Combatting High-level Corruption in Eastern Europe

5. Key legislative challenges in combatting high-level corruption

Abstract

This chapter describes the main legislative challenges that specialised anti-corruption institutions in Eastern European countries face when investigating and prosecuting high-level corruption. In particular, this chapter examines the obstacles posed by short limitation periods or procedural time limits for carrying out criminal proceedings which are particularly relevant in high-level corruption cases due to their length because of the complex and international nature of such schemes. The chapter also examines the use of immunity regimes by high-level officials as a tool to shield them from potential criminal proceedings in high-level corruption cases.

Some Eastern European countries, particularly the EaP countries, face similar legislative challenges that negatively affect their efforts against high-level corruption.

In their responses to the questionnaires for this study some EaP countries identified a common problem related to the quality of legislation. The lack of proper screening of draft legislation for anti-corruption risks and the poor quality of legislation, in general, is a favourable environment for the functioning of oligarchic economic arrangements and high-level corruption. Relevant strategies can be developed by national governments with the participation of civil society and international partners to prevent the use of legislation for corrupt advantage, and also to identify and eliminate corruption-prone norms. This is an ongoing process, and appropriate human resources should be developed and allocated to carry out the complex tasks of anti-corruption legislative review. Moldova, for example, noted that out of the total number of 905 draft legislative and normative acts which were analysed by NAC in 2023, 3027 corruption risks were identified in the draft legislation and about 76% of all recommendations put forward by the experts of the NAC in the anti-corruption expertise reports were accepted by the drafters. For example, the corruption risks identified included ambiguous wording allowing for abusive interpretations (12.39%), the lack or ambiguity of administrative procedures (16.32%), powers allowing for derogations and abusive interpretations (11.69%) or legal loopholes (9.61%).

Another trend in Eastern European countries is the practice of interfering with high-level corruption investigations by introducing contradictory legislation. In Ukraine, in 2017, lawmakers amended the Criminal Code of Ukraine in a way that significantly limited the powers and capabilities of anti-corruption agencies to conduct investigations. This has led to the termination of a number of high-level corruption cases, and many other cases are at risk of being terminated. The consequences of these changes have not yet been fully eliminated (see Box 4.4).

In North Macedonia, in 2023, the parliament amended the Criminal Code in an expedited procedure and reduced the penalties for some corruption offences. This, in turn, reduced the statute of limitations for respective offences and terminated a number of high-level corruption cases.1

As mentioned above, in Bulgaria, in 2022, the special prosecutor's office and specialised criminal courts that administered justice in high-level corruption cases were liquidated. The motives for this were claimed to be the ineffectiveness of specialised institutions. Still, GRECO had a different opinion, arguing that the reasons for ineffectiveness in the fight against grand corruption were rather too complex legislation that limited the activities of specialised bodies and improper influence on their activities.2

In its responses to the study questionnaire, Bulgaria particularly referred to the challenges in criminal cases of high-level corruption related to the current procedural legislation – collection, verification and evaluation of evidence and excessive formalism, as well as the criminal law requirements of the proof of all the constituent elements of the misconduct in office (Article 282 of the Criminal Code) and of the intent and special purpose, especially in cases of conducting and executing public procurements.

In Romania, a combination of attempts by legislators, with the support of the Constitutional Court, contributed in changing the operational regulations of anti-corruption and law enforcement institutions. For example, in its decision no.358/2022, the Constitutional Court changed the terms of application of the rules on the conditions for interrupting the course of the statute of limitations of criminal liability, and another court, the High Court of Cassation and Justice, based on the Constitutional Court's decision, developed case law that led to the closure in 2022 of a large number of cases sent by the DNA to the courts as a result of the expiry of the statute of limitations of criminal liability (18 cases, with 129 defendants, in final decisions and 37 other cases, with 140 defendants, in non-final decisions).3

In 2018, due to legislative amendments, corruption cases against judges and prosecutors were removed from the DNA jurisdiction. Also, the Constitutional Court declared the direct support of the intelligence services in the criminal investigation unconstitutional, which led to the elimination of respective evidence by the court in the cases that were at the trial stage, and for future cases, prosecutors had to adapt their procedures. As a result of the Constitutional Court’s decision, the DNA has increased the capacities of its Technical Service to conduct wiretapping and surveillance and also involves support from the police where necessary.

