Limitations in criminal law
The Criminal Code distinguishes two basic legal concepts of limitations, namely the limitations to prosecute and the limitations for the enforcement of the penalty.
Limitations to prosecute
Criminal prosecution is the right of state authorities to initiate and lead the criminal procedure against a person suspected of having committed a criminal offence.
The limitation period to prosecute usually begins to run from the day that a criminal offence was committed. However, if the consequence that characterizes the criminal offence occurs later, the limitation begins to run from that moment. For example, if the perpetrator shoots the victim and the victim dies after two months, the period of limitations to prosecute for the criminal offence of murder counts from the day of the victim’s death. Similarly, in the case of permanent and prolonged criminal offences, consisting of one long operation or more, substantially the same, actions of the perpetrator, the limitation period begins to run from the completion of a crime or from the last criminal action. For example, the criminal offence of kidnapping is considered a continuous offence, for which the limitation period to prosecute only runs from the completion of the offence or from the moment when the unlawful deprivation of the victim’s freedom terminates. Another example is, when the perpetrator repeatedly transports the goods across the border without reporting them for customs and tax purposes, this is a prolonged criminal offence and the limitation to prosecute begins to run only from the last unlawful transit.
The limitations to prosecute shall become effective on the expiry of the period:
- 40 years for criminal offences punishable by imprisonment of more than 15 years,
- 25 years for criminal offences punishable by imprisonment for a term exceeding 10 years,
- 20 years for criminal offences punishable by imprisonment for a term exceeding 5 years,
- 15 years for criminal offences punishable by imprisonment for a term exceeding 3 years,
- 10 years for criminal offences punishable by imprisonment for a term exceeding one year and
- 6 years for other offences.
It is worth mentioning that the most recent amendments of the Criminal Code introduced a rule according to which the limitation periods to prosecute would be extended by two years if a first instance verdict had been rendered before the expiry. The meaning of this provision, as expected, was aimed at providing the Court of Appeal with time to decide about the appeal, even though the provision wasn’t applied in practice by fully respecting this intention of the legislator.
If the criminal proceedings have not been instituted and completed (a valid judgment has been rendered) within the time required for the limitation to prosecute, then the court or other authority conducting the proceedings must suspend the criminal proceedings or issue a judgement dismissing the charges.
Limitation for the enforcement of the penalty
Limitation for the enforcement of the penalty refers to the right of state authorities to enforce a sentence imposed on a perpetrator by a final judgement and it runs from the day on which the judgement becomes final.
The sentenced penalty cannot be enforced due to limitations when from the final judgement passes:
- 40 years from a long-term prison sentence,
- 25 years from the sentence to imprisonment for more than ten years,
- 20 years from the sentence to imprisonment for more than five years,
- 15 years from the sentence to imprisonment for more than three years,
- 10 years from the sentence to imprisonment for more than one year,
- 6 years from the sentence to imprisonment for up to one year, fine as a main or secondary sentence.
Limitation on enforcement of security measures, confiscation of proceeds and instrumentalities
The limitation on enforcement of security measures starts to run after the double term of their validity, counting from the final judgment sentencing them, and they cannot be enforced even when the limitation for the enforcement of penalty, they have been imposed with, becomes effective, or after the probation period from the suspended sentence has elapsed.
This does not apply to security measures that have been imposed for a lifetime, nor to the confiscation of proceeds acquired from the criminal offence, which measures are not subject to any limitation period.
The confiscation of instrumentalities imposed by a final judgment cannot be effected after five years had passed since the final judgment rendered.
Changing limitation period and specifics
Considering that throughout the history the tendency of the legislature was to change limitation periods, usually, to extend it, the question, about the impact of changing of limitation periods on ongoing proceedings, arose in practice. Many legal theorists have pointed out that such a retroactive application of the law would be contrary to the principle of applying a more lenient law to the perpetrator.
In relation to this issue, the Supreme Court has taken a clear position on the validity of the application of the law in force, irrespective of the principle of application of the lenient law, arguing that “limitation is not a privilege for the perpetrator of the crime, but a legal institute introduced for the sake of opportunity, so the question of applying the lenient law cannot be raised. (I Kž-256/83 of 9 November 1983), which statement was adopted by the legislator, incorporating the Criminal Code in 2011. a provision explicitly stating that “If before the limitation to prosecute or limitation for the enforcement of the penalty came into force, the limitation period changes, the limitation period of the new law will apply.”
In the Criminal code, there are situations in which limitation is suspended for the duration of certain circumstances stipulated by law. In the same way, the limitation does not run for the period during which a criminal prosecution or enforcement of the penalty cannot initiate, because, for example, the perpetrator is in a foreign country that refuse extradition or if the perpetrator is elected to be a state officer for which immunity is provided. For most criminal offences against minors or children, the limitation does not begin to run before the child’s age. Also, the limitation does not run until the perpetrator is serving a (second) sentence of imprisonment etc.
The law also recognizes criminal offences for which the limitations for criminal prosecution and the enforcement of the penalty does not exist. These are the most serious crimes, in which the legislator decided that the interests of the perpetrator are dominated by the interest of the community to punish the perpetrators, such as genocide, crimes against humanity, war crimes, terrorism, serious murder and others.