From the very beginning of their operations, the SAPO and NABU actively encouraged suspects to enter into plea agreements. The suspects unconditionally admitted their guilt, agreed to testify against more prominent accomplices, and to fully or partially compensate for the damages resulting from the criminal offense, and in return were exempted from criminal punishment with a probationary period under Article 75 of the Criminal Code of Ukraine. Law enforcement officials sought to firmly establish their future witness’s testimony as early as in the text of the plea agreement itself, setting forth the factual circumstances of the criminal offense accordingly.

That is why judgments approving plea agreements often mentioned the involvement of other individuals—who were not parties to the relevant court proceedings—in unlawful activities. Law enforcement officials even sometimes used these rulings to restrict the rights and freedoms of such third parties, for example, by citing them to substantiate reasonable suspicion when selecting pretrial measures.

Judgments approving plea agreements that mention the guilt of third parties who were not parties to the proceedings create the problem of “artificial prejudice.” These judgments approving plea agreements were almost immediately and actively challenged by third parties; the practice of challenging them was inconsistent and constantly changing.

Pursuant to Part 4 of Article 394 of the Code of Criminal Procedure of Ukraine, a judgment of a court of first instance based on a plea agreement between the prosecutor and the suspect or defendant may be appealed exclusively by the defendant (by his defense counsel or representative) or by the prosecutor on clearly established grounds. It is evident that third parties, whose unlawful activities may be mentioned in such judgments, do not fall within this defined group of persons.

The Supreme Court of Ukraine, in its ruling of March 3, 2016, in Case No. 5-347кс15, contains a legal conclusion stating that the constitutional principle of ensuring the right to appeal a court decision on appeal or cassation guarantees the right to file a complaint with the court in the appeal or cassation proceedings, which must be exercised, except where such an appeal is prohibited by law. At the same time, the absence of “other persons” in the exhaustive list of parties entitled to appeal provided for in Article 394 of the Code of Criminal Procedure, provided that the court decision concerns their rights, freedoms, and interests, does not constitute an obstacle to access to justice or to appealing to a higher court, as provided for in the second part of Article 24 of the Code of Criminal Procedure. Therefore, when determining whether there are grounds for a particular person to appeal a court decision to a higher court—regardless of whether that person participated in the court proceedings—the key issue is to ascertain whether the decision actually concerns the interests of that specific person.

According to the legal opinion set forth in the ruling of the Joint Chamber of the Cassation Criminal Court of the Supreme Court dated May 18, 2020 (Case No. 639/2837/19), when deciding whether to initiate appellate proceedings based on an appeal filed by another person (a defense attorney or representative of another person) on the basis of a plea agreement, the presiding judge must ensure that the text of the judgment contains information that directly identifies that specific person, or that circumstances have been established that allow the appellate court (the reporting judge) to identify the other person with certainty; furthermore, the judgment must concern the rights, freedoms, and interests of that other person. At the same time, a party’s assertion that the decision concerns the rights, freedoms, and interests of other persons must be substantiated based on the content of the judgment rendered pursuant to a plea agreement.

Courts, upon concluding that a third party whose unlawful actions are mentioned in the judgment can be identified by various characteristics, initially often found a violation of the presumption of innocence and set aside such judgments.

The Mykolaiv Court of Appeals, in its ruling of April 11, 2019, in Case No. 490/3934/17, the Mykolaiv Court of Appeals, which overturned the judgment of the Central District Court of Mykolaiv approving a plea agreement, noted that the judgment established the fact that the head of a group of business entities was involved in the misappropriation of funds from a state-owned enterprise. And, since the individual can be identified by this characteristic, this violates the presumption of innocence and the right to a fair trial.

The Appeals Chamber of the High Anti-Corruption Court, in its ruling of March 17, 2020, in Case No. 409/1465/16-k, overturning the judgment of the Bilokurakine District Court of Luhansk Oblast approving the plea agreement, noted that, the court had issued a verdict that resolved the issue of the legality of the actions of other individuals—specifically, a judge of the Severodonetsk City Court of Luhansk Oblast and the acting prosecutor of Severodonetsk, Luhansk Oblast—by establishing prejudicial facts regarding them.

The Kharkiv Regional Court of Appeals, in its ruling of July 24, 2018, in overturning the judgment of the Zhovtnevy District Court of Kharkiv dated February 5, 2018, noted that the judgment had established the appellants’ involvement in unlawful activities. At the same time, although the court did not specify the appellants’ last names when setting forth the factual circumstances of the case in the judgment, it did indicate their positions, which unambiguously identify these individuals.

