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Jurisdictions Examined: Georgia | Indonesia | Malaysia | Nigeria | Russia | Singapore

Comparative Summary

I. Introduction

This report examines laws and practices related to plea bargaining in six countries: Georgia, Indonesia, Malaysia, Nigeria, Russia, and Singapore. Of these countries, three (Georgia, Malaysia, and Nigeria) have formalized both charge and sentence bargaining procedures in legislation. Russian legislation provides for a “special trial procedure” for defendants who plead guilty, and “special path” provisions based on Russia’s approach are currently being considered as part of criminal procedure reforms in Indonesia. Russia has also implemented provisions on “pretrial cooperation agreements” aimed at providing incentives for individuals involved in organized crime to cooperate with authorities in exchange for a reduced sentence. Georgia also provides for “agreements on special cooperation.” In Singapore, there are no current or proposed plea bargaining provisions in legislation. However, two programs have been implemented that enable alternative case resolution processes to be applied.

Several of the countries studied introduced the relevant provisions or procedures in an effort to increase efficiency and relieve congestion in the courts. This appears to have been the main reason for the introduction of provisions in Malaysia in 2010 and in Nigeria in 2004 (financial crimes) and 2015 (all federal crimes), and for the establishment of a criminal case resolution program in Singapore in 2011. Enhancing efficiency has also been cited as a reason for the proposed “special path” provisions in Indonesia. In Georgia, the introduction of “procedural agreements” in 2004 related to attempts to address police corruption and the influence of organized criminal groups.

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II. Summary of Approaches

Some of the differences in the approaches taken by the countries studied can be seen to relate to distinctions in the principles underlying criminal procedures in inquisitorial and adversarial systems of justice. In Russia and Indonesia, which apply the inquisitorial model, guilty pleas may be assessed by the court as part of the totality of evidence in a trial, rather than being the determinative factor. However, Georgia, which also apples the inquisitorial model, has taken a much more liberalized approach to plea bargaining and modeled its laws on those in countries that apply an adversarial approach.

Under the Georgian Code of Civil Procedure, either the accused or the prosecutor may propose a procedural agreement, or the court may suggest this approach. The agreement involves the accused confessing to the charged crime, with the prosecutor then able to request a reduction of punishment or a reduction of charges. The prosecutor must consult with the victim and notify him or her of the conclusion of the agreement. An agreement must be certified by the court, which must first assure itself that the agreement was concluded voluntarily. The court may make changes to the agreement only upon the consent of both parties. Sentences applied pursuant to an agreement cannot be appealed unless the accused violates a condition of the agreement.

An “agreement on special cooperation” is a specialized type of procedural agreement in Georgia. These may be entered into prior to or following a conviction and involve situations where solving a different crime depends on the cooperation of the accused/convict.

In Malaysia, where informal charge bargaining practices occurred prior to amendments to the Criminal Procedure Code being made in 2010, the accused may submit a request for plea bargaining to the court. Once an agreement on the charges and/or sentence has been reached by the prosecutor and accused, the court may dispose of the case, provided that the agreement was entered into voluntarily, the sentence is within the acceptable range in the Code and is accepted by the court, and the offense involved is not one that cannot be the subject of an agreement. The accused may appeal the extent and legality of the sentence imposed by the court.

Under the plea bargaining provisions of broad application in Nigeria, enacted in 2015, the prosecution may offer or accept a plea agreement from a defendant, provided that certain conditions are present in the relevant case. Agreements may be entered into before, during, or after the presentation of the prosecution’s evidence. The prosecution must consult the police who investigated the case, consider public-interest factors, and obtain the victim’s consent to enter into plea bargaining. The court reviews the agreement, including ascertaining that the defendant entered into it voluntarily. The court may approve the agreed sentence or impose a lesser sentence. If the court thinks that it would have imposed a heavier sentence, the defendant may abide by his or her guilty plea and agree that the judge proceed to sentencing, or may withdraw from the agreement and have the case proceed to trial before a different judge. Where a lesser sentence is imposed than that in the plea agreement, the prosecution may appeal the sentence. The defendant is unable to appeal the conviction and sentence unless fraud is alleged.

Russia’s “special trial procedure” provisions, introduced in 2001, do not involve charge or sentencing bargaining between the prosecution and defendant. Instead, a defendant may agree to the charges and request sentencing without trial. The procedure is only available for crimes subject to punishments of up to 10 years of imprisonment. The judgments rendered in such cases cannot be appealed on the grounds of inconsistency between the findings of the court and the merits of the case. In addition to this procedure, “pretrial cooperation agreements,” introduced in 2009, may be utilized in cases involving organized crime. Such agreements are submitted to the court as part of the trial, and the court may accept the agreement as evidence. If the court finds the defendant guilty it may then impose a sentence of no more than half of the possible maximum sentence for the crime.

The “special path” procedure included in a criminal procedure reform bill currently before Indonesia’s parliament would, similar to the Russian procedure, enable shortened hearings and reduced sentences where a defendant admits guilt and requests the application of the provisions. The procedure would also only apply in cases involving less serious crimes, being those subject to up to seven years of imprisonment. The judge would determine the application of the provisions, rather than there being an agreement between the prosecution and defendant. The court would be able to sentence the defendant to no more than two-thirds of the maximum sentence for the charge.

Singapore’s criminal case resolution program, which was initiated by the subordinate courts, provides a neutral forum, facilitated by a judge, for parties to explore alternatives to trials in criminal cases. The accused may decide whether to plead guilty or seek a trial. The program is not intended to actively encourage guilty pleas. The judge may consider giving a sentence indication if this is sought by the accused. If the accused decides to plead guilty, the judge may, with the consent of both parties, accept the plea and pass sentence. If the case does go to trial, a different judge hears the case and the prior discussions remain confidential.

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III. Outcomes and Concerns

In Georgia, a majority of cases are reportedly now settled by plea agreements. Concerns have been raised, however, about the absence of an effective witness protection program for those who cooperate under an agreement and also about the use of high fines as punishments in the deals, which leads to economic discrimination.

Malaysia has resolved its court backlog in the past decade following the passage of criminal procedure reforms, but it is unclear the extent to which this can be attributed to the application of the plea bargaining provisions. Commentators have raised concerns about the interpretation and application of the provisions by judges, the removal of judicial discretion in sentencing, the risk of corruption and abuse, and protections for victims in the process.

It appears that plea bargaining processes in Nigeria have predominantly been applied in cases involving financial crimes. In that context, concerns have been raised about corrupt officials receiving light sentences pursuant to plea agreements. The extent of the impact of the 2015 provisions on reducing court congestion is not yet known.

Some commentators in Russia have argued that the “special trial procedure” violates several principles of criminal procedure and impedes the finding of the truth. However, it is now widely applied, being used in more than half of all criminal cases.

Discussions regarding the proposed “special path” procedure in Indonesia have noted that the provisions do not allow for agreements on sentences between prosecutors and defendants, and that this was due to concerns about corruption. Commentators have called for the development of standards by which judges can assess guilty pleas and appropriate supervision of the procedure’s implementation to protect against corruption.

The courts in Singapore have indicated that the pretrial case resolution program has resulted in fewer and shorter trials. A criminal lawyer has raised concerns about the potential for overcharging. The Attorney-General has denied that the prosecution seeks excessive or inadequate sentences as part of the process

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Prepared by Kelly Buchanan
Foreign Law Specialist
September 2019


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Last Updated: 12/30/2020