PROBLEMATIC ISSUES OF CRIMINAL PROCEEDINGS AGAINST LEGAL ENTITIES

Abstract

The article provides a comprehensive analysis of the normative regulation of criminal proceedings concerning the application of measures of a criminal-law nature to legal entities in Ukraine, taking into account the state’s international obligations in the field of combating corruption, organized crime, and the laundering of proceeds obtained through criminal means. The author examines the genesis of the implementation of the institution of liability for legal entities, starting from the drafts of the Criminal Code of 1993–1997, through the Concept of Reforming Criminal Justice of 2008, the Law of Ukraine № 1507–VI of 2009 (which lost its validity in 2011), and the Law № 314–VII of 2013, which introduced measures of a criminal-law nature (MCLN) for certain crimes committed by authorized persons on behalf and in the interests of the legal entity. In the context of the research objective, specific innovations introduced by the Law of Ukraine № 4111–IX of December 4, 2024, on the application of MCLN to legal entities separately from the criminal prosecution of natural persons for criminal offenses provided for in Part 2 of Article 96–3 of the Criminal Code of Ukraine (hereinafter – CC) are discussed. Attention is paid to the European experience of legal regulation of the procedure for holding legal entities liable: models of criminal liability of legal entities in Lithuania, Estonia, and Georgia; subsidiary liability in Switzerland; administrative liability in Poland (under the ALCE Law of 2003) and Italy (Decree № 231/2001). The comparative analysis emphasizes the adaptation of procedures to national systems, with a focus on procedural guarantees, representation, and measures to secure criminal proceedings. In the context of Ukrainian legislation, the problems of uncertainty in the procedural status of the legal entity and its representative are analyzed, along with legislative inconsistencies in the regulation of related legal institutions in criminal and criminal procedural law, the prohibition on concluding plea agreements, deficiencies in the regulation of the form and content of procedural decisions, and others. The author argues for the need to develop a procedural form; to enshrine the status of the legal entity and define the specifics of proceedings in a separate chapter of the Criminal Procedure Code (CPC); to assign the representative to the defense side with rights similar to those of a suspect/accused; and to extend the status of defense counsel to attorneys in all proceedings involving legal entities. Scientifically substantiated amendments to the Criminal Procedure Code (hereinafter – CPC) are proposed: elimination of inconsistencies in the lists of criminal offenses; normalization of the appeal against the status of the legal entity; exclusion of the possibility of initiating proceedings at the stage of trial without pre-trial investigation; supplementation of the operative part of the guilty verdict with the possibility of terminating proceedings against the legal entity in the absence of grounds for applying MCLN; partial lifting of the prohibition on concluding plea agreements, taking into account the rights of victims. Emphasis is placed on promising research directions: the operation of the system of general principles of criminal proceedings with respect to legal entities, expansion of their content (ensuring the right to defense, freedom from self-incrimination), monitoring of offenses to expand the list of criminal offenses in Article 96–3 of the CC. The article is based on the analysis of normative legal acts, judicial practice data (verdicts in cases № 766/5921/24 and № 461/2964/24), and scholarly works in the field of criminal and criminal procedural law. The conclusions are aimed at enhancing the effectiveness of proceedings involving legal entities while simultaneously ensuring procedural guarantees for the rights and legitimate interests of participants involved in the criminal process.