Agreement with the investigation: legal trap or compromise?

Before proceeding to the issue, it should be noted that the Criminal Procedure Code of Ukraine does not provide for such a thing as a plea bargain. Only reconciliation between the suspect/accused and the victim and a plea agreement between the prosecutor and the suspect/accused are allowed.

Why do we need a plea agreement with the investigation? Its purpose is to simplify and speed up the criminal proceedings. Therefore, it is clear that it cannot be concluded with an innocent person, by default. The same applies when there is every reason to release a person from criminal liability or when there are grounds to drop the charges, which is extremely rare.

The agreement with the investigation is concluded exclusively on a voluntary basis. Pressure on the defendant by the prosecutor or investigator is unacceptable. Another important nuance is that it is essentially an admission of guilt. Therefore, before making a deal with the investigation, you should weigh up all the pros and cons and clearly understand the possible consequences. We do not advise you to make such decisions in a hurry, as the conclusion of a plea agreement or a plea of guilty may be initiated at any time after the person is notified of suspicion and up to the time the court enters the deliberation room to pass a verdict.

Reconciliation agreement between the victim and the suspect/accused

A reconciliation agreement may be concluded at the initiative of the victim, suspect or accused. Negotiations on a reconciliation agreement may be conducted independently by the victim and the suspect/accused, the defence counsel and the representative, or with the participation of another person agreed upon by the parties to the criminal proceedings (other than the investigator, prosecutor or judge).

Please note! The investigator, judge or prosecutor cannot mediate such agreements! However, the investigator and prosecutor are obliged to inform the suspect/accused and the victim of their right to reconciliation, explain the mechanism for its implementation and not to obstruct the conclusion of the reconciliation agreement.

An agreement on reconciliation in criminal proceedings concerning criminal offences related to domestic violence may be concluded only at the initiative of the victim, his/her representative or legal representative.

It should be noted that a reconciliation agreement between the victim and the suspect/accused may be concluded in proceedings concerning criminal offences, minor crimes and in criminal proceedings in the form of private prosecution. Conclusion of an agreement on reconciliation in criminal proceedings with respect to an authorised person of a legal entity that has committed a criminal offence in connection with which proceedings are being conducted against the legal entity is not allowed.

Plea agreement between the suspect/accused and the prosecutor

The plea agreement may be concluded at the initiative of the prosecutor or the suspect/accused.

In essence, a plea agreement is an agreement between the prosecution and the defence on the type and duration of criminal liability of the suspect/accused. Please note that if the suspect/accused decides to take such a step, he/she will not be able to defend his/her innocence in the course of the trial.

The plea agreement between the prosecutor and the suspect/accused may be concluded in the proceedings concerning:

Criminal offences, misdemeanours, serious crimes.
Particularly serious crimes within the jurisdiction of the National Anti-Corruption Bureau of Ukraine, provided that the suspect or accused person has exposed another person in committing a crime, if the information about the commission of a crime by such a person is confirmed by relevant evidence.
Particularly grave crimes committed by prior conspiracy by a group of persons, an organised group or criminal organisation or a terrorist group, provided that the suspect, who is not the organiser of such a group or organisation, discloses criminal acts of other members of the group or other crimes committed by the group or organisation, if the information reported is confirmed by evidence.

The plea agreement between the prosecutor and the suspect/accused may be concluded in relation to criminal offences, crimes where the damage is caused only to the state or public interest.

Conclusion of a plea agreement with respect to an authorised person of a legal entity that has committed a criminal offence in connection with which proceedings are being conducted against the legal entity, as well as in criminal proceedings in respect of criminal offences that result in damage to the state or public interest or the rights and interests of individuals in which the victim or victims are involved, is not allowed, unless all victims have given their written consent to the prosecutor to enter into the agreement.

It should be borne in mind that in case of failure to reach an agreement on the conclusion of a plea, the fact of its initiation and statements made in order to reach it cannot be considered as a waiver of the prosecution or as an admission of guilt.

What information should the agreement text?

Reconciliation and plea agreements must contain the following mandatory provisions:

The parties between which it is concluded.
The wording of the suspicion or accusation, as well as the legal qualification with the indication of the article of the Criminal Code of Ukraine.
Material circumstances of the criminal proceedings.
Unconditional recognition by the suspect/accused of his/her guilt in committing a criminal offence.
Obligations of the suspect/accused to cooperate in exposing a criminal offence committed by another person (if such agreements have been made).
The amount of damage caused and the term for its compensation.
The list of actions not related to compensation for damage that the suspect/accused is obliged to take in favour of the victim, as well as the timeframe for their implementation.
Conditions for partial release of the suspect/accused from civil liability in the form of compensation to the state for damages resulting from the criminal offence.
Agreed punishment and consent of the parties to its imposition or to the imposition of punishment and subsequent release from serving it with probation, conditions for the application of special confiscation.
Consequences of the conclusion, approval or non-fulfilment of the agreement.
Date of conclusion and signatures of the parties.

Can a court refuse to approve an agreement?

The court is obliged to make sure in the court hearing that the conclusion of the agreement by the parties is voluntary, i.e. not the result of the use of violence, coercion, threats or the result of promises or the effect of any other circumstances than those provided for in the agreement.

Despite the consent of the parties, the court may refuse to approve the agreement if:

The terms of the agreement are contrary to the requirements of the law, including the incorrect legal qualification of a criminal offence that is more serious than the one for which the agreement is intended.
The terms of the agreement are not in the public interest. That is, if the accused has previously committed crimes, failed to comply with the requirements of conditional release, etc., the court may consider these circumstances as inconsistent with the public interest.
The terms of the agreement violate the rights, freedoms or interests of the parties or other persons.
There are reasonable grounds to believe that the agreement was not voluntary or that the parties have not reconciled.
It is obvious that the accused cannot fulfil the obligations assumed under the agreement.
There are no factual grounds for a guilty plea.

If the court refuses to approve the agreement, it is not allowed to submit such a motion again in the same criminal proceedings.

What are the consequences of concluding an agreement?

The consequence of concluding and approving a conciliation agreement is:

For the suspect/accused: restriction of the right to appeal the verdict in terms of the circumstances of the criminal offence and proof of guilt.
For the victim: restriction of the right to appeal against the verdict in terms of the circumstances of the criminal offence and proof of the accused’s guilt, as well as deprivation of the right to demand further criminal prosecution for the relevant criminal offence and to change the amount of claims for damages.

In such circumstances, the accused and the victim have the right to appeal against the verdict of the court of first instance based on the agreement only in terms of the sentence imposed, if it is more severe than agreed by the parties to the agreement or if the verdict was passed without consent to the imposition of punishment, and if the court did not explain the consequences of the agreement.

The consequences of concluding and approving a plea agreement for the prosecutor and the suspect/accused are similar in nature.

Therefore, the conclusion of the agreement is an actual admission of guilt by waiving the right to a trial, during which the prosecutor is obliged to prove every circumstance of the offence.

In any case, each individual situation should be investigated in detail and the weight of the evidence available to the prosecution should be assessed, and only then a specific decision should be made on the possibility and appropriateness of concluding a plea bargain or plea agreement.