Deferred Prosecution Agreement in Germany: An Overview

Deferred prosecution agreement (DPA) is a legal tool used in some countries to avoid criminal prosecution of individuals or corporations under certain conditions. Germany is one of the countries that adopted this type of agreement, but with some differences compared to other jurisdictions.

What is a Deferred Prosecution Agreement?

A deferred prosecution agreement is a pre-trial diversion program that allows certain offenders to avoid criminal prosecution in exchange for meeting certain requirements, such as paying restitution, cooperating with law enforcement, and undergoing rehabilitation. DPAs are typically used in cases where a criminal conviction could harm the public interest, the defendant has no prior criminal record, and there is a low likelihood of recidivism.

DPAs typically consist of an agreement between the prosecutor and the defendant, overseen by a judge, where the defendant agrees to fulfill certain conditions for a specified period of time. If the defendant complies with the agreement, the criminal charges are dropped.

Deferred Prosecution Agreements in Germany

In Germany, the concept of deferred prosecution agreements is relatively new. The German Criminal Code (Strafgesetzbuch) was amended in 2019 to include provisions for DPAs, which came into force on July 24, 2019. The new legislation allows prosecutors to enter into DPAs with companies, not individuals.

Under the new law, a DPA can be entered into if the offense is not considered serious or if the company has cooperated with the investigation. The agreement must be approved by a judge and must include a fine, which is based on the profits generated by the offense.

Unlike in some other countries, the German prosecutor has to file charges against the company before entering into a DPA. The agreement can only be reached after the charges have been filed, but before the trial begins. Furthermore, the agreement is not binding until the judge approves it.

Benefits and Criticisms of DPAs in Germany

As with any legal tool, there are both benefits and criticisms of DPAs in Germany. Some of the benefits of DPAs include the fact that they can lead to quicker and more efficient resolutions of cases, reduce the burden on the criminal justice system, and provide companies with an opportunity to remediate the harm caused by their offenses.

However, some critics argue that DPAs are not transparent enough, as the terms of the agreements are not always made public. Additionally, some fear that the use of DPAs may send the wrong message to companies, as they may feel that they can get away with committing offenses as long as they are willing to pay a fine.

Conclusion

In conclusion, deferred prosecution agreements are a relatively new legal tool in Germany, which allows companies to avoid criminal prosecution under certain conditions. While there are both benefits and criticisms of DPAs, they can provide an effective way to resolve certain cases quickly and efficiently, while also holding companies accountable for their actions. As DPAs are still a relatively new concept in Germany, it will be interesting to see how they are utilized and if they will become an increasingly popular tool for prosecutors in the future.