Reconciliation agreement - a useful tool that saves all participants time and nerves. Courts can usually take years, but the agreement allows for a single hearing to complete the case, an agreed sentence for the perpetrator and compensation for the victim.
The agreement is one of the unconditional examples of expanding the principle of dispositiveness in the current CPC of Ukraine, which provides for two types of agreements: reconciliation between victim and suspect (accused) and plea between the prosecutor and the suspect (accused).
As noted by the Supreme Court in its decision of 06.12.2018 in case №756 / 11661/17, the conciliation agreement is a key tool for reconciling the interests of the parties to the criminal conflict and ensuring their balance. After all, the parties through compromise and mutually beneficial solutions among themselves adapt the rules of the law of reconciliation on a particular (their) case, which satisfies their interests, and as a result, public (public) interests.
The legislator imposes on the parties a number of requirements that must be met in order to approve the agreement. In addition, the impossibility of re-applying for such an agreement also encourages participants to carefully prescribe its terms.
In this article we will consider the problematic issues of concluding conciliation agreements and give advice on how to enter into an agreement correctly and not to waste such a right.
The gravity of the crime. Not all crimes can be reconciled. Such a right is provided only for criminal offenses, crimes of small and medium gravity, as well as in criminal proceedings in the form of private prosecution.
In case of non-compliance with this requirement, the court will not approve the conciliation agreement and the right to conclude it will be lost, as the law does not provide for appeal against the court's decision to refuse to approve the agreement, as well as re-appeal with such an agreement.
In practice, there are cases when the prosecutor deliberately reclassifies the crime so that its gravity meets the requirements for concluding an agreement. Of course, the prosecutor is interested in closing the case quickly, but the participants in the proceedings must independently monitor compliance with the law, as the court will check the classification of the crime and will not approve the agreement. In this case, there will be no way back.
For example, Dykansky District Court of Poltava oblast refused to approve the agreement and returned the indictment to the prosecutor, as in the opinion of the court the qualification of the committed crime did not correspond to its gravity. In addition, the court found the investigator's participation in the preparation and signing of the agreement in violation of Part 1 of Art. 469 of the Criminal Procedure Code of Ukraine (decision of 24.07.2019 in the case № 529/673/19). However, we will talk about initiative and voluntariness among the requirements of the conciliation agreement later.
Pay attention! It is interesting to note the restrictions in the proceedings against the authorized person of the legal entity in connection with which the proceedings against the legal entity are carried out. In such proceedings, the conclusion of the agreement not allowed.
- Conclusion initiative. The CPC of Ukraine stipulates that an agreement may be concluded only on the initiative of the victim, suspect (accused), and in cases of domestic violence - only on the initiative of the victim. Negotiations on the conclusion of such an agreement may also be carried out with the participation of a defense counsel and a representative or other person agreed by the parties to the proceedings.
Pay attention attention! An investigator, prosecutor or judge may not take part in negotiations on such an agreement.
- Contents of the agreement. Part 1 of Art. 471 of the CPC of Ukraine clearly defines what information the text of the agreement should contain. In particular, the agreement must specify its parties, the wording of the suspicion or accusation and its legal qualifications, indicating the article (part of the article) of the CPC of Ukraine, relevant to the relevant criminal proceedings, the amount of damage, the period of compensation or a list of actions compensation for damages that the suspect or accused are obliged to do in favor of the victim, the term of their commission, agreed punishment and consent of the parties to his appointment or to the appointment of punishment and release from probation, the consequences of concluding, approving and non-performance of the agreement.
At the time of concluding the agreement, all the provisions required by law should be set out quite carefully. In the absence of at least one of the elements set out in Part 1 of Art. 471 of the CPC of Ukraine, the court will refuse to approve the agreement, as it did Kyiv District Court of Kharkiv (Decision of 27.08.2014 № 640/13241/14-k). In particular, the court noted that the agreement contained a number of shortcomings such as: inconsistency of the year of the crime specified in the agreement; there is no qualifying feature in the indictment in the wording of the indictment; there is no information on the term of compensation for the damage or the presence of already compensated damage.
