Reviewer: Investigator of the Security Service of Ukraine
- There are ongoing discussions among the judges of the Supreme Court regarding the notion of a perpetrator of the crime of aggression. Many of them still do not understand why all members of the Russian Armed Forces cannot be perpetrators of the crime under Article 437 of the Criminal Code of Ukraine. I have encountered this opinion in my work.
- Accountability, among other things, implies not only the passing of a sentence, but also its execution. It is still unclear what to do with the verdicts passed in the course of a special pre-trial investigation and special trial (in absentia). They are only being accumulated in the absence of a vision of what to do with them in the future.
- The problem with the quality of legislation and the need for amendments due to the challenges of the armed conflict could be solved if Ukraine had a strategy that would define our vision of the armed conflict in legal terms. Ad hoc changes in legislation currently address only one specific issue addressed by the amendments. In general, this does not reflect the situation in practice, as there is no comprehensive approach to this issue.
- At the central level, the events from February 2014 to 24 February 2022 are not investigated as part of the international armed conflict. All criminal proceedings (with a few exceptions) have been sent to the regions, and in the current situation, the regions do not have the resources to investigate them. Therefore, in general, all the consequences of the armed conflict that took place before the full-scale invasion in Crimea and Donbas have faded into the background.
- There is an issue with the certification of equipment for conducting forensic examinations in Ukraine. In addition, as for equipment for rapid tests, Ukrainian legislation only provides for full-fledged examinations during the investigation, not for such tests.
- Although all crimes related to the armed conflict fall under the jurisdiction of Security Service investigators according to the Criminal Procedure Code of Ukraine, a substantial number of criminal proceedings that are investigated by them do not relate to the armed conflict and are outside of the scope of the SSU jurisdiction. Investigators are overburdened with proceedings under Articles 191, 205, 364 of the Criminal Code of Ukraine, among others. In this situation, complaints about the lack of staff to effectively conduct investigations prescribed by law are in this case unfounded.
- Solution for the National Police to investigate criminal proceedings under Article 438 of the Criminal Code of Ukraine as a result of a formal procedure that recognizes the SSU investigations ineffective is in itself ineffective. This approach can hardly be called a solution to the problem of jurisdiction. At the same time, the case files of each such proceeding contain a decision that the SBU investigators cannot conduct an effective investigation.
- In practice, investigators use intelligence information and data obtained through such activities, but the criminal procedural legislation of Ukraine does not recognize this type of evidence. Unfortunately, there are also no initiatives to amend the legislation on this issue.
- While there have been discussions about reforming the Security Service of Ukraine for several years, there is still no document that answers the question of exactly what the SSU should be.
- In practice, interagency investigative teams have not replaced the need to resolve issues with the jurisdiction of other investigative bodies under Article 438 of the Criminal Code of Ukraine. Such groups are created with police investigators precisely to strengthen the investigation team in a particular criminal proceeding, and not to undermine the rules of jurisdiction. The establishment of such teams does not mean that the proceedings are transferred to another body. Investigations under Article 438 of the Criminal Code of Ukraine are transferred through the procedure of concluding that investigation by security service investigators was ineffective.
- Working on arguments in proceedings under Article 438 of the Criminal Code of Ukraine requires investigators' time, which they are sorely lacking. It is necessary to understand the different types of war crimes and how to describe them properly, and there is a lack of capacity to do so. At the same time, there is a critical lack of caselaw of national courts that could help in this work. Therefore, such proceedings mostly use approaches and arguments from investigations of ordinary crimes.
- It remains uncertain which judicial body will hear cases of international crimes in the territory of Ukraine. It must be effective. The Russian Federation and its accomplices may also create a tribunal to investigate Ukraine's actions. Therefore, we need to find a solution for a body that can help bring justice in respect of grave international crimes.
- As for mobile DNA laboratories, in accordance with our legislation and existing methodologies, molecular genetic examinations, including comparative ones, are conducted in a stationary expert institution. Mobile laboratories accelerate the identification procedure, but are not used for identification examinations in criminal proceedings. Their results cannot be considered as equivalent to stationary examinations, and therefore cannot be used as evidence during the investigation. To resolve this problem, it is necessary to make changes to the methods of conducting expert examinations.
- With regard to duplication of criminal proceedings on the same facts of crimes, the law mandates that each victim's statement is registered, and only then, the issue of merging with an existing one or investigating separately is raised. As a result, when one crime is committed and there are several victims, criminal proceedings are registered based on the statements of each victim and then merged. Unfortunately, there is no other way. Therefore, it is necessary to select and systematize all open investigations.
- In essence, all authorities involved in the investigation preserve the evidence collected wherever possible. This primarily concerns material evidence. It is difficult to find a place, but everyone tries to ensure its safety.
- Over the past two years, many processes related to receiving state aid are also linked to criminal proceedings and some kind of victim status document. In 2022-2024, we recognized as victims all those who had lost property, lost a family member, or simply had to change their place of residence due to the war. This is wrong. However, lawyers keep sending such petitions in the interests of the victims, and there is no solution to this. Victims need to receive from the investigator a memo on the rights and obligations of the victim and an extract from the URPTI on their application. They are not interested in anything else because these documents are listed in the list of documents required to receive financial assistance from the state.
