Weekly analysis for 08 – 15 October

Verkhovna Rada adopted draft law on plea agreements in corruption cases as a basis

Event

On October 9, the Verkhovna Rada of Ukraine adopted as a basis the draft law № 12039 “On amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine for improving the regulation of plea agreements in criminal proceedings related to corruption and corruption-related criminal offenses” of September 17, 2024.

The draft law includes the following provisions:

1) the possibility of imposing an additional penalty in the form of a fine on the convicted person, when it is not specified in the article’s sanction, exclusively in corruption cases where a plea agreement is approved by the court and there is an agreement between the parties regarding the additional penalty in the form of a fine (from 340000 to 2 040 000 UAH for a minor offense; from 2 040 000 to 4 590 000 UAH for a serious offense; and from 4,590,000 to 204,000,000 UAH for a particularly serious offense);
2) the possibility of imposing a lighter penalty than provided by the law in cases where such an agreement is made;
3) the possibility of applying property confiscation in cases where the person is release from serving the sentence with probation under such an agreement;
4) clarification of the grounds for entering into a plea agreement (amendments to Article 469 of the Criminal Procedure Code of Ukraine);
5) the requirement to obtain approval for plea agreements from the leadership of the prosecutor’s office at the relevant level and specialization (amendments to Article 470 of the Criminal Procedure Code of Ukraine);
6) the possibility to amend an existing agreement or enter into a new one at any stage before the court retires to the deliberation room, as well as the ability to resubmit the revised agreement once if it is not approved by the court (amendments to Article 474 of the Criminal Procedure Code of Ukraine).

Let us remind, that the adoption of the relevant draft law is stipulated in the resolution of the Cabinet of Ministers of Ukraine “On approving Ukraine’s plan” of March 18, 2024, № 244-р. This resolution aims to implement the European Union initiative “Ukraine Facility” established by Regulation (EU) of the European Parliament and Council (EU) of February 29, 2024, № 2024/792.

CPLR’s assessment

On July 18, 2024, the Verkhovna Rada of Ukraine adopted the draft law titled “On amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine for improving the efficiency of plea bargaining” in its first reading (reg. № 11340, of June 14, 2024). This draft addresses nearly identical issues as draft № 12039. Currently, draft № 11340 is being prepared for consideration by the parliament in its second reading.

The experts of the CPLR have already analyzed draft law №11340 (The Government proposes to expand grounds for plea bargaining in corruption cases: draft laws No. 11340, 11340-1 and 11340-2 – July 9).

Draft law №11340 gained significant public attention, and following its revision by the working group of the Verkhovna Rada committee on law enforcement, a new version was submitted in the session hall as №12039 by a group of MPs. This version received support from anti-corruption agencies and the relevant Committee. It seeks to balance all the pro et cons expressed during the public discussion on this topic.

The core idea of draft law №11340 remains unchanged: to create an effective tool for combating corruption-related criminal offenses that equips the prosecution with maximum resources to encourage the disclosure of as many such crimes as possible. This approach seeks to ensure the inevitability of criminal responsibility, even when imposing a lighter penalty than that prescribed by the Criminal Code. To achieve this goal, the proposal aims to expand the use of plea agreements for corruption-related offenses by allowing for the imposition of reduced penalties, the payment of fines, etc.

Regarding the substantive part

The amendments to part 3 of Article 53 of the Criminal Code of Ukraine propose establishing a fine as an additional penalty by mutual agreement of the parties, with the amount determined based on the severity of the crime (the relevant amounts are listed above).

However, this approach does not adhere to the principle of individualized punishment. For instance, if a deputy minister accepts a promise of unlawful benefit (a particularly grave felony), a fine of 4.5 million UAH is excessive, let alone 204 million UAH. Conversely, if an oligarch bribes a deputy minister (a grave felony), the maximum fine is only 4.5 million UAH. In contrast, in cases of embezzlement of state property in particularly large amounts (also a particularly grave felony), a fine of 4.5 million UAH may be insufficient. This indicates that the amount of the fine should depend not only on the severity of the crime but also on the extent of the damage caused and the nature of the bribe. While it is understandable that the legislator seeks to establish minimum and maximum limits based on the severity of the crime, each plea agreement is an individualized procedural step. Therefore, the prosecution should not be constrained in imposing a fair fine that corresponds not only to the severity, but also to the extent of the damage and the nature of the unlawful benefit.

