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Agreement with the investigation or the victim. How to avoid problems?

Gradually, new trends are formed in the criminal process. The main participants in the process - the suspect, the accused, the prosecutor, the victim are looking for a way to end the criminal proceedings with minimal losses. Therefore, today's trend is to enter into a plea agreement with the prosecutor or reconcile with the victim. According to the State Judicial Administration, in the first half of 2017, courts handed down 40,000 sentences, of which 8,700 were based on agreements. At the same time, the courts refused to approve 2,500 agreements - 20% of their total number.

Why is the deal becoming popular?

Everyone pursues their own interest. The suspect / accused is trying to get a suspended sentence, return the bail, avoid long-term litigation. Prosecutor - to eliminate the risk of acquittal, to quickly complete a complex case. Victim - to receive compensation, which he is unlikely to receive during the ordinary trial.

Imagine that during the trial of a particularly serious crime committed by an organized group, the accused S. decided to enter into a plea agreement with the prosecutor. He is convinced of his innocence, but the trial has been going on for several years. Court hearings are constantly postponed due to the absence of one of the participants: vacation, illness, business trip. Court summonses do not always arrive at his address, and non-appearance at court puts the bail at risk. After weighing all the risks, he decides to make a deal.

Defendant S. enters into an agreement with the prosecutor on the following terms. He fully admits his guilt, testifies against the other members of the organized group and is given a suspended sentence. But something went wrong and the court refuses to approve the agreement. The trial in this case continues in the general order. But now the judge may be prejudiced against the accused, who yesterday proved his innocence, pleaded guilty today and immediately changed his mind.

Why did the court refuse?

Because the content of the agreement contradicted the requirements of Part 7 of Article 474 of the Criminal Procedure Code of Ukraine. It is important to conclude the agreement correctly: to avoid inaccurate wording, unfulfillable obligations, not to allow the court to interpret it in two ways. Moreover, you will not be able to appeal the court's refusal to approve the agreement or conclude it again, as the Criminal Procedure Code of Ukraine prohibits this.

I propose to analyze the grounds that give the court the right to refuse to approve a plea agreement or conciliation.

In accordance with Part 7 of Article 474 of the CPC of Ukraine, the court refuses to approve the agreement if:

1) the terms of the agreement contradict the requirements of this Code and / or the law, including the incorrect legal qualification of a criminal offense that is more serious than that in respect of which the possibility of concluding an agreement.

Comment: Not in all criminal proceedings it is possible to conclude an agreement (see parts 3, 4 of Article 469 of the CPC of Ukraine). If due to the gravity of the crime it is impossible to conclude an agreement, the parties to the agreement try to change the qualification to a less serious one in order to conclude an agreement. However, during the trial, the court checks whether the agreement conceals a more serious criminal offense. If so, you will be denied.

For example, the plea agreement states that citizen S. is accused of seizing someone else's property by abusing his official position by a group of persons on a particularly large scale (Part 5 of Article 191 of the Criminal Code of Ukraine). This is a particularly serious crime. At the same time, the prosecutor qualifies his actions under Part 2 of Art. 191 of the Criminal Code of Ukraine and translates into a crime of medium gravity, excluding such a feature as the commission of a crime on a particularly large scale. In this case, the court will refuse to approve the agreement, because in fact the agreement hides a particularly serious crime.

The court will also refuse to approve the agreement if it finds any violations of the requirements of the Criminal Procedure Code, the Criminal Code of Ukraine and other laws. Such an abstract wording requires the parties to the agreement to carefully analyze its content for possible violations.

Recommendation: before signing the agreement, make sure that its terms comply with the law. The content of the agreement must comply with Articles 471 and 472 of the CPC of Ukraine. Then check whether the prosecutor correctly classifies the criminal offense. Pay attention to the terms of the agreement, which may raise doubts in court - do they violate the requirements of the CPC of Ukraine or other laws? Rewrite the agreement so that the court has no reason not to approve it.

2) the terms of the agreement do not meet the interests of society.

Comment: The Criminal Procedure Code of Ukraine does not contain a definition of what the interests of society are. In paragraph 4, part 1 of Art. 470 of the CPC of Ukraine there is a hint: the presence of public interest is to prevent, detect or stop a larger number of criminal offenses or other more serious criminal offenses. To put it simply, within this requirement, the court must answer the question: why is the conclusion of the agreement beneficial to society and not exclusively to the parties to the agreement?

