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1TIMED OUT : STATUTES OF LIMITATIONS AND PROSECUTING CORRUPTION IN EU COUNTRIES

TABLE OF CONTENTS

EXECUTIVE SUMMARY 3

GLOSSARY 4

1. INTRODUCTION, MAIN FINDINGS AND RECOMMENDATIONS 7

2. THE NATURE OF STATUTES OF LIMITATIONS 14 2.1 The rationale 15

2.2 The relevance for criminal, civil, administrative and disciplinary proceedings 15

2.3 The length of statutes of limitations 17

2.4 The starting point of the limitation period 17 2.5 Aspects of criminal proceedings covered 18

2.6 Grounds for suspension, interruption and extension 19

2.7 The absolute limitation period 21

2.8 Comparative lengths of statutes of limitations for different proceedings 21

2.8.1 The length for criminal proceedings 21

2.8.2 The length for civil, administrative and disciplinary proceedings 28

2.9 Other procedural limits interacting with statutes of limitations 29

2.10 Recommendations from international institutions 30

2.11 Recent and current reform efforts 31

3. WEAKNESSES AND GOOD PRACTICE 32 3.1 Most signicant weaknesses identied in the research 33

3.1.1 Limitation periods are not long enough to ensure effective prosecution of corruption 33

3.1.2 Inclusion of appellate instances in the duration of statutes of limitations can lead to impunity 33

3.1.3 Absence of immunity as a ground for suspension or interruption 34

3.1.4 Absence of requests for mutual legal assistance as a ground for suspension or interruption 34

3.2 Examples of good practice 35

3.2.1 Flexibility regarding the start of statutes of limitations 35

3.2.2 Very long or absence of absolute statutes of limitations 35

3.2.3 Prioritising cases close to statutes of limitations expiry 36

3.2.4 Suspension or interruption of statutes of limitations when a defendant commits another crime 36

3.2.5 Availability of data and statistics 36

4. ELEVEN COUNTRY PROFILES IN BRIEF 37

Austria, Bulgaria, Czech Republic, Greece, Hungary, Ireland, Italy, Lithuania, Portugal, Romania and Slovakia

ANNEX Number of closed investigations and court proceedings due to Statutes of Limitations 44

ENDNOTES 46

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www.transparency.org

Author: Anja OsterhausProof reading and editing: Stephanie DebereDesign: Lemke-Mahdavi KommunikationsdesignCover photo: © istockphoto/Nick Schlax

Acknowledgements: The author wishes to express her appreciation to the many individuals who contributed to the preparation of this report. This includes theexperts from TI national chapters, listed below, who coordinated the research and wrote the national reports. Particular thanks are due toMarie Chêne and Gillian Dell from the TI-Secretariat for their invaluable advice, and to Helen Turek for her support, particularly in the nalstages of the preparation of this report. Thanks are also due to Julio Bacio Terracino and Skirmantas Bikelis for sharing their expertise andknowledge.

Experts from TI national chapters (project partners):Simon Ellmauer (Austria), Ralica Ilkova (Bulgaria), Eliska Cisarova and Zuzana Navratilova (Czech Republic), Ioanna Anastassopoulou and Artemisia Papadaki (Greece), Ádám Földes (Hungary), John Devitt and Andrew Sheridan (Ireland), Giorgio Fraschini (Italy), Skirmantas Bikelisand Neringa Mickeviciute (Lithuania), David Marcão and Luís Macedo Pinto de Sousa (Portugal), Victor Alistar, Angela Ciurea and IuliaCospanaru (Romania), Pavel Nechala (Slovakia).

Other experts and authors of overview studies: Yann Baden, Christoph Burchard, Julio Bacio Terracino, Simona Habic, Miklós Ligeti, Joachim Meese, Asso Prii, Elias Stephanou, Jaanus Tehver, Xavier Vanden Bosch, Andrew Sheridan

With support from the Prevention of and Fight against Crime Programme of the European Union European Commission - Directorate-General Home Affairs.

This publication reects the views only of the author, and the European Commission cannot be held responsible for anyuse which may be made of the information contained therein.

© Transparency International. All rights reserved.

Every effort has been made to verify the accuracy of the information contained in this report. All information was believed to be correct as ofNovember 2010. Nevertheless, Transparency International cannot accept responsibility for the consequences of its use for other purposes orin other contexts.

ISBN: 978-3-935711-62-3Printed on 100% recycled paper

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TRANSPARENCY INTERNATIONAL 2 3TIMED OUT : STATUTES OF LIMITATIONS AND PROSECUTING CORRUPTION IN EU COUNTRIES

EXECUTIVE SUMMARY

This report assesses the impact of statutes of limita-tions (SoL) on the prosecution of corruption offencesacross the European Union (EU). It is based on 27studies which examined the nature of SoL in differentnational legal contexts in order to identify weaknessesand good practices.

The research found that impunity for corruption-relatedoffences is a matter of signicant concern across the

EU. The key problems identied were the lack ofdetection of corruption cases and the lack of humanresources and expertise of law enforcement bodies and

judicial staff. In the majority of European countries,lengthy proceedings, sometimes combined with a highlevel of bureaucracy and excessive requirements ofproof, constitute serious obstacles to anti-corruptionlaw enforcement. In such a context, statutes of limita-tions are often too short to allow the prosecution ofcrimes, particularly if there are not sufcient options toexpand the limitation period in case of delays.

In some European countries, particular aspects ofthe SoL regime constitute serious problems: in Greece,Italy and Portugal, proceedings can effectively beclosed even if an offender has been found guilty in therst instance. In addition, the Greek system provides anextremely favourable SoL regime for certain persons,mainly politicians. In France, statutes of limitationsfor most corruption-related offences are too short toensure effective prosecution and in Spain, they arevery short for some corruption offences but can beconsidered adequate for others.

In the majority of European jurisdictions, the SoL regimehas some weaknesses or loopholes. Internationalcooperation on criminal matters or immunity provisionswhich can cause signicant delays are often notconsidered as reasons to prolong proceedings. Eventhough this has not led to the dismissal of a signicantnumber of proceedings so far, it is a matter ofconcern, particularly in complex cases which may havea cross-border dimension requiring internationalcooperation.

Only in 10 of the 27 EU member states could dataregarding the number of proceedings closed due toSoL be collected. While the available statistics show arather low percentage of closed proceedings in mostcases, there are two notable exceptions. In Italy,since 2005 one in 10 trials was dismissed during theprosecution phase, as were up to four per cent ofcriminal proceedings in Slovakia.

Several European jurisdictions provide good practiceand most recent reform efforts have led to animprovement of SoL regimes with regard to prosecutingcorruption-related crimes. In several cases, SoL periodswere lengthened signicantly or the grounds forsuspension or interruption were extended. In contrast,recent reforms in Italy have further shortened thelimitation periods.

The main recommendations from the research are thatnational policymakers should carefully review theircountry’s SoL regime in order to close any loopholes forthe prosecution of corruption offences. Given thatparticularly complex corruption cases are often difcultto detect and prosecute, limitation periods for seriouscorruption offences should be 10 years or longer.

The calculation of SoL should reect the specicities ofcorruption cases. The SoL regime should provide fordelays if a proceeding is put on hold because a partyinvolved is protected by immunity, and for delaysdue to international cooperation. SoL should not allowfor proceedings to be closed after the rst instance

judgement. Otherwise, there is a risk that a sentence

against an alleged offender cannot be enforcedbecause the case prescribed during the appellateinstances. Data on criminal cases closed due to SoLshould be collected and made available in orderto identify the impact of SoL on the administrationof justice. The specic reasons for the closures shouldalso be recorded in order to identify and addressweaknesses in the system.

TIMED OUT:

STATUTES OF LIMITATIONS

AND PROSECUTING CORRUPTIONIN EU COUNTRIES


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ABSOLUTE LIMITATION PERIOD

The absolute limitation period is the maximum period withinwhich action can be brought against an alleged offender.Regardless of any grounds for interruption, suspension orextension, the absolute limitation period cannot be extendedunder any circumstances.

ABUSE OF FUNCTIONS

The abuse of functions or position is referred to as theperformance of (or failure to perform) an act, which is in

violation of the law, by a public ofcial in the discharge of hisor her functions. The performance of (or failure to perform)such an act is carried out by the public ofcial for the purposeof obtaining an undue advantage for him- or herself or foranother person or entity.

ADMINISTRATIVE PROCEEDING

An administrative proceeding is a non-judicial determination offault or guilt and may include penalties of various forms.

Administrative proceedings are often carried out by govern-ments or other public entities.

AGGRAVATED OFFENCE

A crime or tort that becomes worse or more serious due tocertain circumstances that occur or are present during thecommission of the crime or tort, for example, possession of adeadly weapon or reckless disregard for other people’s safety.

The perpetrator of an aggravated offence is usually subject tomore severe penalties than for unaggravated forms of theoffence.

ALLEGED OFFENDER

A person who has been accused of a crime or anotheroffence, but has not yet been proven guilty.

APPELLATE INSTANCE

Appellate instance is the stage in legal proceedings when theunsuccessful party in a lawsuit resorts to a superior courtempowered to review and change a nal decision made by alower court on the ground that the decision was based uponan erroneous application of law.

