Statute of limitations: What is forgotten is not prosecuted

Recently, the HACC acquitted two participants in the Rotterdam+ case from liability, granting the defense’s request. Although the crime for which they were released was not serious, this news spread in the media because, in high-profile cases, people expect to see the final decision of the court: whether the person is guilty or not.

In the latest report on the monitoring of HACC, Transparency International Ukraine established that only last year, 21% of individuals accused in cases by NABU and SAPO were released from criminal responsibility or punishment due to the expiration of the statute of limitations. This is a large indicator that may increase in the future.

Therefore, we decided to investigate these cases to find out if there are any patterns in the release of alleged violators from responsibility.

Why is the issue of statutes of limitations popular again?

First of all, let us remind you that the statute of limitations in criminal law determines how much time the state has to bring a person to criminal responsibility. After a certain period of time has passed:

• punishment loses relevance;
• the evidence of the alleged crime loses its quality.

A new wave of discussions about this concept of criminal law began in 2023 when the HACC began to massively close cases accusing MPs of making unreliable declarations, even though only 2-3 months had passed since they were sent to court.

People’s deputies have also drawn attention to this problem, proposing in draft law No. 10100 to cancel the statute of limitations for serious and especially serious corruption crimes committed during martial law, as well as to suspend the statute of limitations for serious and especially serious crimes for the period of martial law.

In our other legal analysis, we highlighted the shortcomings of the proposed amendments. After all, those amendments:

–       apply only to criminal offenses committed during martial law and only to serious and especially serious crimes. But there are far fewer problems with the ability to investigate top corruption today than with top corruption that was committed before the creation of NABU. For example, cases concerning Yanukovych’s entourage;

• do not consider the specifics of the corruption investigation. Such criminal offenses 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;
• do not apply to corruption and corruption-related criminal offenses that are not serious or especially serious. For example, trading in influence or unreliable declaration. Does this mean that the state should turn a blind eye to them?

An unreasonable approach to changing the criminal law in terms of the statute of limitations may not affect the really important points regarding the prosecution of corruption. Therefore, if there is a corresponding demand from society, it must be satisfied qualitatively.

Statistics allow us to identify certain patterns in the application of statutes of limitations in corruption cases.

As of February 5, 2024, we found 80 court decisions from the HACC and the HACC Appeals Chamber on release from criminal responsibility (68 decisions) or serving a sentence (12 decisions) due to the expiration of the statute of limitations.

Having analyzed court decisions on release from criminal liability and punishment due to the expiration of the statute of limitations, we identified the points that most often occurred when considering such cases:

• non-appearance of defendants, defense attorneys, or witnesses at court sessions;
• a long and fruitless hearing of the case in the local court before the creation of the HACC;
• the initiation of the investigation of the case after the expiration of the statute of limitations;
• implementation of actions as part of international cooperation;
• a long period of familiarization by the defense party with criminal proceeding materials.

If we examine the five articles of the Criminal Code of Ukraine under which decisions on release from criminal liability or punishment by a statute of limitations are most frequently made, the composition of criminal offenses is as follows:

• forgery in an official capacity (Article 366) – 41 cases;
• declaration of false information (Article 366-2) – 16 cases;
• abuse of power or official position (Article 364) – 13 cases,
• abuse of influence (Article 369-2) – 12 cases;
• declaration of false information (Article 366-1, declared unconstitutional in October 2020) – 9 cases.

These five are more than 80% of all criminal offences. And here, not only criminal misdemeanors or minor crimes are taken into account, but also serious crimes (for example, abuse of power or official position).

There may be an increased number of closed proceedings for serious crimes in the future. After all, even now detectives are investigating cases in which the events in question occurred between 2010 and 2014. These include, for example, the Serhii Pashynskyi case (events of 2014), the case involving the takeover of Odesa Airport with suspects businessman Kaufman and former mayor of Odesa Kostusiev (events of 2011), and the case of corruption in Ukrspetsexport, where, according to the prosecution, a non-resident company was paid $23.8 million based on a fictitious contract (events of 2010-2012).

Also indicative are the periods that have elapsed from the time of registration of criminal proceedings to the time of the decision on release from criminal responsibility. Specifically, 44% of such decisions are related to cases where 1 to 5 years have passed since the beginning of the investigation. And the most common period, ranging from 5 to 7 years, accounted for 40% of decisions.

