The institution of release from criminal liability in connection with the expiration of limitation periods is one of the fundamental mechanisms for implementing the principle of humanism in criminal law. Its essence lies in the fact that the state refuses to prosecute a person criminally if a period of time determined by law has passed since the commission of the crime, during which the person has not committed a new crime and has not evaded investigation or trial, and the indictment has not entered into legal force.
The existence of a limitation period ensures legal certainty, as well as the prevention of potential violations of rights in the event that courts had to consider cases on the basis of evidence that might have been incomplete due to the passage of time.
In addition, by establishing limitation periods, the state protects a person suspected of committing a criminal offense from unlimited public prosecution in time, which is inconsistent with respect for dignity and the right to personal integrity. It is emphasized that even a person who has committed a criminal offense should not live under the burden of constant fear, expecting that at any moment, regardless of the number of years that have passed since the day the act was committed, they may be brought to criminal responsibility.
Exemption from criminal liability due to the expiration of statute of limitations is based on the presumption that the public danger of both the act itself and the person who committed it has been lost or significantly reduced as a result of the lapse of a significant period of time.
However, the practical implementation of the provisions of Article 49 of the Criminal Code of Ukraine gives rise to a number of problems related to the calculation of time limits, the interpretation of the concept of «evasion,» the allocation of court costs, compliance with the presumption of innocence when closing proceedings on non-rehabilitating grounds, etc.
Generally, under the doctrine, statutes of limitations are understood as the periods specified in the Criminal Code of Ukraine from the moment a criminal offense is committed until a sentence enters into legal force, upon the expiration of which the person who committed it is released from criminal liability. After this, criminal prosecution of the person and the application of coercive measures are precluded.
It is worth noting that with the adoption of the 2001 Criminal Code of Ukraine, the concept of «statute of limitations for criminal liability» was transformed into the concept of «release from criminal liability in connection with the expiration of the statute of limitations.».
The change in approaches directly stems from the legal position of the Constitutional Court of Ukraine set forth in its decision of October 27, 1999. The Court noted that criminal liability arises from the moment a court's guilty verdict enters into legal force, while the initial stage of bringing a person to criminal liability, as a stage of criminal prosecution, is the notification of charges (this stage can be compared to the notice of suspicion under the current CPC). Thus, it should be understood that Article 49 of the 2001 Criminal Code defines the limitation periods for the emergence of criminal liability, rather than for bringing a person to it, as was the case previously.
The application of the institution of limitation requires a combination of three conditions:
1) expiration of the time limits established by Article 49 of the Criminal Code of Ukraine;
2) absence of circumstances that disrupt their course (commission of a new crime, evasion of pre-trial investigation or court);
3) the existence of the suspect's or accused person's consent to the closure of criminal proceedings on this ground (it is important to emphasize that this is a person's right, not an obligation, since release on this ground is not rehabilitative).
In this regard, the specifics of applying Article 49 of the Criminal Code require pre-trial investigation bodies and the court to establish a specific range of circumstances. Criminal law doctrine distinguishes a so-called «special subject of proof» in such cases. This includes: the fact that the differentiated limitation period has expired; confirmation that the person has not committed a new crime; the absence of evasion from pre-trial investigation or court; the presence of the person's voluntary consent to the closure of the proceedings.
The legislator differentiates limitation periods depending on the severity of the crime and the type of punishment.
Pursuant to Part 1 of Article 49 of the Criminal Code of Ukraine, a person is released from criminal liability if the following periods have elapsed from the day they committed the criminal offense until the day the court judgment enters into legal force:
1) two years – in the case of committing a criminal misdemeanor punishable by a penalty less severe than restriction of liberty;
2) three years – in the case of committing a criminal misdemeanor for which a penalty of restriction of liberty is provided, or in the case of committing a less grave crime for which a penalty of imprisonment for a term of not more than two years is provided;
3) five years – in the case of committing a less serious crime, except for the case provided for in clause 2 of this part;
4) ten years – in the event of committing a serious crime;
5) fifteen years – in the case of committing a particularly grave crime.
At the same time, the limitation periods depend not on the specific sentence imposed on a person, but on the classification of crimes under Article 12 of the Criminal Code of Ukraine. The starting point of the calculation is the day the criminal offense was committed, and the end point is the day the guilty verdict enters into legal force. Any procedural actions (notification of suspicion, drawing up an indictment, judicial review) do not affect the limitation periods.