APPELLATE JURISDICTION

Appellate jurisdiction is the power of a superior court toreview and change a nal decision made by lower courts, onthe ground that the decision was based upon an erroneousapplication of law. Depending on the type of case and thedecision below, appellate review primarily consists of: anentirely new hearing; a hearing where the appellate courtgives deference to factual ndings of the lower court; orreview of particular legal rulings made by the lower court.

BRIBERY The offering, promising, giving, accepting or soliciting of anadvantage as an inducement for an action which is illegal,unethical or a breach of trust. Inducements can take the formof gifts, loans, fees, rewards or other advantages (taxes,services, donations, etc.). The act of offering a bribe iscommonly referred to as active bribery and the act ofaccepting the bribe as passive bribery.

BURDEN OF PROOF

Burden of proof is a duty placed upon a civil or criminaldefendant to prove or disprove a disputed fact. Burden ofproof can dene this duty, or it can dene which party bearsthis burden. In criminal cases, the burden of proof is placedon the prosecution, who must demonstrate that the defend-ant is guilty before a jury may convict him or her. But in some

jurisdictions, the defendant has the burden of establishing theexistence of certain facts that give rise to a defence, such asthe insanity plea. In civil cases, the plaintiff is normallycharged with the burden of proof, but the defendant can berequired to establish certain defences.

CIVIL LAW

A body of law derived and evolved directly from Roman Law. The primary feature of civil law is that laws are struck inwriting. They are codied, and not determined, as in thecommon law, by the opinions of j udges.

CIVIL PROCEEDINGS

In civil proceedings, civil actions are brought by entities,persons or the state to obtain remedy for damage suffered asa result of a defendant’s actions.

COMMON LAW

A body of law based on court decisions, the doctrines implicitin those decisions, and on customs and usages rather thanon codied written laws. Common law forms the basis of thelegal system in England and many other English-speakingcountries. Most former British colonies have a legal systembased on common law.

GLOSSARY

CONTINUOUS OFFENCE

A continuous offence is alleged where a defendant is said tohave committed a continuous series of closely linked offenc-es. For example, if an act of bribery is repeated.

CRIMINAL PROCEEDINGS

Criminal proceedings are actions brought by the state againstan individual or a legal entity such as a business.

DEFENDANT A person or legal entity against whom an action or claim isbrought in a court of law.

DISCIPLINARY PROCEEDINGS

Disciplinary proceedings include sanctions taken against apublic or private sector employee, which are based oncontracts or other legal obligations that arise out of theworker’s individual position or employment, rather than thegeneral obligations created by criminal or administrative law.

EMBEZZLEMENT

When a person holding ofce in a government institution,organisation or private company dishonestly and illegallyappropriates, uses or trafcs the funds and goods t hey havebeen entrusted with for personal enrichment or otheractivities.

EXTENSION

With regards to statutes of limitation, extension prolongs thelimitation period for a specic length of time. Grounds forextension vary from one jurisdiction to another, but caninclude the requirement of special time-consuming investiga-tive measures.

FELONY

A grave crime, such as murder, rape, or burglary. A felony ispunishable by a more stringent sentence than that given for amisdemeanor.

FIRST INSTANCE

The beginning or the rst hearing of legal proceedings. Therst instance takes place in a lower court.

GRAND CORRUPTION

Acts committed at a high level of government that distortpolicies or the central functioning of the state, enablingleaders to benet at the expense of the public good Grandcorruption is usually (but not always) synonymous withpolitical corruption.

ILLICIT ENRICHMENT

The corrupt act of illicit enrichment may be dened as asignicant increase in the assets of a public ofcial that hecannot reasonably explain in relation to his lawful income.

IMMUNITY

For the purposes of this report, immunity refers to theexemption from legal prosecution for politically exposedpersons. In some countries politicians are granted politicalimmunity for actions they carry out in performance of their

duties in order to prevent politically motivated legal attacks.

IMPUNITY

The exemption from legal punishment.

INDICTMENT

A written statement charging a party with the commission ofa crime or other offence.

INSTANCE

An action or stage in a legal proceeding or process.

INTERRUPTION

With regards to statutes of limitation, when interruptionoccurs, a new limitation period, usually identical to theprevious one, begins to run. Grounds for interruption varyfrom one jurisdiction to another, but often include develop-ments in proceedings, such as the commencement or theling of the case to court.

INVESTIGATION

The process of uncovering the facts and circumstancessurrounding an offence. When statutes of limitation apply tothe investigation period, the investigation must be completed

and the charges must be brought within t he period oflimitation.

MISDEMEANOUR

A minor offence or transgression of the law, less heinous thana felony.

MONEY LAUNDERING

The process of concealing the origin, ownership or destina-tion of illegally or dishonestly obtained money by hiding itwithin legitimate economic activities.


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MUTUAL LEGAL ASSISTANCE

Mutual Legal Assistance (MLA) is the formal process throughwhich countries request and provide assistance in obtainingevidence located in one country to aid criminal investigationsor proceedings in another country.

OBSTRUCTION OF JUSTICE

The obstruction of justice may be dened as the use ofphysical force, threats or intimidation or the promise, offeringor giving of an undue advantage, to induce false testimony or

to interfere in the giving of testimony or the production ofevidence in a proceeding in relation to the commission of acrime or other offence.

OFFENDER

A person who has been found guilty of a crime or anotheroffence.

PERMANENT OFFENCE

An illegal activity that occurs over a period of time withoutcessation, for example, the operation of a human trafckingnetwork.

PROSECUTION

The institution and conduct of legal proceedings against aperson. When statutes of limitation apply to the period ofprosecution, the prosecution must be nalised and a judge-ment reached within the period of limitation.

RELATIVE LIMITATION PERIOD

The relative limitation period is the maximum period withinwhich a criminal or civil action can be brought against analleged offender, but which can be prolonged due to specicgrounds for suspension, interruption or extension.

REPOSE OF SOCIETY

Society being in a state of peace and tranquillity. Statutes oflimitation are designed to contribute to the repose of society.

The prosecution and punishment of old crimes recalls illfeeling and prevents social healing of an old conict and itsnegative consequences.

STATUTES OF LIMITATIONS

Statutes of limitations are statutory rules that set the maxi-mum period within which a criminal or civil action can bebrought against an alleged offender. Statutes of limitations,also called limitation periods, promote fairness and theefciency of investigative and judicial proceedings.

STATUTES OF REPOSE

Statutes of repose is the term used for the absolute limitationperiod in civil proceedings.

SUBPOENA

A court order requiring a person to appear in court to givetestimony. It is a punishable offence not to appear when asubpoena is decreed.

SUSPENSION

With regards to statutes of limitation, suspension functionslike a break or pause. Once the suspension has lapsed, thelimitation period continues running. Grounds for suspensionvary from one jurisdiction to another, but often includeimmunity or illness of the defendant.

TO PREJUDICE ONE’S RIGHT TO A FAIR TRIAL

To have a detrimental effect on one’s right to a fair trial.

TORT

A civil wrong, other than a breach of contract, which the lawwill redress by an award of damages. A civil suit can bebrought against the perpetrator of a tort.

TRADING IN INFLUENCE

The promise, offering or giving to a person, or the solicitationor acceptance by a person, directly or indirectly, of an undueadvantage in order that the person abuse his real or sup-posed inuence with a view to obtaining an undue advantagefor the original instigator of the act or for any other person.

Trading in inuence is also commonly divided into its activeform (giving an advantage in exchange for inuence) and itspassive form (requesting or accepting an advantage i nexchange for inuence).

WHISTLEBLOWING

Whistleblowing is the disclosure of information about aperceived wrongdoing in an organisation, or the risk thereof,to individuals or entities believed to be able to effect action.Early disclosure of wrongdoing or the risk of wrongdoing canprotect human rights, help to save lives and safeguard therule of law. Whistleblowing is increasingly recognised as ananti-corruption tool.

GLOSSARY

INTRODUCTION, MAIN FINDINGS

AND RECOMMENDATIONS1.


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INTRODUCTION

Statutes of limitations (SoL) are statutory rules that setthe maximum period within which a criminal or civilaction can be brought against an alleged offender. SoL,also called limitation periods, promote fairness andefciency in investigative and judicial proceedings andcontribute to the repose of society.

However, limitation periods can also constitute obsta-cles in the prosecution of offences because, in practice,they typically include the prosecution phase of pro-ceedings, i.e. even if charges are brought against analleged offender, the proceeding can end due to thelimitation period. Particularly in the case of corruption-related offences, which often come to light after a longpassage of time, standard SoL provisions can leadto impunity if they are overly short or do not provide forsufcient exibility to allow prosecution. An additionalconcern relates to cross-border corruption cases, asinternational legal cooperation can delay proceedingssignicantly.

