Recently, the High Anti-Corruption Court has closed the criminal proceedings on the false declaration of MP Mykhailo Zabrodskyi due to the expiration of the statute of limitations.

The court had only 1 month and 3 days to consider this proceeding. The fact is that his case was referred to the HACC on February 3, 2023, and he committed the misdemeanor, according to the prosecution, on March 6, 2021.

Therefore, the court did not have time to consider the case and render a verdict because it did not have enough time. We decided to figure out why there are statutes of limitations for bringing to criminal responsibility.

What is the statute of limitations?

The statute of limitations for criminal prosecution is a period of time after which a person can no longer be held liable. It is counted from the day when the person committed the crime.

Statutes of limitations differ depending on how serious the crime is and the punishment for it. For example, if a person has committed a criminal offense for which the punishment is less severe than the restriction of freedom, then the law enforcement agencies and the court have two years to investigate and consider such a case.

But if we are talking about abuse of office, which caused serious consequences, then the statute of limitations will be 10 years. An example is the case of the former Minister of Infrastructure Andrii Pyvovarskyi — according to the investigation, he and his deputy caused losses of more than USD 30 mln in 2015.

However, there are exceptions. There is no statute of limitations for crimes against the fundamentals of national security of Ukraine, against the peace and security of mankind and torture. And if the crime was committed against a minor/underage person, the statute of limitations begins to be counted from the moment of age of majority.

Why are there such statutes of limitations?

The statute of limitations exists because over time, the offense loses its relevance, and the social danger from the person becomes less acute. At the same time, law enforcement agencies and courts are motivated to work faster on cases.

In addition, evidence in cases may become incomplete over time (for example, witnesses will forget important details). Therefore, statutes of limitations help prevent violations of the rights of defendants in court.

There are only two options for applying the statute of limitations for criminal prosecution:

1. exemption from criminal liability (Article 49 of the Criminal Code of Ukraine);
2. exemption from punishment (Article 74, part 5 of the Criminal Code of Ukraine).

A significant difference between them is that in the first case, the court does not officially condemn a person with all the consequences.

When does the statute of limitations begin?

The starting point of the statute of limitations is the day when a person committed a criminal offense.

If the person was preparing for a crime or made an attempt on it, the countdown begins from the day when the offense is terminated for reasons independent of the person. For example, if they are exposed by law enforcement agencies.

What will happen if one hides from the investigation or the court?

In such cases, the calculation of the statute of limitations is stopped. And the countdown will resume only when a person appears with a confession or is detained. But if a person hides for 15 years, they can also be exempted from criminal liability because there is no statute of limitations for more than 15 years.

If, before the expiration of the statute of limitations, a person has committed a new crime of medium gravity, then the statute of limitations begins to be counted anew. If there are several crimes, then statutes of limitations for them are calculated separately.

Thus, the statute of limitations exists to ensure that a person does not remain “in suspension” for a long time. For example, if suddenly the investigation of the theft in the supermarket of 30 years ago begins. After all, there are doubts whether the consideration of this crime will be appropriate and necessary in the society.

In addition, it is an incentive for law enforcement agencies and courts to meet reasonable deadlines. Although this may not always play in favor of the victims and the interests of the state as a whole.

The trial of criminal proceedings is a long and costly process. After all, both state resources (the work of the court, the prosecutor) and the funds of the suspect, the accused (engagement of a lawyer, arrival at the court) are spent. Therefore, a new institution was created to help the court — plea agreements. 

How is it applied in practice?

Plea agreements are possible in cases of criminal offenses, minor and serious crimes, etc. This also applies to corruption crimes, for example, offering a bribe to an official. 

Both the prosecutor and the suspect/accused have the right to initiate the agreement. There is a set time for this — from the moment the suspicion is announced — until the judges enter the deliberation room to pass the verdict. 