An important aspect is the correct qualification of the act. If during the pre-trial investigation or trial the person's actions are reclassified, for example, from a serious crime to a non-serious one, the limitation period may turn out to have already expired, which is grounds for exemption from liability and closure of the criminal proceedings.
One of the most debatable conditions that prevents the application of the limitation period is evasion by a person. According to Part 2 of Article 49 of the Criminal Code, in the event of a person's evasion from pre-trial investigation or court, the running of the limitation period is resumed from the day the person appears with a confession or is detained. However, the legislative ambiguity of the concept of «evasion» gives rise to academic discussions and discrepancies in practice. The academic community and judicial practice have developed two approaches to understanding «evasion».
The traditional approach emphasizes that only a person who has the official procedural status of a suspect or accused and who is definitively aware of criminal proceedings being conducted against them can evade justice. In other words, the mere absence of a person from their place of residence, if they have not been notified of suspicion, cannot be considered evasion.
Due to the vagueness of the relevant legislative wording, the possibility of another interpretation is not excluded, which assumes that evasion can be defined as any intentional actions of a person aimed at avoiding liability, even if the official status of a suspect has not yet been acquired, but the person is aware of the fact of committing a criminal offense.
An end to this discussion was put by the practice of the Supreme Court. The Resolution of the Cassation Criminal Court of the Supreme Court dated August 30, 2021, in case No. 638/15651/13 states:
«According to established judicial practice, evading investigation or court, from the standpoint of applying Article 49 of the Criminal Code, should be understood as any intentional actions committed by a specific person with the purpose of avoiding criminal liability for a committed criminal offense, which forces law enforcement agencies to take measures aimed at searching for and detaining the offender (failure to appear without valid reasons upon a summons to the investigator or court, non-compliance with the conditions of a preventive measure, changing identity documents, changing appearance, moving to an illegal status, hiding in a hideout, simulation of one's death, etc.). The suspension of the limitation period is possible only with respect to a specific person who is aware that an investigation is being conducted against them. When determining which actions of a person should be recognized as a legally significant (rather than merely factual) evasion of investigation or trial, one must take into account, among other things, the criminal procedural status of the person who committed the crime. This must be a person who has been duly recognized as a suspect or accused and who is obliged to appear before law enforcement agencies upon summons and remain within their reach. The specified person is aware that they have already incurred a legal obligation to appear before the investigation or court, yet they are evading the fulfillment of such an obligation. The specified position is also set forth in the ruling of the Supreme Court of Ukraine of March 19, 2015, in case No. 5-1ks15, the rulings of the Supreme Court of June 19, 2018, in case No. 659/234/16-k, of October 20, 2020, in case No. 204/4728/15-k, of November 8, 2019, in case No. 372/2007/19, of May 30, 2019, in case No. 639/793/17, and of July 3, 2019, in case No. 551/403/16-k.
Also, in the resolution of May 16, 2023, in case No. 554/10716/19, the Supreme Court concluded that The failure of the accused to appear in court due to serving in the Armed Forces of Ukraine cannot be considered evasion of the court, as this is due to objective reasons of defending the state. Such a position confirms that in order to establish evasion, specific intent to avoid justice is required, rather than simply the physical absence of the person.
At the same time, there is the problem of calculating time limits in cases of evasion. Part 2 of Article 49 of the Criminal Code of Ukraine states that if the running of the limitation period is suspended, the limitation period shall resume from the day the person appears with a confession or is detained, and from the time the criminal offense was committed – five years. In this case, the person is exempt from criminal liability if fifteen years have passed since the time the criminal offense was committed. Positions on how to correctly interpret this norm vary.
In the ruling of the Grand Chamber of the Supreme Court in case No. 735/1121/20 of February 2, 2023, the court concluded that in the event of evasion of pre-trial investigation or trial, a person is subject to exemption from criminal liability or punishment due to the expiration of the statute of limitations after the lapse of the differentiated period provided for in Part 1 of Article 49 of the Criminal Code of Ukraine, extended by the period of evasion. The expiration of the general time limits established by Part 2 of this article serves as a ground for exemption from criminal liability in cases where this time limit expires earlier than the differentiated one extended for the duration of the evasion.