In Croatia, the excessive length of investigation, prosecution and adjudication of corruption offences continued to undermine the effectiveness of the anti-corruption system, which could be addressed by better regulation and increased resources. To that end, the Anti-Corruption Strategy envisages revisions to the Criminal Procedure Code and the Law on the USKOK, as well as increasing the capacity of the specialised prosecution, also with a view of ensuring the completion of proceedings within a reasonable timeframe4.

In its 2023 annual report, the Lithuanian STT highlighted that even though 64% of its investigations during the year lasted less than 9 months, the duration of the investigation for the other part of the cases under investigation—from their initiation to their referral to court—was significantly longer. Thus, the agency advocates for the review of the regulation of criminal proceedings and the practice that has developed on its basis, to simplify, optimise, and expedite the stages of pre-trial investigation and judicial inquiry.5

5.1. Statute of limitations

As previously mentioned, the statute of limitations for prosecuting high-level corruption is another common problem for the EaP countries (OECD, 2022[1]).6

Several objective factors contribute to this, namely the complexity of high-level corruption cases, the need to lift immunities, which takes time, the fact that a significant number of defendants may be hiding abroad, the need to obtain information or evidence via international legal assistance, forensic expertise, abuse by defendants of their rights, and the lack of resources and significant caseload of both the prosecution and judicial authorities (Transparency International, 2023[2]). A significant problem is the consideration of high-level corruption cases in courts, which is usually lengthy.

In 2022, cases were discontinued in Armenia, Azerbaijan, Moldova, and Ukraine due to the expiration of the statute of limitations.

For instance, during the IAP evaluation, Ukrainian authorities informed about 4 high-profile cases closed on these grounds (OECD, 2024[3]), while in Moldova this happened to 10 cases of corruption of public officials (IPRE, 2022[4]) (eight of them were on passive bribery of small amounts (OECD, 2024[5])), in Armenia three corruption cases (OECD, 2024[6]) and in Azerbaijan two cases, none of which concerned corruption by a public official (OECD, 2024[7]). Armenia has been making efforts to solve the problem of the backlog of cases in the court, which also contributes to the statute of limitation expiry before the trial is completed, by establishing approximate deadlines for the consideration of cases of average duration for certain types and complexity of cases and by monitoring the observance of reasonable deadlines for the examination of cases by the presidents of the First Instance and Appellate Courts.

In 2019-2021, the share of cases within Moldovan APO’s mandate that were terminated due to the expiration of the statute of limitations in courts of first instance remained consistently high.7

In Kosovo8, in 2021, an Annual Court Monitoring Report conducted by the Balkan Investigative Reporting Network (BIRN) and Internews Kosova (I/KS) found that the courts faced criticism for allowing the statute of limitations in several high-level corruption cases to expire resulting in the dismissal of these cases.9 In Estonia, the statute of limitations could create barriers to enforcement, such as premature termination of proceedings.10

One of the common aspects of the anti-corruption criminal legislation of some Eastern European countries is the low limit of the statute of limitations (see Table 4.1 and 4.2), which can constitute from 2-3 years (Moldova and Ukraine). Since the statute of limitations is related to sanctions for corruption crimes, establishing unified rules on sanctions and increasing the lower limit to, for example, 5 years can significantly improve the situation with the timelines for bringing to justice for corruption crimes.

Table 5.1. Statute of limitations for corruption offences in the EaP countries (in years)

Limitation periods in EaP countries	EaP - range	EaP - average	Median of minimum limitation period	Median of maximum limitation period
Bribery in the public sector	3-30	7-19.4	5	20
Bribery in the private sector	3-15	5.2-11.4	5	10
Embezzlement, misappropriation and other diversion of property by a public official	2-30	4.8-17.4	5	15
Trading in influence	3-15	7-12.4	5	15
Abuse of functions	5-15	9.4-12.4	7	15
Illicit enrichment	10-20	13.3-15	15	15

Source: Information compiled through the Secretariat’s desk research.

Note: These ranges are based on the minimum and maximum prison term for the respective corruption offences.