Regarding the procedural part

The key change compared to the previous draft law is the narrowing of the grounds for entering into a plea agreement. The current proposal permits plea agreements in corruption cases (corruption and corruption-related criminal offenses) based on two alternative grounds:
1) on the condition that the suspect or defendant reveals the identity of another individual (or individuals) involved in committing any corruption or corruption-related criminal offense. This must be supported by evidence corroborating the involvement of that individual(s) in the criminal act. Additionally, there is a requirement for full or partial restitution of any damages or harm caused (if such damages or harm occurred), taking into account the nature and degree of the individual’s participation in the crime (paragraph 2 of part 4 of Article 469 of the Criminal Procedure Code of Ukraine). Furthermore, a plea agreement can only be reached between the prosecutor and a suspect or defendant who is the organizer of the crime if he/she disclose the identity of another organizer involved in the corruption or corruption-related criminal offenses.
2) in the absence of any evidence of complicity, as proved by the criminal proceeding materials, under the condition of the suspect or accused full reimbursement for any damages or harm incurred (if any). This applies only to corruption-related criminal offenses, including minor or serious corruption crimes, as well as other corruption-related criminal offenses (paragraph 2-1 of part 4 of Article 469 of the Criminal Procedure Code of Ukraine).

Thus, in the relevant category of cases, if the crime was committed in complicity, a plea agreement can only be reached if the individual discloses the identities of other participants (and, in the case of an organizer, another organizer) and provides full or partial compensation for the damages incurred. In the case of a corruption-related criminal offense (excluding particularly serious offenses) committed individually, full restitution for the harm caused by the offense is mandatory.

The extension of the grounds specified in paragraph 2 of part 4 of Article 469 of the Criminal Procedure Code of Ukraine to corruption-related criminal offenses raises concerns. According to the note to Article 45 of the Criminal Code of Ukraine, corruption-related criminal offenses include those outlined in Article 366-2 (Declaring false information) and Article 366-3 (Failure to submit a declaration by an individual authorized to perform the state or local self-government functions). In practice, it is challenging to imagine a scenario in which the exposure of false information in a declaration or the commission of such a crime would involve complicity, including as an organizer or other accomplices, in a corruption-related offense.

From a procedural perspective, the principles governing plea agreements remain unchanged: they can be initiated by either the prosecution or the defense. However, the final decision to enter into an agreement lies with the prosecution, specifically the prosecutor handling the case. Once reached, the agreement must be approved by the court, which ensures adherence to the requirements of criminal procedural law.

The provisions requiring prosecutors to seek approval for plea agreements from higher-level prosecutors (amendments to Article 470 of the Criminal Procedure Code of Ukraine), applicable to all cases – not just corruption – seem to unduly limit the procedural independence of prosecutors in criminal proceedings. These amendments not only legitimize the practice of such approvals but also reinforce specific provisions of Prosecutor General Order №309, which outlines forms of oversight by higher-level prosecutors. While there is a valid need for a consistent approach to implementing criminal policy and preventing unjust or unfounded agreements, this requirement places prosecutors in a position of procedural dependence on their supervisors. Therefore, given the public outcry over the fight against corruption and the strong public criticism of lenient sentences for corruption-related offenses that fall below the legal minimum, such provisions regarding approval may be acceptable for the SAP (though still undesirable). However, for general criminal offenses, these provisions are clearly inappropriate and should be removed prior to the second reading.

Therefore, the proposed solution can be assessed positively: for individual criminal offenses (which statistically make up the majority), the prosecutor has a wide range of tools to encourage suspects or defendants to enter into an agreement. Measures such as restitution, the payment of fines, and other tools can promote the disclosure of a greater number of criminal offenses. However, in cases involving particularly serious crimes or those committed by a group, where public outcry against the use of more lenient measures than those stipulated by the criminal law is substantial and perceived as unjust, such tools should be employed only in exceptional circumstances. Specifically, they should be used to maximize efforts in uncovering large-scale criminal offences. Therefore, the draft law should be supported as a whole, taking into account the comments provided and their finalization for the second reading.

