Another Attempt at Agreements in Corruption Cases: Pros and Cons of New Draft Law

On September 17, MPs registered draft law No. 12039, which is a new attempt to improve the Ukrainian institution of agreements in corruption cases. Transparency International Ukraine experts analyzed this document and discovered how the proposed provisions could change the situation.

The previous attempt to update the tool of agreements in corruption cases was unsuccessful and caused a considerable stir within Ukrainian society. However, the new draft law is far from perfect.

What does and doesn’t the draft law change? 

The new draft law solves some problems of agreements in corruption cases.

MPs propose to provide persons accused of corruption and corruption-related criminal offenses with the following options when concluding a plea agreement:

• imposition of a more lenient term of imprisonment compared to that specified in the sanction of the article, provided that another person is exposed, as well as full or partial compensation for damages;
• additional punishment in the form of a fine with an increased amount, regardless of its mention in the sanction of the article—from UAH 340,000 for a minor offense and up to UAH 102 million in the case of a particularly grave offense;
• additional punishment in the form of confiscation of property, in case of exemption from serving a probationary sentence if the parties to the agreement have agreed on an additional punishment.

However, a number of important issues remain unresolved, which can significantly affect the essence of such agreements and the procedure for their approval.

1. Individuals who have committed a corruption crime individually will not be able to apply for a more lenient punishment in the form of imprisonment.

That is, if a person individually received an unlawful advantage, then they cannot claim a reduction in the term of an actual punishment. At the same time, persons who, for example, took part in a scheme to withdraw millions from the national budget for road construction, can apply for such a reduction, although the losses to the state and the offense itself may be greater.

2. It is unclear from the draft law whether an agreement can be concluded with persons whose actions did not cause any damage.

The use of the phrase “if such losses or damage were caused” in parentheses does not allow answering the question whether such an agreement can be concluded at all.

Thus, a situation might arise when, within criminal proceedings, an agreement with the suspects and the accused is impossible without losses or damage. Persons who have committed more socially dangerous offenses will end up in more favorable conditions.

3. No quality resolution of the confiscation issue.

The authors seem to add confiscation of property as an additional punishment in case of exemption of a person from serving a probationary sentence. But they indicate that such punishment may not always be imposed.

We consistently stand for the fact that confiscation of unlawfully acquired assets has the greatest deterrent effect in regard to criminal prosecution of corruption. After all, corruption aims to enrich a person.

However, neither the previous draft law 11340 nor the draft law submitted now contain such provisions. Instead, the new draft law makes it more difficult to use confiscation of property as a punishment. There should be a possibility of property confiscation without referring to other additional punishments.

4. The court is not empowered to request the collected materials of the pre-trial investigation when reviewing the agreement.

Since the agreement can be approved at different stages of the case consideration, when the prosecution has not yet presented the entire array of collected evidence, the court cannot verify the qualification of the person’s actions due to the small array of available information. This can lead to an incorrect, at first glance, criminal and legal assessment of a person’s actions.

What do we propose to change in the first place?

• Additionally determine the mandatory application of special forfeiture when concluding agreements in corruption cases if there are relevant grounds, as well as improve the provisions on confiscation of property;
• Specify whether agreements can be concluded within those criminal proceedings where no losses or damage were caused;
• Clearly define that exemption from serving a sentence within cases of corruption and corruption-related criminal offenses is possible;
• Grant the court an opportunity to request the collected materials of the pre-trial investigation or oblige the prosecutor to send the materials of the pre-trial investigation to the court together with the indictment and the agreement.

Draft law No. 12039 solves some essential problems in the application of plea agreements. However, if it is adopted in this form, then inaccuracies and lacunae will remain, which will cause issues with the interpretation of new provisions and their understanding by different parties to the process and result in the ambiguity of the general attitude to agreements in corruption cases.