Into the Fund Instead of the Budget: What Real Risks Are Hidden Behind Donations from Subjects of Corruption Cases

In the High Anti-Corruption Court (HACC) they have already explained how they decide where to donate. But there are questions that need to be asked honestly.

Not long ago, Ukraine saw a practice where people involved in corruption cases, after reaching an agreement with the investigation, donate a certain amount to needs of the Armed Forces. However, the money goes to funds, not to the state budget. What are the real risks in such donations? writes in the article “Fair deal: do plea agreements with investigators really work in top corruption cases” senior legal adviser at Transparency International Ukraine, Pavlo Demchuk.

“Former head of HACC Vira Mykhaylenko explained that the prosecution and defense agree on exactly where charitable payments should be directed and in what amount, and the court only checks that the agreement complies with the law. Therefore, the question, “Why these funds?” should be addressed to the parties to the agreement, not the court. However, it is worth asking honestly. Are there substantiated concerns about the transparency of the funds named in the agreement? And if there are no such concerns, what is the difference for the state between proceeds going to the budget and proceeds going to a fund that professionally and accountably purchases weapons for the army?”, Demchuk writes.

The author notes that during the war a significant portion of budgetary funds is already directed to defense. At the same time, funds in this chain can be faster and more specific channels of interaction. Moreover, the same “Return Alive” directly stated that it does not retain a percentage for administrative expenses from donations.

“The real risks here are different. First — that the fund is not linked to the defendant or his circle. Second — that the performance of the condition can be verified. For non-fulfillment of the agreement, a separate criminal liability is established, and the Specialized Anti-Corruption Prosecutor’s Office may ask HACC to cancel the verdict and review the case in a general order. It is notable that during the entire work of the court, prosecutors have never filed such a motion,” Demchuk notes.

The SAP has not yet detected a single case of intentional non-fulfillment of the agreement. No one has yet been held accountable for breaching the terms of the agreement. The documents confirming fulfillment of the agreements are payment documents provided to the court and the prosecutor. These same documents are attached to the case materials. That is, the author adds, the transfer of money is indeed verified. But it is conducted exclusively by the SAP.

“Next you can rely on the public reporting of the respective charitable funds, which should be open to the public. If there is a request for reporting specifically from verdicts under the plea agreements of HACC, it makes sense for the funds to publish such specific information about what exactly the funds were directed to under such verdicts under the agreements. This would help understand which specific needs of the army are being addressed through donations,” Demchuk notes.

At the same time, he draws attention to the unexpected public reaction to the fact that former acting head of the Administration of the President Serhiy Pashinsky, as part of fulfilling the agreement, must donate funds to the “Return Alive” and “Strelka Community” funds. In particular, 28 in September HACC did not approve the agreement of confession of guilt of People’s Deputy Oleksandr Kachnyy in the case of illicit enrichment for more than 12,7 million UAH. Kachnyy admitted guilt and agreed to transfer 3 million UAH to the project of the “Return Alive” fund. However, the judge stated that the use of these funds would be outside the control of the parties and the court, and therefore the court cannot ensure that these provisions meet the interests of society.

Recall that in September the deputy head of the “Batkivshchyna” party Serhiy Vlasenko registered in the Verkhovna Rada a draft law No 15563 “On amendments to the CPC of Ukraine and the Law of Ukraine ‘On access to court decisions’ regarding transparency and publicity of plea agreements.” If adopted in the form in which Vlasenko submitted it, the document could nullify the institute of plea agreements in criminal corruption cases.

2024 year, the party “Servant of the People” also lobbied a bill on a plea agreement, which experts and anti-corruption organizations criticized because it would allow top corrupt actors to buy their way out of responsibility. As a result, even by the second reading the bill did not advance. Then head of the Specialized Anti-Cybercrime Prosecutor's Office Oleksandr Klymenko explained in an interview with Inna Vedernikova that the institute of plea agreements is a normal global practice, but not the same as proposed by the “Servants.”