Weekly analysis for 03 – 09 July

The Government proposes to expand grounds for plea bargaining in corruption cases: draft laws No. 11340, 11340-1 and 11340-2

Event

On June 14, the Cabinet of Ministers of Ukraine registered draft law № 11340 “On amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine for improving the efficiency of plea bargaining”. 

The document was developed to implement the State Anti-Corruption Program for 2023-2025 and the Ukraine Plan approved by the Government’s Resolution № 244-r of March 18, 2024 “On approval of the Ukraine Plan”, with the aim to implement the EU’s Ukraine Facility initiative introduced by Regulation of the European Parliament and of the Council (EU) №2024/792 of February 29, 2024.

The draft law improves the institution of plea agreements in connection with corruption and corruption-related offenses, namely by expanding the list of grounds for plea agreements, the possibility of imposing a fine as an additional punishment in case of a guilty plea where such a punishment is not provided for by an applicable article of the Criminal Code of Ukraine, etc.

On July 1, alternative draft laws №11340-1 (submitted by MPs O. Ustinova and Y. Yurchyshyn of the “Holos” party) and №11340-2 (submitted by MPs M. Pavliuk of the “Sluha narodu” party) were registered. The legislative initiatives are currently being considered by the specialized Committee of the Verkhovna Rada of Ukraine.

CPLR’s position

I. Context

The institution of guilty plea bargaining allows a suspect to make a rational choice in favor of the intended punishment in the future. The prosecutor has a wide range of proposals for this purpose, and the suspect, by agreeing to such a scenario, saves the state’s investigative resources. Ultimately, a suspect does not suffer from uncertainty associated wsith the long process and unknown punishment, so he or she avoids prolonged stress. In other words, this is a rational (economical) choice by both parties of the proceedings, the development of which is a global trend in the area of criminal justice [1].

The institution of guilty plea bargaining appeared relatively recently, in 2012, with the entry into force of the CPC of Ukraine. However, the use of plea bargaining in Ukraine is relatively limited. For example, a report by the European Commission on the Efficiency of Justice noted that the number of criminal cases that resulted in plea bargains in Ukraine was 0.001 per 100 inhabitants, while the average for European countries was 0.37, and the median was 0.07 cases per 100 inhabitants, respectively [2]. 

The situation is even worse in corruption cases. For a number of proceedings currently under the NABU’s investigation, the sole motivation is to release a person convicted on the basis of a guilty plea from serving a probationary sentence. However, it is worth noting that there is an excellent court practice regarding the possibility of release from serving a sentence with probation in case of entering into a plea agreement in criminal proceedings for corruption-related criminal offenses [3]. Therefore, the mechanism of plea bargaining for corruption-related criminal offenses in the Ukrainian legal system is presently ineffective and does not motivate suspects and defendants to cooperate with the investigation.

At the same time, experts suggested “expanding the range of motivations that can be used in negotiating plea agreements in proceedings investigated by the NABU” (2018) [4] and “to allow the application of conditional release from punishment or leniency based on plea agreements for corruption and corruption-related offenses under the jurisdiction of the NABU, subject to cooperation with the investigation and disclosure of a similar or more serious crime or the person who committed it” (2023) [5]. Specific proposals were enshrined in the State Anti-Corruption Program and the Ukraine Facility Plan, which are the focus of the Government’s initiative.

In general, the Government’s draft law achieves its goal of expanding the possibilities for the prosecution to encourage individuals to enter into guilty plea agreements, which will contribute to the compensation of damages caused by corruption, the inevitability of punishment. and the goals of criminal prosecution. At the same time, we have a few technical and substantive remarks, which are outlined below.

