Material by the Agency for Legislative Initiatives for Dzerkalo Tyzhnia.
The institution of plea bargains was introduced into Ukraine’s Criminal Procedure Code back in 2012. Its logic is straightforward: the prosecutor may conclude an agreement with a suspect or accused person at any stage of criminal proceedings. The prosecution saves resources, while the defence receives a predictable, agreed punishment, in exceptional cases even below the minimum threshold set by the sanction of the article.
In ordinary criminal cases (theft, robbery, fraud and so on), plea bargains have never gained popularity. In contrast, at the High Anti-Corruption Court (HACC), their use has been growing exponentially. Society often perceives this as injustice and a ‘buyout’ for the corrupt. At the same time, experts stress that plea bargains are not about avoiding punishment but about ensuring the inevitability of punishment for a greater number of offenders. Still, where is the line between fairness, resource efficiency and public trust?
Plea Bargains the Ukrainian Way: Trial and Error
In 2024, more than 10,000 plea bargains were concluded, mostly in cases of crimes against property and drug-related offences, according to official statistics. The total number of judgments in criminal proceedings was about 77,400. In other words, around 14% of them ended with plea bargains.
At the same time, Ukrainian courts operate a simplified procedure without the examination of evidence (Article 349 of the CPC of Ukraine, which serves as a substitute for plea bargains). Since 2020, even ‘written proceedings’ have been possible in cases of criminal misdemeanours, without a court hearing. The key here is the admission of guilt. According to statistics, more than 80% of defendants (in both crimes and misdemeanours) plead guilty, so the issue lies not in proving guilt but in determining the severity of punishment.
At the same time, the simplified procedure is unpredictable and provides far fewer guarantees than a plea bargain. Neither the prosecutor nor the judge owes the accused anything at all, they merely take it into account as a mitigating circumstance. This is not an agreement (a contract). In practice, this results in an extremely low percentage of acquittals, since in most cases there is no dispute over guilt, and the issue is only the severity of punishment. Everything rests on informal practices — the judge may show leniency and humanity in this matter, as the accused has cooperated with the investigation and admitted guilt. Yet going beyond the limits of the sanction is possible only in exceptional cases, and only to a minor extent.
International Experience: Rationality and Efficiency
Global practice looks quite different. In the United States, 95–99% of criminal proceedings end with plea bargains. In the United Kingdom — about 70%, in EU countries — on average more than 50%. In Ireland, this figure reaches 90%.
The case law of the European Court of Human Rights also points to the usefulness of such a mechanism. Concluding plea bargains makes it possible to save resources of both the state and private individuals. A suspect does not have to spend large sums on a lawyer or endure the stress of a lengthy trial with an unpredictable verdict. Meanwhile, the prosecutor and the court also save time and money. Thus, a plea bargain becomes a rational choice, advantageous for both sides.
HACC Delivers: How the Institution of Plea Bargains Works in Corruption Cases
In Ukraine, one often hears complaints that ‘the institution of plea bargains has not worked’ since 2012. This is indeed true, except for one category of proceedings — high-level corruption cases heard by the HACC. In these cases, plea bargains are increasingly often concluded. Over six years of the Court’s operation, half of its judgments have been concluded in this way. Moreover, in most cases, this happens at the pre-trial investigation stage, which indicates the parties’ real use of procedural economy tools and their desire to reduce the time needed for evidence gathering and the transfer of a case to court.
The dynamics after November 2024 proved particularly telling when Law No. 4033-IX came into force. Before that, the share of plea bargains in the HACC ranged between 25% and 40%. In contrast, Law No. 4033-IX, adopted within the framework of the Ukraine Facility Plan, introduced certain improvements to the institution of plea bargains, albeit in a less ambitious version than the Government had proposed. Yet even under these conditions, the new rules produced a positive effect — 66% of convictions at HACC were delivered based on plea bargains. In comparison, in ordinary courts, only 14% of cases are concluded in this way.
An Attempt to ‘Buyout’ or the Inevitability of Punishment?
