One of the key elements of the modern criminal process is the institution of criminal proceedings based on plea agreements. The introduction of this institution in Ukraine meets European standards of criminal justice and aims to accelerate the consideration of cases, reduce the burden on the judicial system and increase the efficiency of justice. At the same time, the practice of applying plea agreements demonstrates both positive results and certain problems that need to be resolved.
The importance of the application of plea agreements was emphasized during the International Criminal Law Forum by Judge Oleksiy Kravchuk of the Supreme Anti-Corruption Court, noting that as of February 7, 2025, the Supreme Anti-Corruption Court had rendered 240 verdicts, of which 95 were based on plea agreements.
In Ukraine, plea agreements are regulated by the Criminal Procedure Code of Ukraine, in particular Articles 468–476. According to the law, such an agreement can be concluded between the prosecutor and the suspect (accused). Such agreements may include an agreement to plead guilty and provide certain information for further investigation.
A key aspect of entering into a plea agreement is compliance with the principle of presumption of innocence. According to Part 6 of Article 469 of the Criminal Procedure Code of Ukraine, if negotiations on an agreement were unsuccessful, the very fact of their holding, as well as any statements made during the discussion, cannot be considered an admission of guilt or a waiver of innocenceAny information that becomes known to an investigator or prosecutor during plea bargaining negotiations cannot be used as evidence to prove a person's guilt. Nor can it be relied upon in subsequent criminal proceedings.
The moment of initiation of the agreement is important in concluding it. This is due to the fact that the court, in order to assess the applicability of Articles 75 and 76 of the Criminal Code regarding the probation period, must clearly determine the moment of concluding such an agreement.
The moment of initiation of the conclusion of a plea agreement depends on the stage of the criminal proceedings at which it is drawn up. The agreement can be concluded both during the pre-trial investigation and during the trial proceedings at any time before the court enters the deliberation room to adopt a verdict. However, there are certain features of initiating the conclusion of the agreement at different stages of the criminal proceedings, so at the stage of the pre-trial investigation, after signing the agreement, the indictment together with the agreement is sent to the court, but the prosecutor has the right to postpone its sending until the necessary expert opinions are obtained or other investigative actions are completed. In the event of the conclusion of the agreement already at the stage of trial, the court immediately suspends the conduct of procedural actions and proceeds to the consideration of the agreement.
The court may refuse to approve the agreement on the admission of guilt, if its terms contradict the requirements of the Criminal Procedure Code of Ukraine, do not meet the interests of society or violate the rights, freedoms or interests of the parties or other persons. Also, the grounds for refusal are reasonable doubts about the voluntariness of the conclusion of the agreement. The court may not approve the agreement if there is an obvious impossibility of the accused fulfilling the obligations assumed or there are no factual grounds for admission of guilt. In the event of the court's refusal, the pre-trial investigation or trial of the case shall continue in the general procedure.
Thus, in case No. 243/10353/24, the Slavyanskyi City District Court of Donetsk Region, by its decision dated January 28, 2025, the Court, having heard the parties and examined the content of the plea agreement, came to the conclusion of refusing to approve it. According to Part 6 of Article 474 of the Criminal Procedure Code of Ukraine, the conclusion of the agreement must be voluntary, and in accordance with Part 4 of Part 7 of the same article, the court refuses to approve it if there are grounds to believe that voluntariness was violated. Since the accused stated at the court hearing that she did not admit her guilt in full to the charges brought, the court established that the agreement was not entered into voluntarily, therefore, approval of the plea agreement in this case is inadmissible.
A plea agreement must include key provisions such as: a statement of suspicion (charge), an unconditional admission of guilt, and, if necessary, the defendant's obligations to cooperate in the detection of other crimes. The agreement must also specify the terms of compensation for damages, the agreed sentence, and the consequences of concluding the agreement and its non-fulfillment.
However, the process of concluding such agreements has a number of problematic aspects. First, the legislation does not specify specific grounds on which the prosecutor may refuse to conclude an agreement. The prosecutor, checking the agreement for compliance with the requirements of the Code of Criminal Procedure of Ukraine, assesses its legality and reasonableness. If it is established that the agreement complies with procedural norms, the final decision on its conclusion depends on the agreement between the parties.
However, the Criminal Court of Cassation in its resolution of April 15, 2020 in case No. 465/787/1 noted the following - "Therefore, based on the analysis of the above norms, the prosecutor has the right, but not the obligation, to initiate a plea agreement. It should be noted that Article 470 of the Criminal Procedure Code establishes the prosecutor's obligation to take into account, when concluding a plea agreement, the circumstances under which this agreement may be concluded, namely: the degree and nature of the suspect or accused's assistance in conducting criminal proceedings against him or other persons; the nature and gravity of the accusation (suspicion); the presence of a public interest in ensuring a faster pre-trial investigation and trial, exposing a greater number of criminal offenses; the presence of a public interest in preventing, detecting or terminating a greater number of criminal offenses or other more serious criminal offenses"
Secondly, the concept of "public interest" in the context of concluding agreements is evaluative and not legally established, which creates legal uncertainty. In addition, the lack of clear regulation of the procedure for initiating, discussing and adjusting the terms of an agreement complicates its implementation in practice.
From November 1, 2024, certain innovations regarding agreements in criminal proceedings have come into force in Ukraine. They provide for the possibility of imposing an additional penalty in the form of a fine, even if it is not included in the sanction of the relevant article of the Criminal Code of Ukraine, with a maximum amount of up to 204 million hryvnias. It also provides for exemption from serving a sentence with probation for persons sentenced to imprisonment for a term of no more than 8 years, as well as the possibility of imposing a milder penalty than provided for by law. The new changes give the parties the right to initiate a change to the agreement or conclude a new one before the court enters the deliberation room, and also allow a one-time re-application of the agreement in the event that the reasons for which the court refused to approve it are eliminated. In addition, an agreement with the accused who is the organizer of the crime is possible only if the damage is compensated and another organizer of the corruption offense is exposed.
Conclusion
The institution of plea agreements is an important element of the criminal process in Ukraine, contributing to its efficiency and effectiveness. It allows reducing the burden on the judicial system and optimizing the justice process. At the same time, the practice of applying such agreements demonstrates certain challenges, in particular regarding the legal uncertainty of the criteria for their admissibility, the role of the prosecutor in their conclusion and guarantees of observance of the rights of the accused.
The introduced legislative changes are designed to improve this mechanism, expand the possibilities for its application and increase the flexibility of the judicial process. However, for the further development of the institution of plea agreements, clear legislative regulation of the criteria of public interest, a transparent mechanism for concluding such agreements and control over their implementation are necessary. Only under the condition of effective law enforcement can this instrument become an effective means in the criminal justice system.
