Big fines and lenient sentences: How does the government propose to improve plea bargains in criminal cases?

It will soon be a year since the plea bargain between former Minister of Ecology Zlochevskyi and the investigation was approved. It seems that this decision by the HACC has become one of the most resonant of all similar cases. It sparked heated discussions about how the concept of plea bargains in criminal cases of top corruption should evolve. Additionally, other similar decisions by the HACC have also attracted significant attention from the public and the media.

International partners are also demanding improvements to this concept through legislative changes.

Earlier, we at TI Ukraine investigated the issue of plea bargains and concluded that for the active and effective use of this tool in the criminal process of Ukraine, it is advisable to:

• oblige prosecutors to provide a reasoned refusal to the request of the defense party to enter into a plea bargain;
• give courts the opportunity to demand the collected materials of pre-trial investigations or to oblige prosecutors to send the materials of the pre-trial investigation to the court together with an indictment and a plea bargain;
• settle issues with different court practices regarding the interpretation of Article 75, Part 2 of the Criminal Code of Ukraine on exemption from serving a probationary sentence;
• standardize the judicial practice of the HACC regarding plea bargains.

Additionally, we suggested that the conclusion of plea bargains in criminal cases should not only expedite the trial process but also ensure proportionate punishment and the confiscation of criminal proceeds. Therefore, it is worth considering whether the parties to the agreement should be given the freedom to agree on a punishment that the accused will actually serve, rather than a conditional sentence.

On June 14, 2024, the government registered draft law 11340, which listed several proposals to improve the current situation, agreed upon with relevant stakeholders. Transparency International Ukraine experts analyzed this document and discovered how the proposed regulations could change the situation.

Brief conclusions:

• the draft law addresses certain issues related to the conclusion of plea bargains for corruption and corruption-related criminal offenses;
• the draft law creates opportunities for abuse in the conclusion of plea bargains, as certain criteria for their approval are essentially subjective;
• if the model proposed by the Cabinet of Ministers is implemented, special attention should be paid to the search and confiscation of assets obtained through crime.

What we suggest:

• establish that compensation for damages, exposure of another person, or payment of a fine along with the confiscation of criminal proceeds will be conditions for release from serving a sentence on probation;
• give courts the opportunity to demand the collected materials of pre-trial investigations or to oblige prosecutors to send the materials of the pre-trial investigation to the court together with an indictment and a plea bargain;
• standardize the HACC practice in verifying plea bargains for compliance with the requirements of the Code of Criminal Procedure of Ukraine.

How plea bargains work in top corruption cases now

The conclusion and approval of plea bargains for corruption and corruption-related criminal offenses is one of the most contentious issues today. This is because the mitigation of punishment should correspond to the benefits that the state receives from such deals. And it is in maintaining this balance when approving plea bargains that the public usually has the most questions.

The deal paves the way for release from actual punishment, but there are nuances to consider:

• plea bargains in particularly serious corruption crimes are possible only if a person exposes another person or assists in exposing the criminal actions of accomplices;
• the term of imprisonment, from which one can be released, should not exceed 5 years;
• otherwise, a court cannot approve a punishment lower than the minimum limit provided for in the article.

At the same time, plea bargains should benefit not only the accused but also the state. However, for example, a fine can be imposed as an additional punishment only when it is provided for in the sanction of the article under which the person was convicted. The amounts of such fines are sufficiently limited and may not have a deterrent effect. And, for example, it is also not possible to confiscate property if a person has been released from serving a real term in prison. 

Also, the law currently does not provide for the possibility of making changes to an already concluded plea bargain, nor does it allow the re-application of the plea bargain in the same criminal proceeding. If a court has already refused to approve a plea bargain for certain formal reasons, it is not possible to submit a new plea bargain application to the same court within the same criminal proceeding.

What does the government propose to change?

The key changes proposed by the government are:

• Provide an opportunity for the parties to a plea bargain to agree on a penalty in the form of a fine, even when it is not provided for in the sanction of the article. The fine amounts for such offenses are substantial, starting from UAH 20.4 million for serious crimes.
• Allow the parties to a plea bargain to agree to a prison sentence lower than the statutory minimum, contingent upon the disclosure of others or compensation for damages. In such cases, individuals cannot benefit from exemption from serving sentences but must serve them in full.
• Clearly stipulate that exemption from serving a sentence due to probation is possible in the case of a plea bargain. At the same time, there is a proposal to increase the probationary period to 6 years, as well as to extend the imprisonment term eligible for exemption to 8 years (previously 5 years).
• Enable confiscation of property if a person is released from serving the main sentence due to probation.
• Provide for the possibility of concluding a plea bargain in particularly serious crimes under the jurisdiction of NABU, subject to full or partial compensation for damages.
• Introduce the requirement for approval by the head of the prosecutor’s office to enter into a plea agreement.
• Allow for the modification of a plea bargain before the court deliberates on it and permit resubmission to the court if the reasons for initial rejection have been rectified.

In general, the changes are qualitative, but there are risks

The changes developed by the government in consultation with various stakeholders are of sufficient quality. However, their adoption may lead to potential abuses by prosecutors in agreeing to exempt individuals from serving probationary sentences. 