All relevant international bodies have highlighted thatadequate statutes of limitations are critical to theeffective prosecution of corruption, and have developedinstruments that stipulate related provisions.1 TheOECD Working Group on Bribery (WGB) and theCouncil of Europe’s Group of States against Corruption(GRECO) included the assessment of SoL in theirreview mechanisms regarding the implementation of therelated conventions.2

However, so far there is no detailed internationalstandard regarding corruption-related statutes oflimitations, and international institutions have not alwaysprovided clear and consistent guidance to their mem-ber states. The OECD WGB has stressed that the lackof cross-cutting research on this issue impedes anappropriate assessment of whether statutes of limita-tions are adequate for the investigation and prosecutionof the offence of foreign bribery.3

TANGENTOPOLI

A SHOW-CASE FOR THE RELEVANCEOF STATUTES OF LIMITATIONSTO ANTI-CORRUPTION LAW ENFORCEMENT

Tangentopoli (literally ‘the city of bribes’), also

known as ‘Clean Hands’, was a series of judicial

investigations involving politicians and public

ofcials in the Milan area. This scandal which

exploded in 1992 uncovered the spread of bribery

and illicit funding to parties involving ministries,

members of parliament and businessmen.

After the preliminary hearings, 635 people (almost

20 per cent of the total) were acquitted. Of these,

314 acquittals (49 per cent) were because the

expiry of SoL meant the case could not be pros-

ecuted. After the trial, 40 per cent of cases were

dismissed, with 57 per cent of those due to the

expiry of SoL – not least because the courts were

unable to manage this volume of proceedings.

Additional data shows that of the 4,520 people

recorded in the General Register of Crimes’ Noticesof the Court of Milan, 586 (13 per cent) were

acquitted because of SoL.4

Another relevant issue emerging from this study is

that the majority of cases which expired due to SoL

did not even reach the trial phase because the rst

phase of the proceeding, the investigations, could

not be completed in time.

This report reduces this gap by providing an overviewof SoL in relation to corruption and corruption-relatedoffences across the European Union (EU). It exploresthe relevance of SoL for the ght against corruption,analyses problems in the enforcement of anti-corruptionlaw and identies good practice across the EU.

COVERAGE OF THE REPORT

The report builds on national research from all 27EU member states. The national data collection wascarried out at two levels. In 11 countries (Austria,Bulgaria, Czech Republic, Greece, Hungary, Ireland,Italy, Lithuania, Portugal, Romania and Slovakia),in-depth studies of the issue were conducted byrespective Transparency International (TI ) national

chapters. In the other 16 EU member states,5

anoverview assessment was carried out. The ndingswere discussed at a meeting of international experts,with representatives from the OECD WGB and theUnited Nations Ofce on Drugs and Crime (UNODC).

The research covered all corruption and corruption-related offences as dened in the United NationsConvention against Corruption (UNCAC), i.e. bribery,embezzlement, trading in inuence, abuse of functions,illicit enrichment, obstruction of justice, and money-laundering. It covered the commission of these offenc-es, but also the participation, attempt and conspiracyto commit corruption-related offences. Money launder-ing was included because of its intrinsic link to corrup-tion: in order for corrupt offenders to enjoy the benetsof their illicit activities, they must hide the origin oftheir funds and eventually convert them into legal funds.

The research assessed the relevance of SoL foranti-corruption law enforcement in the different bodiesof law (criminal, civil, administrative and disciplinaryproceedings) as well as in the different stages in t heinvestigation and prosecution of offences.

However, the comparability of data across countriesis limited because not all EU jurisdictions have trans-lated these offences into t heir national law. Corruptionoffences may also be regulated in different ways inindividual countries, with related implications for theduration of SoL.

IMPUNITY BECAUSE OF THEPASSAGE OF TIME

In September 2003, a Lithuanian judge dismissed

a criminal case where defendants had been

charged for the embezzlement of US $2.6 million.

In 2007 the Judicial Commission of Ethics and

Discipline refused to impose disciplinary liability on

the judge with reference to the fact that thethree-year period of disciplinary SoL had expired.6

METHODOLOGY OF THE RESEARCH

This report is part of a European Commission co-funded project. The methodologies for bothapproaches – the in-depth and the overview studies– were jointly developed by the project partners, i.e.the TI Secretariat and the 11 TI national chapters in

Austria, Bulgaria, Czech Republic, Greece, Hungary,Ireland, Italy, Lithuania, Portugal, Romania and Slovakia.Information was gathered through a desk review,questionnaires and interviews with local experts.

The desk review included the examination of relevantlegal provisions and academic papers, assessmentsand reports by international bodies such as the OECDWGB and GRECO and the collection and analysisof statistics about the length of SoL periods, as well asthe percentage of proceedings closed due to SoL.

This information was complemented with insightsprovided by prosecutors, judges, academics, ofcialsfrom interior ministries and local anti-corruptionagencies, and civil society representatives. The nationalstudies, methodologies and a related backgroundpaper can be accessed at the TI websitewww.transparency.org. The 11 in-depth studies canalso be found on the websites of each country’s TInational chapter.

INTRODUCTION, MAIN FINDINGS ANDRECOMMENDATIONS1.


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SWEDISH INVESTIGATION INTOALLEGEDLY CORRUPT EXPORT DEALSDROPPED DUE TO STATUTESOF LIMITATIONS

In June 2009, the Swedish prosecutor Christer van

der Kwast closed three investigations into SAAB’s

involvement in allegedly corrupt export deals with

the Czech Republic, Hungary and South Africa. He

stated that there was evidence which clearly

indicated that the case was “very serious, both in

terms of the systematic approach and the amount.

It involves hundreds of millions of Swedish crowns

in hidden payments in several countries, and there

is strong reason to believe that bribery also has

occurred.” The inquiries examined evidence from

the middle of the 1990s to the beginning of

this millennium. However, the period of limitation

did not allow for the prosecution of incidences

that occurred before July 2004. Mark Pieth,

chairman of the OECD anti-bribery working group,

expressed concerns about the halt of the investigation. “It raises the question whether Sweden

is really committed to the OECD convention,” he

said in an interview.7

MAIN FINDINGS

Across the European Union, impunity for corruptionand corruption-related offences is a matter of signicantconcern. The role played by SoL in this contextdiffers widely from country to country and is closelylinked to the overall efciency of enforcement agenciesand the judiciary.

GENERAL FINDINGS ABOUT THE REASONS FOR

CORRUPTION-RELATED IMPUNITY

• The lack of detection of corruption was identied asa key problem across the EU. Corrupt behaviour isusually of benet to the parties involved and in mostcases there is no immediate victim who can bringcharges. The clandestine nature of corrupt behav-iour means that it may never come to light unlessreported by a third person. Therefore, the impor-

tance of whistleblowing8

and the need for effectiveprotection of whistleblowers was pointed out asa major issue that needs to be addressed in mostEuropean countries.

• The lack of human resources and expertise oflaw-enforcement-bodies and judicial staff wereidentied as further major obstacles to the effectiveinvestigation and prosecution of corruption casesacross the EU. Incidences of corruption are oftendifcult to discover, investigate and prosecute.In most countries, qualied investigative manpowerto pursue corruption cases and economic crime ingeneral is lacking.

• In most European countries it is lengthy proceed-ings, sometimes combined with high levels ofbureaucracy and excessive requirements of proof,which constitute serious obstacles to anti-corruptionlaw enforcement. In such a context, SoL are oftentoo short to prosecute crimes, particularly if thereare not sufcient options to expand the limitationperiod if necessary.

• In many European countries, there is also a lackof trust in law enforcement which results in unwill-

ingness to report wrongdoing, reinforcing the lackof detection of corruption cases.

SPECIFIC FINDINGS ABOUT THE STATUTES

OF LIMITATIONS REGIME IN EU MEMBER STATES

• In some countries, particular aspects of the SoLregime constitute serious problems: in Greece, Italyand Portugal, proceedings can effectively run outof time even if an offender has been found guilty inthe rst instance. In addition, in Greece, there isan extremely favouralbe SoL regime vis-a-visparliamentarians and members of the government.

• In France, statutes of limitations for most corruption-related offences are three years. Even thoughthere are mechanisms for suspension of the limita-tion period, such a short limitation period cannotguarantee effective prosecution. In Spain, statutesof limitations are very short for some corruptionoffences, e.g. active bribery, while they can beconsidered adequate for others, such as moneylaundering.

• In the majority of European jurisdictions, the SoLregime has some weaknesses or loopholes, such asthe absence of immunity or of a request for mutuallegal assistance as a ground for suspension of thelimitation period. While in most of these jurisdictionsthe research did not detect corruption casesacquitted due to these weaknesses, it cannot beguaranteed that they will not cause impunityof alleged offenders in the future and they shouldtherefore be adjusted.

• At the same time, several jurisdictions provide goodpractice such as the application of SoL exclusivelyfor the investigation phase of proceedings, ormechanisms to take the specicities of corruption

cases into account.• Overall, the research showed that SoL have particu-

larly important implications for political and grandcorruption, cases involving high-level politicians andcomplex cases which may have a cross-borderdimension requiring international cooperation.

• In many European countries, recent reform effortshave led to an improvement of SoL regimes forprosecuting corruption-related crimes. In severalcases, SoL periods were lengthened signicantly orthe grounds for suspension or interruption wereextended. In contrast, recent reforms in Italy havefurther shortened the limitation periods.