If we discuss the investigation timelines of cases, the highest percentage of closure decisions (26%) was made by the HACC in relation to criminal proceedings where the time between the beginning of the investigation and the referral of the case to court is from 1 to 1.5 years. Following that is a term of 3 to 5 years (15%), and a term of 2 to 3 years (13%). On average, such cases were investigated for 803 days, that is, a little more than 2 years.

If we look at the time between the case being brought to court and the release from criminal liability, it can be observed that 55% of the decisions on such release were made between 1 month and 1 year. That means there weren’t many opportunities for a trial by the HACC.

At the same time, 31 out of 80 analyzed cases (39%) were transferred to the HACC from the local court after September 5, 2019, when the HACC began its work. Local courts considered these cases from 145 to 2,050 days before they were transferred to the HACC, with an average period of approximately 718 days, or about 2 years.

These statistics indicate the following important points for our research:

• due to the expiration of the statute of limitations, HACC released individuals from criminal liability not only in cases of criminal misdemeanors and minor crimes but also in cases of serious crimes;
• after the completion of the investigation, there is often not much time left for the High Anti-Corruption Court to review the case and the appellate body to review the court’s verdict;
• delays in handling cases of corruption and corruption-related criminal offenses by local courts also negatively affect the observance of statutes of limitations.

The statute of limitations can be improved

In general, there is no single recognized approach to regulating statutes of limitations in the criminal legislation of other states. Although international regulations about combating corruption, pay much attention to statutes of limitations.

For example, the UN Convention against Corruption specifies that each participating state, where necessary, establishes in its domestic legislation long periods of limitation for initiating proceedings in connection with any offense. Also, that legal regulation obliges the establishment of either a longer limitation period or its suspension if the person involved is evading justice.

Ukrainian legislation mostly meets these requirements. However, we can see that certain corruption and corruption-related criminal offenses have a fairly short statute of limitations for criminal prosecution, which is due to a disproportionately small amount of punishment.

By comparing the statutes of limitations for the prosecution of various corruption crimes in EU member states and Ukraine, it can be established that the statutes of limitations for certain actions are unreasonably short in our country. This mostly concerns obstruction of justice, but also bribery in the public sector (Articles 368 and 369 of the Criminal Code of Ukraine), bribery in the private sector (Article 354 of the Criminal Code of Ukraine), trading in influence (Articles 369-2 of the Criminal Code of Ukraine) and abuse of authority ( Article 364 of the Criminal Code of Ukraine).

The State Anti-Corruption Program contains provisions that suggest improving sanctions for corruption.

Therefore, it can be said that in order to address the situation with statutes of limitations, a proportional strengthening of criminal liability for certain criminal offenses is extremely important. After all, such a change will lead to an increase in the statute of limitations for prosecution.

In national legislation, the execution of actions pursuant to international legal assistance does not constitute grounds for the suspension of the statute of limitations. And this is also a shortcoming that needs to be eliminated.

Additionally, the statute of limitations is calculated from the moment of the commission of the criminal offense until the sentence becomes final. That is, it includes not only the period of the trial but also the appellate review of the verdict. Therefore, it is necessary to change the endpoint for calculating the statute of limitations for criminal prosecution (not before the court verdict comes into force but before the verdict is passed by the first instance).

Here are our recommendations for correcting deadlines

Our analysis shows that the problem of the expiration of the statute of limitations for bringing to criminal responsibility is only beginning to become critical for the work of the High Anti-Corruption Court. However, it depends on other performance indicators of the court, for example, on the response to abuse of procedural rights. Amendments to the criminal legislation can solve this problem qualitatively.

Thus, the statute of limitations for bringing to criminal responsibility should be improved in several areas:

• proportionally strengthen criminal liability for certain criminal offenses, which will consequently extend the statute of limitations;
• establish additional grounds for suspending the statute of limitations (for example, international legal assistance in criminal proceedings);
• change the endpoint for calculating the statute of limitations for criminal prosecution (not before the court verdict comes into force but before the verdict is passed by the first instance).

Equally important and effective is the work of the investigation and the court in ensuring the observance of reasonable timeframes for pre-trial investigation and trial. This is a comprehensive criterion that requires compliance with a large number of components – the availability of sufficient resources, prioritization of criminal proceedings, and the availability of legislative tools to combat abuse.

Therefore, in order not to jeopardize a full-fledged judicial review, for example, in the cases of Martynenko, regarding corruption in Ukrspetsexport and Odesa Airport, it is necessary to work on the quality of the legislation on deadlines in advance. And you can work on it right now.