Table 5.2. Statute of limitations for corruption offences in EU Member States

Limitation periods in EU Member States	EU - range in years	EU - average in years	Median in years
Bribery in the public sector	3 - 25	10.76 -14.28	10 - 12
Bribery in the private sector	3 - 25	10.26 -11.70	10
Embezzlement, misappropriation and other diversion of property by a public official	3 - 25	10.50 - 13.20	10 - 12
Embezzlement in the private sector	3 - 25	9.42 - 12.19	10
Trading in influence	2 - 25	9.00 – 10.82	8 - 10
Abuse of functions	5 - 25	10.48 – 11.63	9 - 10
Illicit enrichment	5 - 20	10.13 – 11.38	10-11
Obstruction of justice	3 - 25	9.25 – 12.70	10

Note: These ranges are based on the minimum and maximum prison term for the respective corruption offences.

Source: European Commission (2023), Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Investor Citizenship and Residence Schemes in the European Union, 23 January 2019, COM(2019) 12 final.

In the international community, there is a general trend towards extending statutes of limitation and increasing the number of serious crimes for which no limitation period applies. While the approach differs among jurisdictions, there is a growing consensus that exceptions to the statute of limitations should exist for serious offences.11 The serious harm involved in grand corruption cases, the possibility of long-term concealment of the illicit activities, and the challenges to cross-border investigations and proceedings in these cases provide reasons for the EaP and other Eastern European countries to consider extending the statute of limitations or waiving its application in high-level corruption cases (Transparency International, 2023[2]).

5.2. Time limits of criminal investigations

Another common challenge is the time limits for investigating or prosecuting high-level corruption, which is compounded by the heavy workload and lack of specialised staff necessary to ensure that investigations into complex corruption crimes are completed within these procedural timelines.

For example, the time limits for pre-trial investigation were found to be an obstacle to the effectiveness of NABU and SAPO work by the recent IAP review. The relevant provisions of the Criminal Procedure Code were amended multiple times, resulting in ambiguous norms, leaving room for different interpretations, and leading to inconsistent practice and questions on closing certain proceedings. The issue was especially relevant in joint criminal investigations in which each episode of the case was registered before and after the changes in the relevant articles of the Criminal Procedure Code. Furthermore, during the on-site visit discussions, the authorities referred to the Supreme Court's decision, which changed the approach to calculating pre-trial investigation terms, creating further difficulties regarding the interpretation and application of the mentioned legal provisions. Furthermore, during Martial Law, time limits in proceedings where the suspected person is not identified or is missing are suspended (Art. 615 of the Criminal Procedure Code) with no clarity on how and in which cases this exception can be applied (OECD, 2024[3]). As a result, a large number of high-level corruption cases were closed, and the adverse impact of these changes was even highlighted by the European Commission, which recommended that Ukraine revise the Criminal Procedure Code and the Criminal Code to enable higher efficiency and outcomes in high-level corruption cases, by preventing procedural delays and introducing reasonable time limits for pre-trial investigations.12

Box 5.1. Ukraine Case Study - The “Lozovyi amendments”

In 2017, Ukraine introduced amendments to the Criminal Procedure Code, authored by the member of parliament Andrii Lozovyi.

These amendments to the Criminal Procedure Code were intended to limit the timeframe of pre-trial investigation in the following way:

The term of pre-trial investigation from the moment of entering information about a criminal offence into the Unified Register of Pre-trial Investigations until the day of serving a notice of suspicion to a person is:

1. two months - in criminal proceedings regarding a criminal offence;

2. three months - in criminal proceedings concerning a crime of minor or moderate gravity;

3. six months - in criminal proceedings concerning a grave or especially grave crime.

The pre-trial investigation must be completed:

1. within one month from the date of notification of a person of suspicion of committing a criminal offence

2. within two months from the date of notification of suspicion of committing a crime.

These amendments to the Criminal Procedure Code also provided for

1. the obligation to close the case in case of violation of the term before or after the suspicion

2. extension of the investigation period only by a judge, not by a prosecutor, as it was before;

3. permission to challenge suspicions in criminal proceedings in court.

Certain of these amendments were repealed in December 2023. The modification stipulates that the pre-trial investigation period starts from the moment of a notice of suspicion (identifying a suspect) and continues until the case is brought before the court.