Has Ukraine’s criminal justice system become more effective thanks to the institution of plea bargains? Undoubtedly yes, since a plea bargain is not about avoiding punishment. On the contrary, it is a mechanism for ensuring the inevitability of punishment. This has allowed detectives and prosecutors to concentrate on other proceedings, often more complex and large-scale. In other words, it has freed up resources for a greater number of suspects and criminal schemes.
Yet society does not hear this message. People often say that ‘plea bargains are not fair’. The reason lies in the lack of communication from the Specialised Anti-Corruption Prosecutor’s Office (SAPO) and the HACC. They have failed to explain to the public why concluding plea bargains is effective for the criminal justice system. Moreover, the criteria by which the SAPO proposes or agrees to a plea bargain, if it was not the initiator, are not transparent. All the arguments about the rational choice of the individual or the maximisation of criminal prosecution by exposing more corrupt actors do not feature in the public communication of these bodies.
In addition, the court must verify whether a plea bargain serves the public interest. But how is this to be defined? HACC judges interpret the meaning of public interest differently, and their practice diverges. Some judges proceed from public expectations — whether the decision they make will correspond to the demands of citizens. Others focus on resolving the case as quickly as possible with minimal state expenditure, the need to expose other criminal offences and so forth. Thus, the very concept of ‘public interest’ remains evaluative and ambiguous. The absence of a unified approach only reinforces the perception of unfairness.
High-profile cases only add fuel to the fire. The obligations to transfer UAH 2 million to the AFU from the Mayor of Poltava, Oleksandr Mamai, UAH 6 million from MP Oleksandr Trukhin or UAH 500 million from former Minister Mykola Zlochevskyi provoked a storm of debate. Fines amounting to tens of thousands of hryvnias, against the background of multimillion-dollar donations, are perceived by society as an outright attempt to ‘buy out’. A voluntary donation looks like a substitute for punishment, and the entire judicial process appears to be a farce. Yet this is not the case, since we do not know how many resources were saved, how many incriminating testimonies were provided by these convicted individuals, or what the long-term effect of these plea bargains will be.
Explanations — simplified, but considering the secrecy of pre-trial investigation — could be communicated periodically by the leadership of the SAPO and the HACC. Interpreting the ‘policy’ of concluding plea bargains is itself a form of accountability to society, rather than juggling ‘dry’ statistical data without proper interpretation. After all, data without interpretation can be turned in any direction.
Justice Through Plea Bargains: Possible, but Unclear?
The conclusion of plea bargains in HACC cases is increasing and demonstrates its effectiveness. Yet this instrument lies on the edge of public trust. Unless people are given clear explanations of how the process works, it will continue to be perceived as unfair.
Public outrage over plea bargains is understandable. At the same time, it reflects the dominance of a deontological (values-based) approach — ‘to jail every last corrupt official’, so to speak. Yet the resources of the criminal justice system are limited. It is necessary to distinguish between more and less significant proceedings, that is, to prioritise efforts. Combating crime must be viewed dynamically — we could spend all the resources of detectives and prosecutors on prosecuting one ‘notorious’ corrupt official, while dozens or even hundreds of others continue committing crimes. In this way, we absolutise the moral imperative of punishing each individual offender without noticing how others escape liability.
Instead, the fight against corruption can be seen as a system, and the consequences of plea bargains can be considered through a consequentialist approach to justice. That is, to accept that a particular defendant may receive a lighter sentence, but thanks to their cooperation, it becomes possible to expose large-scale schemes and bring dozens of others to justice. This ensures the inevitability of punishment for a greater number of corrupt actors.
As early as the 18th century, Cesare Beccaria wrote in his treatise On Crimes and Punishments: ‘The certainty of even a mild punishment will always make a stronger impression than the fear of one more severe, if attended with the hopes of escaping’. These words remain relevant today, though they are still not understood by most politicians who propose to criminalise something, increase sanctions and believe that criminal law can resolve any social problem.
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