II. Concerning the amount of fine in case of entering into a plea agreement

The draft laws propose to supplement part 3 of Article 53 of the Criminal Code of Ukraine with provisions that provide for the imposition of a fine as an additional punishment in case of a plea agreement where such punishment is not provided for in the relevant article. In this case, the amount of the fine is set within the following limits:

1) from 12 thousand none-taxable minimum incomes (UAH 204 thousand) to 120 thousand none-taxable minimum incomes (UAH 2.04 million) – in case of a criminal misdemeanor;

2) from 121 thousand none-taxable minimum incomes (UAH 2.057 million) to 1 million 200 thousand none-taxable minimum incomes (UAH 20.4 million) – in case of committing a low-gravity crime;

3) from 1 million 201 thousand none-taxable minimum incomes (UAH 20.417 million) to 6 million none-taxable minimum incomes (UAH 102 million) – in case of committing a grave crime;

4) from 6 million 1 thousand none-taxable minimum incomes (UAH 102 million) to 12 million non-taxable minimum incomes (UAH 204 million) – in case of committing a particularly grave crime.

Such amounts of fines are not aligned with the general logic of the construction of provisions in the Criminal Code with corresponding ceilings. That is, not “up to 1 million 200 thousand” in case of committing a low-gravity crime and “from 1 million 201 thousand” in the case of a grave crime, but “up to 1 million 200 thousand” and “from 1 million 200 thousand”, respectively. The transition to 1 thousand between the limits of the amount of fines is a novelty of criminal law that requires justification.

III. Concerning the possibility of release from serving a sentence with probation

Draft Law № 11340 proposes to amend Article 75 of the Criminal Code of Ukraine with provisions according to which, in criminal proceedings concerning corruption and corruption-related offenses, the court will decide on release from serving a sentence with probation in case of approval of a guilty plea agreement if the parties to the agreement agree on release from serving a sentence of imprisonment for a term not exceeding 8 years, or another milder sentence, with probation. In this case, the probationary period is set by the court for a period of 2 years to 6 years.

While agreeing conceptually, we cannot ignore the fact that the logic of the regulatory material in Article 75 of the CCU is broken. First, the legislator sets out a rule (released…); then makes an exception to this rule (except…); and finally makes an exception to the exception (restrictions do not apply). At the same time, it does not explain why the exception cannot simply be eliminated – in this way, the rule will be formulated more clearly and understandably for its intended audience.

In addition, the provisions of Article 75 of the Criminal Code of Ukraine, according to which in case of committing the same crimes, some persons may be released from punishment and others may not, are hardly in line with the constitutional principle of equality before the law, depending, in particular, on which body conducts the pre-trial investigation.

IV. Concerning the grounds for entering into a guilty plea agreement

Draft Law № 11340 proposes to provide for the possibility of entering into a plea agreement in cases of particularly grave crimes under the jurisdiction of the NABU, provided that the suspect or accused fully or partially, taking into account the nature and degree of participation in the commission of the crime, compensates for the loss or damage caused, if any (amended Article 469 of the CPC of Ukraine). This ground is separate from the current clause 2 of part 4 of Article 469 of the CPC of Ukraine – disclosure by a suspect or accused of another person involved in the commission of a crime within the jurisdiction of the NABU, if the information about the commission of a crime by such a person is confirmed by evidence. In other words, either the person discloses evidence against other participants or compensates for the damage. This construction is criticized by the Anti-Corruption Action Center, which sees it as an opportunity for “top corrupt officials to pay off responsibility without necessarily disclosure of their accomplices and organizers and other schemes”.

An alternative draft law №11340-1 proposes to address this issue as follows: prohibition on entering a guilty plea in criminal proceedings for grave and particularly grave corruption criminal offenses with the organizer, on the one hand, coupled with the need for two conditions to occur simultaneously – “disclosure” + “compensation”.

Such a proposal is perceived variously by the professional community. Some see it as a safeguard against possible abuse by the SAPO, while others, on the contrary, see it as a reason for inefficiency due to the inability of the SAPO to “maneuver”, i.e. the limited options that the SAPO can offer to a suspect or accused.

In our opinion, the fewer restrictions on plea bargaining, the better. After all, this is the essence of the agreement, which the prosecutor offers at his or her own discretion. Indeed, achieving the goals of justice depends on the SAPO and their priorities. If they want to work “on the schemes”, they will offer deals only in case of disclosure. If they would rather prioritize compensation for damages (or even a “donation” to the Armed Forces, as demonstrated in the agreement with Zlochevsky), they will offer the full range of possible criminal procedural options, without disclosure and regardless of whether the person is a perpetrator or an organizer of the crime.