For example, a typical Ukrainian raider, a citizen of Moscow, is suspected of counteracting lawful economic activity committed by an organized group (Part 3, Article 206 of the Criminal Code of Ukraine). The investigation cannot establish the identities of his accomplices, who acted under conditions of conspiracy, changed telephone numbers and geography of activities. The suspect offers to provide all personal data of accomplices, to testify against them in exchange for a conditional term. The public interest in this case is to prosecute the accomplices of citizen M. who committed a serious crime. And to do it quickly and operatively is possible only thanks to cooperation of the suspect with investigation. In this case, the terms of the agreement are in the interests of society.

Now an example from case law. The suspect in fictitious business, forgery of documents and their use (Part 1 of Article 205, Part 1 of Article 358, Part 4 of Article 358 of the Criminal Code of Ukraine) entered into a plea agreement with the prosecutor on condition of receiving a suspended sentence. However, the terms of the agreement did not convince Judge of the Shevchenkivsky District Court of Kyiv in their accordance with the interests of society. In the decision to refuse to approve the agreement, the judge noted that the agreement did not substantiate the existence of public interest, there was no information about the assistance in solving the crime. In general, the accused has been previously convicted of a felony, so what will he get a suspended sentence for?

Recommendation: the plea agreement must justify the public interest: how the accused helped prevent the crime, how he helped to expose other participants, why the agreement satisfies the interests of a wide range of people, not just his private interests.

3) the terms of the agreement violate the rights, freedoms or interests of the parties or other persons.

Comment: It is difficult to say how the terms of the agreement may violate the rights, freedoms or interests of the initiators of the agreement. The parties to the agreement are the first to be interested in concluding it and further approving it by the court. However, courts sometimes refuse to approve a plea or conciliation agreement because its terms violate the rights of others.

Example, Judge of the Shevchenkivsky District Court of Kyiv by a decision of 15.02.2017 refused to approve the plea agreement between the accused for aiding and abetting fictitious business and forging documents submitted for state registration of a legal entity and natural persons - entrepreneurs, committed by a group of persons with prior conspiracy (Part 5 of Article 27, Part 2 of Article 28, part 2 of Article 205, part 2 of Article 205-1 of the Criminal Code of Ukraine), and the prosecutor.

In the ruling, the judge referred to the fact that the accused committed crimes in complicity with another person, whose personal data are specified in the indictment. According to the judge, pointing to another person who is absent from the hearing may violate his rights, freedoms or interests, including the fundamental right to defense. In the case of a verdict, in fact another accomplice could be found guilty without a trial. The accomplice could not prove his innocence during the trial, as he was not a party to the agreement. As a result, a court verdict that has entered into force can be used as evidence of a crime committed by another accomplice in another criminal proceeding. A similar position was expressed by Judge of the Dniprovsky District Court of Kyiv in the decision of 20.04.2017.

In my opinion, this logic is wrong, because no evidence has a predetermined force. Sentencing on the basis of an agreement, on charges of committing a crime by prior conspiracy, does not constitute a preliminary ruling for the other accomplices. After all, the CPC of Ukraine establishes the principle of free evaluation of evidence by the court (Article 94 of the CPC of Ukraine). This position is supported by the Supreme Court of Ukraine. IN resolution of 03.03.2016 in the case №5-347ks15 The SCU noted that the prejudice against guilt in a crime not only conflicts with the CPC's rules on free evaluation of evidence, but also contradicts the general principles of criminal procedure under Article 7 of the CPC, including the rule of law, legality, presumption of innocence and proof of guilt.

Recommendation: it is necessary to formulate the accusation so as to exclude references to other persons. This will help to minimize the risk of refusal to approve the agreement on the grounds of violation of the rights, freedoms or interests of others. And if the crime was committed in complicity and it is impossible to exclude from the prosecution the personal data of other accomplices? It is then necessary to prove to the court during the trial that the rights of others are not violated, as the verdict cannot be used as evidence against accomplices in other criminal proceedings.

4) there are reasonable grounds to believe that the conclusion of the agreement was not voluntary or the parties did not reconcile.

