How MPs propose to improve the time frames in criminal cases

A group of MPs led by Davyd Arakhamia drew attention to the problem of “Lozovyi’s amendments” and the statute of limitations for bringing to criminal responsibility for corruption during martial law. They propose their own solution in the draft law No. 10100. Transparency International Ukraine experts have carefully analyzed that document.

What kind of amendments are we talking about?

First of all, the draft covers two conceptual things:

• cancellation of the statute of limitations for serious and especially serious corruption crimes committed during martial law, and suspension of the statute of limitations for serious and especially serious crimes during martial law;
• cancellation of the terms of pre-trial investigation until the person is notified of suspicion.

Statute of limitations for bringing to criminal responsibility

Currently, there are no specific regulations for calculating the statute of limitations for prosecuting corruption-related criminal offenses. Instead, they are determined based on the severity of the committed offense. However, certain crimes that are not corruption criminal offenses can be punished indefinitely. For example, torture, high treason, and war crimes.

The only reason for suspending the statute of limitations can be a person’s evasion from a pre-trial investigation or trial.

Terms of pre-trial investigation

The time frames for pre-trial investigations are determined in both criminal proceedings without a specific suspect (referred to as factual proceedings) and those where an individual has been notified of suspicion. These terms are subject to extension with a certain frequency through the head of the prosecutor’s office or an investigating judge.

If the time limits in the actual proceedings have expired, an investigating judge may issue a ruling to close the criminal proceedings at the request of another person (or their representative) whose rights or legitimate interests are restricted during the pre-trial investigation.

Furthermore, the duration from the moment a resolution to suspend criminal proceedings is issued until the date of its revocation by an investigating judge is currently encompassed within the time frames outlined in this article, except for the specific provisions pertaining to martial law.

For example, Part 8, Article 615 of the Criminal Procedure Code of Ukraine has special provisions suspending the period of pre-trial investigation from the date of introduction of martial law in criminal proceedings in which no one was notified of suspicion from the moment of entering information about a criminal offense in the Unified Register of Pre-Trial Investigations and until the date of introduction of such a legal regime.

What MPs propose to change

Regarding statute of limitations for bringing to criminal responsibility

People’s deputies propose not to apply the statute of limitations to serious and especially serious corruption crimes committed during martial law.

Such crimes, for example, include taking possession of property by abusing official position on a particularly large scale (in 2023, we are talking about the amount of more than UAH 805,200), or receiving a bribe by a judge. That is, if a person is suspected of such a crime, then they can be brought to justice, no matter how much time has elapsed since the moment of such a criminal offense.

They also suggest to add martial law to the list of grounds for suspending the statute of limitations for serious or especially serious crimes. The statute of limitations will be suspended for the period of martial law and will resume after its termination or cancellation.

Regarding the terms of pre-trial investigation

The draft law authors propose, among other things:

• eliminate the limitation on the duration of pre-trial investigation, starting from the commencement of the investigation until the point of notifying an individual of suspicion. That is, Investigators are not limited to the time frame for investigating criminal offenses, as long as no one has become a suspect;
• introduce a provision that specifies that the duration between the issuance of a resolution to suspend criminal proceedings and its revocation by the investigating judge will not be counted as part of the pre-trial investigation period. That is, if an investigating judge cancels an illegal resolution to suspend a pre-trial investigation, this will not affect the time frames of an investigation;
• eliminate the authority of an investigating judge to terminate “factual” criminal proceedings based on the expiry of the pre-trial investigation period at the petition of an individual whose rights or legitimate interests have been restricted during the pre-trial investigation. Therefore, these persons lose the right to file such petitions an the investigating judge;
• revert to the previous approach of extending the pre-trial investigation period when an individual is suspected by the head of the prosecutor’s office and authorize the acting head of the SAPO to grant extensions in such situations. This will streamline the tasks of investigators, as the process of reviewing petitions to extend pre-trial investigation deadlines will occur without the need for a public court trial;
• exclude the provision of Part 8, Article 615 of the Criminal Procedure Code of Ukraine, which establishes that the terms of pre-trial investigation do not relate to “factual” proceedings under martial law, and also establishes longer terms of pre-trial investigation in criminal proceedings concerning war crimes. Such amendments are consistent with the fact that deadlines in “factual” proceedings are removed altogether.

Disadvantages of the proposed amendments

The initiators of amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine justify these amendments based on the European Commission’s recommendations in response to Ukraine’s application for EU membership, which emphasize the need to strengthen anti-corruption efforts. The explanatory note to the draft law also states that ensuring effective investigations and proper dynamics of court cases and sentencing can be implemented only through comprehensive legislative amendments that should ensure the effectiveness of investigations and consideration of cases in court, based on the principles of respect for human rights.

It is challenging to dispute this assertion, just as it is challenging to deny that the draft law genuinely addresses crucial and pressing issues in criminal justice. However, the proposed amendments, in our opinion, do not consider important nuances that may later become critical.

1.   The national model for calculating the statute of limitations for criminal prosecution for corruption criminal offenses should be reconsidered.