The Kyiv Court of Appeals, in its ruling dated July 24, 2018, overturning the judgment of the Solomyanskyi District Court of Kyiv dated August 12, 2016, noted that the judgment found a person guilty who was not a party to the proceedings. Such a presumption of guilt regarding a person’s commission of a crime not only conflicts with the provisions of the Code of Criminal Procedure of Ukraine concerning the free evaluation of evidence but also contradicts the general principles of criminal proceedings set forth in Article 7 of the Code of Criminal Procedure of Ukraine, in particular, the rule of law, legality, the presumption of innocence, and the requirement that guilt be proven. At the same time, the judgment did not explicitly state the person’s full name, but it was noted that the person was a People’s Deputy of Ukraine of the VII and VIII convocations and, during those convocations, held the position of Deputy Chair of the Verkhovna Rada Committee on Fuel and Energy Complex, Nuclear Policy, and Nuclear Safety. Thus, the individual could be identified based on information from publicly available sources.

More often than not, appellate courts deem appeals against judgments approving a plea agreement to be inadmissible and return them to the individuals who filed them, since those individuals do not have the right to appeal. This often occurs even when such third parties—whose rights have been violated and whose involvement in unlawful activities has been established in the judgment—are explicitly named or can be identified by other characteristics.

The Appeals Chamber of the High Anti-Corruption Court, by its ruling of December 12, 2023, in Case No. 991/7870/23, remanded the appeal to the appellant, despite the fact that the reasoning section of the judgment approving the plea agreement indicated the appellant’s involvement in a criminal offense. At the same time, the court noted that the operative part of the judgment concerns only the defendants, and that “in the reasoning section of the judgment (when setting forth the charges), it is not possible to determine the guilt of another person regarding whom there is no corresponding finding in the operative part” (the Appellate Chamber of the High Anti-Corruption Court remanded appeals on similar grounds by rulings dated July 9, 2024, in Case No. 991/4674/24, December 30, 2024, in Case No. 991/7870/23, May 17, 2023, in Case No. 991/2474/23, on October 21, 2024, in Case No. 991/5408/24, and on October 21, 2024, in Case No. 991/5408/24).

Courts often do not accept arguments from third parties that, although they are not explicitly mentioned in judgments approving plea agreements, they can be identified by searching for the information contained in the judgment on online sources. Thus, in its ruling of July 27, 2021, in Case No. 991/3848/21, the Appellate Chamber of the High Anti-Corruption Court noted that “information from such sources cannot be considered absolutely reliable or such that unambiguously identify a specific individual” and “this requires a certain amount of time and the performance of search activities, which does not correspond to the concept of indicators that unquestionably and directly point to this specific individual.” A similar position of the AP VAKS is reflected in the rulings dated August 21, 2023, in Case No. 991/2474/23, dated July 27, 2021, in Case No. 991/3848/21, dated October 18, 2021, in Case No. 991/3848/21, dated October 20, 2021, in Case No. 991/4410/21, and dated January 6, 2025, in Case No. 991/3330/24). In its rulings,

the Appellate Chamber of the High Anti-Corruption Court, in its ruling dated January 6, 2025, in Case No. 991/3330/24, noted that “the mention of PERSON 2’s phone number is merely an element of specifying the charge,” while the Appellate Chamber of the Supreme Court, in its ruling dated May 18, 2020, in Case No. 639/2837/19, stated that “the mention of such factual circumstances as residential addresses, make and license plate number of a vehicle do not allow for the identification of the personal data of the relevant individuals without conducting a court proceeding regarding them and examining the relevant evidence.”

In recent years, a practice has emerged whereby appellate courts, upon finding that the reasoning section of a judgment approving a plea agreement mentions the surnames of individuals who were not parties to the proceedings, amend the contested judgments by removing such superfluous information (Ruling of the Appellate Chamber of the High Anti-Corruption Court dated January 27, 2025, in Case No. 991/8546/23, Decision of the Appellate Chamber of the High Anti-Corruption Court dated August 12, 2024, in Case No. 991/1563/24). This practice reduces the protection of the rights of third parties—whose involvement has been established in judgments approving plea agreements—to a mere formality, since it remains clear from the case file that a particular person was involved in unlawful activity.

There is no doubt that judgments approving plea agreements, which mention the involvement of other individuals in unlawful activities, do not have res judicata effect and cannot be used as evidence of guilt in criminal proceedings against such individuals. One cannot help but agree that, when describing the factual circumstances of a criminal offense committed in complicity, it is impossible to omit mention of the other accomplices. However, it is difficult to deny the fact that such judgments discredit the third parties named therein and grossly violate their rights and legitimate interests. When such judgments are used by the prosecution to restrict the rights of these third parties, although they have no evidentiary value, they inevitably influence the judge’s internal conviction when rendering a decision.

Therefore, if a judgment approving a plea agreement it establishes the involvement of other persons in unlawful activities, and such persons are explicitly named or can be identified based on the information provided about them, such judgments must be set aside without any conditions or reservations.