- Compliance of the terms of the agreement with the interests of society. The requirement of the CPC of Ukraine regarding the compliance of the concluded agreement with the interests of society is quite contradictory. Is it not enough to reconcile the victim, who is directly harmed, with the suspect (accused). Apparently not. Anticipating such a requirement, the legislator took care of the whole society, not individuals.
If the suspect (accused) has previously committed crimes, did not comply with the requirements of parole, did not work, the court may consider this as a breach of public interest and grounds for refusing to approve the agreement.
- Observance of the rights of others during the conclusion of the agreement. Quite often, the courts refuse to approve the agreement, citing the fact that there are other accomplices in the case, whose rights may be violated.
In our opinion, this position is wrong, because Part 8 of Art. 469 of the CPC of Ukraine provides that if criminal proceedings are conducted against several persons suspected or accused of committing one or more criminal offenses, and agreement on the agreement is not reached with all suspects or accused, the agreement may be concluded with one (several) suspects or accused. Criminal proceedings against a person (persons) with whom an agreement has been reached shall be subject to a separate proceeding.
As the issue of other suspects (accused) is regulated by the Code, it is not clear which other persons may be affected during the conclusion of the conciliation agreement. At the same time, such a practice still exists.
Pay attention! If there are several victims of one criminal offense, the agreement can be concluded and approved only with all victims.
If several victims of various criminal offenses are involved in criminal proceedings, and agreement on concluding an agreement is not reached with all victims, an agreement may be concluded with one (several) victims and such criminal proceedings shall be separated into separate proceedings.
- Voluntary agreement. From the very definition of this agreement, it is obvious that in order to conclude it, the parties must agree and wish to conclude it. The fact that the agreement is signed by the parties does not cause any consequences until the agreement is approved by the court.
In practice, there are cases when the parties have changed their minds before the court approves the agreement and refuse to conclude the agreement at the court hearing. The courts also consider the non-appearance of the parties in the court hearing, which considers the issue of approval of the agreement, to be a refusal to conclude the agreement.
So, the Ship district court of Nikolaev recognized non-appearance of the victim who was duly notified of date, time and place of court session, as his unwillingness to participate in consideration of the conciliation agreement. The court also noted that given that the consideration of the conciliation agreement is carried out by the court only with the mandatory participation of the parties to the agreement, the absence of the victim in court, deprives the court of the opportunity to comply with the agreement under Art. 474 of the Criminal Procedure Code of Ukraine. In such circumstances, the conciliation agreement is not subject to approval (decision of 19.03.2019 № 488/2810/18).
- A real opportunity to fulfill the terms of the agreement. It is clear that the legislator imposes certain obligations on the suspect (accused) in exchange for parole or other mitigation provided by the agreement. However, if the court finds that the terms of the agreement contain obligations that the accused will not be able to fulfill, the approval of the agreement will be denied.
Courts also refuse to approve agreements if they do not contain conditions for the suspects (accused) to fulfill their obligations. In particular, The Red Army City District Court notedthat the agreement does not meet the requirements Art. 471 of the Criminal Procedure Code of Ukraine, as it does not specify the period of compensation for pecuniary damage or the list of actions not related to compensation for damage that the accused is obliged to do in favor of the victim and the period of their execution (decision of 15.10.2015 № 235/8815/15-k).
Conclusions. A conciliation agreement is an effective tool that saves time and nerves for all participants in the proceedings. The agreement has an indisputable number of advantages, including prompt consideration of the case, release of the person from serving the sentence, approval of the amount and procedure for compensation. Despite the possibility of independently agreeing on the terms of the agreement, the legislation sets out the requirements within which the parties to the agreement must act. The guarantee of approval of the agreement by the court is its proper execution and compliance with the requirements established by law.
The article was published in Legal newspaper №11, 02.04.2020