Humanities and Social Sciences Colloquium - Lorena Bachmaier

On negotiated justice and coercion. The limits of trading penalties for fundamental rights

The right to a fair and public trial is a fundamental right recognised in the International Conventions on Human Rights as well as in the national Constitutions. However, diverse forms of negotiated justice have become increasingly relevant. This can partly be explained by the failure of the justice systems to go through a full-fledged procedure and the public trial within reasonable time and at reasonable costs. Substituting the trial by an agreed solution is only legitimate as long as the waiver of rights is done willingly and knowingly. How to identify the willingness? Where are the borderlines between incentives for entering agreements and exercising coercion upon a defendant? I will argue why the institutional context and other external elements should be taken into account to determine if the guilty plea system has become coercive.