Automatically translated version. May contain inaccuracies compared to the original.
At the same time, the expert notes that communications about court decisions should be more restrained.
The Higher Anti-Corruption Court refused to approve the plea deal with a member of the Ukrainian Parliament of the IX convocation. It provided for the transfer of 15,98 million UAH to the state and to the Armed Forces of Ukraine. The Specialized Anti-Corruption Prosecutor's Office categorically did not agree with the court's decision.
Prosecutors have not disclosed the name of the deputy, but the case description indicates that it concerns a member of parliament from OPZZh, Oleksandr Kachnyi.
In the SAP, it is noted that the court made such a decision despite the accused deputy fully admitting guilt in illegal enrichment. The politician also agreed to special confiscation of 12,98 million UAH, expressed willingness to transfer 3 million UAH to support the Defenders of Ukraine through a charitable fund of competent assistance, and provided documents about a serious illness that complicates the court proceedings.
At the same time, VAKS argued that the transfer of funds for the needs of the Armed Forces to the accounts of a charitable fund, rather than to the NBU or the Ministry of Defense, does not serve the public interest. Moreover, the fixation in the plea deal of an obligation to transfer money for the needs of the Armed Forces to a charitable fund, according to the judges, deprives this act of voluntariness. The court also allegedly cannot verify compliance with the rights of a third party—the nominal owner of the property for which special confiscation is applied.
However, the SAP contends that charitable funds that support the Armed Forces have high public trust and promptly direct donations directly to military needs. It is noted that when transferring money to state accounts, society is deprived of data on their further use, whereas the charitable fund provides open and transparent reporting.
In addition, it is noted that the accused himself decided to include the condition of donating funds to the needs of the Armed Forces in the text of the agreement with the investigation to compensate for the harm to society. Anti-corruption prosecutors emphasize that the VAKS could have verified the voluntariness of such an expression of will during the session.
As a third argument, the court was told by SAP that the VAKS received a notarized statement from a third party fully agreeing to the special confiscation. In addition, during questioning in court, this person confirmed that the property was only formally registered in their name.
Prosecutors are convinced that the court's refusal creates a negative precedent and artificial obstacles to applying the institution of plea agreements in top-corruption cases. Prosecutors will insist on continuing the case in the general procedure to ensure the principle of inevitability of punishment.
According to the head of the 'Law and Order' direction of the Laboratory of Legislative Initiatives, Yevhen Kravypin, communications about court decisions should be more restrained.
As the expert writes in a Facebook post, the terms of the plea agreement are determined by the prosecutor and the suspect, and the judge's role is only to examine legality, voluntariness of the agreement, and alignment with public interest. In this case, charity became the sole argument in favor of public interest.
“At the same time, the court carefully noted the problem of private charitable funds. The VAKS stated that charitable funds independently manage the funds, so the signatories of the agreement and the court will not be able to verify that the money goes exactly to the stated purposes. There are also special direct accounts of the NBU and the Ministry of Defense for the Armed Forces. Because of this, the court could not be sure that such a condition fully satisfies the public interest… But the difference between a private fund and a state donation account exists,” Kravypin writes.
The expert also asserted that donations cannot be the subject of a plea agreement; it is simply an circumstance characterizing the person.
“If a person donates—for what reason not? It is their private matter. Just indicate that ‘a conscious citizen donates.’ This argument of the court, in my view, is the most interesting because it challenges the discussion about the voluntariness of obligations reflected in the agreement. Especially in this agreement, if the defendant had not taken on such an obligation, there would be no agreement,” says he.
Kravypin adds that in the matter of the special confiscation of an apartment as the subject of illicit gain, the SAP's position seems sound, since the court received a certified statement from the nominal owner of full consent to the special confiscation and his testimony during questioning. But perhaps this is not enough if the court believes that the special confiscation cannot be applied.
Yevhen Kraviv is states that this VAKS ruling markedly deviates from the previously established practice of the court where donations to private funds were systematically counted as mitigating circumstances.
He emphasizes the importance of professional discussion about the legal nature of charitable contributions in criminal proceedings. In his view, private donations should remain a private matter of the accused and should not become a bargaining chip when signing plea agreements.
Recall that in April, NABU and SAP reported a revelation of illegal enrichment of 12,7 million UAH by a current member of parliament. According to the investigation, during 2020–2021 years the deputy became the owner of assets significantly exceeding his officially declared income. Notably, he bought a cottage and a land plot in Koblevo village on the Black Sea coast worth 1,694 million UAH, and bought an apartment in central Kyiv with an area of 132,6 square meters and worth 5,632 million UAH. He also made a luxurious renovation and furnishing of this apartment for 5,656 million UAH.
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