Source: Transparency International (2023), 5 Questions about the “Lozovyi’s Amendments”. What is the Essence of the Problem?

Information compiled through the Secretariat’s desk research.

In Armenia and Azerbaijan, the pre-trial investigation period begins when the criminal case is opened. In most countries, however, it starts from the moment a suspect is identified or interrogated.

In Armenia, the terms of investigation of corruption crimes are not differentiated. The pre-trial investigation must be completed within two months from the date of the decision to initiate criminal proceedings. The pre-trial investigation period may be extended by the prosecutor upon the investigator's proposal. Given the lack of specialised investigators and their workload, the 2-month period is not sufficient to ensure effective investigation of complex corruption crimes (OECD, 2024[6]).

Azerbaijan has set a 13-month time limit for completing pre-trial investigations, which the authorities consider sufficient. However, this assertion has not been sufficiently supported by case law. In 2023, the IAP’s 5^th round monitoring report found no recent examples of high-profile corruption cases with a large number of defendants, episodes and foreign jurisdictions that would have been completed within 13 months and finally resolved in courts (OECD, 2024[7]).

Moldova, Georgia, Estonia, and Latvia have chosen a different approach to determining the pre-trial investigation period.

In Moldova, the criminal investigation shall be carried out within a reasonable time. The deadline set by the prosecutor is mandatory for the criminal investigation officer and may be extended at the investigator’s request. According to the authorities, no corruption cases were terminated in 2022 because the time limit for investigation or prosecution expired.

In Georgia, the investigation shall be conducted within a reasonable time but not longer than the statute of limitations for criminal prosecution established by the Criminal Code of Georgia for the relevant prosecution.13

In Estonia, if it becomes apparent during the pre-trial proceedings that the criminal case cannot be solved within a reasonable time, the prosecutor's office may, with the suspect's consent and taking into account the gravity of the crime, the complexity and scope of the criminal case, the current course of the criminal proceedings, and other circumstances, close the criminal proceedings by resolution.14

In Latvia, natural and legal persons have the right to have criminal proceedings completed within a reasonable time, i.e. without unreasonable delay. The termination of criminal proceedings within a reasonable time is related to the extent of the case, the legal complexity, the scope of procedural actions, the attitude of the persons involved in the proceedings to performing their duties, and other objective conditions. At the same time, failure to comply with a reasonable time limit may be grounds for termination of the proceedings in accordance with the procedure established by the Law.15 According to the European Court of Human Rights case law, reasonable time limits should take into account the specific circumstances of the case, including the scope and complexity of the case, the number of investigative actions, the number of victims and witnesses, the need for examinations and opinions, etc.16^. Furthermore, the beginning of a "reasonable period" of criminal proceedings should be considered to be the announcement of a notice of suspicion; detention, custody, any other restriction of liberty, or other actions that have a significant impact on the situation of the suspect; the date of the notice of suspicion, if it cannot be delivered.17

Recommendations

• Ensure there is an adequately long statute of limitations period for high-level corruption and consider increasing the statute of limitations for prosecuting such cases or calculating it only until a certain procedural stage (e.g., bringing charges or submitting the case to the court) or eliminating it altogether.

• Ensure that the pre-trial investigation is carried out within a reasonable timeframe, taking into consideration the specific circumstances of the case. This assessment should include factors such as the scale and intricacy of the case, the number of procedural measures, the number of victims and witnesses, the necessity of forensic examinations, and the acquisition of conclusions.

• If the period of pre-trial investigation is restricted, ensure that it begins after the notice of suspicion or a similar procedural stage and does not impede the handling of high-level corruption cases.

5.3. Immunities of high-ranking officials - a shield from anti-corruption institutions

The issue of immunities significantly hinders efforts to combat high-level corruption in the EaP and Eastern European countries. The variations in legislative frameworks and their practical implications present unique challenges in each country.

The following common problems related to immunities that may threaten the fight against high-level corruption could be mentioned:

• a recurring issue of insufficiently defined criteria for lifting immunities. The absence of clear guidelines and criteria can lead to ambiguity, potential misuse or selective enforcement, hindering effective anti-corruption measures.

• the complexity of procedures for lifting immunities, especially for high-level officials and cumbersome processes contribute to delays and may impede swift investigations and prosecutions.