The case of ex-MP Oleksandr Trukhin, who had offered a bribe to police officers, gained sufficient publicity. His defense has initiated a plea agreement, so now Trukhin has to pay a fine and donate to the Armed Forces of Ukraine.

Agreements relating to corruption cases will work when approved by the High Anti-Corruption Court. After that, the court will pass a guilty verdict. 

What does it mean to make a deal with the investigation? 

A plea agreement is a legal “compromise” between the prosecution and the suspect. So that the parties do not abuse this right, there are safeguards that are carefully checked by the court. Thus, the terms of the agreement must meet the interests of society. It depends on the severity of the crime and how public and private interests relate. Of course, the agreement should not violate the rights, freedoms, or interests of the parties, the voluntariness of the conclusion of the agreement, and other circumstances.

By entering into an agreement, the parties may agree on the punishment, the amount of damages to be compensated, and the conditions under which the punishment will not take place. For example, these are the so-called suspended sentences (in accordance with Article 75, part 2 of the Criminal Code of Ukraine). 

Recently, the practice of the accused/convicted donating to the Armed Forces of Ukraine has become widespread. Thus, Oleksandr Trukhin will pay UAH 6 mln for the army; so far, the current mayor of Poltava, Mamai, who also concluded an agreement with the investigation, has pledged to donate UAH 2 mln. 

The suspended sentence and generous donations do not absolve the conviction and all its consequences (for example, dismissal from public service or loss of mandate) of the accused. After the conclusion of the agreement, it is no longer possible to appeal the verdict on a general basis.

If the agreement is not fulfilled as a result, then the trial or pre-trial investigation will resume, and the accused, if they broke the agreement intentionally, will face criminal liability.

In accordance with Art. 41 of the Constitution of Ukraine — no one shall be unlawfully deprived of the right of property. However, there are cases determined by law when the state can take private property quite legally. 

These include the confiscation of property, the recognition of assets as unfounded and their recovery into the state’s income, special confiscation and recovery of assets in the state’s income (as a sanction). Let’s find out the difference between these categories.

Confiscation of property is a punishment

The court may decide on the confiscation of property when it finds a person guilty of committing a certain crime. At the same time, all or part of the property that is their property is forcibly and free of charge seized from the convicted person. It is important that confiscation is applied specifically to legally acquired property, its main goal is to punish and correct the convict.

Special confiscation is not a punishment

Special confiscation is applied to things that were used to commit a crime or were acquired as a result of a crime. Its main goal is to ensure that financial benefits cannot be obtained as a result of the crime. In this case, the property can be taken away both from the convicted person and from other persons. The main thing is that these other persons know that the property is associated with the commission of a crime. 

For example, an official received an illegal benefit of USD 100,000. This money will be seized from him under the mechanism of special confiscation.

Recovery of assets into the state income is a sanction

It is applied in accordance with the Law of Ukraine “On Sanctions.” And only in cases where the High Anti-Corruption Court, at the request of the Ministry of Justice, decides that a person has committed actions that have created a significant threat to national security, sovereignty, and territorial integrity. 

Then the state, as a measure of prevention and deterrence against further such behavior, has the right to forcibly and free of charge recover these assets in its favor. This is the state’s reaction to the actions taken by the aggressor state and its proxies.

Recognition of assets as unfounded and their recovery into the state’s income

As with the previous category, the High Anti-Corruption Court recognizes assets as unfounded, but at the request of the prosecutor of the Specialized Anti-Corruption Prosecutor’s Office. However, such a claim can be filed only against an official or other person performing actions on their behalf, in the cases where the acquired property does not correspond to their legal income for a certain period of time. 

From this, the prosecutor, and then the court, can establish that the official somewhere received income that he/she could not receive and then recover property that was acquired for illegal income in favor of the state.

 

This publication was prepared with the financial support of the European Union. Its content is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of the European Union.

If you want to find details about the case of a corrupt official from official sources, visit the websites of the High Anti-Corruption Court (HACC) and the Unified State Register of Court Decisions (USRCD).