At the same time, draft Law №11340-2 represents a compromise in this regard – it does not restrict the SAPO from entering into an agreement with the organizer of the crime, but requires the achievement of two conditions mentioned above (disclose + compensation), i.e. without the possibility of compensation without disclosing the accomplices to the crime.

Moreover, all the draft laws lack the essential provision regarding the third condition of the agreement – if a person used his or her official position to commit a criminal offense, the court must deprive him or her of the right to hold it. Otherwise, this will result in a situation in which, as a result of the agreement, the person continues to occupy a position that made it possible to commit corruption in the first place.

V. Concerning the approval of a plea agreement with a higher-level prosecutor

The Draft Law № 11340-1 provides that, in criminal proceedings on corruption criminal and corruption-related offenses, entering into a plea agreement between the prosecutor and the suspect or accused requires the following levels of approval in criminal proceedings:

1) for a grave crime – consent of the head of the prosecutor’s office or his/her deputy;

2) for a particularly grave crime – consent of the Prosecutor General (acting Prosecutor General) or his/her deputy.

In criminal proceedings concerning a grave or a particularly grave crime under the jurisdiction of the NABU, a plea agreement between the prosecutor and the suspect or accused is entered into with the following approvals:

1) for a grave crime under the jurisdiction of the NABU – consent of the Head of the SAPO (acting Head of the SAPO) or the Deputy Head of the SAPO;

2) for a particularly grave crime under the jurisdiction of the NABU – consent of the Head of the SAPO.

Such an idea is also debatable. On the one hand, it is reasonable in view of the uncontrolled practice of entering plea bargains of very different quality, which will only worsen with the increase in the grounds and options available to the prosecution. Consent in this case will guarantee uniformity of practice and a certain safeguard against possible abuse. On the other hand, any requirements for consent would encroach on the procedural independence of the prosecutor, which arises from his or her equal status with all other prosecutors, including those of the highest level. Moreover, it is unlikely that the Prosecutor General has the time and ability to approve draft agreements, as his tasks, including procedural ones, are focused on other areas. Legislative changes of recent years that expanded the procedural powers of the Prosecutor General usually came at the expense of narrowing the scope of procedural independence of all other prosecutors.

Instead, the draft law №11340-2 does not require such approval from a higher-level prosecutor. In our opinion, this is a better idea, since in this case, the control over the observance of human rights and freedoms and the interests of justice in general is exercised by the court. There is no need for approval from a supervisor who may have a different position and may not be ready to take responsibility for such a procedural decision.

Overall conclusion

The institution of guilty plea bargaining should be improved. At the same time, both the Government’s draft law № 11340 and the alternative drafts №11340-1 and №11340-2 contain flaws and controversial provisions. The Government’s draft law needs to be revised taking into account the proposals made in the alternative draft laws. In our opinion, the grounds for applying agreements and the options which a prosecutor can offer to a suspect or accused should be broad. Thus, limiting its application to the necessity of fulfilling such conditions as disclosing accomplices and compensation for damage (and even a ban on entering into agreements with the organizer) is excessive.

Instead, none of the draft laws take into account the fact that after the plea is entered, such a person may remain in the office that made the corruption offense possible. Deprivation of the right to hold certain positions or engage in certain activities should be a mandatory condition of the agreement set forth in the CPC of Ukraine. 

At the same time, each agreement is the discretion of the prosecutor, who is procedurally independent and does not require approval from a higher-level prosecutor. This is especially true when it comes to the Prosecutor General, whose procedural powers are increasing each year, which does not contribute to the fulfillment of his/her powers as the head of the prosecution system.

