PLEDGING AGREEMENTS: SELECT ISSUES IN THE CONTEXT OF LEGISLATIVE REFORM

​ The Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine Regarding the Improvement of Mechanisms for Ensuring the Objectives of Criminal Proceedings” of March 16, 2017,  substantial changes were made to Article 469 of the CPC regarding the conditions for entering into plea agreements. Currently, the fifth paragraph of Part 4 of Article 469 reads as follows: “A plea agreement between a prosecutor and a suspect or defendant may be entered into in relation to criminal offenses or crimes that result in harm solely to state or public interests. The conclusion of a plea agreement in criminal proceedings against an authorized representative of a legal entity that has committed a criminal offense in connection with which proceedings are being conducted against the legal entity, as well as in criminal proceedings concerning criminal offenses which have caused harm to state or public interests or to the rights and interests of individuals, in which one or more victims are involved, is not permitted, except in cases where all victims provide the prosecutor with written consent to their conclusion of the agreement.” It should be noted that the previous version provided that a plea agreement between a prosecutor and a suspect or defendant could be entered into regarding criminal offenses resulting in harm caused solely to state or public interests. The conclusion of a plea agreement in criminal proceedings against an authorized representative of a legal entity that has committed a criminal offense, in connection with which proceedings are being conducted against the legal entity, as well as in criminal proceedings in which a victim is a party, is not permitted.” These amendments, on the one hand, took into account repeated doctrinal proposals regarding the possibility of entering into a plea agreement in criminal proceedings involving victims: For example, I.A. Titko and M.G. Tverdokhlib proposed allowing plea agreements in proceedings involving a victim, provided the victim consents to it [1, pp. 368–369; 2, p. 359]; V.O. Hryniuk proposed allowing the conclusion of plea agreements only in cases if a reconciliation agreement has already been concluded in the criminal proceedings, the conclusion of which should be interpreted as the victim’s consent to the conclusion of a plea agreement [3, p. 302]. On the other hand, the current conditions for concluding such agreements are formulated in a way that does not meet the requirements of legal certainty. Indeed, the current version of the fifth paragraph of Part 4 of Article 469 of the Code of Criminal Procedure contains two mutually exclusive provisions: “A plea agreement between a prosecutor and a suspect or defendant may be entered into with respect to criminal offenses or crimes that result in harm solely to state or public interests” (emphasis added—I.G.) and “The conclusion of a plea agreement in criminal proceedings … in criminal proceedings concerning criminal offenses that result in harm to state or public interests or to the rights and interests of individuals (emphasis mine—I.G.), in which the victim or victims are involved, is not permitted (emphasis mine—I.G.), except in cases where all victims provide the prosecutor with written consent to their conclusion of such an agreement.” It follows that the approach to entering into a plea agreement for crimes that cause harm solely to state or public interests is such that it is both possible and impossible to enter into a plea agreement in such cases. Such wording will in no way contribute to the effective application of plea agreements in criminal proceedings, since any plea agreement may be at risk of not being approved by the court. The binary framework proposed by the legislature for balancing public and private interests in criminal proceedings based on plea agreements—when deciding whether to approve a plea agreement in criminal proceedings in which a victim or victims are involved, would be more rational if it were stipulated that “The conclusion of a plea agreement in criminal proceedings … regarding criminal offenses that result in harm to state or public interests and (emphasis mine—I.G.) the rights and interests of individuals, in which a victim or victims are involved, is not permitted, except in cases where all victims provide the prosecutor with written consent to their entering into such an agreement.” That is, in cases where harm has been caused both to state or public interests and to the rights and interests of individuals, it is logical to conclude a plea agreement with the consent of both the prosecutor, as the representative of public interests, and the representatives of these private interests, that is, the victims, who thereby express their consent regarding the possibility of imposing an agreed-upon sentence on the defendant in the future. Therefore, we believe that the wording of Article 469 of the Code of Criminal Procedure should be clarified in this regard. Furthermore, the aforementioned provisions of the Code of Criminal Procedure do not answer the question of what exactly the victim is consenting to: the fact of entering into a plea agreement, or whether the victim agrees with the wording of the suspicion or charge and its legal classification, the agreed-upon punishment, nor do they address the question of what legal consequences arise if the victim states in court that they do not agree with the plea agreement; since no amendments have been made to Parts 4 and 7 of the Code of Criminal Procedure regarding the determination and consideration of the victim’s expression of will during the court hearing.

