Imprisonments, fines, or correctional labor. Should there be a discretion in plea agreements?

In early August, HACC approved a plea agreement between Mykola Zlochevskyi and the SAPO prosecutor. As a result, the former Minister of Ecology pleaded guilty and paid UAH 68 thousand fine for the “super bribe” of $6 million, as well as more than UAH 660 million in donations to the Armed Forces of Ukraine.

The disproportionality of the punishment and the bewildering alteration in the crime’s classification by the prosecutor ignited public outrage. Therefore, let’s try to take a deeper look at this and similar plea agreement cases.

Milder charges for a plea?

The full-scale invasion compelled the criminal justice authorities to seek methods to support our military. This is how the following practices became popular:

• changes in measures of restraint and transfer of bail by suspects and accused to the spacial account of the National Bank;
• cancellation of arrests and transfer of property to military units in accordance with the law on forced alienation of property under martial law;
• approval of plea agreements providing for donations to the army.

In fact, as the practice of approving agreements involving suspended sentences and substantial donations became more common, the notion began to take hold that this approach served as a way of payoff to avoid actual imprisonment as part of the punishment.

If we go back to a “super bribe” case, big concerns about the “payoff” there arise because back in February 2023 Zlochevskyi was accused of organizing the bribery of a particularly important public official. For that, he could be imprisoned for 5 to 10 years with or without confiscation of property. A later the SAPO prosecutor softened the charges to “abuse of power”. This crime means bribing a person who can solve an issue by their connections with a public officials. For that crime, the punishment may be UAH 17 to 68 thousand fine, restraint of liberty from 2 to 5 years or imprisonment up to 2 years. In other words, the punishment is significantly less severe than it could have been initially.

Prosecutor’s explanation that the judicial perspective of this case was questionable seems weird. In his opinion, Zlochevskyi realized that no one involved known to him had the authority to make decisions on criminal proceedings. And here is the question: why was that established only during the trial and not during the pre-trial investigation?

Besides the initial qualification of Zlochevsky’s actions still allowed him to conclude a plea agreement and not serve his sentence. The fact is that the ex-minister was charged with committing a serious crime. This implies that, in order to negotiate with the prosecutor, he is not forced to reveal someone else in the commission of another crime, as mandated by law in the case of charges involving a particularly serious offense. And his property would not have been confiscated in that case for reasons that we will discuss later. That is, we did not find any logical explanations for why it was necessary to change the qualification of the crime in the Zlochevskyi’s case.

In addition to Zlochevskyi, in our opinion, requalification was questionable in the case of Serhiy Shevchenko, an accomplice of the former head of the Kirovohrad Oblast State Administration Andrii Balon.

He pleaded guilty of assisting Balon in requesting and receiving bribes from the head of the Main Department of the State Food and Consumer Service in the Kirovohrad Oblast Ihor Boichuk for not firing the latter.

The illegal benefits should have been about UAH 1.8 million (as the accomplices themselves rounded up). And this is a particularly large illegal benefit, which is punishable under Part 4 of Article 368 of the Criminal Code of Ukraine.

However, it seems that Shevchenko’s actions received milder qualification in the agreement. The initial penalty did not provide for Shevchenko’s release from serving his sentence; the only question was the duration of imprisonment, ranging from 8 to 12 years.

This is the approach of SAPO prosecutors does not comply with the national model of simplification of criminal proceedings based on plea agreements. After all, the prosecutor must qualify the actions of the accused in accordance with the established evidence, with very limited discretion when it comes to selecting the appropriate legal article.

This is confirmed by the practice of bringing prosecutors to disciplinary responsibility for incorrect legal qualifications in specific criminal proceedings. As, for example, in resolution regarding prosecutor Serhiy Ivanenko, who was brought to disciplinary responsibility for incorrectly qualifying the theft of things from cars.

For the sake of fairness, it is essential to recognize that the opportunity to enter into plea agreements is not limited solely to individuals engaged in high-profile cases. For example, the HACC approved pleas in the bribery of police case with a fine of UAH 13 thousand.

The above Zlochevskyi’s and Shevchenko’s cases demonstrate the existing shortcomings of the current legislation.

1. Lack of rules of criminal legal qualification.

The Prosecutor modified the qualifications for both Zlochevskyi and Shevchenko in a manner that appears questionable when considering the analysis of open-source information. There are doubts that the court that approved the agreement checked the correctness of this qualification. However, the court may not have all materials of the case to check whether the parties to the agreement correctly determined the article under which the accused pleads guilty.

