“On October 31, Volodymyr Zelenskyi signed Law No. 4033-IX on the release of corrupt persons from prison by concluding agreements with the investigation. To implement a fair mechanism of agreements with the investigation was the obligation of Ukraine to the EU in order to receive money under the Ukraine Facility Plan program. What can individuals accused of corruption expect and how to turn this law into an effective mechanism that will promote competitiveness […]”, — write: businessua.com.ua
Volodymyr Zelenskyi On October 31, he signed Law No. 4033-IX on the release of corrupt persons from prison by concluding agreements with the investigation. Implement a fair mechanism agreement with the investigation was Ukraine’s obligation to the EU in order to receive money under the Ukraine Facility Plan. What can individuals accused of corruption expect, and how can this law be turned into an effective mechanism that will contribute to the competitiveness of the criminal process? Kostyantyn Kryvenko, lawyer and adviser of the law firm “Ilyashev and Partners” tells the story
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The provision of €4 billion in aid to Ukraine from the EU under the Ukraine Facility was under threat. The Ukrainian side violated the deadlines for the fulfillment of the conditions related to the adoption of the draft law on agreements with the investigation in corruption cases, the Ministry of Foreign Affairs emphasized at the end of October. The department noted that Ukraine had to fulfill this condition by the end of the third quarter of 2024.
But on October 29, the Verkhovna Rada did pass draft law No. 12039 on agreements with the investigation, and on October 31, it was signed by Volodymyr Zelenskyi.
Institute of agreements with the investigationLaw No. 4033-IX restores the attractiveness of the institution of plea agreements in corruption criminal proceedings. It allows those convicted of corruption to avoid actual imprisonment by replacing it with a probationary period or other mitigation of punishment, which has been effectively banned since 2015.
A plea agreement between the prosecutor and the suspect or accused (besides the undisputed admission of guilt in the incriminated crime) must include the fulfillment by the latter of certain conditions: exposure of other corrupt persons and compensation for damages. If the person acted independently, only compensation will suffice.
The mechanism of agreements with the investigation will make it possible not to overload the anti-corruption vertical and expose even more corrupt persons. It will also encourage those who are “caught” to surrender to the investigation.
There are cases when people are used or they do not fully understand the consequences of their actions. This will help to get out of the situation with dignity. After all, what is corruption according to the law is not always corruption in the perception of society. For example, when a person, in his opinion, acted in the interests of the enterprise or the state, made non-standard management decisions aimed at obtaining a positive result, but could not achieve it for certain reasons. So she can be accused of abuse of official position, the result of which was the assignment of damages.
Such cases are, rather, an exception to the rule, therefore, in general, changes regarding the conclusion of agreements with corrupt officials do not look like a very fair decision in the eyes of society.
However, for the sake of justice, the legislator provided for other sanctions. These are additional punishments in the form of partial or full confiscation of property, prohibition to hold certain positions or engage in certain activities. As well as the imposition of cosmic fines for criminal legislation, which exceed 200 million hryvnias.
The institution of agreements in criminal proceedings is being improved, so the changes in general can be assessed positively. Corruption criminal offenses or crimes related to corruption are not limited to giving and receiving bribes. More often than not, the circumstances under investigation are complex, confusing and multi-level relationships between the state and business. Therefore, both parties should have the right to settle on mutually beneficial terms.
The problem of corruption in Ukraine is systemic, and in order to solve it, it is not enough to expose individual representatives and cover it in the mass media. It is necessary to formulate a general public opinion on the denial of corruption as a component of solving problematic life situations and achieving the desired results.
Until such awareness comes to at least a large part of the population, public punishment of individual personalities will not bring great results. Therefore, these legislative changes can take place in a state that aims to fight corruption as a phenomenon, and therefore somewhat allows the loss of quality at the expense of quantity.
The main focus of society on this law (besides the fact that it was passed under the pressure of partners to receive billions of financial aid) is that the corrupt person can redeem himself from punishment. However, it should not be forgotten that in such cases the corrupt will lose all their property and other assets, so the situation does not look so bad.
Last resortThe biggest problem with the changes adopted to the Criminal Code is who will decide: whether to serve a punishment to a corrupt person or to make a deal with the investigation.
If, according to the general rule, only the court is empowered to determine the punishment in case of conviction of a person for committing a crime, then Law No. 4033-ХХ partially transfers this role to the prosecutor. It will depend on whether the prosecutor agrees to enter into agreements with the suspect or the accused, whether the person will receive a real term in prison or probation with a fine or confiscation. The conclusion of such an agreement is the prosecutor’s right, not an obligation.
There is another nuance – such agreements can become a mechanism of inducing guilty pleas even where there is no guilt, due to the possible threat of real punishment. Under such circumstances, it would be appropriate to allow the court to decide on an alternative punishment, not related to deprivation of liberty, in cases where the accused repents, exposes accomplices, compensates for damages and agrees to plead guilty.
That is, to give the court, based on the results of the general trial, the opportunity to apply other punishments not related to detention, which could fairly punish the accused of corruption.
It is such a concept that could contribute to the adversarial nature of the criminal process, and not just reduce everything to a choice between guilty pleas and imprisonment.
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