During the webinar at the Higher School of Advocacy on the topic "Appeals of court decisions in criminal proceedings based on agreements. Cancellation of judgments on the basis of agreements due to non-fulfillment of the agreement”, Iryna Glowyuk, Honored Lawyer of Ukraine, lawyer, Doctor of Law Sciences, professor, member of the NKR at the Supreme Court, scientific adviser of the Bar Association “Barristers”, spoke about the general rules for appealing court decisions on the basis of agreements and the legal positions of the Supreme Court regarding the interpretation of the rules for appealing court decisions based on agreements. In the case of appeals against verdicts on the basis of agreements, in accordance with Article 394 of the Criminal Code of Ukraine, the verdict of the court of first instance based on the agreement on reconciliation between the victim and the suspect, the accused may be appealed in the appeal procedure:
1) to the accused, his defense counsel, legal representative solely on the grounds of:
- imposition by the court of a punishment that is more severe than agreed upon by the parties to the agreement;
- passing a verdict without his consent to the imposition of punishment;
- non-fulfillment by the court of the requirements established by parts five to seven of Article 474 of this Code, including failure to explain to him the consequences of the conclusion of the agreement;
2) to the victim, his representative, legal representative, solely on the grounds of:
- imposition of a punishment by the court that is less severe than agreed upon by the parties to the agreement;
- passing a verdict without his consent to the imposition of punishment; failure to explain to him the consequences of concluding an agreement;
- non-fulfillment by the court of the requirements established by parts six or seven of Article 474 of this Code;
3) by the prosecutor solely on the basis of court approval of an agreement in criminal proceedings, in which, according to the third part of Article 469 of this Code, an agreement cannot be concluded.
The verdict of the court of the first instance based on the agreement between the prosecutor and the suspect, the accused on the admission of guilt may be appealed:
1) to the accused, his defense counsel, legal representative solely on the grounds of:
- imposition of a punishment by the court that is more severe than agreed upon by the parties to the agreement;
- passing a verdict without his consent to the imposition of punishment;
- non-fulfillment by the court of the requirements established by parts four, six, seven of Article 474 of this Code, including failure to explain to him the consequences of the conclusion of the agreement;
2) by the prosecutor solely on the grounds of:
- imposition of a punishment by the court that is less severe than agreed upon by the parties to the agreement;
- court approval of an agreement in proceedings in which, according to part four of Article 469 of this Code, an agreement cannot be concluded.
Regarding plea agreements, the verdict of the court of first instance based on the plea agreement between the prosecutor and the suspect, the accused may be appealed:
1) to the accused, his defense counsel, legal representative solely on the grounds of:
- imposition of a punishment by the court that is more severe than agreed upon by the parties to the agreement;
- passing a verdict without his consent to the imposition of punishment; non-fulfillment by the court of the requirements established by parts four, six, seven of Article 474 of this Code, including failure to explain to him the consequences of the conclusion of the agreement;
2) by the prosecutor solely on the grounds of:
- imposition of a punishment by the court that is less severe than agreed upon by the parties to the agreement;
- court approval of an agreement in proceedings in which, according to the fourth part of Article 469 of this Code, an agreement cannot be concluded
According to Article 474, the verdict of the court of first instance based on the agreement after its review in the appeal procedure, as well as the court decision of the court of appeal based on the results of the review of the appeal against such a verdict can be appealed in the cassation procedure: 1) by the convicted person, his defender, legal representative exclusively on the grounds of:
- imposition of a punishment by the court that is more severe than agreed upon by the parties to the agreement;
- passing a verdict without the consent of the convicted person to the imposition of a punishment;
- non-fulfilment by the court of the requirements established by parts four to seven of Article 474 of this Code, including failure to explain to the convicted person the consequences of concluding an agreement;
2) to the victim, his representative, legal representative solely on the grounds of:
- the court assigning a punishment that is less severe than agreed upon by the parties to the agreement;
- passing a sentence without the victim's consent to the imposition of punishment;
- non-fulfillment by the court of the requirements established by parts six or seven of Article 474 of this Code;
- failure to explain to the victim the consequences of concluding an agreement;
3) by the prosecutor solely on the grounds of:
- the court assigning a punishment that is less severe than agreed upon by the parties to the agreement;
- court approval of an agreement in proceedings in which, according to part four of Article 469 of this Code, an agreement cannot be concluded.
And although this list does not provide for the right to cassation appeal of the verdict based on the agreement by other persons, however, on the conviction of the panel of judges, based on the fundamental principles guaranteed by the Constitution of Ukraine, as well as the general principles of criminal proceedings, such a right cannot be deprived of a person, rights, freedoms and interests to which the court decision relates. Yes, according to Clause 17, Part 1, Art. 7, Art. 24 of the Code of Criminal Procedure, everyone is guaranteed the right to appeal procedural decisions, actions or inactions of the court, investigating judge, prosecutor, and investigator in the manner prescribed by this Code. The right to review a verdict, a court decision concerning the rights, freedoms or interests of a person by a higher-level court in the manner provided for by this Code is also guaranteed, regardless of whether such a person participated in the trial.
Taking into account the above, the panel of judges believes that PERSON_2, as a person whose rights, freedoms and interests are affected by the sentence against PERSON_3, passed on the basis of a plea agreement, has the right to cassation appeal of such a sentence after its revision in the appellate procedure.
With regard to the legal positions of the Supreme Court regarding the interpretation of the rules for appealing court decisions based on agreements, according to Clause 2, Part 4 of Art. 394 of the Criminal Procedure Code, the verdict of the court of first instance on the basis of an agreement between the prosecutor and the suspect, the accused on the admission of guilt may be appealed by the prosecutor exclusively on the grounds of:
imposition of a punishment by the court that is less severe than agreed upon by the parties to the agreement;
court approval of an agreement in proceedings in which, according to part four of Article 469 of this Code, an agreement cannot be concluded.
In this way, the legislator creates procedural safeguards against possible bad faith and abuse of procedural rights of trial participants who, in order to overturn the verdict of the court of first instance on the basis of a plea agreement, may in an appeal appeal refuse to recognize the circumstances that they admitted during the court proceedings on the basis of the agreement .
And therefore, the indication in the appeal complaint of the prosecutor regarding procedural violations, which do not belong to the grounds of his appeal against the verdict on the basis of the plea agreement in accordance with clause 2, part 2 of Article 394 of the Criminal Procedure Code, in no way proves his right to appeal such a sentence.
Regarding the application of legal norms, taking into account the provisions of Art. 370, Part 2 of Art. 475 of the Criminal Procedure Code, a sentence based on a reconciliation agreement between the victim and the suspect or accused must meet the general requirements for judicial decisions regarding legality. The duty to check the agreement for its compliance not only with special regulations concerning the conclusion of agreements, but also with other regulations of the Code of Civil Procedure and the Code of Criminal Procedure rests with the court, which decides on the approval of such an agreement.
The powers of the prosecutor when appealing the verdict of the court of first instance on the basis of a reconciliation agreement between the victim and the suspect or the accused are limited by the provisions of Clause 3, Part 3, Art. 394 of the Criminal Procedure Code, according to which such sentences can be appealed by the prosecutor only in connection with violations of the requirements of Part 3 of Art. 469 of the Criminal Procedure Code during the conclusion of the agreement, and are not subject to expansion, including due to court approval of the agreement, the terms of which do not comply with the norms of the criminal and procedural law.