Statute of limitations in criminal proceedings, or how sins are absolved under the Criminal Code of Ukraine

Statute of limitations in criminal proceedings, or how sins are absolved under the Criminal Code of Ukraine

Vyacheslav Zema Head of Criminal Procedure and Business Defense Practice at Legal

The promised one waits for three years or a lifetime! Popular wisdom, which is reflected in the legislation of Ukraine - in the statute of limitations of civil proceedings in Ukraine - is exactly 3 years, the general limitation period established in Art. 257 Civil Code of Ukraine. When does the state stop prosecuting perpetrators in criminal proceedings? Is there such a deadline?

Yes, there are such deadlines! Let's carefully understand what they are and how they are used in practice.

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

Article 49 of the Criminal Code of Ukraine: Exemption from criminal liability due to the expiration of the statute of limitations

1. A person is released from criminal liability if the following periods have expired from the day he committed a crime until the day the sentence enters into legal force:

1) two years - when committing a crime of minor gravity, for which a punishment less severe than restriction of freedom is provided;

2) three years - when committing a crime of minor gravity, for which punishment is provided in the form of restriction or imprisonment;

3) five years - when committing a crime of average gravity;

4) ten years - when committing a serious crime;

5) fifteen years - when committing a particularly serious crime.

1. The limitation period is suspended if the person who committed the crime evaded pre-trial investigation or trial. In these cases, the limitation period resumes from the day the person appears with the confession or is detained. In this case, the person is released from criminal liability if fifteen years have passed since the crime was committed.
2. The running of the limitation period is interrupted if, before the expiration of the periods specified in parts one and two of this article, the person committed a new crime of average gravity, a serious or especially serious crime. The calculation of the limitation period in this case begins from the day the new crime was committed. In this case, the statute of limitations is calculated separately for each crime.
3. The issue of applying the statute of limitations to a person who has committed a particularly serious crime, for which life imprisonment can be imposed by law, is decided by the 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.
4. The statute of limitations does not apply in the case of crimes against the fundamentals of national security of Ukraine, provided for in Articles 109-114-1, against the peace and security of mankind, provided for in Articles 437-439 and part one of Article 442 of this Code.

For example, in a case where a person snatches money from a passenger’s pocket on a trolleybus, then after five years she is released from criminal liability.

But what could be the pitfalls in the example given? Let's look at them with examples:

- as provided for in Part 2, 3 of Article 49 of the Criminal Code of Ukraine - the limitation period is suspended if a person evades pre-trial investigation and trial, or if he has committed a new crime of average gravity, or more serious.

Returning to our example, if our criminal, after the first theft, decided to hide from the police or from the court. Traveled to Poland or another country. Accordingly, he was put on the wanted list, and, for example, he was detained 7 years later by border guards during his return to Ukraine. In this case, he will be brought to criminal liability - after all, the statute of limitations was stopped from the moment he was put on the wanted list until the time of his arrest. But if he had been detained 15 years later, then in this case, this thief would no longer be 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 the event of a new crime of average gravity, or a more serious crime, before the expiration of the statute of limitations, and the statute of limitations begins to count again - precisely from the moment the new crime is committed. For example, our criminal, after the first theft, picked someone’s pocket again within 5 years, and stole something after 4 years. Then the statute of limitations will be counted from the moment the second theft was committed - that is, again 5 years. As for the first theft, in fact, 9 years have already passed. The statute of limitations for each crime is calculated separately.

For example, if our thief, instead of the second theft from a pocket, would have committed theft from an apartment - that is, a serious crime. Then in this case, the statute of limitations for the first theft would expire after 9 years from the moment it was committed (9 = 4 + 5, where 4 years passed before the commission of a new crime and 5 years for crimes of moderate severity).

Separately, it should be noted that the application of statutes of limitations in the case of the commission of a particularly serious crime, for which life imprisonment , is the exclusive right of the court , and in this case the punishment can be reduced by establishing a certain period of imprisonment.

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

There is a peculiarity in the application of statutes of limitations for persons who committed a crime under the age of eighteen - Article 106 of the Criminal Code of Ukraine (for minors), which establishes shorter periods 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 due to the expiration of the statute of limitations

1. Exemption from criminal liability and serving a sentence due to the expiration of the statute of limitations for persons who have committed a criminal offense under the age of eighteen is applied in accordance with Articles 49 and 80 of this Code, taking into account the provisions provided for in this article.
2. In relation to the persons specified in part one of this article, the following limitation periods are established:

1) two years - when committing a criminal offense;

2) five years - when committing a minor crime;

3) seven years - when committing a serious crime;

4) ten years - when committing a particularly serious crime.

1. In relation to the persons specified in part one of this article, the following terms for the execution of a conviction are established:

1) two years - when sentenced to a punishment not related to imprisonment, as well as when sentenced to punishment for a criminal offense;

2) five years - when sentenced to imprisonment for a minor crime, as well as when sentenced to imprisonment for a term of no more than five years for a serious crime;

3) seven years - if sentenced to imprisonment for a term of more than five years for a serious crime;

4) ten years - if sentenced to imprisonment for a particularly serious crime.