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In addition, we consider it necessary to point out some other problematic aspects of such conditional “participation” by the victim(s) in the conclusion of a plea agreement. The current wording of Article 469 of the CPC leaves open the question of whether it is possible to enter into a plea agreement in proceedings concerning criminal offenses that result in harm to the rights and interests of specific individuals, in which the victim or victims are involved, without concluding reconciliation agreements with the victims (in those proceedings where this is possible under the provisions of Part 3 of Article 469 of the Code of Criminal Procedure).  This is important given that the content of a plea agreement in no way protects the interests of victims, particularly with regard to compensation for harm caused by a criminal offense. Accordingly, when the court approves the agreement, it will not examine the issue of proving the amount of damages subject to compensation to the victim; however, this issue must be resolved in the judgment. The Code of Criminal Procedure does not currently provide a solution to this problem. We consider two possible approaches: the first, proposed—albeit under different provisions of the CPC—by V.O. Grynyuk, is to allow the conclusion of plea agreements only if a reconciliation agreement has already been concluded in the criminal proceedings [3, p. 302]; second, to incorporate elements of the reconciliation agreement into the plea agreement, specifically, regarding the amount of damage caused by the criminal offense, the deadline for its compensation, or the list of actions not related to compensation for damage that the suspect or defendant is obligated to perform for the benefit of the victim, along with the deadline for their performance, and then, accordingly, to recognize the victim as an initiator of the termination of the plea agreement as well, for which amendments should be made to Article 476 of the Code of Criminal Procedure. Only in this case will the element of restorative justice be properly taken into account when concluding plea agreements, and the interests of victims be safeguarded. We consider the second approach to be more appropriate, since the Code of Criminal Procedure imposes significant restrictions on criminal proceedings in which a reconciliation agreement may be concluded: a reconciliation agreement between the victim and the suspect or defendant may be concluded in proceedings concerning criminal misdemeanors, crimes of minor or moderate severity, and in criminal proceedings initiated by a private prosecution, and a plea agreement between the prosecutor and the suspect or defendant may be concluded in proceedings concerning: criminal misdemeanors, crimes of minor or moderate severity, and serious crimes; particularly serious crimes falling under the jurisdiction of the National Anti-Corruption Bureau of Ukraine, provided that the suspect or defendant incriminates another person in the commission of a crime falling under the jurisdiction of the National Anti-Corruption Bureau of Ukraine, provided that the information regarding such a person’s commission of a crime is corroborated by evidence; particularly serious crimes committed by prior conspiracy by a group of persons, an organized group, a criminal organization, or a terrorist group, provided that the suspect, who is not the organizer of such a group or organization, the criminal acts of other group members, or other crimes committed by the group or organization, provided that the information provided is corroborated by evidence.

Thus, the current regulatory framework governing the conditions for entering into plea agreements does not currently meet the requirements of legal certainty as a component of the rule of law. The conditions for entering into a plea agreement must be clarified, taking into account the above observations, with the aim, among other things, of safeguarding the interests of victims.

Bibliography:

Titko, I. A. Regulatory Framework and Practice of Protecting Private Interests in Ukraine’s Criminal Procedure: Dissertation for the Degree of Doctor of Juridical Sciences: 12.00.09 – Criminal Procedure and Criminalistics; Forensic Examination; Operational-Investigative Activities / Titko, Ivan Andriyovych. – Kharkiv, 2016. – pp. 368–369;
Tverdokhlib, M. The Problem of Legislative Improvement of Criminal Proceedings Based on Agreements // Comparative and Analytical Law. – 2016. – No. 1. – [Electronic resource]. – Available at: http://pap.in.ua/1_2016/108.pdf p. 359.
Hryniuk, V. O. The Role of the Prosecution in Ukrainian Criminal Proceedings: Theory and Practice: Monograph / V. O. Hryniuk. – Kyiv: Alerta, 2016. – p. 302

Published at: http://www2.lvduvs.edu.ua/documents_pdf/biblioteka/nauk_konf/konf_10_11_2017.pdf