and a readiness for conflict.
Frequently asked questions
What is a “deal” in criminal proceedings?
The colloquial “deal” is the negotiated agreement in criminal proceedings regulated in § 257c StPO, a formal arrangement between the court, the public prosecutor’s office and the defendant in the public trial. For the case of a credible confession, the court may promise an upper and a lower limit of the sentence. The question of guilt itself is not open to negotiation.
Can an innocent defendant come under pressure?
Yes, that is the greatest structural risk of the deal practice. If a long prison sentence looms in a contested trial while the deal promises a suspended sentence, the pressure to make a false confession can become enormous. The Federal Constitutional Court opposes an unreasonably wide sentencing gap. In addition, the court must examine whether the confession is true.
What does the “point of no return” mean?
Once agreement talks have begun, they influence the court. If defense counsel has held out the prospect of a confession and the deal fails, the judge nonetheless knows about the willingness to confess. That knowledge can hardly be set aside. In practice there is often no way back to the uninfluenced starting position afterwards.
Is one bound by an agreement?
A valid negotiated agreement binds only the court (§ 257c (4) StPO). That binding effect lapses if legally or factually significant circumstances have been overlooked or newly arise and the court therefore considers the proposed sentencing range no longer commensurate with the offense or the degree of guilt. The same applies if the defendant deviates from the procedural conduct underlying the court’s lawful prognosis. Defense, defendant and public prosecutor’s office are not legally bound. A judge cannot be forced into a negotiated agreement.
Does a tax settlement also apply to confiscation?
No. Since the order of the Federal Court of Justice of 17 September 2025 (1 StR 258/25) it has been settled that a factual settlement with the tax office does not, as a rule, prevent the criminal court from confiscating a higher amount as proceeds of crime. The settlement with the tax authority does not bind the criminal court.
Is an appeal possible after a deal?
Yes. If the judgment was preceded by a negotiated agreement, a waiver of appeal is excluded (§ 302 (1) sentence 2 StPO). The judgment remains open to review even though the defendant agreed to the deal. Breaches of the duties of disclosure and documentation in particular can lead to the judgment being set aside if the judgment rests on them.
What happens if the record is incomplete?
Breaches of the duties of disclosure and documentation (§ 243 (4), § 273 (1a) StPO) can lead to the judgment being set aside. What matters is whether the judgment rests on the breach. Where protective provisions of a negotiated agreement have been violated, this can as a rule be ruled out only under narrow conditions. What must be disclosed is who took part in the talks, who took the initiative and which positions were put forward. Informal agreements without this transparency are impermissible.