LACK OF DATA ABOUT PROCEEDINGS CLOSED

DUE TO STATUTES OF LIMITATIONS

As mentioned above, the national research for thisproject included the collection and analysis of statisticsabout the percentage of proceedings closed due toSoL. However, this data was only available in 10 of the27 countries studied. Even where statistics could becollected, they do not show cases that had not evenstarted because they were reported late, and ofcers

could already predict that investigation or prosecutionwould not be completed within the set t ime period.9

It was pointed out by several researchers that the realnumber of cases ending indirectly due to SoL is likelyto be signicantly higher than statistics can show.

This renders the ndings inconclusive.

The available data shows that, in most cases, less thanone per cent of investigations and proceedings areclosed due to SoL, although there are some exceptionswhich show signicantly higher numbers. In Bulgariaand Hungary, 25 or even 32 per cent of criminalinvestigations were closed in some years. However,there is no information as to whether this was due toSoL or for other reasons, such as a lack of evidence.

Of particular concern are jurisdictions with a highnumber of criminal court proceedings closed due toSoL. The gures are exceptionally high for Italy:since 2005, 10 to 13 per cent of all criminal courtproceedings have been closed due to SoL, meaningthat one in 10 trials ended with impunity for the allegedoffender. In Slovakia, up to four per cent of criminal

court proceedings have been closed in the past years.



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RECOMMENDATIONS

It was pointed out by many researchers and localexperts that inefciencies in law enforcement and the

judiciary are key concerns for the effective prosecutionof corruption, and need to be addressed.

General conclusions can be drawn regarding SoLregimes specically, even though they need to be

assessed carefully in the context of each jurisdiction. These conclusions lead to the following recommenda-tions to national policymakers:

1. THE GRAVITY OF CORRUPTION CRIMES NEEDS TO BE

ADEQUATELY REFLECTED IN DOMESTIC LAW

SoL periods are generally calculated in relation to thegravity of the offence. For limitation periods to besufciently long, it is critical that corruption-relatedoffences be adequately weighed. If, as in France, mostcorruption offences are classied as misdemeanoursand not as felonies, the resulting SoL is likely to be tooshort (three years, in this case).

WHAT THE GRAVITY OF THE CRIMEMEANS FOR THE LENGTHOF STATUTES OF LIMITATIONS

In the Portuguese Freeport Case, involving the

waiver of environmental restrictions, the question of

whether the case has prescribed depends on howthe Prosecutor’s Ofce qualies the type of crime.

If it is qualied as ‘bribery with breach of duties’,

a 10-year SoL period applies. If it is ‘bribery without

breach of duties’, it is only ve years. In the latter

case, the criminal procedure itself should be

dismissed.

2. LIMITATION PERIODS FOR SERIOUS CORRUPTION

OFFENCES SHOULD BE 10 YEARS OR LONGER

The emerging guidance from relevant internationalbodies for a minimum SoL period for corruptionoffences is ve years or more. However, particularly incomplex corruption cases and in the context of sl ow,inefcient judicial proceedings, ve years may not beenough to ensure the effective administration of justice.

A SoL period of at least 10 years would reduce the risk

of complex corruption cases prescribing. In the contextof inefcient and lengthy proceedings, as well as ininternational corruption cases, even a limitation periodof 10 years might not provide sufcient time, unlesscomplemented by exible grounds for suspension orinterruption of proceedings.

3. THE CALCULATION OF STATUTES OF LIMITATIONS

SHOULD REFLECT THE SPECIFICITIES

OF CORRUPTION CASES

As ‘covert’ offences, many cases of corruption do notcome to light for many years, for example, until aregime change occurs or when an ofcial or companyemployee leaves his or her post. Therefore, in the caseof continuous offences, SoL should begin runningfrom the moment the last offence took place and in thecase of a permanent offence, they should be calculatedfrom the date on which the illegal activity ceased.

4. THE REGIME SHOULD ENSURE EXTENSIONS

FOR CROSS-BORDER CASES

Given the increasingly transnational character of corruptpractices, the SoL regime needs to adequately reectpotential delays created by international cooperation,such as requests for mutual legal assistance (MLA),which can take many months or even years to begranted. In the case of an MLA request, the SoL regimeshould provide for additional time, for example, through

the suspension of the limitation period, in order toensure the effective prosecution of international corrup-tion cases.

5. NO IMPUNITY FOR POLITICIANS AND MEMBERS

OF THE GOVERNMENT

In corruption cases involving politicians or governmentmembers who are protected by immunities, either asalleged offenders or as parties involved in the proceed-ings, SoL should provide for suspension or interruptionas long as the post-holder is in ofce.

This will enable the case to be taken up when theofcial or politician leaves his or her post .

6. NO STATUTES OF LIMITATIONS AFTER A DECISION

OF FIRST INSTANCE

A SoL regime should not allow for proceedings toprescribe after the rst instance. Otherwise, there is arisk that an alleged offender is found guilty in the rstinstance, but a sentence cannot be enforced becausethe case prescribed during the appellate instances.

In order to ensure the adequate prosecution of corrup-tion offences it is even questionable whether thereshould be any limitation period after formal chargeshave been presented to the court for hearing.

7. SYSTEMATIC COLLECTION OF STATISTICS ABOUT

RELEVANCE OF STATUTES OF LIMITATIONS FOR IMPUNITY

Data on criminal cases closed due to SoL should becollected and made available in order to identify theimpact of SoL on the administration of justice, both ingeneral and specically for corruption and corruption-related offences. Specic reasons for the closure ofcases should also be recorded in order to identify andaddress weaknesses in the system.

THE USEFULNESS OF DATAFOR GUIDING POLICY REFORMS

In Portugal, between 2004 and 2008, only 0.5 per

cent of corruption-related cases were dismissed

because of SoL. However, the very few cases that

end in impunity are usually the ones involving the

greatest sums of money and known political actors.

Therefore, the related provisions need to be

adapted because they leave loopholes for grand

corruption to end in impunity. This conclusion

is drawn from detailed data analysis by Portuguese

research institutes.10



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THE NATURE OF

STATUTES OF LIMITATIONS2.

LIMITING TIME DELAYSWITHOUT STATUTES OF LIMITATIONS –THE CASE OF IRELAND

In Ireland, rather than imposing limitation periods on

the prosecution of crimes as in civil law jurisdictions,

the common law doctrine of delay prevails. Underthis, the defence may make submissions asserting

that the defendant’s right to a fair trial is prejudiced

by the effects of the passage of time. The charges

will be dismissed if his or her right to a fair trial

is found to be prejudiced by the culpable delay of

the prosecution. Where delay is pleaded, the

case is considered on its individual merits within the

parameters set by the jurisprudence on delay.

2.2 THE RELEVANCE FORCRIMINAL, CIVIL, ADMINISTRATIVE ANDDISCIPLINARY PROCEEDINGS

In the context of this research, SoL for the four differentbodies of law were assessed in the 11 in-depth studies.For the other 16 EU Member States, t he research waslimited to criminal and civil proceedings. Among theresearchers and the experts interviewed the view was

widespread that criminal proceedings are by far themost relevant body of law for the assessment of the linkbetween limitation periods and impunity for corruption-related offences. Therefore this report focuses oncriminal proceedings.

CRIMINAL PROCEEDINGS

Criminal proceedings are actions brought by the stateagainst an individual. Corruption cases are often treatedunder criminal law, because they are usually offencesfor which penal sanctions apply. Large-scale corruptioncases are often complex and combine a multitude ofoffences, which can also be of a civil, administrative ordisciplinary nature.

2.1 THE RATIONALE

The vast majority of jurisdictions provide for limitationperiods. The main rationale for the concept is:

• To promote legal certainty, fairness and accuracy ofcriminal proceedings by protecting individuals fromhaving to defend themselves against charges whenthe basic facts may have become obscured by the

passage of time.• To improve efciency by encouraging prosecutionauthorities to divert scarce law-enforcement re-sources from offences which were committed a longtime ago with low probability of successful prosecu-tion to the pursuit of more recent offences. SoLperiods are also intended to improve efciency byencouraging the prompt investigation and prosecu-tion of criminal activity, consistent with article 6(1) ofthe European Convention on Human Rights andFundamental Freedoms, which provides that‘everyone is entitled to a fair and public hearingwithin a reasonable time’.

• To contribute to the repose of society which consti-tutes the ultimate goal of criminal law. The prosecu-tion and punishment of crimes committed long agostirs up ill feeling and prevents social healing of oldconicts and their negative consequences. Due tothe passage of time, the purpose of punishment aswell as the need for restitution may become irrel-evant.

Except for two countries (Ireland and the United

Kingdom), all EU member states provide for limitationperiods for criminal offences.11 The most serious crimesare not subject to any limitation period. These includewar crimes, crimes against humanity, genocide, acts ofterrorism and similar offences. In some jurisdictions,intentional homicide is excluded as well. In Austria,there are no SoL for offences requiring life imprison-ment or sentences of 10 to 20 years, while in Italy, alloffences leading to life sentences are excluded fromSoL.