The draft law’s authors rightfully acknowledge that a fundamental aspect of guaranteeing the certainty of punishment for corruption-related criminal offenses is establishing an adequate statute of limitations for initiating criminal charges. At the same time, people’s deputies appropriately refer to the relevant international regulations, as well as the results of assessments of international organizations. However, for some reason, it is overlooked that the proposed amendments relate only to criminal offenses committed during martial law, and also relate only to serious and especially serious crimes.

Corruption criminal offenses have their own characteristics indeed. They are challenging to uncover, often characterized by significant latency, frequently necessitate international cooperation methods in their investigation, and require overcoming legally protected secrets, such as those related to banking and correspondence confidentiality. All this increases the duration of investigation of this category of criminal offenses.

The HACC has already encountered numerous instances where individuals involved in corruption cases have been granted exemptions from criminal liability. This encompassed cases of false declaration, which constitutes a criminal offense, as well as more severe offenses, such as the situation involving former Minister of Agricultural Policy Mykola Prysiazhniuk, who unlawfully transferred Ministry of Agrarian Policy premises for privatization.

In our view, to address the issue of statute of limitations in these criminal proceedings, it is necessary to:

• expand the grounds for suspending the statute of limitations. Their list should be expanded to include an additional ground, involving actions related to international legal cooperation (such as extraditing an individual, acquiring documents from foreign sources, etc.);
• increase the statute of limitations for bringing to criminal responsibility for the commission of certain criminal offenses. In Ukraine, the statute of limitations is directly tied to the severity of the punishment. Therefore, it is crucial to increase the penalties for offenses like abuse of influence and abuse of power, ensuring that the punishment aligns proportionally with the gravity of the crime;
• change the rules for calculating the end point of the statute of limitations. This endpoint can be postponed, not at the moment when the court verdict comes into effect (i.e., during the appeal process), but rather before the first-instance verdict is delivered.

Otherwise, the proposed amendments to the criminal law may not have the expected effect, because, in our opinion, the investigation of those criminal offenses that were committed before the establishment of the NABU as a specialized body is at the greatest risk.

It should also be noted that the trial of certain criminal proceedings was suspended because an accused is serving in the Armed Forces of Ukraine. However, the statute of limitations in such cases are not suspended or interrupted.

2.   A return to the model of extending the terms of pre-trial investigation by the head of the prosecutor’s office may give rise to abuse.

The cancellation of the obligation to extend the terms of pre-trial investigation in “factual” criminal proceedings is absolutely justified because there are no suspects in them whose interests would be violated. Moreover, “Lozovyi’s amendments” already have a negative impact on the quality of the pre-trial investigation, as we explained in more detail in another material.

Nonetheless, reverting to the former legal framework where the pre-trial investigation periods in cases involving suspects can be prolonged by the head of the prosecutor’s office is also subject to significant doubts.

When these terms were extended by investigating judges, they exercised judicial control over compliance with reasonable terms of pre-trial investigation. This can be considered narrowing the content of personal rights which is prohibited by Part 3, Article 22 of the Constitution of Ukraine. Therefore, to eliminate the risk of declaring these norms unconstitutional, it is necessary either to leave the investigating judges the authority to extend the terms of pre-trial investigation after notifying a person of suspicion, or to provide an opportunity to appeal against the resolutions of the head of the prosecutor’s office on such extension to the investigating judge at the pre-trial investigation.

3.   Risks of non-extension of the proposed amendments regarding the statute of limitations for already committed criminal offenses.

The initiators of amendments to the provisions of the Criminal Code of Ukraine regarding the statute of limitations for bringing to criminal responsibility use the wording “serious and especially serious corruption crimes committed during martial law”. Martial law was introduced on February 24, 2022, and then it was repeatedly extended.

Legality in criminal law, a fundamental principle in this domain, forbids the retrospective application of criminal laws that worsen an individual’s legal standing. And some lawyers may argue for such reasons that the amendments proposed in draft 10100 cannot be applied to criminal offenses committed before the entry into force of this law. In other words, they should not apply to violations from February 24, 2022 to the specified moment.

However, practice of the European Court of Human Rights is quite unambiguous in these matters. The ECHR points out that Article 7 of the Convention on the Protection of Human Rights does not prevent the immediate application of pending proceedings of laws extending such time limits if the facts that are the basis for the accusation have never exceeded the statute of limitations.

To eliminate possible discrepancies in the interpretation of the provisions of national and international legislation on these matters, we can recommend that the final and transitional provisions of the draft law indicate that the amendments apply to all criminal offenses, regardless of the time of their commission.

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Transparency International Ukraine supports the adoption of draft law No.10100 as a basis, with a possibility of finalization.

In our opinion, this document can solve the problem of applying “Lozovyi’s amendments” in criminal proceedings, as well as a number of other issues.

However, to genuinely attain the objectives outlined by the draft law’s authors in the explanatory note, that document requires further refinement.

1. Enhance the national framework for calculating the statute of limitations for prosecuting corruption-related criminal offenses to prevent the evasion of criminal accountability for actions such as those that occurred during Yanukovych’s presidency.
2. Find a balance between respecting human rights and the modifications related to the removal of “Lozovyi’s amendments” in criminal proceedings involving suspects, with the aim of enabling judicial oversight of the length of pre-trial investigations in criminal cases.
3. Explain the time limits for the validity of the proposed amendments to the calculation of the statute of limitations for bringing to criminal responsibility.