Illicit Enrichment: Evidentiary Specifics

The strong public demand for effective anti-corruption enforcement, combined with the still-evolving judicial practice in illicit enrichment cases, necessitates a structured analysis of evidentiary standards in criminal proceedings under Article 368-5 of the Criminal Code of Ukraine.

The offence of illicit enrichment serves as a criminal law mechanism addressing situations in which it is difficult or impossible to establish and prove a predicate offence (such as under Articles 191, 364, 368, 369-2 of the Criminal Code), yet there is evidence that a public official has acquired assets whose value significantly exceeds their lawful income.

Following the Constitutional Court of Ukraine’s decision of 26 February 2019 (No. 1-r/2019), which declared the previous version of the provision unconstitutional, the legislature introduced a revised structure of the offence in 2019 (Article 368-5). In 2025, the statutory threshold triggering criminal liability was reduced from 6,500 to 3,000 subsistence minimums for able-bodied persons. This amendment does not apply retroactively, as it worsens the legal position of the accused.

1. The Subject of Proof: The Difference, Not the Asset Itself

In illicit enrichment cases, the subject matter of the offence is not the asset per se (real estate, vehicles, funds, etc.), but rather the difference between the value of the assets at the time of acquisition and the lawful income of the individual.

Pursuant to the note to Article 368-5 of the Criminal Code, “assets” include cash (including cash on hand and funds held in financial institutions), other property, property rights, intangible assets (including cryptocurrencies), reduction of financial liabilities, as well as works or services.

Accordingly, the prosecution must establish:

1. the fact of acquisition of the asset;
2. its value at the moment of acquisition;
3. the amount of lawful income for the relevant period;
4. the statutory threshold being exceeded;
5. the presence of direct intent.

Any inaccuracy regarding the date of acquisition, valuation methodology, or the relevant period for income comparison may directly affect the existence of the corpus delicti.

2. Lawful Income vs. Taxable Income

A recurring issue in practice is the conflation of “lawful income” with “taxable income.”

The note to Article 368-5 defines lawful income as income legally obtained from lawful sources, including those specified in the Law of Ukraine “On Prevention of Corruption.” The list of such sources is non-exhaustive.

At the same time, the Tax Code of Ukraine clearly distinguishes between taxable income and income that is exempt from taxation. The existence of income that is not subject to taxation or not reflected in tax reporting due to specific legal regimes does not automatically render such income unlawful.

In practice, prosecuting authorities often rely on data from tax authorities as a comprehensive reflection of income. This creates a risk of substituting a criminal law category with a fiscal one, which may undermine the legal analysis.

3. Forms of the Objective Element: Ownership, Instruction, and De Facto Control

The objective element of illicit enrichment may manifest in three forms:

• acquisition of assets directly by the public official;
• acquisition of assets by another person upon the official’s instruction;
• actions by the official that are equivalent in substance to exercising the right of disposal over the assets.

The first form is relatively formalized and supported by registration data.

The second and third forms require proof of instruction or de facto control. The notion of “instruction” in criminal law does not necessarily correspond to the civil law concept of a mandate agreement. Judicial practice in cases involving unjustified assets (including positions of the Supreme Court) demonstrates that acting “in the interest of” a public official may be established through a set of indirect indicators.

However, in criminal proceedings the standard of proof remains higher — beyond a reasonable doubt. Assumptions or evaluative conclusions cannot replace a proper evidentiary basis.

4. Interaction with Civil Forfeiture Proceedings

If the value of assets does not reach the criminal threshold, a claim for recognition of assets as unjustified may be pursued under civil procedure (Article 290 of the Civil Procedure Code of Ukraine).

Although criminal and civil proceedings differ procedurally, the subject of proof is similar. Nevertheless, the standards of proof differ significantly: in criminal proceedings, the burden of proof rests entirely with the prosecution.

5. The Subject and Subjective Element

The subject of the offence is defined by Article 3 of the Law of Ukraine “On Prevention of Corruption” and includes public officials holding designated public positions. The status of such individuals is confirmed through appointment or election documentation.

The subjective element requires direct intent: the person must be aware of the unlawful nature of the acquisition and wish for the consequences to occur.

Conclusions

Illicit enrichment cases require a structured evidentiary construction: value of assets — lawful income — exceeding the statutory threshold — form of control — intent. Given the limited number of final convictions and the absence of fully established jurisprudence, the decisive factor in such cases is the quality of the evidentiary framework rather than the mere existence of a financial discrepancy.

In criminal proceedings of this nature, it is essential to avoid substituting legal categories, to adhere strictly to the standard of proof beyond a reasonable doubt, and to ensure genuine adversarial examination of the alleged sources of asset acquisition.