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CIVIL PROCEEDINGS

In civil proceedings, actions are brought by entities,persons or the state to obtain remedy for damagesuffered as a result of a defendant’s actions. Civil SoLlimit the time in which a plaintiff can bring a lawsuitagainst another person. In the context of the ghtagainst corruption, civil proceedings are relevantbecause civil remedies enable persons who havesuffered damage resulting from acts of corruption toreceive fair compensation. In countries that do notrecognise criminal liability for legal entities, such ascompanies, civil remedies enable victims to take legalaction against them.

ADMINISTRATIVE PROCEEDINGS

An administrative proceeding is a non-judicial deter-mination of fault or guilt and may include penaltiesof various types. The related limitation periods are ofthe most varied forms and come under differentregulations. In general, the SoL periods in administra-tive proceedings are very short and may constitutean obstacle to the effective ght against corruption,especially in countries where legal persons can only besanctioned through civil or administrative proceedings.

They may also constitute obstacles for the prosecutionof violations of party funding regulations.

DISCIPLINARY PROCEEDINGS

Disciplinary proceedings include sanctions takenagainst a public- or private-sector employee, which arebased on contracts or other legal obligations thatarise out of the worker’s individual position or employ-ment, rather than the general obligations created bycriminal or administrative law. These can include termsor conditions of employment contracts, public servicestandards or codes of practice and the rules appliedto professional groups such as doctors and lawyers.In the context of combating corruption, disciplinaryproceedings are relevant because of the possibility ofimposing disciplinary sanctions, such as prohibitionto practise a profession, which could not be imposedby criminal law.

FIGURE 1:

THE DIFFERENT TYPES OF STATUTES

OF LIMITATIONS PERIODS AND

THEIR MAIN ELEMENTS12

SOL ONPROSECUTION****

STATUTES OFLIMITATIONS PERIOD

SOL ONINVESTIGATIONS***

IN CRIMINALPROCEEDINGS

IN CIVILPROCEDINGS

IN ADMINISTRATIVEPROCEDINGS

IN DISCIPLINARYPROCEDINGS

SOL ONEXECUTIONOF THE SENCENCE

SOL ONINVESTIGATIONAND/OR PROSECUTION

SOL* STATUTES OF REPOSE**

* period begins on the day of discovery of the offence or damage

** period begins on the day of offence or damage

*** period begins on the day of offence and runs until the end of

investigation or the beginnig of prosecution

**** period begins on the day of offence and runs until the end of

the trial or end of prosecution or day of sentence

2.3 THE LENGTH OF STATUTESOF LIMITATIONS

Across the EU, the length of SoL in criminal proceed-ings varies widely. Generally, it is calculated in relation tothe gravity of the crime, i.e. an offence with a highersentence, such as 10 years’ imprisonment, will have alonger SoL than an offence which is considered lessserious and faces a maximum sentence of three or ve

years. Yet the detailed calculation is very different fromcountry to country. In some countries, for exampleHungary13 and Italy, the limitation period is equal to themaximum detention penalty for the offence. In others,such as Austria, Greece, Portugal, Romania, Slovakiaand Slovenia, the period is related to the maximumpenalty but not necessarily equal to it. For example, inRomania, the limitation period for prosecution is veyears plus the length of the penalty to be executed.

In many countries, a distinction is made betweenshorter SoL periods for basic forms of offence, andlonger ones for the aggravated form of t hese offences.In Slovakia, for example, the offence of accepting abribe can have SoL of ve, 10 or 20 years, dependingon whether the offence is aggravated or not.

In other countries the length of SoL is calculated relatedto the category of crimes. In Belgium there are threecategories of crime: serious crime, crime and misde-meanour. Each of these categories has sub-categoriesand SoL are calculated accordingly.

Regarding special limitation periods for corruptionoffences, only Portugal has recently approved suchmeasures, which will come into force in 2011. TheRomanian anti-corruption law denes special penaltiesfor corruption offences, which indirectly lead to speciallimitation periods.

2.4 THE STARTING POINT OF THELIMITATION PERIOD

SoL for civil law offences are usually calculated fromthe day the offence was discovered. In many countries,such as Austria, Czech Republic and Slovakia, amongothers, they count only from the day the damage isknown to the injured party. Only exceptionally, forexample in Malta, do civil proceedings run from the

day that the act giving rise to the damages occurs, andnot from the moment the damage was discovered.

In criminal law, however, the limitation period usuallybegins to run on the day on w hich the crime wascommitted. For corruption cases, this is a signicantproblem because many corruption offences do notcome to light for many years, for example, until aregime change occurs or when an ofcial leaves hisor her post.

However, many European jurisdictions have imple-mented mechanisms that account for the specicitiesof corruption and corruption-related offences in SoL– see table 7 page 35.

EXTENDING SOL THROUGHTHE IDENTIFICATIONOF THE MOST SERIOUS OFFENCE

Prosecutors and judges can seek to qualify, where

possible, corruption offences as offences which areconsidered more serious under national law. For

example, judges in France have qualied bribery

offences as the misuse of corporate assets or

receiving of misused corporate assets in order to

make it possible to sanction acts which otherwise

would not have been punishable (should SoL

expire), or which would have been difcult and

taken longer to prove.14

THE NATUREOF STATUTES OF LIMITATIONS2.


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2.5 ASPECTS OF CRIMINAL PROCEEDINGSCOVERED

Limitation periods may concern the phase of investiga-tion and prosecution of an offence as well as the phaseof the execution of the sentence. The various regimescan be combined in different ways.

The calculation of SoL for investigation indicates the

time limit for nalising the investigation and initiatingprosecution (i.e. the investigation must be completedand the charges must be brought within the period ofSoL) while the calculation of SoL for prosecutionindicates the time limit for nalising prosecution andreaching a judgment.

Limitation for the execution of sentence applies if asentence is not carried out or is suspended. Thesetypes of SoL periods are meant to deal with veryspecic situations, where, for example, a sentence isnot executed due to negligence. However, suchsituations rarely occur in practice and SoL periods forexecution of the sentence are almost never enforced.

They have therefore not been assessed in detail in theframework of this project.

TABLE 1:

OVERVIEW OF ASPECTS OF CRIMINAL PROCEEDINGS COVERED18

Countries with SoLfor investigation

Countries with SoLfor prosecution

Countries with SoL forexecution of sentence

Austria19

Estonia

FinlandFrance

Greece

Hungary

LatviaLuxembourg

Malta

the NetherlandsPoland

Romania

SloveniaSpain

Sweden

BelgiumBulgaria

Czech Republic

Denmark

EstoniaFinland

FranceGermanyGreece

Hungary

ItalyLithuania

Luxembourg

Maltathe Netherlands

Romania

PortugalSlovakia

Slovenia

Spain

Austria

BelgiumBulgaria

Estonia

GreeceHungary

ItalyLatviaLuxembourg

the Netherlands

Poland

PortugalRomania

Slovakia

Slovenia

FRANCE:JURISPRUDENCE DETERMINESLATE START OF STATUTES OF LIMITATIONS

French SoL are particularly short and have been

considered a serious obstacle for the prosecution of

corruption offences.15 However, related leads

to a signicant delay of the starting point of SoL,

which can help to overcome the problem of impunity. The Cour de Cassation, France’s highest

appellate jurisdiction, has ruled that the offence of

bribery, committed from the moment the agreement

between the briber and the bribed person is

concluded, is renewed on each occasion that t he

agreement is acted upon.16 As a consequence,

the triggering of SoL is moved forward from the day

the bribery agreement was concluded to the day

of the nal payment or the last day of receipt of the

advantage that was promised.17

2.6 GROUNDS FOR SUSPENSION,INTERRUPTION AND EXTENSION

In most jurisdictions, SoL can be suspended, extendedor interrupted for specic reasons. Suspension func-tions like a break or a pause, and once the suspensionhas lapsed, the time continues running. Extensionprolongs the SoL for a specic period. while interruptionmeans that after the interruption, a new limitation

period, usually identical to the previous one, begins torun. In the enforcement of anti-corruption law one ofthe key concerns is whether the grounds for suspen-sion, extension and interruption are extensive enoughto allow for proper enforcement of the law.

According to some scholars, a jurisdiction should eitherprovide for long SoL and remove any grounds forsuspension, extension or interruption, or for shorter SoLwith an extensive number of grounds for suspension,extension and interruption.20 The reality, however,shows a mixture of different regimes both within andacross European jurisdictions.



12/26


TABLE 2:OVERVIEW OF FREQUENT GROUNDS FOR SUSPENSION IN EU

JURISDICTIONS

Ground for suspension Countries21

The alleged offender evaded

the administration of justice

Estonia, Italy, Lithuania,

Portugal, Slovakia, Slovenia

The alleged offender committedanother crime of the same nature

Austria

The alleged offender is

a minor or is sick

Czech Republic, Hungary,

Lithuania, Luxembourg,Romania, Slovenia

Steps in the proceedings, such

as the beginning of proceedings

Austria, Greece

Legal obstacles to the

initiation or continuation

of prosecution

Austria, Belgium, Bulgaria,

Greece, Italy, Luxembourg,

Portugal, Romania, Slovakia,Slovenia

An MLA request,

international legal assistance

Hungary, Lithuania

Immunity and other statutorybarriers to investigation or

prosecution

Austria, Belgium, CzechRepublic, Hungary, Portugal,

Slovakia, Slovenia

Referral of the case to another

court or to additional investigation

Italy, Belgium, Lithuania, Portugal

GROUNDS FOR INTERRUPTION

Interruption functions as a ‘reset’ of time: after eachinterruption a new limitation period, usually identical tothe previous one, begins to run. Across the EU, there isa wide variety of different regimes. While the CzechRepublic and Italy provide for many different provisions,

Austria and Greece do not use the concept at all forcriminal proceedings.

