Vyacheslav Zoma
Head of Practice of Criminal Procedure and Business Protection of NOBILI Law Firm

Limitation periods in criminal proceedings, or how sins are forgiven under the Criminal Code of Ukraine

 

The promised is waiting for three years or a lifetime! Folk wisdom, which is reflected in the legislation of Ukraine – within the statute of limitations of the civil process of Ukraine – exactly 3 years, the general statute of limitations, which is set out in Art. 257 of the Civil Code of Ukraine. And when does the criminal prosecution of the perpetrators of criminal proceedings by the state stop? Is there such a term?

Yes, there are such terms! Let’s carefully understand what they are and how they are applied in practice.

It is Article 49 of the Criminal Code of Ukraine that establishes these terms and they directly depend on the gravity of the crime committed by the person.

Article 49 of the Criminal Code of Ukraine: Exemption from criminal liability in connection with the expiration of the statute of limitations

1. A person shall be released from criminal liability if the following terms have elapsed from the date of his commission of the crime until the date of entry into force of the sentence:

1) two years – in the case of a crime of minor gravity, for which the punishment is less severe than restriction of liberty;

2) three years – in the case of a crime of minor gravity, which provides for punishment in the form of restriction or imprisonment;

3) five years – in the case of a crime of medium gravity;

4) ten years – in case of committing a serious crime;

5) fifteen years – in the case of a particularly serious crime.

2. The limitation period shall be suspended if the person who committed the crime evaded the pre-trial investigation or court. In these cases, the statute of limitations is restored from the date of appearance of the person with a confession or his detention. In this case, the person is released from criminal liability if fifteen years have passed since the commission of the crime.
3. The statute of limitations shall be interrupted if before the expiration of the terms specified in parts one and two of this Article a person has committed a new crime of medium gravity, a grave or especially grave crime. The calculation of the statute of limitations in this case begins from the date of the commission of a new crime. In this case, the statute of limitations is calculated separately for each crime.
4. The issue of applying the statute of limitations to a person who has committed a particularly serious crime, for which, according to the law, life imprisonment may be imposed, shall be decided by a court. If the court does not consider it possible to apply the statute of limitations, life imprisonment cannot be imposed and is replaced by imprisonment for a certain period.
5. The statute of limitations shall not apply in the case of committing crimes against the foundations of national security of Ukraine provided for in Articles 109-114-1, against peace and security of mankind provided for in Articles 437-439 and part one of Article 442 of this Code.

For example, if a person takes money out of the pocket of a passenger in a trolleybus, then five years later he is released from criminal liability.

But what can be the pitfalls in this example? Let’s analyze them with examples:

– as provided by parts 2, 3 of Article 49 of the Criminal Code of Ukraine – the statute of limitations is suspended if the person evades pre-trial investigation and court, or if he committed a new crime of medium gravity, or more serious.

Returning to our example, if our criminal, after the first theft, decided to hide from the police or the court. He went to Poland or another country. He was accordingly declared wanted, and for example detained by border guards 7 years later on his return to Ukraine. In this case, he will be prosecuted – because the statute of limitations has been suspended from the time of the search and until the time of his detention. But if he had been detained 15 years later – in this case, this thief would not have been prosecuted – because 15 years have passed since the crime was committed;

– Part 3 of Article 49 of the Criminal Code of Ukraine establishes that the statute of limitations is interrupted in case of a new crime of medium gravity, or a more serious crime before the expiration of the statute of limitations and the statute of limitations begins to count again – from the time of the new crime. For example, our criminal, after the first theft, in 5 years once again got into someone’s pocket, and stole something in 4 years. Then the statute of limitations will be calculated from the time of the second theft – ie again 5 years. As for the first theft, 9 years have actually passed. The statute of limitations for each crime is calculated separately.

For example, if our thief, instead of the second theft from his pocket, would commit theft from the apartment – that is a serious crime. In this case, the statute of limitations for the first theft would expire after 9 years from the time of its commission (9 = 4 + 5, where 4 years – passed before the commission of a new crime and 5 years statute of limitations for crimes of medium gravity), will disappear from the apartment in 10 years from the time of it

It should be noted that the application of the statute of limitations in the case of a particularly serious crime punishable by life imprisonment is the exclusive right of the court, and in this case the sentence may be reduced by setting a certain term of imprisonment.

And in the case of committing crimes against the foundations of national security of Ukraine, against peace and security of mankind – the statute of limitations does not apply at all!

There is a peculiarity of the application of statutes of limitations for persons who have committed a crime under the age of eighteen – Article 106 of the Criminal Code of Ukraine (for minors) sets shorter terms of exemption from criminal liability due to the expiration of the statute of limitations.

Article 106 of the Criminal Code of Ukraine. Exemption from criminal liability and serving a sentence in connection with the expiration of the statute of limitations

1. Exemption from criminal liability and serving a sentence in connection with the expiration of the statute of limitations for persons who have committed a criminal offense under the age of eighteen shall apply in accordance with Articles 49 and 80 of this Code, subject to the provisions of this Article.
2. The following limitation periods shall be established for the persons specified in part one of this Article:

1) two years – in case of a criminal offense;

2) five years – in case of committing a minor crime;

3) seven years – in case of committing a serious crime;

4) ten years – in the case of a particularly serious crime.

3. With respect to the persons specified in part one of this article, the following terms of execution of the conviction shall be established:

1) two years – in the case of a sentence not punishable by imprisonment, as well as in the case of a sentence of punishment for a criminal offense;

2) five years – in the case of a sentence of imprisonment for a felony, as well as in the case of a sentence of imprisonment for a term not exceeding five years for a felony;

3) seven years – in the case of a sentence of imprisonment for a term exceeding five years for a felony;

4) ten years – in the case of a sentence of imprisonment for a particularly serious crime.

Part 1 of Art. 185 of the Criminal Code of Ukraine – Secret theft of another’s property (theft) – punishable by a fine of fifty to one hundred non-taxable minimum incomes or community service for a period of eighty to two hundred and forty hours, or correctional labor for up to two years, or arrest for up to six months, or imprisonment for up to three years – refers to crimes of medium gravity in accordance with Art. 12 of the Criminal Code of Ukraine).