The work of the Constitutional Court of Ukraine could be blocked as early as January 2025

Event

It has been over a year since the first competitive selection process for judges of the Constitutional Court of Ukraine (CCU) launched under a new procedure, that involves candidate assessments by the Advisory Group of Experts. So far, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine have managed to fill only two vacancies by appointing two new judges of the CCU. However, other vacant positions remain unfilled.

In preparing the Monitoring Report on the new competitive selection process for the position of a judge of the CCU, experts of the CPLR revealed that it took 269 days (more than seven months) for the Verkhovna Rada’s Committee on Legal Policy and the Council of Judges of Ukraine to move from the announcing of the competition to the delivering ranked candidate lists to the appointing authorities. In contrast, the competition conducted by the Competition Commission, responsible for selecting candidates for the position of a judge of the CCU appointed by the President of Ukraine, lasted only 153 days (five months). This shortened duration was due to the fact that only one candidate was found to meet the “high moral character” criteria, which halted further competition.

With each announcement of repeated competitive selections, there is a clear trend of reducing the number of persons expressing intention to participate in the competitive selection for the position of a judge of the CCU. Given the long selection process and remaining unfilled vacant positions, it seems likely that the selection of the CCU judges may become a continuous one.

As of October 2024, there are still four vacant positions to be filled by the appointing authorities: one by the President of Ukraine, two by the Parliament, and one by the Congress of Judges. Additionally, three more vacancies are anticipated to arise on January 27, 2025.

Currently, the CCU operates with 14 judges, while a full complement requires 18 judges. According to Article 10 of the Law  № 2368-VIII, the Court  is authorized to conduct constitutional proceedings with at least 12 judges at its membership. While the decision of the Grand Chamber requires at least 10 votes.

Expert assessment

In such circumstances, there is a significant risk that if at least one judicial position at the CCU remains unfilled by the end of January 2025, the Court could lose its ability to function, as the number of judges would fall below the required minimum of 12.

The potential paralysis of the only body of constitutional jurisdiction, which is essential for safeguarding the constitutional rights and freedoms of individuals, is unacceptable in a democratic country like Ukraine. Moreover, a non-functioning CCU threatens Ukraine’s EU integration process, as reforming the CCU is one of the seven key requirements set by the European Commission for confirming Ukraine’s candidate status for EU membership. If the CCU becomes unable to rule, Ukraine’s international partners may interpret this as a regression in critical reforms and a failure to meet the criteria outlined in Negotiation Chapter 23 “Judiciary and fundamental rights” within Cluster 1 “Fundamentals of the EU accession process”. This chapter is among the most complex and challenging, especially for Ukraine, and failing to meet its requirements could significantly delay the opening of other negotiation clusters, slowing the country’s progress toward EU membership.

Recommendations

1. All institutions involved in the selection process must take all possible measures to maintain the continuity of the CCU’s operations.

To achieve this, the Advisory Group of Experts should complete the assessment of candidates eligible for selection under the Parliament and the Council of Judges of Ukraine quotas by no later than one month before January 27, 2025. According to the Law of Ukraine “On the Constitutional Court of Ukraine” the Advisory Group of Experts can assess candidates based on the criteria of high moral character and recognized competence in the area of law simultaneously. Additionally, they also have the authority to complete the selection process earlier than the legally maximum mandated four-month period.

1. Amend the Law of Ukraine “On the Constitutional Court of Ukraine” by January 26, 2025, to reduce the required number of CCU judges to 10 or 11 in order to ensure the Court’s continued authority.

The number of judges required for the CCU’s authority is specified in the Law of Ukraine “On the Constitutional Court of Ukraine”.

The Verkhovna Rada of Ukraine may prevent the obstruction of the CCU’s operations by reducing the number of judges required for the Court’s authority to 10 or 11 (requires amending Article 10 of the Law of Ukraine “On the Constitutional Court of Ukraine”). If the required number of judges is reduced, it would be advisable to revise the decision-making process and opinion-issuing criteria to mandate a two-thirds majority of judges participating in a case. Additionally, establishing a quorum for plenary sessions of the CCU’s Grand Chamber should be considered.

• If amending the Law of Ukraine “On the CCU” it is also important to improve the regulations concerning the disciplinary responsibilities of the CCU judges and conflicts of interest. Such amendments would be positively assessed by international partners.