TABLE 3: OVERVIEW OF FREQUENT GROUNDS FOR INTERRUPTION IN EU

JURISDICTIONS

Ground for interruption Countries22

The alleged offender committed

another crime

Czech Republic, Latvia,

Lithuania, Romania,

Slovakia, Slovenia

Beginning of criminal prosecution Belgium, Bulgaria,

Czech Republic, Estonia,Hungary, Luxembourg,

Portugal, Slovakia

International or European arrestwarrant

Czech Republic, Hungary

Designation of the defendant as

a formal suspect

Hungary, Portugal

Notication of any procedural

act to the alleged offender, suchas subpoena, arresting,

summoning, confrontation, etc.

Belgium, Czech Republic,

Estonia, Hungary, Italy,Romania, Slovakia

2.7 THE ABSOLUTE LIMITATION PERIOD

Twelve European member states provide for an abso-lute SoL period period (see graph), i.e. regardlessof provisions for the interruption and/or suspensionof the statute, there is an overall limit to the length ofthe period. In Bulgaria and Romania, for example,the absolute period cannot exceed half the relative SoLperiod. The other countries do not have an absolute

time limit for the prosecution of criminal offences, i.e.theoretically the limitation period can be interrupted orsuspended indenitely if needed.

At the same time, the new SoL regime in Slovenia,which entered into force in 2008, exclusively foreseesabsolute, notrelative, SoL periods. Almost all groundsfor suspension were abolished in favour of a regimewith long absolute SoL, i.e. a minimum of six years, butup to 20 years for serious offences.23

2.8 COMPARITIVE LENGTHS OFSTATUTES OF LIMITATIONS FOR DIFFERENTPROCEEDINGS

2.8.1 THE LENGTH OF SOL FOR CRIMINAL PROCEEDINGS

Across the EU, statutes of limitations for criminalproceedings vary widely. The tables on the followingpages show the limitation periods for criminal proceed-ings in all EU member states except for Cyprus,

Ireland and the United Kingdom where no SoL exist.24



13/26


TABLE 4: PERIOD OF LIMITATION (YEARS) UNTIL END OF INVESTIGATION OR INITIATION OF PROSECUTION

ACTIVE BRIBERY OF OFFICIAL

FRANCE

HUNGARY

SPAIN

AUSTRIA*

ESTONIA

FINLAND*

GREECE*

MALTA

POLAND

ROMANIA

SWEDEN*

LATVIA

LUXEMBOURG

SLOVENIA

NETHERLANDS*

12

10

5

3 Y E A R S

20

15

PASSIVE BRIBERY

FRANCE AUSTRIA

ESTONIA

FINLAND

GREECE*

HUNGARY

MALTA

POLAND

SWEDEN*

LATVIA

LUXEMBOURG

ROMANIA

NETHERLANDS

12

10

5 3

Y E A R S

SPAIN SLOVENIA

10

BRIBERY OF FOREIGN PUBLIC OFFICIALS

FRANCE

HUNGARY

SPAIN

AUSTRIA

FINLAND

GREECE*

MALTA

POLAND

NETHERLANDS*ROMANIA

8

6 5

3 Y E A R S

LUXEMBOURG

DEFALCATION / EMBEZZLEMENT

AUSTRIA FRANCE ESTONIA

FINLAND

GREECE*

LATVIA

LUXEMBOURG

MALTA

ROMANIA

SLOVENIA

10

5

31 Y E A

R S


FRANCE AUSTRIA*

ESTONIA

FINLAND*

GREECE*

HUNGARY

LATVIA

MALTAPOLAND

R OM AN IA L UX EM BO UR G

SLOVENIA

SPAIN

10

8

5

3 Y E A R S

ABUSE OF PUBLIC FUNCTIONS

HUNGARY AUSTRIA

FINLAND

GREECE*

LATVIA

LUXEMBOURG

POLAND

S LO VEN IA R OMA NI A

10

65

3 Y E A R S

15

12

MONEY LAUNDERING

SWEDEN* FRANCE AUSTRIA

ESTONIA

FINLAND

HUNGARY

LATVIA

LUXEMBOURG

ROMANIA

SLOVENIA

SPAIN

10

5

32

Y E A R S

NETHERLANDS GREECE*

MALTA

10OBSTRUCTION OF JUSTICE

LUXEMBOURG AUSTRIA

FRANCE

R OM AN IA F IN LA ND

SPAIN

54,5 3

1 Y E A R S

LATVIA

SLOVENIA

In Austria, de jure the SoL period runs until the endof prosecution, but de facto the formal accusationand sometimes even other investigative measuressuspend the SoL period until the legally binding endof the proceedings.

* minimum, extra given if aggravating circumstance(cp. detailed clauses)



14/26



* minimum, extra given if aggravatingcircumstance (cp. detailed clauses)

** The relative period of limitationis ve years plus the length of thesentence. For the graphiccomparison of data, the guresfor Romania are calculated for thelowest penalty.

TABLE 5: PERIOD OF LIMITATION (YEARS) UNTIL END OF PROSECUTION OR SENTENCE RELATIVE PERIOD OF LIMITATION (CAN BE EXTENDED THROUGH SUSPENSION OR INTERRUPTION)

20


CZECH

REPUBLIC*

FRANCE

GREECE*

HUNGARY*

SPAIN

BELGIUM*

DENMARK*

ESTONIA

FINLAND*

GERMANY

MALTA

POLAND

ITALY

NETHER-

LANDS*

ROMANIA**

BULGARIA

PORTUGAL

10

6 5

3 Y E A R S

LUXEMBOURG

SLOVAKIA*

20

15

12

10

6 5,5


CZECHREPUBLIC*

FRANCE

GREECE*

HUNGARY*

SPAIN

BELGIUM*

DENMARK*

ESTONIA

FINLAND*

GERMANY

MALTA

POLAND

SLOVAKIA*

ROM ANIA** ITALY

Y E A R S

5

3

BULGARIA NETHERLANDS*PORTUGAL L UXEM BOURG

20

15

12

10

8

PASSIVE BRIBERY

FRANCE

GREECE*

BELGIUM*

CZECH

REPUBLIC*

ESTONIA

FINLAND*

GERMANY

HUNGARY*

MALTA

POLAND

SLOVAKIA*

ROMANIA**

Y E A R S

5

3

BULGARIA

DENMARK*

ITALY

NETHERLANDS*

PORTUGAL

SPAIN

LUXEMBOURG

20

15

10

6


CZECHREPUBLIC*

FRANCE

GREECE*

SLOVAKIA*

SPAIN

BELGIUM*DENMARK*

ESTONIA

FINLAND*

GERMANY

BULGARIAITALY

MALTA

5

3 Y E A R S

PORTUGAL L UXEM BOURGROMANIA**

20

10

76


FRANCE

GREECE*

BELGIUM*

BULGARIA

DENMARK*

ESTONIA

FINLAND*

HUNGARY

MALTA

POLAND

ROMANIA**

5

3 Y E A R S

PORTUGAL

SPAIN

LUXEMBOURG

SLOVAKIA*

ITALY

15

10

86


GREECE*

HUNGARY*

BELGIUM*

CZECH

REPUBLIC*

DENMARK*

FINLAND*

LUXEMBOURG

POLAND

SLOVAKIA*

ROMANIA**

5

3 Y E A R S

B UL GA RI A P OR TU GA LITALY

15

12

10

8

MONEY LAUNDERING

FRANCE BELGIUM*

CZECH

REPUBLIC*

ESTONIA

FINLAND*

GERMANY

HUNGARY*

LUXEMBOURG

BULGARIA

SLOVAKIA*

SPAIN

5

3 Y E A R S

ITALY

NETHERLANDS*

MALTA

PORTUGAL

ROMANIA**

10

8


LUXEMBOURG FRANCE BELGIUM*

CZECH

REPUBLIC*

FINLAND*

GERMANY

PORTUGAL

SPAIN

ROMANIA**

65

32

Y E A R S

ITALY* DENMARK*

SLOVAKIA*


15/26


* minimum, extra given if aggravatingcircumstance (cp. detailed clauses)

