ADEQUACY OF THE PROPOSED CRIMINAL SANCTION AS A CONDITION FOR ACCEPTING THE PLEA AGREEMENT

Abstract

In all criminal procedural legislations that recognize it, the plea agreement is subject to court control. In order to be accepted, he must meet certain conditions. Among them, a special place is occupied by the requirement that the criminal sanction proposed in the agreement is adequate, that is, that it can achieve the purpose of punishment. There is no criminal procedure legislation in which the court is obliged to accept the criminal sanction proposed in the agreement. As a rule, this condition is expressly stipulated, which is e.g. the case with all the legislations of the states created by the disintegration of the former SFR Yugoslavia. It is not disputed that it also exists in those, admittedly rare, legislations in which it is not expressly provided for. In the laws on criminal procedure that are applied in the territory of Bosnia and Herzegovina, this condition is not explicitly prescribed. Regardless of this fact, in court practice, without exception, it is considered that the agreement must also fulfill this condition. Failure to prescribe this condition for accepting the agreement opens certain dilemmas. As there is no justifiable reason not to expressly foresee as a condition for accepting the agreement the adequacy of the proposed criminal sanction, i.e. the need for it to achieve the purpose of punishment, and the existence of that condition is not disputed in any way, it is necessary to prescribe it in future amendments and amendments to criminal procedure laws in Bosnia and Herzegovina.