The number of criminal proceedings based on agreements, including guilty plea agreements, in Ukrainian courts has increased by a third over the past four years.
The institution of agreements in the Ukrainian criminal process was first introduced by the current Criminal Procedure Code of Ukraine in 2012 (hereinafter – CPC). The main goal of this innovation is to save procedural and material resources by shortening proceedings, relieving pre-trial investigation bodies and courts, the possibility of determining and to some extent guaranteeing the suspect/accused person a softer punishment, which in turn encourages the latter to cooperate with the investigating authorities in solving criminal offenses.
At the same time, this innovation has created certain risks of abuse of power by pre-trial investigation bodies and prosecutors who provide procedural guidance. There have been cases where the dishonest prosecution side persuaded the suspect/accused person to enter into a guilty plea agreement in order to obtain improved crime detection statistics, while in reality, the prosecution did not have sufficient evidence to prove the elements of the alleged criminal offense, and in court proceedings, it could not prove the person’s guilt.
As practice shows, the prosecution partly makes significant efforts to persuade the suspect/accused person to admit guilt to a less serious criminal offense instead of dropping the charges for a more serious criminal offense, the evidence of which they fail to obtain. There are also cases of pressuring to incriminate others in committing a criminal offense as a “condition” for entering into a guilty plea agreement.
Despite the fact that the institution of agreements in criminal proceedings has been used for 13 years, it cannot be claimed that there is a consistent practice of its application, especially in the context of agreeing on punishment by the parties to the agreement.
When determining punishment in an agreement, its parties should be guided by the provisions of chapters X, XI, and XII of the Criminal Code of Ukraine. Regarding exemption from punishment provided for in ch. XII of the Criminal Code, which is actually a conviction without punishment (part 4, 5 of Art. 74 of the Criminal Code, part 2 of Art. 84 of the Criminal Code and the last paragraph of the Resolution of the Plenum of the Supreme Court dated 24.10.2003 No. 7 “On the practice of imposing criminal punishment by courts” (hereinafter – Resolution), I believe that such a state’s response to the committed criminal offense can be the subject of an agreement only when the “exemption from punishment” is a right of the court, not its obligation. In the presence of grounds for mandatory exemption (part 5 of Art. 74 of the Criminal Code and the last paragraph of point 8 of the Resolution), it must be carried out imperatively without entering into any agreements.
The issue of the necessity for the prosecutor (and the defense attorney), not the court, to determine the final punishment in an agreement in the presence of a combination of criminal offenses (Art. 70 of the Criminal Code) or sentences (Art. 71 of the Criminal Code) remains debatable. When concluding an agreement in the presence of a combination of criminal offenses, it should be remembered that it is impossible to enter into a guilty plea agreement if there are victims of at least one offense that constitutes this combination. In this case, a reconciliation agreement may be concluded, with the separation of materials regarding such victim into a separate proceeding, and then it is possible to enter into a guilty plea agreement regarding another/other criminal offenses without victims. Of course, in such cases, the agreement parties must determine the final punishment for the person in accordance with the provisions of Art. 70 of the Criminal Code. As for determining the final punishment in the presence of grounds for applying the provisions of Art. 71 of the Criminal Code, the problem may be the lack of materials from another criminal proceeding, based on which the final punishment for the combination of sentences will be determined. However, if there is an opportunity to obtain and use such materials, the parties in the agreement must determine the final punishment for the combination of sentences.
When agreeing on punishment in agreements, it is mandatory for its parties to apply the provisions of Art. 72 of the Criminal Code “Rules for the imposition of punishments and the calculation of the period of pre-trial detention, house arrest,” especially since these provisions, except for part 6, are mandatory for application. It should be noted that there is also no unified position regarding the inclusion of pre-trial detention in the final punishment term, particularly in the prosecutor’s offices, which do not include this term in the agreed punishment term. In my opinion, this constitutes a violation of part 5 of Art. 72 of the Criminal Code of Ukraine and should be a reason for the court not to approve the agreement due to the incorrect application of the provisions of the Criminal Code (point 3 of part 7 of Art. 474 of the CPC).
When agreeing on the conditions of applying the institution of exemption from serving the court-imposed punishment with probation (Art. 75 of the Criminal Code) by the parties (prosecutor and suspect/accused person) in a guilty plea agreement, the question also arises regarding the subject (prosecutor, defense attorney, court) who should determine the probation period, list of duties imposed on the convicted person, etc. The judicial practice on this issue is also inconsistent. An overview of the judicial practice on this issue is available at the following link.