2422,5

15

10


ITALY

ROMANIA

GREECE*

LITHUANIA

ESTONIA

GERMANY

LATVIA

SLOVENIA

BULGARIA

SWEDEN*

Y E A R S

8

7,5

PORTUGAL NETHERLANDS

2422,5

20

15

12

PASSIVE BRIBERY

GREECE* ESTONIA

GERMANY

LATVIA

L IT HUANIA BUL GARIA

ITALY

ROMANIA

SWEDEN*

Y E A R S

10

8

SLOVENIA PORTUGAL NETHERLANDS

15

12

10


ITALY G RE EC E* ES TO NI A

GERMANY

LITHUANIA

NETHERLANDSROMANIA

Y E A R S

87,5

BULGARIA

PORTUGAL22,5

15

12,5


GREECE*

LITHUANIA

ESTONIA

GERMANY

LATVIA

SLOVENIA

ITALY BULGARIA

ROMANIA

SWEDEN*

Y E A R S

10

8

PORTUGAL

15

12

10


BULGARIA

ITALY

GREECE*

LITHUANIA

ESTONIA

SLOVENIA

ROMANIA

8

PORTUGAL

7,5

Y E A R S

5

LATVIA

22,5

15

8


SLOVENIA ITALY GREECE*

LITHUANIA

BULGARIA

ROMANIA

7,5

PORTUGAL

6

Y E A R S

5

LATVIA

2422,5

20

MONEY LAUNDERING

ESTONIA

GERMANY

SLOVENIA

BULGARIA

ITALY

LITHUANIA

ROMANIA

G REEC E* P ORTU GAL

15

NETHERLANDS

10

Y E A R S

5

LATVIA

SWEDEN*

10


PORTUGAL L IT HUANIA GERMANY

ITALY*

LATVIA

SLOVENIA

87,5

Y E A R S

4,5

ROMANIA


TABLE 6: PERIOD OF LIMITATION (YEARS) UNTIL END OF PROSECUTION OR SENTENCE ABSOLUTE PERIOD OF LIMITATION (NO FURTHER EXTENSION POSSIBLE UNDER ANY CIRCUMSTANCES)


16/26


2.8.2 THE LENGTH OF STATUTES OF LIMITATIONS

FOR CIVIL, DISCIPLINARY AND ADMINISTRATIVE

PROCEEDINGS

SoL in civil, administrative and disciplinary proceedingsalso vary widely between jurisdictions.

For civil proceedings, in most cases, there are differentlimitation periods for different actions, and in somecases, such as Spain, the periods even vary between

different regions in the country. Corporate or certaincommercial disputes can also have their own SoL.

In the majority of countries, SoL for civil proceedingsvary between three and ve years for most offences. InSpain, the limitation period for civil proceedings againstthe public administration and for torts is one year afterthe act originating the claim took place. This is excep-tionally short.

Countries such as Austria, Estonia, Finland, Greece,Slovakia and Slovenia, have an absolute period, alsocalled statutes of repose, which can vary between10 and 30 years.

SoL for administrative and disciplinary proceedingsvary between three months and six years. Even thoughlittle evidence was found, some researchers pointedout that the shorter period might constitute an obstaclefor disciplinary liability. In Austria, for example, theconnection with the criminal proceedings code couldbe particularly relevant. This provision states that thepolice, prosecutor or court have the duty to informthe competent body if a criminal proceeding against a

public servant is initiated or terminated. This dutyof information might launch the shorter disciplinary SoLperiod and might therefore leave less time for discipli-nary proceedings. This effect is further heightenedby the fact that the short SoL period is not prolongedto the level of the SoL period for criminal proceedings ifthe public servant’s breach of duties constitutes acriminal offence.25

In Latvia and Lithuania, GRECO found that currentadministrative Sol may be too short to ensure theeffective control of political party nancing. In Latvia,under the general administrative provisions, the SoL arefor one year after the offence was committed. Giventhe deadlines for the submission of annual nancialreports by political parties and the delays sometimesobserved in the submission of these reports, theseperiods are somewhat short in the context of controllingpolitical nancing. GRECO therefore recommends inboth cases that the related SoL be extended.26

2.9 OTHER PROCEDURAL LIMITSINTERACTING WITH STATUTESOF LIMITATIONS

In addition to SoL, in many jurisdictions there are otherprovisions that may limit the length of criminal proceed-ings. The rationale for these provisions is that thereshould be no unreasonable delay in criminal proceed-ings in any of the stages. T ime limits are posed, for

example, for pre-trial investigations and the gathering ofevidence.

In the Czech Republic, the police need to establishwithin two to six months whether the offence wascommitted. However, this time limit can be extended.

There is also a time limit for issuing an order for a trial tobe held, for the preliminary hearing and for the indict-ment. Further multi-level approvals are needed by thepolice before carrying out procedural acts and there areexaggerated requirements from the Public Attorney’sofce concerning the formal notication of police acts.

In Greece, pre-trial detention cannot exceed a six-month period, unless in light of exceptional grounds,with prior approval by the Judicial Council. In Lithuania,the accused can le a complaint if the investigation isnot completed within six months of the rst enquiry. InPortugal, criminal investigations must be completedwithin six months (and can be extended to 12 monthsin certain cases). Slovakia has no specic limits, but thealleged offender may appeal to the Constitutional Court

if he or she considers the proceeding unreasonablydelayed.

The relevance of procedural limits is particularly obviousin countries without limitation periods, such as Ireland,where ofcial statistics on decisions to prosecute clearlyshow that the high evidential burden of proof in Irishcriminal law is the most signicant factor in decisions toend prosecutions.

THE CASE OF IRELANDHIGH EVIDENTIAL BURDEN AS AN IMPEDIMENT TO ANTI-CORRUPTION LAW ENFORCEMENT

The statistics reveal that around 30 per cent of cases in Ireland were not pursued in recent years, the vastmajority of these due to insufcient evidence.

GRAPH 1: DIRECTION GIVEN BY THE DIRECTOR OF PUBLICPROSECUTIONS ON FILES RECEIVED

100

90

80

70

60

50

40

30

20

10

% 2004 2005 2006 2007 2008

No prosecution

Prosecution on indictment

Summary disposal

Files still under consideration

GRAPH 2: MAIN REASONS FOR NOT PROSECUTING A CASE

100

90

80

70

60

50

40

30

20

10

% 2004 2005 2006 2007 2008

Other

Undue Delay

Time Limit Expired

Sympathetic Grounds

Public Interest

Juvenile Diversion Programme

Insufcient Evidence



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2.10 RECOMMENDATIONSFROM INTERNATIONAL INSTITUTIONS

The importance of SoL in the ght against corruption isrecognised in many relevant international legal instru-ments. The United Nations Convention against Corrup-tion (UNCAC) provides that ‘[e]ach State Party shall,where appropriate, establish under its domestic law a

long statute of limitations period in which to commence

proceedings for any offence established in accordancewith this Convention and establish a longer statute

of limitations period or provide for the suspension of the

statute of limitations where the alleged offender has

evaded the administration of justice’ (Article 29).Regarding legal persons, UNCAC stipulates in Article26, paragraph 4: ‘Each State Party shall, in particular,ensure that legal persons held liable in accordance with

this article are subject to effective, proportionate and

dissuasive criminal or non-criminal sanctions, including

monetary sanctions’.

Further, the Organisation for Economic Cooperationand Development (OECD) Convention on CombatingBribery of Foreign Public Ofcials in InternationalBusiness Transactions provides that ‘any statute of

limitations applicable to the offence of bribery of a

foreign public ofcial shall allow an adequate period of

time for the investigation and prosecution of the

offence’ (Article 6).

Even though the Council of Europe (CoE) Criminal LawConvention on Corruption does not stipulate any

standard regarding SoL, GRECO has been assessingthe issue in its Third Evaluation Round.27

The EU Convention against corruption has no relevantlegal provision.28

In terms of criminal cases, the OECD WGB andGRECO have provided further guidance on interpreta-tion of the terms ‘adequate’ and ‘long’ in relationto SoL periods, though once again they provide onlygeneral recommendations rather than minimumstandards or best practice.

The OECD WGB, which assesses exclusively theadequacy of the framework for foreign bribery offences,has indicated that the SoL period should be calculatedin accordance with a country’s general conditions ofenforcement of national criminal law and in light ofrelevant procedural rules, such as grounds for suspen-sion or interruption. Specically, the WGB recommend-ed that in France, Spain and Hungary, a period of threeyears for certain corruption cases might be too short,

and in the case of Hungary, ve years would be ad-equate. In the context of its Third Evaluation Round,GRECO considered that the three-year SoL periods forbribery in France were too short. In Latvia, a periodof two years for the offence of trading in inuence wasalso regarded by GRECO as inadequate.

In summary, OECD WGB and GRECO have oftenconsidered ve years as an adequate time for SoL whileasserting that these periods need to be tailored tothe justice systems and realities of each country. Thusin certain circumstances, the OECD WGB has alsocriticised a ve-year (or higher) threshold as beinginadequate, for example in Belgium, Bulgaria, Greeceand Italy, where criminal proceedings tend to facelengthy delays. The OECD WGB and GRECO alsohighlighted that SoL should be exible in terms ofgrounds for suspension, extension and interruption.

As previously mentioned, the UNCAC monitoringmechanism has only been adopted recently and assuch it has not yet produced any interpretation on SoL.