• transparency in the immunity-lifting process. The lack of openness in decision-making, including limited access to information about the outcomes of immunity-related procedures, undermines public trust and accountability.

In Ukraine, the immunity of high-level officials, particularly judges and MPs, impedes criminal investigations and prosecutions. Although legislative provisions exist for criminal proceedings involving these officials, procedural complexities and delays persist. The High Council of Justice's inactivity in 2022 delayed procedures for lifting judges' immunity. Following its launch, HCJ, however, was prompt in lifting immunities, and in the first half of 2023, six judges were convicted for corruption offences. Amendments in 2020 removed the Verkhovna Rada's approval requirement for lifting members of parliaments' immunities, but the requirement that NABU and SAPO must obtain the approval of the Prosecutor General in order to carry out certain investigative actions in relation to MPs, such as conducting covert investigative measures, detention, arrest, and any other measures that may restrict rights and liberties of MPs results in obstacles and delays due to the Prosecutor General's involvement, for example in 2022 in at least two cases the Prosecutor General did not authorize searches of MPs’ property without providing sufficient justification (OECD, 2024[3]).

While immunities have not posed immediate problems in Georgia, in recent years, concerns have arisen from the absence of clear criteria and transparent procedures for immunity lifting. Establishing unambiguous criteria and transparent processes is crucial to avoid potential future prosecution challenges.

Armenia demonstrates swift immunity lifting, particularly in the case of judges. While the legislation regulates the procedure, the absence of clear criteria for immunity lifting calls for legislative reforms to enhance transparency and accountability.

Azerbaijan faces challenges in complying with standards related to immunity. While the law provides terms and details for immunity lifting for judges, gaps exist for the President, Vice-Presidents, Prime Minister, and Members of Parliament. The lack of clear criteria and transparent procedures, coupled with potential impediments to investigations, necessitates urgent legislative reforms.

Moldova has challenges lifting immunity for some officials. While the immunity-lifting procedure for members of parliament is regulated in detail, concerns arise over potential delays, as the procedure for removing immunities from MPs may take up to 22 days. A case example from 2022 showed the process of judicial lifting of immunity may be quite lengthy (in at least one such case, the procedure took four months). The lack of clear criteria for lifting immunities and potential hindrances in investigations (such as the requirement to notify an MP) underscores the need for legislative amendments (OECD, 2024[5]).

Immunities also present a challenge for law enforcement authorities in EU member countries, but certain countries have taken measures to address these issues. For example, in Romania, the Senate adopted rules with objective criteria to decide on requests for lifting parliamentary immunities, mirroring the rules already adopted in 2019 by the Chamber of Deputies (European Commission, 2023[8]).

Recommendations

• Undertake comprehensive legislative reforms to establish standardised and transparent procedures for lifting the immunity of high-level public officials for corruption-related offences based on clear and objective criteria, and including specific timelines to expedite the process.

• Strengthen the independence and authority of anti-corruption agencies, allowing them to initiate lifting the immunity of high-level public officials before the decision-making body without unnecessary intermediaries.

References

[8] European Commission (2023), Strengthening the fight against corruption: Assessing the EU legislative and policy framework, https://op.europa.eu/en/publication-detail/-/publication/d7a6cfdb-8fcb-11ed-b508-01aa75ed71a1/language-en.

[4] IPRE (2022), Functional analysis of the Anticorruption Prosecutor’s Office of the Republic of Moldova: Recommendations for increasing the efficiency of fighting high-level corruption, https://ipre.md/2022/11/23/analiza-functionala-a-procuraturii-anticoruptie-a-republicii-moldova/?lang=en.

[6] OECD (2024), Baseline Report of the Fifth Round of Monitoring of Anti-Corruption Reforms in Armenia: The Istanbul Anti-Corruption Action Plan, OECD Publishing, Paris, https://doi.org/10.1787/fb158bf9-en.

[7] OECD (2024), Baseline Report of the Fifth Round of Monitoring of Anti-Corruption Reforms in Azerbaijan: The Istanbul Anti-Corruption Action Plan, OECD Publishing, Paris, https://doi.org/10.1787/a17aca4c-en.