At the same time, there is a dissenting opinion of the judges of the Grand Chamber of the Supreme Court in the same case, which indicates that the law enforcement practice on this issue remains debatable and ambiguous. The joint dissenting opinion of the judges of the Grand Chamber of the Supreme Court in case No. 735/1121/20 states the following:
«The literal normative content of Part 2 of Article 49 of the Criminal Code boils down to the fact that establishing the fact of evasion of criminal prosecution is a circumstance that precludes the application of the differentiated terms defined in Part 1 of Article 49 of the Criminal Code. Despite the combination in Part 2 of Article 49 of the Criminal Code of provisions on the suspension and resumption of the statute of limitations in the event of a person evading criminal law measures, the construction of the third sentence of this part indicates a positive obligation of the State to release the evader from criminal liability when 15 years have elapsed since the commission of a crime and 5 years for an offense (provided that the statute of limitations applies to these criminal offenses (Parts 4 and 5 of Article 49 of the Criminal Code), the commencement of its running has not been postponed (Part 6 of Article 49 of the Criminal Code), and the person has not committed a new crime of corresponding gravity (Part 3 of Article 49 of the Criminal Code)).
The legislator clearly specified that in this case, a person is released from criminal liability if the timeframes specified precisely in Part 2 of Article 49 of the Criminal Code have expired since the time the criminally punishable act was committed..
It appears that the ambiguous understanding of the provisions of Part 2 of Article 49 of the Criminal Code is caused by the peculiarities of the wording of this norm by the legislator after the paradigm of regulating the limitation period for criminal liability was changed with the adoption of this Code.
This emphasizes that the root of the problem lies not so much in judicial interpretation as in the imperfection of legislative drafting and the specific wording of the provision that arose after the change in the concept of regulating limitation periods in the 2001 Criminal Code.
In addition to the correct calculation of time limits, a key issue in law enforcement is the question of the procedural consequences of applying Article 49 of the Criminal Code of Ukraine, particularly in the context of respecting the presumption of innocence. Since exemption from liability due to the expiration of time limits is a non-rehabilitative ground, a difficult dilemma arises in practice: whether the court must state the person's guilt in such a decision. The practice of the Supreme Court remains contradictory.
In the Resolution of the Cassation Criminal Court of the Supreme Court in case No. 730/67/16-k dated February 18, 2025, regarding the procedural significance of the accused's consent, the court emphasized:
«As a result of the closure of criminal proceedings due to the expiration of the limitation periods for criminal liability on the basis of Article 49 of the Criminal Code at the initiative and with the consent of the person being prosecuted, the court cannot and should not establish the fact that this person committed a criminally punishable act. After all, the criminal procedural law obliges the court to consider the defense party's motion for such a release without delay. In the event of considering such a motion without conducting a full judicial review, the court cannot establish the guilt or, conversely, the innocence of a person in committing the incriminated act.
Therefore, a person has the right not to admit guilt, but to consent to the closure of the proceedings in order to avoid a lengthy trial and criminal punishment. The sole condition is that the person must be clearly explained the essence of the suspicion and the non-rehabilitative nature of such a ground for closure. If the person insists on their innocence and objects to the closure, the court is obliged to conduct a full review. In the event that guilt is proven, the court issues a guilty verdict, but releases the person from punishment on the basis of Part 5 of Article 74 of the Criminal Code.
At the same time, the Supreme Court resolution of May 22, 2025, in case No. 709/2049/17 states:
«The provisions of the CPC do not provide for imperative norms that oblige the court, when considering a motion for the application of Article 49 of the CC, to establish the factual circumstances of the case, since for the court the consideration of such a motion for release from criminal liability in connection with the expiration of limitation periods is paramount. If the motion to close criminal proceedings in connection with the expiration of the limitation periods for bringing a person to criminal liability was filed during the trial of the case on the merits, during or after the stage of clarifying the circumstances and verifying them with evidence (Article 363 of the CPC), then the court, based on the results of consideration of this motion, having established the existence of grounds for applying the provisions of Article 49 of the CC, may in its decision (however, is not obligated to) establish the fact that the accused committed the criminally punishable act imputed to him and the presence of the elements of a crime in his actions».