1. Krapyvin Ye. 1% of acquittals in Ukraine and the United States: why it is important to interpret criminal statistics correctly? // JustTalk, 21.12.2021 // URL: https://justtalk.com.ua/post/1-vipravdanih-v-ukraini-ta-ssha-chomu-vazhlivo-pravilno-tlumachiti-dani-kriminalnoi-statistiki?fbclid=IwAR0bbeb5kOho_6nuzlW_6siXH3dKdtaR_R9AAgJ4JHSr_frMKKo9xPmhFXg
2. European judicial systems: CEPEJ Evaluation Report. Part 1: Tables, graphs and analyses. 2020 Evaluation cycle, 2018 data (CEPEJ, 2020; p. 126) / URL: https://rm.coe.int/evaluation-report-part-1-english/16809fc058.
3. Shortcomings of judicial practice in relation to exemption from serving a sentence of probation for corruption offenses (Supreme Court; H. Zelenov, O. Kvasha, 2020) / URL: https://supreme.court.gov.ua/supreme/prescentr/zmi/1049114/
4. Expert analysis of the activities of the National Anti-Corruption Bureau of Ukraine (NABU; К.Tarazhka, Е.Johnson, F. Denker, D. Kotliar, 2018; ст. 46-47) / URL: https://nabu.gov.ua/sites/default/files/page_uploads/25.04/nabu_assessment_report_ukr.pdf
5. Technical assessment of the National Anti-Corruption Bureau of Ukraine activities for 2023 / URL: https://nabu.gov.ua/site/assets/files/47003/tekhnichna_otcinka_nabu_2023_ua-1.pdf

ECtHR issues final judgment in the “Crimean case”

Event 

On June 25, 2024, the European Court of Human Rights announced its judgment on the merits in the case of “Ukraine v. Russia (concerning Crimea)”.

In the final judgment, the Court found that Russia pursues a systematic policy of human rights violations in the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol and violates the rights of Ukrainian political prisoners.

CPLR’s assessment

Last December, the ECtHR heard the merits of the case on human rights violations in Crimea, the proceedings which began in 2014. In its final judgment delivered in June of this year, the Court concluded that the Government of Ukraine had succeeded in proving that Russian state bodies and persons under Russia’s control had committed numerous violations of the rights and freedoms guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR) and its Protocols. Russia, by its actions constituting administrative practice, had violated the provisions of approximately 13 articles of the Convention in total, as well as 3 articles of the First and Fourth Protocols.

In particular, the Court recognized violations of Article 2 of the ECHR (practice of enforced disappearances and lack of effective investigation into credible allegations of such practice), Article 3 of the ECHR (practice of ill-treatment of Ukrainian military personnel, ethnic Ukrainians, Crimean Tatars and journalists, Ukrainian political prisoners both in Crimea and Russia and lack of effective investigation, degrading conditions of detention of Ukrainian political prisoners in Crimea), Article 1 of the First Protocol (the practice of illegal large-scale disproportionate expropriation of property of civilian and private enterprises in Crimea without compensation) and others.

In its final judgment in this case, the ECtHR was the first international court to recognize Russia as responsible for a policy of large-scale and systematic violations of human rights and freedoms in the temporarily occupied territory of Crimea. For example, as noted by the Commissioner for the European Court of Human Rights M. Sokorenko, the Court recognized a number of violations under the Convention, such as the application of Russian legislation in the occupied territory, illegal courts, and forced change of citizenship, for the first time in its practice.

The context of this unprecedented verdict, which often remains unnoticed, is important. In fact, this case concerning Crimea is one of several cases pending before the ECtHR. Since 2014, Ukraine has filed a number of interstate lawsuits against Russia with the Court. In addition to human rights violations in Crimea, the applications also concern Russia’s actions that constitute violations of the rights of residents of the temporarily occupied territories of certain districts of Donetsk and Luhansk regions, crimes during the full-scale invasion, the seizure of Ukrainian warships in the Kerch Strait, and targeted killings of opponents of the russian regime.

