Evidentiary Particularities in Illicit Enrichment Cases: Subject Matter, Scope, and Standards of Proof

Author: Danylo Zhydkov, Lawyer at Grain Law Firm

The public demand for combating corruption, combined with the absence of established case law, necessitates an in-depth examination of evidentiary specificities in cases concerning illicit enrichment of persons authorized to perform state or local government functions.

Illicit enrichment, understood as the acquisition of assets of questionable origin, is a criminally punishable act under Article 368-5 of the Criminal Code of Ukraine (hereinafter – the CC of Ukraine). The introduction of this provision into the CC of Ukraine represents a criminal law response to latent offenses committed by public officials and forms part of a broader state policy aimed at preventing and counteracting corruption.

According to scholars, including M. Khavroniuk, O. Dudorov, and D. Mykhailenko, when criminalizing this act, the legislator relied on the post factum detection by the state of latent offenses. Thus, illicit enrichment constitutes the final threshold of criminally punishable conduct of a public official.

This offense is typically preceded by a predicate crime (for example, Articles 191, 364, 368, 369-2 of the CC of Ukraine), although such predicate offenses are not always corruption-related. In some cases, they may relate to crimes against property (Articles 190, 191 of the CC of Ukraine) or economic activity (Articles 212, 209 of the CC of Ukraine), among others.

However, such predicate offenses are often not proven and are therefore disregarded, while the mere fact that a public official acquires assets exceeding their lawful income by a legally defined threshold is treated as a completed offense.

The Constitutional Court of Ukraine, in its Decision of 26 February 2019 No. 1-р/2019, declared Article 368-2 of the Criminal Code of Ukraine (Illicit Enrichment) unconstitutional, emphasizing that it contradicted the principles of legal certainty, in dubio pro reo, protection against self-incrimination, and the obligation of the prosecution to bear the burden of proof.

Taking into account the public importance of combating corruption and Ukraine’s obligation to implement the United Nations Convention against Corruption, the Verkhovna Rada of Ukraine did not abandon the criminalization of illicit enrichment. On 31 October 2019, it adopted Law No. 263-IX, which introduced Article 368-5 into the Criminal Code of Ukraine. Under this provision, acquisition by a public official of assets whose value exceeds their lawful income by more than 6,500 subsistence minimums for able-bodied persons is punishable by imprisonment for five to ten years, with deprivation of the right to hold certain positions or engage in certain activities for up to three years.

On 17 June 2025, the Verkhovna Rada adopted Law No. 4496-IX, which reduced the criminal liability threshold from 6,500 to 3,000 subsistence minimums. However, this law does not apply retroactively, as it would worsen the legal position of the accused.

Circumstances to Be Proven in Illicit Enrichment Cases

Under the Note to Article 45 of the Criminal Code of Ukraine, this offense is classified as corruption-related. Therefore, pre-trial investigations require heightened attention from investigative authorities, particularly regarding the collection of sufficient evidence for submission to court.

The evidentiary features of illicit enrichment cases are primarily determined by the specific structure of the offense.

The object of illicit enrichment is social relations in the field of official activity, which must be based on integrity in the conduct of public officials, including accurate declaration of assets. To establish this element, the offense must involve the acquisition of questionable assets during the period of holding a public office.

The subject matter of illicit enrichment consists of assets whose value exceeds lawful income by 3,000 subsistence minimums. Currently, this threshold amounts to UAH 9,984,000. If the value of assets is lower, such assets may be subject to civil confiscation under Article 290 of the Civil Procedure Code of Ukraine.

In essence, the subject matter of this offense is the difference between the value of assets at the time of acquisition and the lawful income of the public official.

According to paragraph 3 of the Note to Article 368-5 of the Criminal Code of Ukraine, “assets” include monetary funds (cash, bank deposits), other property, property rights, intangible assets, including cryptocurrency, reduction of financial obligations, as well as services provided to a public official.

At the same time, civil law remains the primary regulator of property relations. Article 177 of the Civil Code of Ukraine defines objects of civil rights broadly, including property, money, securities, digital assets, property rights, works, services, and intangible benefits. Cryptocurrency remains a problematic category due to incomplete regulatory development.

Paragraph 4 of the Note to Article 368-5 defines lawful income as income legally obtained from legitimate sources, including those listed in the Law of Ukraine “On Prevention of Corruption”. This includes wages, bonuses, dividends, royalties, insurance payments, gifts, and other forms of income. The list is non-exhaustive and subject to broad interpretation.

At the same time, under the Tax Code of Ukraine, taxable income is defined more narrowly, and not all legally obtained income is necessarily taxable. This distinction is important, as acquisition of assets may be financed from non-taxable but lawful sources.

Investigative practice shows that prosecution authorities often equate “lawful income” with “taxable income,” relying on tax authority data, declarations, bank records, and expert assessments.

Objective Side of the Offense

The objective side of illicit enrichment may be manifested in three forms:

1. Acquisition of assets by the public official into their ownership;
2. Acquisition of assets by another individual or legal entity on behalf of the public official;
3. Direct or indirect actions by the public official equivalent to the exercise of ownership rights over such assets.

The first form refers to the formal acquisition of ownership rights over assets, which may be confirmed through state registers of property rights and vehicle registries.

The second form requires proof that a third party acted upon instruction of the public official. However, the law does not clearly define who bears the burden of proving such instruction, which creates interpretative challenges.

As noted in academic literature, “instruction” should be understood not as a civil-law mandate, but as any arrangement whereby assets are registered in the name of another person for the benefit of the public official.

The Supreme Court of Ukraine has held that acquisition through third parties implies concealed beneficial ownership and may be established through a set of indirect indicators demonstrating control and benefit by the public official.

The third form concerns factual control over assets formally owned by others, including continuous use of property or financial resources without formal ownership rights.

Standard of Proof

Criminal proceedings require proof beyond a reasonable doubt. Any alternative version of events must be interpreted in favor of the accused under the principle in dubio pro reo.

Subject of the Offense and Subjective Element

The subject of the offense is a public official as defined by anti-corruption legislation, including high-ranking state officials, judges, law enforcement officers, and other categories of persons authorized to perform state or local government functions.

The subjective element is direct intent, meaning the person is aware of the socially dangerous nature of their conduct and desires its consequences.

Initiation of Proceedings and Evidence Sources

Pre-trial investigations are typically initiated based on materials from the National Agency on Corruption Prevention, including financial control and declaration verification reports. Investigations may also be initiated based on open-source intelligence or media reports.

Evidence commonly includes tax data, declarations, financial records, registry extracts, bank transaction analyses, expert opinions, and investigative reports.

Case Law and Current Practice

As of now, case law in illicit enrichment cases remains limited. There are only a small number of convictions approved through plea agreements, while most proceedings remain at the investigative or trial stage.

Therefore, courts often rely on analogous approaches developed in cases concerning unexplained assets.

Conclusion

Evidentiary particularities in illicit enrichment cases are defined by the specific structure of the offense. Although case law is still developing, the fundamental standard of proof in criminal proceedings remains proof beyond a reasonable doubt.

To establish guilt, the prosecution must present sufficient, admissible, reliable, and coherent evidence confirming the commission of illicit enrichment under Article 368-5 of the Criminal Code of Ukraine. The defense, in turn, must actively challenge the prosecution’s version and provide alternative explanations for the origin of assets.