When agreeing on punishment within a guilty plea agreement using the prosecutor’s institution of exemption from serving the court-imposed punishment with probation, all the norms of this institution (Art. 75-78 of the Criminal Code) should be applied in full, not partially (part 1 of Art. 75 of the Criminal Code), as often happens in practice. That is, the parties to the guilty plea agreement must specify in the agreement text: 1) the main punishment imposed on the person within the sanction of the Special Part of the Criminal Code (Art. 65-67); 2) the presence of grounds and conditions for applying exemption from serving the punishment with probation (Art. 75 of the Criminal Code); 3) determine the probation period for the person planned to be exempted from serving the punishment with probation (Art. 75 of the Criminal Code); 4) agree and list the duties to be imposed on the convicted person (Art. 76 of the Criminal Code); 5) clarify the possibility of applying or not applying mandatory additional punishments to the person (Art. 77 of the Criminal Code); 6) if necessary, include the pre-trial detention period of the person (part 5 of Art. 72 of the Criminal Code); 7) indicate the obligations under the agreement and the term of their fulfillment (Art. 472 of the CPC).
This conclusion is based on a systematic interpretation of the relevant provisions of the Criminal Code. In particular, part 5 of Art. 65 of the Criminal Code states that in the case of approving a reconciliation agreement or a guilty plea agreement, the court imposes the punishment agreed upon by the parties. That is, the legislator entrusts the parties to the agreement with the authority to agree/determine the punishment, not the court. At the same time, when determining the punishment, the prosecutor must be guided by all the norms included in the institutions of punishment imposition, exemption from punishment, and its serving (Chapters XI, XII of the Criminal Code).
This follows from the content of part 2 of Art. 75 of the Criminal Code: “The court makes a decision to exempt from serving the punishment with probation in case of approving an agreement on reconciliation or guilty plea if the parties to the agreement have agreed on punishment in the form of corrective labor, service restrictions for military personnel, restriction of liberty, deprivation of liberty for a term not exceeding five years, and also agreed on exemption from serving the punishment with probation.” That is, the legislator has provided the parties to the agreement with the opportunity to apply all the norms included in this criminal law institution (Art. 75-77 of the Criminal Code).
This position is supported by some appellate courts. On the other hand, another part of them opposes such an interpretation of the law. The argumentation is available at the following link: “…part 3 of Art. 75 of the Criminal Code contains an imperative requirement to determine the duration of the probation period and the duties imposed on the person exempted from serving the punishment, exclusively by the court. …At the same time, the legislator’s additions to Articles 65 and 75 of the Criminal Code stipulate that in the case of approving an agreement, the court is obliged to impose the punishment agreed upon by the parties. This means that the court must appoint the punishment agreed upon by the parties or exempt from serving it with probation only after verifying the agreement for compliance with the current legislation and in the absence of grounds for refusal, ensuring that the agreement can be approved.” That is, supporters of this position argue for the court’s authority to establish the probation period and determine the duties imposed on the convicted person exempted from serving the court-imposed punishment, pointing to the word “court” as the sole subject capable of determining this component of exemption from serving the punishment with probation.
However, it is difficult to agree with this argumentation. The first option is clearly in the best interests of the accused person, as it follows the principle that in case of doubt, action should be taken in the best interests of the suspect/accused person. Compliance with the best interests of the suspect/accused person is clearly evident, as the person not only understands the possibility of being exempted from serving the punishment with probation but also knows the period for which the probation term is set (effectively a conviction – limiting their rights), is informed of the duties that will be imposed on them; knows whether the pre-trial detention period has been taken into account in the main punishment term if necessary; the presence/absence of additional punishments. In case of determining the final punishment for a combination of criminal offenses or sentences, the person will know the extent of the final punishment.
It should be noted that according to the “small constitutional reform” of 2016, the prosecution, like the defense attorney, is among the bodies that contribute to the administration of justice (Articles 131-1, 131-2 of the Constitution), which confirms the possibility and necessity of the prosecutor’s and defense attorney’s participation in determining the punishment and the possibility of exemption from it or from serving it by agreement. The resistance of some courts to this, among other things, is also explained by the fact that the courts equate the determination of punishment with its appointment. By determining the type and extent of punishment and the options provided by law for its implementation, the agreement parties do not encroach on the court’s exclusive competence – the appointment of punishment. The latter can only be done by the court.
Therefore, the parties to the guilty plea agreement have the right to fully agree on the punishment, meaning to approve the full range of restrictions on rights and freedoms associated with the conviction of the person. In addition, the agreement may include certain obligations for the suspect/accused person to fulfill in exchange for the prosecution’s proposal. Thus, the suspect/accused person at the time of signing the agreement must clearly understand its terms and limits, which will exclude unpleasant “surprises” for both parties in the court session when approving the agreement.
Author: Yana Trynova
“YF Illyashev and Partners” Ph.D., professor, lawyer