By contrast, the basis for SoL standards for civilproceedings is the CoE Civil Law Convention, wherethe standards for the length of SoL are specic. ThisConvention stipulates that proceedings for the recoveryof damages resulting from a corruption offence mustbe subject to a limitation period o f not less than threeyears from the day the person who has suffereddamage became aware (or should reasonably have

been aware) that damage had occurred or that an actof corruption had taken place. In addition, the civil lawrequirement that the identity of the responsible personbe known is applicable in such cases.29 Moreover, incivil proceedings most countries also prescribe a longerperiod beyond which proceedings may not be com-menced (statute of repose), regardless of the plaintiff’sdate of knowledge. The CoE Civil Law Conventionprovides that the absolute bar on commencing pro-

ceedings should not come into effect before the expiryof 10 years after the corrupt act. 30

2.11 RECENT AND CURRENT REFORMEFFORTS

Some European jurisdictions have recently undertakensignicant reforms in this area or are in the process ofrelated reforms, sometimes inspired by guidance frominternational institutions. In Latvia, for example, sub-stantial amendments were elaborated in 2009 in linewith GRECO’s recommendations. Amendments wereadopted in the Criminal Law regarding provisions onprivate and public sector bribery. Criminal liability fortrading with inuence was extended from two to threeyears for accepting an offer, and ve years for offeringmaterial values. As a result, SoL periods for cases oftrading inuence became longer (and are now veyears). In Portugal, recent changes have greatly extend-ed SoL for many corruption-related offences. In Lithua-nia, new legislation has just been adopted whichextends SoL for all offences, and there is a declared

political will to extend SoL for misconduct in ofce.

Romania has adopted a new penal code, but it is notyet implemented. While the new criminal code providesfor shorter penalties, leading to shorter SoL, Romaniahas an anti-corruption law,31 which establishes specialpenalties for corruption-related offences and providesfor additional tools for the investigation, prosecutionand trial of corruption cases within the limitation period.For these reasons, the new regulation is seen as apositive development by local stakeholders.

In Greece, reforms intended to combat delays in theadministration of justice were adopted in September2010. The Supervisor of the prosecutor’s ofce ap-pointed six prosecutors to be exclusively responsiblefor the investigation and management of les connect-ed with corruption and corruption-related offences.Cases considered as extremely important will beallocated to two prosecutors and will be closely fol-lowed by the s upervising prosecutor.

Given that these reforms were passed recently, theireffects cannot yet be ass essed. However, it is impor-tant to note that they were undertaken in the spirit ofreducing loopholes due to short or inadequate SoLprovisions, or to improve the legislative framework inother ways.

Contrary to the general trend of providing longer SoL,recent reforms in Italy have led to their shortening. Areform in 2005 reduced SoL for most offences by half.In 2010, a new bill was presented, which is still underdebate. This proposal provides for the dismissal ofproceedings in relation to determined phases in theprocess. For serious crimes sanctioned by more than10 years’ imprisonment, SoL would end after four yearsfor the rst degree, after two years for the seconddegree and after one and a half years for the thirddegree. While both recent reform efforts have beenexplained by an intention to reduce the length of trials,thus providing for a reasonable duration in compliancewith art. 6 of the European Convention of HumanRights, the statistics raise serious concerns about their

effects: since 2005, between 10 and 13 per cent of allcriminal court proceedings have been ended due toSoL, meaning that more than one in 10 trials endedwith impunity for the alleged offender.32 This number isparticularly high and raises serious concerns about theefcacy of the Italian justice system.



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3.1 MOST SIGNIFICANT WEAKNESSESIDENTIFIED IN THE RESEARCH

Whether statutes of limitations are sufciently long andadequate for the effective prosecution of corruptionand corruption-related offences depends on a series ofissues. There is a close link with the overall efciencyof the judiciary, which clearly has a strong impact onthe time needed to investigate and prosecute an

offence. The lack of human resources and expertise of judicial staff to investigate and prosecute corruptioncases were identied as major obstacles to enforcinganti-corruption law across the EU.

Overall, the following weaknesses were identied:

3.1.1 LIMITATION PERIODS ARE NOT LONG ENOUGH TO

ENSURE EFFECTIVE PROSECUTION OF CORRUPTION

In some European countries, SoL periods are too shortto ensure the effective prosecution of corruption andcorruption-related offences. In France, the relative SoLperiod for the prosecution of most corruption offencesis three years. For most countries, SoL differ betweenvarious offences. In Spain, the SoL period is limitedto three years in several criminal proceedings. For civilproceedings such as torts or proceedings againstthe public administration, the limitation period is oneyear after the act originating the claim took place. Thisis extremely short and can seriously impair the abilityof victims of corruption to bring charges against thoseresponsible.

In Greece, it is particularly striking that SoL periods forministers are shorter than for regular citizens. Therelevant law, which is also applicable to their accom-plices, limits the statute of limitations for ‘punishableactions’ – both felonies and misdemeanours – to veyears (the absolute period being 10) commencingon the day the offence was committed. In effect, due toimmunity provisions, no criminal action can be broughtagainst ministers unless and until parliament gives itsconsent.33 Due to this provision, the crime may not beprosecuted at all.

Short absolute periods are particularly problematic:Italy has an absolute limitations period of seven-and-a-half years for most corruption-related offences.34 In Finland, the limitation period can only be extendedfor a maximum of one year. This extension periodis too short to ensure the conclusion of many cases.

3.1.2 INCLUSION OF APPELLATE INSTANCES

IN THE DURATION OF STATUTES OF LIMITATIONS CAN

LEAD TO IMPUNITYMost countries provide that the periods of limitationsrun until delivery of the judgement at the rst instance.

The length of proceedings in the appellate instance isnot limited by SoL. In some countries (for example,Germany, Greece, Italy, Portugal and Slovakia), periodsof limitations run until the judgement comes into force,i.e. the period of limitations covers the proceedings inthe appellate instance.

In Greece and Italy, this provision has repeatedly led tothe dismissal of cases after the rst instance judge-ment. In Greece, where many offences have an abso-lute limitation period of eight years, there is a great riskof proceedings ending due to acquittal when pendingfor judgment before the Appellate Court or even beforethe Supreme Court. Moreover, owing to a provisionin the Penal Code, the Prosecutor has the authority tostop penal prosecution and dismiss pending cases ifthe limitation period is about to expire.

Germany, Portugal and Slovakia solve this problemby other means. In Germany, the judgement in the rst

instance suspends the period of limitations until itbecomes nal.35 Portugal adopts a similar mecha-nism.36 In Slovakia, any further step in the proceedings,such as the appeal after the rst instance, interruptsSoL so that another full period commences. Given thatthere is no absolute SoL period in Slovakia and Ger-many, de facto, a proceeding never prescribes after therst instance.

WEAKNESSES

AND GOOD PRACTICE3.


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3.1.3 ABSENCE OF IMMUNITY AS A GROUND

FOR SUSPENSION OR INTERRUPTION

In many European countries, parliamentarians andgovernment members are protected by immunityprovisions against allegations that might be politicallymotivated. For the effective prosecution of corruptionand corruption-related offences involving these per-sons, it is critical that immunity constitute a ground forsuspension or interruption of the SoL period. However,

this is not always the case.

COUNTRIES WHERE IMMUNITY DOES NOT PROVIDE A GROUND FOR

SUSPENSION OR INTERRUPTION OF SOL

Bulgaria, Denmark, Estonia,Finland, Greece37, Italy,Lithuania, Malta, the Netherlands,Romania, Spain

In Austria, there is a ground for suspension in the caseof immunity, but it only applies to the immune deputyhimself, and not to all other involved persons.

According to a recent interpretation of a decree fromthe Ministry of Justice, this also applies if an immunedeputy is one of many participants, for example awitness. In such a case, the proceeding may bedelayed, but the SoL period is suspended only for theparliamentarian, not for all other participants. Given thatdeputies can never be pursued by law enforcementauthorities for criminal offences related to their parlia-mentary work (professional immunity) and can only be

pursued for non-professional criminal offences if aspecial committee of the parliament gives sanction tothe prosecution measures (extra-professional immu-nity), this provision can easily lead to the dismissal ofcases where deputies are involved because the limita-tion period for other parties runs out of time.

3.1.4 ABSENCE OF REQUESTS FOR MUTUAL

LEGAL ASSISTANCE AS A GROUND FOR SUSPENSION

OR INTERRUPTION

Mutual legal assistance (MLA) and extradition requestsmay take a long time to be granted – several months oreven years – which may constitute a barrier to theeffective prosecution of corruption offences before theexpiry of the limitation per period. There are severalEuropean countries which do not establish MLA and

extradition requests as grounds for suspension orinterruption of SoL. Some of them, such as Austria, donot provide for MLA as a specic ground for suspen-sion, but according to experts in these countries, this islargely compensated for by other provisions which canextend SoL.

COUNTRIES WHERE AN MLA REQUEST DOES NOT PROVIDE A GROUND

FOR SUSPENSION OF SOL

Austria38, Belgium, Bulgaria,Denmark, Estonia, Greece,Italy, the Netherlands, Portugal,Romania, Spain, Slovakia,Slovenia39

In some countries, there are additional problems incases of international cooperation. Belgium andDenmark, for example, will not provid

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