Previously, the approval of plea bargains in this category of cases, which included exemption from serving a sentence, was specific to the HACC only. This was due to the established interpretation of the provisions of Article 75, Part 1 and Part 2 of the Criminal Code of Ukraine, as well as the prohibition in internal acts of the Prosecutor General’s Office against entering into plea bargains in corruption cases.

The new changes extend this practice to all courts, with the requirement that the prosecutor must approve the conclusion of a plea bargain with the head of the prosecutor’s office. The increase in the number of potential deals will make it more difficult to monitor their conclusion, potentially leading to illegal plea bargains between those involved in cases and prosecutors being hidden from public attention.

Therefore, it is necessary to introduce mechanisms that would protect against abuse in these proceedings.

The analyzed draft law partially incorporates our recommendations. However, certain unresolved issues should also be addressed during its consideration in Parliament.

• Allow the actual punishment to be replaced by a probationary period if the criminal proceeds are confiscated from the individual involved. Additionally, they could qualify by exposing another person or paying an increased fine.

Under the current amendments proposed in Article 53 of the Criminal Code of Ukraine, corrupt officials may face multi-million fines as one of the potential penalties determined by the court.

The conditions for mitigating punishment are outlined solely in draft Article 69-2 of the Criminal Code of Ukraine. These conditions stipulate that the individual must serve a reduced number of years compared to those specified in the article’s sanction if they compensate for damages or provide information leading to the exposure of another person.

Alternatively, exemption from serving a probationary sentence is possible without any conditions; the court simply needs to verify, for instance, whether a plea bargain aligns with the public interest.

We consider “public interest” to be a subjective category. The practice of its assessment is not well-established, even at HACC. Hence, it is essential to establish clear criteria for approving a plea bargain, such as compensation for damages, providing information on another person, or mandatory payment of a fine.

The term “public interest” could be replaced with “objectives of criminal proceedings,” a concept that holds more significance in legal doctrine and law enforcement practice.

To achieve an effective deterrent effect through criminal prosecution, it is insufficient merely to punish the guilty individuals. It is also necessary to confiscate the proceeds obtained through criminal means. 

In the practice of the HACC, there are examples where the court has confiscated such income, although not consistently. In the case of the former mayor of Poltava, Mamai, special confiscation of UAH 571.7 thousand, which Mamai’s domestic workers received illegally as wages, was inexplicably not applied.

We should also remember the possibility of confiscating the property of individuals convicted of corruption or money laundering, including that of their related persons if the legality of the acquisition of such property rights has not been confirmed in court (Article 100, Part 9, Paragraph 6-1 of the Criminal Procedure Code of Ukraine).

This measure can effectively deter individuals who intend to commit corruption offenses and subsequently attempt to buy off, while also addressing the root causes of corruption – the desire to get rich.

• Enable courts to request the collected materials from the pre-trial investigation or require prosecutors to submit these materials along with an indictment and plea bargain.

Currently, the Criminal Procedure Code of Ukraine does not specify whether the court is obligated to thoroughly review all materials of criminal proceedings when approving plea bargains. It also does not require prosecutors to submit pre-trial investigation materials for court review. Thus, based on the practice of the HACC, we observe that a thorough examination of all materials in criminal proceedings does not always occur, and the qualification of a person’s actions is often determined based solely on essential circumstances.

This can lead to an incorrect, at first glance, criminal-legal assessment of a person’s actions. In our opinion, the requalification of charges in the case of Serhii Shevchenko, the assistant to the former head of the Kirovohrad Regional State Administration Andrii Balon, appears dubious. It appears that in order to conclude a plea bargain, Shevchenko’s actions were reclassified as a less severe crime. The initial indictment under the article did not provide for Shevchenko to avoid serving a sentence, leaving the only option between 8 and 12 years in prison.

Moreover, the absence of pre-trial investigation materials hinders the assessment of whether the prosecutor has taken all necessary measures to trace assets acquired through crime, which are essential for potential special confiscation.

• To standardize the practice of courts in verifying plea bargains for compliance with the requirements of the Code of Criminal Procedure of Ukraine.

Since the Supreme Court mostly does not review plea bargains, the HACC may become a driver of this process. In the first half of 2024 alone, the HACC issued 35 verdicts, 15 of which were based on plea bargains. Therefore, it is this court that has a serious practice of verifying plea bargains regarding corruption crimes. 

Although such standardization will be of a recommendatory nature, a well-developed document can help guide the practices of general local courts toward a unified approach.

Conclusions

TI Ukraine supports the proposed changes to the concept of plea bargains in draft law No. 11340 by the government but recommends finalizing it.

Expanding opportunities to enter into plea bargains for corruption and related criminal offenses must be accompanied by adequate safeguards to prevent abuse of these opportunities.

To do that, the following actions are required:

• allow the actual punishment to be replaced by a probationary period if the criminal proceeds are confiscated from the individual involved, or they could qualify by exposing another person or paying an increased fine;
• give courts the opportunity to demand the collected materials of pre-trial investigations or to oblige prosecutors to send the materials of the pre-trial investigation to the court together with an indictment and a plea bargain;
• to standardize the HACC practice in verifying plea bargains for compliance with the requirements of the Code of Criminal Procedure of Ukraine.

We are convinced that employing the concept of plea bargains can positively impact the prosecution of corruption. However, it is crucial that this does not result in a “buy-off” for corrupt officials, where they face no negative consequences for their actions.