[5] OECD (2024), Baseline Report of the Fifth Round of Monitoring of Anti-Corruption Reforms in Moldova: The Istanbul Anti-Corruption Action Plan, OECD Publishing, Paris, https://doi.org/10.1787/25fc47ac-en.

[3] OECD (2024), Review of Anti-Corruption Reforms in Ukraine under the Fifth Round of Monitoring: The Istanbul Anti-Corruption Action Plan, OECD Publishing, Paris, https://doi.org/10.1787/9e03ebb6-en.

[1] OECD (2022), Anti-Corruption Reforms in Georgia: Pilot 5th Round of Monitoring Under the Istanbul Anti-Corruption Action Plan, OECD Publishing, Paris, https://doi.org/10.1787/d709c349-en.

[2] Transparency International (2023), Tackling grand corruption impunity: Proposals for a definition and special measures, https://images.transparencycdn.org/images/2023-Working-paper-Tackling-grand-corruption-impunity.pdf.

Notes

← 1.  https://neighbourhood-enlargement.ec.europa.eu/system/files/2023-11/SWD_2023_693%20North%20Macedonia%20report.pdf

← 2.  https://rm.coe.int/fifth-evaluation-round-preventing-corruption-and-promoting-integrity-i/1680a9cab7

← 3.  https://commission.europa.eu/system/files/2023-07/99_1_52816_input_mem_romania_en.pdf, pp 27-28

← 4.  European Commission (2023), EU Rule of Law Report. Croatia, p. 15, https://commission.europa.eu/document/download/1796143e-75d8-4be0-8cda-91e8238b4c32_en?filename=27_1_52610_coun_chap_croatia_en.pdf

← 5.  Special Investigation Service, Lithuania, 2023 Annual Report, p. 14, https://www.stt.lt/data/public/uploads/2024/06/annual-report.pdf

← 6.  Among EaP countries, only Georgia does not have a problem with the statute of limitations. According to the Georgian Criminal Code, most corruption offences have an extended statute of limitation of fifteen years, unless the offence is a particularly serious crime which attracts the limitation period of 30 years. The statute of limitations is calculated from the day when the crime is committed up to the day when charges are brought against the person. The statute of limitations is suspended if the offender has absconded and for the period during which the person is protected by immunity. No prosecution of corruption crime was terminated because of the expired statute of limitations in 2020.

← 7.  In 2019, the courts of first instance, with the participation of APO prosecutors delivered 264 verdicts, out of which in 33 verdicts criminal proceedings were terminated due to the expiry of the statute of limitation. In 2020, there were 208 verdicts in these cases, out of which in 23 verdicts the criminal proceedings were terminated on that ground. In 2021, the courts of first instance delivered 197 verdicts in these cases, of which in 29 verdicts, the criminal proceedings were terminated due to the expiry of the statute of limitations.

← 8.  This designation is without prejudice to positions on status and is in line with United Nations Security Council Resolution 1244/99 and the Advisory Opinion of the International Court of Justice on Kosovo’s declaration of independence.

← 9.  BIRN (2022), pp.5 and 7-8, Annual Court Monitoring Report 2021, https://birn.eu.com/wp-content/uploads/2022/06/Impunity-to-corruption-report.pdf

← 10.  European Commission (2023), https://commission.europa.eu/system/files/2023-07/18_1_52573_coun_chap_estonia_en.pdf

← 11.  Gudrun Hochmayr, A Comparative Analysis of Statutes of Limitation (2021), p.728. https://www.nomos-elibrary.de/10.5771/9783748926535-705.pdf?download_chapter_pdf=1

← 12.  European Commission (2023), Neighborhood Enlargement Report of Ukraine.

← 13.  Article 103 of the Criminal Procedure Code of Georgia. https://matsne.gov.ge/en/document/view/90034?publication=151

← 14.  Article 205² of the Criminal Procedure Code of Estonia, https://www.riigiteataja.ee/akt/106012016019

← 15.  Article 14 of the Criminal Procedure Code of Latvia https://likumi.lv/ta/en/en/id/107820-criminal-procedure-law.

← 16.  ECHR, See for example case of Tomasi v. France https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57796%22]}; case of Acquaviva v. France https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57950%22]}

← 17.  ECHR, See for example case ECKLE v Germany, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-73754%22]} .