Plea bargain with the investigation = payoff from criminal liability?

Recently, the Verkhovna Rada adopted in the first reading Draft Law 11340, which proposes to expand the possibilities of concluding a plea bargain with the investigation. This news has been in the headlines, but it is still unclear what plea bargaining is all about and what the EU has to do with it.

Did the first reading really approve the possibility to “pay off” criminal liability for corruption? Experts of the Center of Policy and Legal Reform Yevhen Krapyvin and Olga Piskunova explained this for LB.ua.

Here are the key points from the article.

 Corruption and Ukraine’s membership in the EU

When Ukraine applied for EU membership in 2022, it received seven recommendations in response. Their fulfillment was a prerequisite for acquiring the status of a candidate state. Among them were both very specific and measurable steps and very vague and unclear wording, such as strengthening the fight against corruption, in particular at the high level, through active and effective investigations, as well as ensuring the proper dynamics of court cases and sentences.

Corruption offenses are so-called “white-collar” offenses. As a rule, most of the evidence in such offenses is contained in documents, and proving guilt requires a thorough search of these documents and complex, sometimes lengthy, examinations. A plea bargain greatly simplifies and shortens this process, as the suspect pleads guilty to the crime, receiving in return guarantees of a less severe punishment and understanding the essence of this punishment before going to court.

The prosecution also benefits from this, as it saves investigation resources that could be spent on other proceedings, including those where the person does not plead guilty. Sometimes plea bargains are concluded in proceedings with minimal judicial prospects, especially when key evidence cannot be obtained or when the time limit for prosecution has expired.

Such agreements are much more likely to achieve the goals of criminal justice, including the inevitability of punishment, than the closure of proceedings at the pre-trial investigation stage, acquittals or dismissals of corruption cases due to the expiration of the statute of limitations, which is often seen in courts.

Thus, expanding the possibility of entering into a plea bargain could ensure the proper dynamics of court cases and sentences, as recommended by the European Commission.

What is a plea bargain?

In criminal justice, this is a fairly old and widespread practice that gives the prosecutor options and the ability to make a mutually beneficial offer to the suspect. In doing so, the state saves detectives, prosecutors, judges, and budgetary funds, which are extremely important resources in our country during the war, and the suspect receives a predictable punishment for pleading guilty. Such an agreement must be approved by the court.

Plea bargaining is a global trend. For example, in the United States, more than 90% of proceedings end with a plea bargain, as this model is effective.

In Ukrainian criminal procedure legislation, this institution emerged only in 2012 and has not yet become a common practice. The stumbling block here is the rather limited choice of options that both parties can offer each other. This choice is essentially limited to the possibility for a suspect to mitigate his or her sentence in exchange for information about another crime. However, when a person does not have such information, this possibility is reduced to zero.

Ultimately, the court proceedings imply that one of the parties will lose as a result of a lengthy process, which can sometimes last for 10 years or more.

The issue of limited choice became particularly acute with the launch of specialized anti-corruption institutions: The National Anti-Corruption Bureau of Ukraine (NABU), the Specialized Anti-Corruption Prosecutor’s Office (SAP) and the HACC. Discussions between criminal justice experts and representatives of the anti-corruption infrastructure on expanding the possibilities of entering into plea agreements in cases investigated by the NABU have been going on for more than five years.

Expanding the grounds for entering into plea bargains is included in the Ukraine Facility Plan, which contains Ukraine’s commitments under the EU’s financial support. It is also one of the measures of the State Anti-Corruption Program to implement the Anti-Corruption Strategy.

Thus, Draft Law 11340 is aimed at implementing two programmatic documents that are important for the European integration process.

Plea bargain with the investigation = payment off criminal liability?

Of course not. This is a distortion of the facts. Both the prosecution and the defense can initiate a plea agreement. However, the final decision is exclusively up to the prosecutor, who has the right to choose whether to accept the deal or not. No one can force him or her to offer a deal to a suspect or to accept the proposed deal.

In the case of top corruption cases, the final decision rests with the Specialized Anti-Corruption Prosecutor’s Office, whose head and prosecutors were selected on a competitive basis with the participation of international experts. And earlier this year, the SAP was granted autonomy and even greater independence from the Prosecutor General’s Office. Thus, it can be assumed that anti-corruption prosecutors will definitely act exclusively in the interests of the investigation. This is even more so if we take into account that a plea agreement must be agreed with the head of the SAP. Finally, such an agreement must be approved by the HACC, which means that there is judicial control over compliance with the procedural form.

Technically, it looks like this: draft law 11340 proposes to allow plea bargaining in particularly serious crimes under the jurisdiction of the NABU, provided that the suspect or accused compensates for the damage or harm caused. Such an agreement must be agreed with the head of the SAPO and approved by the anti-corruption court.

Is it a victory or a betrayal?

Draft Law 11340 is not perfect. After its publication, experts have already expressed criticism. The draft law did not find support from the Verkhovna Rada’s Anti-Corruption Committee, and it also received a number of comments from the Parliament’s Main Scientific and Expert Department. But the most emotional criticism came from some civic activists.

It is worth recalling and explaining a few important things here.

As noted above, the development of a draft law that would provide for the possibility of entering into agreements with the investigation subject to compensation for losses or damage and exemption from serving a sentence for corrupt officials is included in the State Anti-Corruption Program, the draft of which went through a series of public discussions and approval by all interested public authorities at the end of 2022. However, this particular item did not raise any comments from either the public or representatives of the anti-corruption infrastructure. It is hard to say what caused such outrage now.

SAP prosecutors did not object to such changes (and informally supported them). At the last moment, after the conclusion of the Rada’s anti-corruption committee, the SAP changed its mind, explaining: “the possibility of agreeing on a less severe punishment under a plea agreement than the sanction of an article of the Criminal Code, including for a particularly serious corruption crime, without the obligatory exposure of another person in committing a crime… does not meet the purpose of concluding plea agreements, which should help expose the organizers of crimes through cooperation with other accomplices. In our opinion, the exposure of the organizers of a corruption criminal offense should be an essential condition for concluding such agreements.”

However, neither activists who criticize this draft law nor journalists mention that only the first reading took place, not the final adoption of the document. Moreover, almost no one paid attention to the fact that the Verkhovna Rada decided to finalize the text of the draft law, which means that there is a chance that all the controversial provisions will be changed.