It may be difficult to find information about the person involved in the case on the HACC website. The Anti-Corruption Court does not mention the names of detainees, accused, or suspects. Why is it so — find out from our previous reference.

However, even without a full name, you can get information about the date and time of the hearing. In the section “list of court cases assigned for consideration” you will see a list of hearings with the number of the case, the panel considering it, as well as the participants in the case. Moreover, the names of the persons involved are not indicated in the course of pre-trial investigation, but are indicated in the course of the trial.

The date of the next hearing can be found by the case number. In the list on the HACC website, this is the second column named “the single unique case number.” It consists of three digits with a slash (/). The first is the court code (for example, 991 for the HACC), the second is the case number in the current year, and the third one is the year of registration (last two digits).

The USRCD website is quite intuitive. Although the register does not contain information on the names of potential corrupt officials, its main page contains fields where court decisions can be found by phrase, timeframe of the decision, court name, and other meanings.

Please note that all decisions in the case can be found by the number of a criminal proceeding, which consists of 17 digits, and the date of registration of the case in the Unified Register of Pre-trial Investigations (ERPTI).

The number of a criminal proceeding makes it possible to find a court decision through a contextual search, as it is indicated in the text of court decisions and is unchanged from the statement (its entry in the ERDR) to the verdict as well as to its appellate and cassation review, in contrast to the above-mentioned case number, which is assigned separately to each document submitted/referred to court for consideration (for example, a request for an interim measure and an indictment).

Why is complete information about those involved in the investigation unavailable on these websites?

In Ukraine, everyone can access information. This is guaranteed by the Constitution. An exception may be a situation where, for example, crime must be prevented, or confidential information not allowed to be disclosed. Therefore, the criminal legislation enshrines both the principles of publicity and openness of court proceedings, and the rule on the inadmissibility of disclosure of information on pre-trial investigation.

Publicity and openness are needed at a stage when the pre-trial investigation has been completed, the evidence has been collected, and the court can examine it. The inadmissibility of disclosing information on the pre-trial investigation speaks for itself: this rule is aimed at maintaining the secrecy of investigation.

These two different approaches to regulating access to information in pre-trial investigation and trial are determined by their objectives. If there was no secrecy of pre-trial investigation, the information about certain investigative actions would have become widely known before they were conducted. And in the worst case, it would allow the suspects to destroy the evidence.

The principles of publicity and openness are established in order for judges to consider cases impersonally and impartially. If the court has not decided on a closed hearing, everyone can be present at the court hearing. Read here what free listeners need to consider before attending hearings.

We have collected tools that will help you avoid corruption in your life, and if you want, also help you eliminate it in procurement, city councils, and so on.

—     If you are interested in what to do in different situations, for example, to pass a driving test without a bribe, see guides of TI Ukraine: https://ti-ukraine.org/ti_format/novyny/baza-znan/

—     Care about your city? Give the authorities feedback on the local government transparency and accountability platform: https://transparentcities.in.ua/

—     We also suggest that you use the COVID-19 procurement monitoring tool: https://covid.dozorro.org/. It helps find all the necessary information on COVID-19 procurement in just a few clicks;

—     If you have a child, you would want to know who feeds your children, with what products, and for how much. You can find clear instructions and templates for writing requests on the online map of school procurement: https://nus.org.ua/what-your-school-buys/. Recently, more schools have been added to the map, and now there are already 2,241 of them!

—     A real paradise of numbers, graphs, and data for the most avid followers: https://bi.prozorro.org/hub/. It is suitable for thorough study and identification of procurement Corruptors.

Follow our news, we promptly report on possible abuses and failures and offer ways out of these situations.

Have a free-of-corruption year!

Holidays are closing in, and so is the time to give gifts. Traditionally, officials also receive them, but sometimes gifts go beyond the legal framework. Let us tell you what you can give so as not to endanger officials.

Attention! Do not forget that the salaries of officials are paid not by the abstract “state,” but by us, that is, taxpayers.

