Date of publication: 11 November 2024
Kostiantyn Kryvenko, Attorney at Law, Counsel
Source: Forbes Ukraine
On 31 October, Volodymyr Zelenskyy signed Law No. 4033-IX “On Releasing Corrupt Officials from Prison by Negotiating Plea Bargains”. The introduction of a fair mechanism for plea bargains was Ukraine’s commitment to the EU to receive funds under the Ukraine Facility Plan. What can those accused of corruption expect and how can this law be turned into an effective mechanism that promotes the adversarial nature of criminal procedure?
There was uncertainty over the provision of EUR 4 billion in aid to Ukraine from the EU under the Ukraine Facility. Ukraine violated the deadlines for fulfilling the conditions related to the adoption of the draft law On Plea Bargains in Corruption Cases, the Ministry of Foreign Affairs of Ukraine said at the end of October. The latter noted that Ukraine had to fulfil this condition by the end of 2024.
However, on 29 October, the Verkhovna Rada adopted draft law No. 12039 “On Plea Bargains”, and on 31 October, Volodymyr Zelenskyy signed it.
Plea Bargaining Institute
Law No. 4033-IX restores the Plea Bargaining Institute’s attractiveness in corruption criminal proceedings. It allows those convicted of corruption to avoid actual imprisonment by replacing it with probation or other mitigating punishment, which has actually been banned since 2015.
The plea bargain between the prosecutor and the suspect or accused (except for an unqualified confession in the alleged crime) shall include the latter’s fulfillment of certain conditions: exposure of other corrupt officials and compensation for damages. If the person acted independently, compensation alone would be sufficient.
The mechanism of plea bargaining will not to overload anti-corruption agencies and expose more corrupt officials. It will also encourage those who have been caught to surrender to investigating authorities.
There are cases when people are used or do not fully understand their consequences. This will help get out of the situation with dignity. After all, what is corruption according to the law is not always corruption in the public’s perception. For example, when a person, in his opinion, acted in the interests of the company or the country, made non-standard management decisions aimed at achieving a positive result, but failed to achieve it for certain reasons. Thus, he may be accused of abuse of office, which caused damage.
In general, changes on entering into plea bargains do not seem fair to the public, since these cases are rather rare.
However, to ensure fairness, the legislator has provided other sanctions. These include additional penalties in the form of partial or full confiscation of property, prohibition to hold certain positions or engage in certain activities, as well as the imposition of fines exceeding UAH 200 million, which are outrageous under criminal law.
Plea Bargaining Institute in criminal procedure is improving, therefore changes can be assessed positively. Corruption-related criminal offences or corruption-related crimes are not limited to giving and receiving a bribe. Most often, the circumstances under study are complex, intricate and multitiered relations arising between a country and a business. Therefore, both parties should have the right to settle on mutually beneficial terms.
Ukraine’s corruption problem is systemic, and to solve it, it is not enough to expose individual representatives and cover it in the media. It is necessary to form a public opinion about corruption objection as a component of solving difficult situations in life. This is necessary to achieve the desired results.
It is unlikely that public punishment of certain individuals will result in much progress until that awareness spreads to at least a majority of the population. Therefore, these amendments can be implemented in a country that aims to combat corruption as a phenomenon and, therefore, allows for the loss of quality at the expense of quantity.
The main focus of public attention to this law (apart from the fact that it was adopted under pressure from partners to receive billions in financial aid) is that a corrupt official can buy his way out of punishment. However, it is worth remembering that in such cases, corrupt officials lose all their property and other assets, so the situation does not look so grim.
The last resort
The biggest problem with the amendments to the Criminal Code is who will decide whether a corrupt official should serve his sentence or enter into a plea bargain?
If, as a general rule, only the court has the authority to determine the punishment in the event of conviction of a person for committing a crime, then Law No. 4033-IX partially transfers this role to the prosecutor. The prosecutor’s willingness to negotiate with the suspect or accused determines if a person receives a real prison sentence, probation with a fine, or confiscation. Entering into such a plea bargain is a prosecutor’s right, not an obligation.
A second nuance to such bargains is that they can encourage someone to admit guilt even when there is no guilt. In such circumstances, it would be advisable to allow the court to decide on an alternative punishment, not involving imprisonment in cases where the accused repents, exposes accomplices, compensates for the damage and agrees to plead guilty.
That is, to give the court, following the results of a general trial, the opportunity to impose other punishments not related to detention, which could fairly punish the accused of corruption.
Such a concept could contribute to the adversarial nature of the criminal process, and not just reduce everything to a choice between admitting guilt and imprisonment.
