Plea Agreement in criminal proceedings: features of application and prospects for improvement

The article provides a comprehensive analysis of the theoretical and practical aspects of the application of the institution of a plea agreement in criminal proceedings. The genesis of the development of this institution, its legal nature, conditions, grounds and procedural procedure for conclusion are studied. Particular attention is paid to problematic issues that arise in the practice of applying plea agreements, in particular: ensuring the rights of the victim, guaranteeing the voluntariness of concluding the agreement, compliance of the punishment with the severity of the crime and the identity of the accused. It is established that a plea agreement is a special type of criminal procedural agreement, which has a complex legal nature and contains elements of both contractual relations and public law principles. On the one hand, a plea agreement involves the coordination of the parties’ will regarding the conditions of liability of the suspect or accused, which is characteristic of contractual relations. On the other hand, it is implemented within the framework of criminal proceedings, which are of a public law nature, and is subject to approval by the court, which exercises control over the legality of its conclusion. International standards for the application of plea agreements have been analyzed, in particular Recommendation No. 6 R (87) 18 of the Committee of Ministers of the Council of Europe to member states «On the simplification of criminal justice» and the practice of the European Court of Human Rights. It has been determined that a plea agreement does not contradict the Convention for the Protection of Human Rights and Fundamental Freedoms if the following conditions are met: a) the agreement is concluded voluntarily; b) the accused is fully aware of the factual circumstances of the case and the legal consequences of concluding the agreement; c) the content of the agreement and the fairness of its conclusion are subject to judicial control. The procedural procedure for concluding and approving a plea agreement is examined in detail, which includes the following stages: initiating the conclusion of the agreement, conducting negotiations, concluding and signing the agreement, sending the agreement to the court, considering the agreement by the court, adopting a court decision on the agreement. The features of judicial control over the legality of concluding the agreement are investigated, in particular, the limits of such control and the grounds for refusing to approve the agreement. Special attention is paid to the issues of the correlation of the plea agreement with other institutions of the criminal process, in particular with the presumption of innocence and effective repentance. It is substantiated that concluding a plea agreement does not violate the principle of the presumption of innocence, since the final decision on recognizing a person as guilty is made by the court, which approves the agreement with its verdict. At the same time, the court checks the presence of factual grounds for recognizing the person as guilty, that is, establishes the person’s guilt in accordance with the law. Based on the analysis of national legislation, judicial practice and international experience, specific proposals have been developed to improve the regulatory and legal regulation of the institution of plea bargaining in Ukraine.