In this context, the conclusion of the Criminal Cassation Court of the Supreme Court dated October 8, 2024, in case No. 711/4218/15-k is also important:
«Closing of criminal proceedings under Art. 49 of the CC is non-rehabilitating ground, as it can only be applied to a person who has committed a criminal offense. At the same time, an acquittal was rendered in respect of the person, which was upheld by the courts of appeal and cassation instances. That is, rehabilitating circumstances were established. Therefore, under any circumstances the court cannot annul judicial decisions and close criminal proceedings on non-rehabilitative grounds in criminal proceedings in which an acquittal was rendered, meaning established circumstances that rehabilitate the person.
Another controversial aspect that required the unification of practice was the issue of reimbursing the costs of engaging experts. The question was whether a person released from criminal liability on non-rehabilitating grounds should compensate for the costs of expert examinations initiated by the prosecution.
The position of the Joint Chamber of the Criminal Cassation Court of the Supreme Court dated September 12, 2022, in case No. 203/241/17 is important. The Court noted:
«If a person is released from criminal liability pursuant to Article 49 of the Criminal Code due to the expiration of the limitation periods, procedural costs incurred by the pre-trial investigation body and related to the criminal proceedings, including the costs of conducting an expert examination, are not recovered from the person, the criminal proceedings against which were closed on this ground, are charged to the state, except for expenses related, in particular, to the engagement of an expert by the defense.
Similar conclusions are reflected in the rulings of the Criminal Cassation Court of the Supreme Court dated April 23, 2024, in case No. 127/13987/16-k, and of the Criminal Cassation Court of the Supreme Court dated December 17, 2024, in case No. 505/1346/21.
Also, judicial practice has regulated the procedural aspects of applying Article 49 of the Criminal Code of Ukraine by the court of cassation in cases where the respective grounds arose earlier but were not implemented by the court of appeal. In the Resolution of the Grand Chamber of the Criminal Cassation Court of the Supreme Court in case No. 521/8873/18 of December 6, 2021, the court noted:
«A person is subject to release from criminal liability under Article 49 of the Criminal Code of Ukraine in the court of cassation pursuant to Article 440 of the Criminal Procedure Code of Ukraine under the conditions:
– by the date of the appellate court review of the criminal proceedings, i.e., before the first-instance court judgment entered into legal force, the limitation periods for prosecuting such a person for the committed criminal offense had expired;
– this person did not submit a corresponding motion for release from criminal liability to the appellate court, and the appellate court did not explain to the person, in accordance with the provisions of Article 285 of the Criminal Procedure Code of Ukraine, the existence of the aforementioned grounds for release from criminal liability and did not ascertain their opinion regarding consent or disagreement with such release;
– such a person, under the specified circumstances, consented in the cassation court to be released from criminal liability on the basis of Article 49 of the Criminal Code of Ukraine in connection with the expiration of the limitation periods.
Separately, it is worth focusing on the procedural mechanism for appealing a court of first instance's refusal to apply limitation periods. The current CPC establishes certain restrictions on appealing rulings of the court of first instance, which is confirmed by the position of the Supreme Court regarding the impossibility of separate appellate review of rulings on the refusal to close criminal proceedings. In the Resolution of the Cassation Criminal Court of the Supreme Court dated May 1, 2025, in case No. 570/2722/19, the Court clarified the procedure in such a situation, emphasizing the need to include objections in the appeal against the final decision:
«Pursuant to Part 2 of Article 392 of the CPC, rulings issued during judicial proceedings in the court of first instance prior to the adoption of judicial decisions provided for in paragraph one of this Article are not subject to separate appeal, except in cases determined by this Code. Objections against such rulings may be included in the appeal against the judicial decision provided for in paragraph one of this Article. Therefore, the appeal of a ruling by which a motion to close criminal proceedings, issued during judicial proceedings in the court of first instance, was denied is not provided for by the specified provisions of the law.
Therefore, exemption from criminal liability in connection with the expiration of limitation periods is a complex legal institution that represents a delicate compromise between the principle of the inevitability of punishment and the ideas of humanism and legal certainty. At the same time, the practical implementation of Article 49 of the Criminal Code of Ukraine remains vulnerable due to imperfections in legal drafting and the conflict of certain norms. The significant volume and dynamism of the case law of the Supreme Court indicate that national legislation is currently unable to resolve all controversial aspects independently, without judicial interpretation. This points to the need for legislative improvement of the limitation mechanism to ensure the uniformity of judicial practice.
Source: League of Legends.