Comment: The conclusion of the agreement is a purely voluntary matter. An agreement with a prosecutor or a victim in a criminal proceeding provides for the defendant to plead guilty. No one can admit their guilt against their will. Similarly, the prosecutor or the victim may also change their position for any reason before the agreement is approved. Therefore, the court has the right to refuse to approve the agreement if it came to such a conclusion during the trial. Usually, the judge learns about the change of positions of the parties regarding the conclusion of the agreement during the hearing, when the parties explicitly state this. For example, the accused no longer pleads guilty, the victim alleges pressure from the prosecutor to enter into an agreement, and the prosecutor, even without an agreement, has ample evidence to prove guilt.

Recommendation: the risks of changing the positions of the parties regarding the approval of the agreement remain until its approval by the court. If the conclusion of the agreement is preceded by a yew from the other party, the risks of rejection increase. Therefore, all arrangements for concluding the agreement must be voluntary.

5) the obvious impossibility of the accused to fulfill the obligations under the agreement.

Comment: if the terms of the agreement contain obligations that the accused will not be able to fulfill, the meaning of its conclusion is lost. The court imposes on the accused obligations that must satisfy the interests of society or the victim. If the accused cannot fulfill such obligations, then accordingly he cannot use the preferences in the form of a suspended sentence, fast trial, return of confiscated property. Therefore, the court has the right to refuse to approve the agreement if the accused clearly does not fulfill the obligations under the agreement.

Example, Solomianskyi District Court of Kyiv by a decision of 08.02.2017 refused to approve the plea agreement, as the accused for complicity in forgery (Part 5 of Article 27, Part 1, Part 4 of Article 358 of the Criminal Code of Ukraine) crossed the state border of Ukraine. In such circumstances, he will not be able to fulfill the obligation in the form of a fine.

A similar case - Solomianskyi District Court of Kyiv by a decision of November 9, 2016 refused to approve the plea agreement, as the accused for complicity in fictitious business (Part 5 of Article 27, Part 1 of Article 205 of the Criminal Code of Ukraine) has not worked anywhere for a long time, which raises doubts about his financial ability to pay a fine of 8 500 грн.

Recommendation: a plea or conciliation agreement should specify only those obligations that the accused has already fulfilled or is actually capable of fulfilling after the court has approved the agreement. Obviously unfulfilled obligations give the court the right to refuse to approve the agreement, and the courts use this right.

6) there are no factual grounds for admitting guilt.

Comment: if the accusation made by the prosecutor is vague, the court has the right to refuse to approve the agreement. Sometimes it is not clear from the indictment what the person is specifically accused of, for what actions or omissions, what they are. Under such conditions, the accused cannot plead guilty, as it is not clear from the prosecution what exactly he pleads guilty to.

So, Pechersk District Court of Kyiv by a decision of 07/19/2017 refused to approve the plea agreement. In this criminal proceeding, the person was accused of encroaching on the territorial integrity and inviolability of Ukraine, committed by a group of persons by prior conspiracy (Part 2 of Article 110 of the Criminal Code of Ukraine). The judge motivated the decision by the fact that the plea agreement did not specify the specific actions committed by the accused and constituted the objective side of the crime under Part 2 of Article 110 of the Criminal Code of Ukraine. In formulating the accusation, the investigator and the prosecutor limited themselves to general phrases. In addition, according to the indictment, the accused was a member of a criminal group, but his role and specific functions were not specified in the indictment.

Recommendation: The accusation must be specific. The indictment must clearly answer the question: what is the person accused of, what specific actions are criminal, what are they, when and under what circumstances were they committed. Only a clearly formulated accusation will avoid the court's refusal to approve the agreement.

Conclusions. Суд затвердить угоду про визнання винуватості чи про примирення, якщо вона буде відповідати усім вимогам Кримінального процесуального кодексу. Не варто гратися в укладення угоди, якщо обвинувачення і сама угода виписані недосконало. Адже у разі відмови суду, усі сторони несуть ризики: обвинувачений та потерпілий стануть заручниками тривалої судової тяганини, а прокурор з більшою вірогідністю отримає виправдувальний вирок через неякісно підготовлені обвинувачення та угоди. Хоча це, зрештою, зіграє тільки на користь обвинуваченому 😉

Dmitry Nikiforov, lawyer, head of criminal law practice Bargen Law Firm

The article was published in the publication Yuridichna Gazeta, №41 (591) dated 10.10.2017

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