Part 1 art. 185 of the Criminal Code of Ukraine - Secret theft of someone else's property (theft) - is punishable by a fine of fifty to one hundred tax-free minimum incomes of citizens, or community service for a period of eighty to two hundred and forty hours, or correctional labor for a term of up to two years, or arrest for a term of up to six months. , or imprisonment for up to three years - refers to crimes of average gravity in accordance with Art. 12 of the Criminal Code of Ukraine).

Article 183 of the Criminal Code of the Russian Federation establishes two types of crimes:

1. Collection of information constituting banking, commercial or tax secrets (Part 1 of Article 183 of the Criminal Code of the Russian Federation).
2. Illegal distribution or use of information constituting a banking, commercial or tax secret by an entity to whom it was entrusted or became known through work or service (Part 2 of Article 183 of the Criminal Code of the Russian Federation).

In the first case, the subject of the crime is a general person - a person who has reached the age of 16 years. In the second case, a special subject is a person to whom the secret was entrusted or became known through work or service (for example, these could be bank employees, cellular operators, government officials, etc.). Noteworthy is the construction of the objective side of the crime provided for in Part 1 of Article 183 of the Criminal Code of the Russian Federation: the act is committed through the theft of documents, through threats, bribery and other illegal actions. Both crimes are considered completed at the moment the described actions are committed.

Another comment on Art. 203 of the Criminal Code of the Russian Federation

1. The objective side of the crime is characterized by the commission by a private detective or an employee of a private security organization who has a certificate of a private security guard, of actions that go beyond the powers established by the legislation regulating the implementation of private security and detective activities. The corresponding powers are established by the Law of the Russian Federation of March 11, 1992 N 2487-1 “On private detective and security activities in the Russian Federation.”

2. A crime is recognized as completed from the moment of a significant violation of the rights and legitimate interests of citizens and (or) organizations or legally protected interests of society or the state. This concept is evaluative.

3. Special subject: a private detective or an employee of a private security organization who has a private security guard certificate. The commission of the actions in question by employees of a service (organization) that does not have the appropriate license is qualified under other articles of the Criminal Code of the Russian Federation.

4. A qualified crime (Part 2) involves a combination (which, apparently, is a legislative inaccuracy) of two mandatory features: firstly, the use of violence or the threat of its use, or the use of weapons or special means (Part 2 covers the threat of use violence of any severity, as well as violence consisting of beatings, torture, or resulting in the intentional infliction of light or moderate harm to health) and, secondly, the mandatory occurrence of grave consequences. The latter concept is evaluative and involves, for example, causing major material damage, serious harm to health or death.

Now let's take a closer look at what each type of secret is.

1. Banking secrecy. According to Article 26 of Federal Law No. 395-1 , bank secrecy includes information about transactions, accounts and deposits of clients and correspondents. Data constituting bank secrecy can be provided to the Credit History Bureau, the Deposit Insurance Agency, the courts, the Accounts Chamber, investigative and customs authorities, as well as a number of other organizations, the list of which is constantly expanding.
2. Tax secret . According to Article 102 of the Tax Code of the Russian Federation , any information received by the Federal Tax Service, investigative, customs authorities, as well as bodies of the state extra-budgetary fund about taxpayers and payers of insurance premiums is considered a tax secret. However, there are many exceptions. For example, information about tax arrears, tax identification number, information about the tax regime used and some other data does not apply to tax secrets.
3. Trade secret . of 98-FZ states that a trade secret is understood as a regime of confidentiality of information that allows its owner to increase income, reduce costs, and also receive other benefits. This can be information of any nature - economic, technical, production, organizational, etc.

Let's consider several real cases of sentencing under Article 183 of the Criminal Code of the Russian Federation.

A resident of Ulan-Ude, who worked as a specialist in the sales office of a cellular operator, copied personal data of subscribers and sent them to an unknown person on the Internet for a fee of 6 thousand rubles. These actions did not lead to negative consequences for the clients; however, the woman was found guilty of committing crimes under Part 3 of Article 272 of the Criminal Code of the Russian Federation and Part 3 of Article 183 of the Criminal Code of the Russian Federation. As a result, the court sentenced the former operator to a suspended sentence of 3 years in prison with a probationary period of 2 years.

And another example.

A 26-year-old resident of Volgodonsk, who moved to work from Sberbank to VTB, illegally copied and took with him a client database from his previous place of employment. The man did this in order to “lure” Sberbank clients to VTB: in total, the employee had information about 3,000 citizens at his disposal. The court found the man guilty of committing a crime under Part 2 of Article 183 of the Criminal Code of the Russian Federation and sentenced him to a fine of 70 thousand rubles. The convict was also prohibited for one and a half years from applying for positions involving working with bank secrecy.

A citizen suspected or accused of committing a crime under Article 183 of the Criminal Code of the Russian Federation should fear not so much sanctions as the consequences of a possible criminal record. A criminal record may make it impossible to find leadership positions in large organizations.

For this reason, it is vital for citizens to contact an experienced lawyer , who can legally terminate criminal prosecution. If this is not possible, a specialist will help achieve an acquittal or the most lenient punishment. Especially those who are suspected or accused of committing several crimes at once should not neglect the help of a lawyer.