In the first reading, the Verkhovna Rada of Ukraine (the Ukrainian Parliament) supported draft law No. 11340 on agreements with investigators in corruption crimes. 231 MPs voted pro.
The MP from "Voice" Yaroslav Zheleznyak reported this.
The draft law was adopted under the auspices of the European Unionʼs demands to restart the Institute of Agreements. This document was recommended by the Cabinet of Ministers to be approved by the Verkhovna Rada Committee on Law Enforcement. It is assumed that the law on improving the conclusion of agreements with the investigation will help to expose top corruptors and organizers of schemes. "Smaller" corrupt officials and scheme participants will be able to do this if they agree to a deal. Restarting the Institute of Agreements is part of the demands of international partners.
The explanatory note states that the draft law belongs to the priority areas of Ukraineʼs obligations in the field of European integration and corresponds to the Convention on the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights (ECHR).
However, the Anti-Corruption Committee of the Verkhovna Rada, the National Anti-Corruption Bureau (NABU) and the Special Anti-Corruption Prosecutorʼs Office (SAP) oppose the draft law No. 11340.
What does the draft law provide
The draft law provides for the application of a fine as an additional punishment if the suspect or accused of corruption entered into a plea agreement, when such punishment is not provided for by the sanction of the article.
Here are the fines:
- for a criminal misdemeanor — from 204 000 to 2.05 million hryvnias;
- for a minor crime — from 2.05 million to 204 million hryvnias;
- for a serious crime — from 20.4 million to 102 million hryvnias;
- for a particularly serious crime — from 102 million to 204 million hryvnias.
For now, a fine as an additional punishment is imposed only when it is specifically provided for in the sanction of the article (sanctions of part of the article) of the Special Part of this Code.
The document also proposes to supplement the Criminal Code with an article that stipulates that if a suspect or accused person exposes another person to corruption and this is confirmed, or if such a person fully or partially (under certain conditions) reimbursed the losses (damage) from his crime, the court can approve plea agreement. It also contains a condition if the parties have agreed on a custodial sentence lower than the lowest limit established in the articleʼs sanction. At the same time, a person cannot be released from serving a probationary sentence on the basis of Article 75 of the Criminal Code.
Therefore, the draft law also provides for an addition to Article 75 of the Criminal Code, which will establish that in criminal proceedings related to corruption, the court will exempt from serving a sentence with probation in case of approval of a plea agreement. Condition — the parties have agreed on exemption from serving a sentence in the form of imprisonment for a term of no more than eight years or another milder sentence with probation. In such a case, the trial period is set by the court — from two to six years.
According to the draft law, changes should also be made to Article 77 of the Criminal Code — confiscation of property should be added to the list of additional punishments in case of release from serving the main sentence with probation.
The draft law proposes amendments to Article 469 of the Criminal Procedure Code to provide for the possibility of agreements in particularly serious crimes under the jurisdiction of the National Anti-Corruption Bureau of Ukraine, if the person involved fully or partially reimbursed the losses (damage). In criminal proceedings on corruption, the conclusion of a plea agreement between the prosecutor and the suspect or accused will be agreed as follows:
- in case of a serious crime — upon agreement with the head of the prosecutorʼs office or his deputy;
- in case of a particularly serious crime — upon agreement with the Prosecutor General (acting Prosecutor General) or his deputy.
If the criminal proceedings on corruption are investigated by NABU, the plea agreement between the prosecutor and the suspect or the accused will be concluded under the following conditions:
- in case of a serious crime, in agreement with the Deputy Prosecutor General, the head of the Specialized Anti-Corruption Prosecutorʼs Office (the acting head of the Specialized Anti-Corruption Prosecutorʼs Office) or the deputy head of the Specialized Anti-Corruption Prosecutorʼs Office;
- in case of a particularly serious crime — in agreement with the Deputy Prosecutor General — the head of the Specialized Anti-Corruption Prosecutorʼs Office (the acting head of the Specialized Anti-Corruption Prosecutorʼs Office).
The draft law proposes the following: to establish a term for the repayment of criminal records for those released from serving a sentence with probation, if the agreement is approved; to determine such a period from the moment the court verdict is announced and if a person does not commit a new criminal offense within six years from that time. If at the end of such a six-year term, a person has not served additional punishment, he will be recognized as having no criminal record, only after serving this additional punishment.
Conclusion of the Committee on Anti-Corruption Policy. Reaction of SAP and NABU
The Anti-Corruption Policy committee discussed draft law No. 11340 "On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine to Improve the Efficiency of Plea Agreements" and recognized it as not meeting the requirements of anti-corruption legislation.
The Specialized Anti-Corruption Prosecutorʼs Office agreed with the Committeeʼs conclusion.
"This is about the possibility provided for by the specified draft law to agree on a plea agreement for a less severe punishment than that provided for by the sanction of the article of the Criminal Code, including for a particularly serious corruption crime, without the mandatory exposure of another person for the commission of the crime," the SAP stated.
They believe that this provision of the draft law does not meet the purpose of plea agreements, which are supposed to help expose the organizers of crimes through cooperation with other accomplices. SAP is convinced that the exposure of the organizers of the corruption criminal offense should be an integral condition for concluding such agreements.
The National Anti-corruption Bureau also emphasized that exemption from serving a probationary sentence is possible only if two conditions are met at the same time:
- exposure of another organizer by a suspect or accused of corruption (if the information is confirmed by evidence);
- full or partial (under certain conditions) compensation for losses or damage caused.
Conclusion of the Committee on Law Enforcement Activities
The Committee of the Verkhovna Rada of Ukraine on law enforcement activities recommended that the parliament include draft law No. 11340 and alternatives No. 11340-1 and No. 11340-2 on the agenda. And based on the results of the review, draft law No. 11340 will be adopted in the first reading.
At the meeting, the Committee on Ukraineʼs Integration into the European Union also decided to recommend defining a document aimed at adapting the legislation of Ukraine to the provisions of the law of the European Union (EU acquis) in terms of fulfilling Ukraineʼs international legal obligations in the field of European integration.