The court grouped these 10 Ukrainian claims into 4 proceedings:

1) Ukraine v. Russia (re Crimea) (applications № 20958/14, 38334/18) concerning human rights violations in Crimea since February 2014 (the “Crimean case”);

2) Ukraine and the Netherlands v. Russia (№№ 8019/16, 43800/14, 28525/20, 11055/22) concerning human rights violations in the occupied areas of Donetsk and Luhansk regions since 2014, as well as crimes committed during the full-scale invasion (jointly with the application Ukraine v. Russia (X), joined by the Court in February 2023);

3) Ukraine v. Russia (VIII) (№ 55855/18) concerning the seizure of three Ukrainian Navy ships with their crews in the Kerch Strait in November 2018;

4) Ukraine v. Russia (IX) (№ 10691/21) concerning the practice of systematic operations to kill opponents of the russian regime on the territory of Russia and other states, including members of the Council of Europe.

Clearly, the Crimean case is based on two lawsuits filed by Ukraine in 2014 and 2018, before the full-scale invasion of Ukraine by the Russian armed forces. The lawsuit regarding human rights violations in Crimea was the very first interstate application filed by Kyiv after the start of Moscow’s hybrid aggression. This case was the first of four proceedings in which the Court delivered a judgment on the merits.

It should be noted that not both the final verdict delivered by the Court at the end of last month, as well as two interim judgments delivered in the Crimean case in 2021 and in the Ukraine and the Netherlands v. Russia case in 2023, are of value to Ukraine. In those latter judgments on admissibility, the Court recognized the fact that Russia seized and established actual (effective) control over Crimea on February 27, 2014, and over certain areas of Donetsk and Luhansk regions on May 11, 2014, which continues to this day. Thus, the ECtHR became the first, and so far the only, international judicial institution to recognize Russia’s seizure and control of Ukrainian territories from a specific date in 2014.

Moreover, by ruling in its interim decision of 2023 to join the Ukraine v. Russia (X) lawsuit regarding violations during the full-scale invasion to the aforementioned Donbas proceedings, the Court emphasized the continuity of Moscow’s crimes and de facto confirmed that the fighting in the eastern regions of Ukraine in 2014-2022 was part of Russia’s decade-long aggression.

In the interim decisions and the recent final judgment, the Court recognized that it is Russia, as the country that has exercised de facto control over the Crimean Peninsula and certain areas of Donetsk and Luhansk regions since 2014, that is responsible for any human rights violations committed in these temporarily occupied territories of Ukraine. With these rulings, the ECtHR has destroyed Moscow’s narrative about the “expression of the will of the people of Crimea and Donbas”, “legitimate accession to Russia”, and respect for human rights in Crimea.

In addition, on June 12, 2024, an oral hearing on the merits in the joint proceedings brought by Ukraine and the Netherlands regarding Russia’s violation of human rights since 2014 after the occupation of part of Donbas and in the context of a major invasion took place. Thus, Kyiv is currently waiting for the announcement of another final judgment of the Court.

It is worth noting that due to its expulsion from the Council of Europe, Russia ceased to be a party to the ECHR on September 16, 2022. Accordingly, the Court is currently considering only those applications from individuals and states that were filed before that date and relate to violations committed by the Russian regime before that date.

Nevertheless, a logical question arises: if Russia refuses to comply with the Court’s verdicts (given its disregard for the decisions of other international courts and resolutions of intergovernmental organizations), how can it be held responsible? Russia’s recent release and return to Ukraine of a group of Ukrainian civilians, including N. Dzhelial (the first political prisoner from Crimea since 2019), can hardly be considered as a step by Moscow to comply with the ECtHR judgment, one of the requirements of which is the immediate release of Ukrainian political prisoners.

Under these circumstances, the Court and the Council of Europe are actively seeking creative and effective ways to address this issue. For example, the International Compensation Mechanism for Ukraine, which has already begun to be established under the auspices of the Council of Europe, should play a crucial role in ensuring Russia’s accountability.

On the other hand, based on the Court’s judgments, Ukraine can already seek full and unconditional international accountability for Russia and criminal liability for its controlled persons for their involvement in the armed aggression and related grave offenses over the past 10 years. Russia’s responsibility as a state for violating its international legal obligations, in particular with regard to the protection of human rights, can be initiated before the International Court of Justice.

It is also important to remember that bringing Russia to justice and forcing it to compensate for the damage caused should be an important component of the national model of transitional justice, which is still being developed but can help Ukraine overcome the consequences of the war and gain a strategic victory over Russia.