We decided to update our guide on what can actually be given to officials, so as not to cross the law.

A gift is defined as money or other property, benefits, services, perks, intangible assets, which are provided/received for free or at a price which is below the minimum market level (the Law of Ukraine “On Corruption Prevention,” art. 1, part 1). This means that business gifts within the monetary limits set by law are possible, so the main thing is to be able to give them to officials without violating the law. Therefore, if you decide to present a souvenir, follow the instructions.

 

Price of the gift

It is advisable to give a one-time gift that does not exceed the subsistence minimum for able-bodied persons as of the day of acceptance of such a gift. That is, if we give a gift for the new year 2022, then its cost should not exceed UAH 2,481. And for 2021, the total number of gifts from one person should not exceed UAH 4,540, that is, two subsistence minimums as of January 1, 2021. 

Please note: a business gift must comply with generally accepted notions of hospitality. Officials (or their relatives) are not allowed to receive gifts in connection with their performance of state or local government functions.

We have prepared options of gifts for you.

● Code of Ukraine on Administrative Offenses with illustrations — about UAH 250.

● Motivational scratch poster “100 Great Things” — about UAH 600.

● Scented candle — about UAH 400.

● Wooden puzzle “Sun” — about UAH 350.

● Running alarm clock on wheels — about UAH 450.

By the way, almost all of them are manufactured in Ukraine, so you will kill two birds with one stone supporting our entrepreneurs and not breaking the law when congratulating officials.

 

If you look at the respectable gifts of more traditional categories, you can buy: 

● Chivas Regal 12-year-old blended Scotch whiskey (1 L) — about UAH 1,800.

● Box of sweets — from UAH 50.

● A bouquet or a New Year’s basket — from UAH 500.

 

You can also give coupons to foundations and organizations. This will be a great gift for people who consider it necessary to support initiatives that sometimes solve crucial social (and not only) problems.

There is another option for the most creative: your attention and appreciation are priceless. Officials will definitely appreciate Facebook posts, a simple postcard, or a personal greeting.

 

Who gives a gift?

Under the Law of Ukraine “On Corruption Prevention,” close family members include husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister, first cousin, brother-in-law, sister-in-law, nephew, niece, uncle, aunt, grandmother, grandfather, great-grandfather, great-grandmother, grandson, granddaughter, great-grandson, great-granddaughter, son-in-law, daughter-in-law, mother-in-law, father-in-law, parents of the son-in-law or daughter-in-law, foster parents or children, caretakers and persons being taken care of, as well as family members: 

a) a person who is married to the official and children of the official under the age of 18 regardless of cohabitation;

b) any persons living together in the same household, with mutual rights and obligations in relation to the entity (excluding persons whose mutual rights and obligations are not of family nature), including persons who live together but are not married;

Please note: business gifts can NOT be received from subordinates!

 

Form of the gift

A gift in the form of public discounts on goods, services, public winnings, prizes, awards, bonuses are not subject to restriction.

 

What penalties are there for non-compliance with the above rules?

Officials receive an administrative fine of UAH 1,700 to UAH 3,400 with confiscation of the gift. If this action is committed repeatedly during the year, the official will pay a fine of UAH 3,400 to UAH 6,800 with confiscation of the gift (donation) and deprivation of the right to hold certain positions or engage in certain activities for a period of one year.

Officials should remember: 

1) Receiving any gift should not affect the objectivity or impartiality of the person’s decision-making or incite them to commit a wrongdoing;

2) In addition, decisions made by an official in favor of the person from whom the official or their relatives received a gift are considered to have been made in a conflict of interest, and these decisions are subject to a provision of article 67 of the Law of Ukraine “On Corruption Prevention”; i.e., such a decision may be ruled invalid.

3) A gift cannot be demanded, asked for, or received through other persons under certain conditions.

 

Keep the guide and share it with your friends to know how to act when you want to give presents to officials!