The majority of criteria by which a person’s actions are evaluated as an offense are formulated by the criminal law doctrine and are not explicitly outlined in legislation. However, the new draft Criminal Code, widely discussed in professional circles, proposed to regulate these processes in sufficient detail. This can only contribute positively to the clarity in the application of criminal law. The absence of such regulations in the existing criminal law creates the potential for abuse when offering a legal evaluation of the accused individuals’ actions.

2. Limited discretion when selecting penalties through plea agreements.

Discrepancies between the imposed punishment and the gravity of the crime committed suppresses confidence in justice and reduces sense of justice in people. Defendants are also restricted in their choice of sentences they are willing to accept under plea agreements. Quite often, they are most interested in the term of imprisonment, and therefore such agreements have magic figure of a 5-year imprisonment and, as a result, release from serving a sentence. Indeed, according to the law, an individual sentenced to a term of up to 5 years is eligible to request such release.

On the one hand, limited alternatives are not particularly encouraging, but on the other hand, they raise valid concerns that accused never serve real punishments. It is worth recalling that, in addition to imprisonment and a fine, the criminal legislation has a wide arsenal of sanctions – arrest, restriction of liberty, correctional and community service. Also, the amount of the fine can be made corresponding to the amount of illegal benefits or proportional to them.

Therefore, in order to satisfy a public request for an actual serving of a sentence under agreements, the parties should be allowed to determine a more lenient sentence than established by the relevant article of the Criminal Code of Ukraine. Along with that, the court should be given direct authority to assess the proportionality of the agreed sentence.

There is a good opinion of academic lawyer Rasim Babanly, that in criminal proceedings based on agreements, the principles of punitive policy should not be completely ignored. Therefore, it is advisable to limit the lower punishment.

This idea is implemented in the already mentioned draft Criminal Code. Its authors propose that parties to the agreement could negotiate the punishment which shall be:

1) equal to the lower limit of the penalty for the incriminated crime,

2) imposed within the framework of a sanction for a crime that is less serious for the committed crime, or

3) conditioned release from imprisonment for a certain period of time.

Those rules could be implemented in the current Criminal Code of Ukraine through permission, for example, to coordinate the punishment specified in the sanction of a “simple” criminal offense, in which an accused admits their guilt (usually we are talking about the first part of the relevant article).

Another approach is to develop evidence-based recommendations for sentencing. Those recommendations would provide guidance to the parties as well as the court that will evaluate their plea agreement.

3. The practice of confiscation of illegal income is not widespread

 Merely punishing wrongdoers is insufficient to create an effective deterrent against criminal prosecution. Their proceeds from crime must be confiscated.

The HACC has examples of confiscated proceeds but it does not inevitably happen. In the case of the former mayor of Poltava, Mamai, for some unexplained reason, no special confiscation was applied to the amount of UAH 571.7 thousand, which was unlawfully paid as a salary to Mamai’s housekeeper and his inner circle.

There hasn’t been a single instance where the parties have mutually agreed to a penalty in the form of property confiscation. This can be explained, in particular, by the fact that Article 77 of the Criminal Code of Ukraine does not allow imposing an additional penalty in the form of confiscation of property in case of release from serving the main sentence with probation.

What is the solution?

In our opinion, the conclusion of agreements in criminal cases, including corruption ones, should pursue both the goals of speeding up the trial, possibility of confiscation of criminal proceeds and the imposition of proportional punishment.

Hence, it is worth to consider broadening the range of criminal cases in which the option to reach an agreement is permissible. Furthermore, it is essential to deliberate whether participants in such agreements should have the liberty to negotiate the specific sentence that the accused will ultimately serve. For example, increase the amount of fines.

The practice of changing charges by SAPO prosecutors to reach an agreement with the accused is wrong. After all, according to national legislation, criminal qualification must correspond to the evidence collected during the pre-trial investigation.

Defendants engaging in negotiations with the investigation seek to derive personal benefits by either revealing instances of corruption or pleading guilty, thereby making the process more straightforward for the criminal justice authorities. And few of them would agree to 5-12 years in prison. Therefore, it is crucial to establish a genuine mechanism for assessing the fairness of the imposed sentence and to strip offenders of the illicit gains they have acquired.

This publication was prepared with the financial support of the European Union. Its content is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of the European Union.