- A great challenge for security service investigators is the lack of skills and knowledge required to deal with international crimes. No specialized training programs are offered for this purpose. At the same time, the motivation and desire of the investigators themselves to develop and acquire these skills remains an open question as does their availability.
- A significant workload on security investigators results from the investigation of criminal proceedings under articles outside the jurisdiction of the SSU. This takes away resources both from different departments and at the local level. If this issue is resolved, additional resources will be freed up to investigate war crimes.
- Despite the ongoing armed conflict, there is a lack of priority for investigating violations of the laws and customs of war by pre-trial investigation bodies. This decision should be made at the level of the heads of various bodies, including pre-trial investigation bodies, and investigators should see and feel this priority. Only this can change approaches to work.
Reviewer: Judge
Comments to the publication:
- The issue of execution of sentences in absentia is quite relevant nowadays, as their number is increasing, but there is no single approach to ensuring their implementation. It is presumed that such sentences should be sent for execution to central authorities (for example, to the Border Guard Service to track possible border crossings by the convicted person; to the Security Service of Ukraine, which has search files on such persons that, supposedly, may be the basis for detention in the future, although this is a violation of human rights, since the only basis for detention of a convicted person is a sentence, the resolution part of which should clearly state that “The term of serving the sentence shall be counted from the date of detention of the person in the execution of this sentence”). Given that the very procedure for consideration of cases in absentia raises certain concerns of the international community, but also with the number of sentences that will be delivered in Ukraine under this procedure, the execution of such sentences should be carefully considered to ensure that 1) they are actually executed and 2) Ukraine avoids long-term negative consequences caused by the complaints to international courts regarding human rights violations.
Reviewer: National Police of Ukraine Investigator
Comments to the publication:
- In general, it is important for the work of the police that an alternative jurisdiction provision for grave international crimes under the Criminal Code of Ukraine be introduced into national legislation, in particular, to allow police investigators to investigate them during martial law.
- Currently, specialized investigative units for investigating crimes committed in the context of the armed conflict have been established and are operating in 10 investigative departments of the National Police, namely in Kyiv, Chernihiv, Sumy, Kharkiv, Luhansk, Donetsk, Zaporizhzhia, Kherson, Dnipro and Mykolaiv regions. Additionally, since the occupation of the Crimean Peninsula, the NPU has established the Main Department of the National Police in the Autonomous Republic of Crimea and the city of Sevastopol, which has an investigative unit for crimes committed by the occupation authorities of the peninsula since 2014.
Reviewer: Prosecutor
Comments to the publication:
- The cases of illegal border crossing in the context of participants in the armed conflict on the territory of Ukraine were additionally charged at the level of national practice, in addition to Articles 110 and 437 of the Criminal Code of Ukraine. Although the approach was changed, the practice of opening investigations into such incidents was introduced.
- The training of judges in international humanitarian law features different positions offered by international and national experts during educational programs. This consequently affects their opinions in criminal proceedings and the fact that they create their own approaches when considering cases. Such an approach may contradict international standards in practice and be followed by other national courts in proceedings on similar facts.
- In most proceedings on violations of the laws and customs of war, defence attorneys take a passive stance. As a result, this may affect the fairness of the process as a whole.
- The Criminal Procedure Code of Ukraine offers different approaches to the evidence obtained during the pre-trial investigation in terms of the prospects of using it in court. While the protocols of investigative actions (including inspections and searches), expert opinions, and material evidence may be taken into account by the court, the testimony of witnesses and victims must be examined by the court directly. This creates an additional risk of re-traumatization for victims, as their testimony at the investigation stage can only become an integral basis for the preparation of notices of suspicion and indictments. At the same time, during court hearings, they will have to testify anew in each proceeding where the victim has the status of a victim or witness.
- In practice, there is still a problem with the interviewing of victims and witnesses who relocated abroad. According to the Criminal Procedure Code of Ukraine, videoconference communication with them and the resulting report are not considered evidence. The process of interviewing does not equate in status to interrogation, so the Criminal Procedure Code of Ukraine provides that the investigator or prosecutor needs to interrogate the interviewed persons to obtain their testimony. Given the number of persons abroad whose testimony may be useful in criminal proceedings, it is necessary to look for ways to obtain information from them that can be used as evidence in criminal proceedings.
- The current CPC of Ukraine does not provide for the unconditional right to retrial of the accused convicted by a court in a special court proceeding. Given the ECtHR case law, this approach may lead to decisions on violations of Article 6 of the ECHR by Ukraine, with the need for a retrial as an appropriate remedy. In future, this shortcoming may be exploited by the Russian Federation by initiating mass complaints to the ECtHR by Russian military personnel convicted in absentia.
- There is an urgent need to address at the legislative level social protection and financial support of prosecutors conducting procedural actions in the areas of hostilities. Unlike investigators of the Security Service of Ukraine and the National Police, the legislation does not currently provide for social protection for prosecutors and their families in case of death or injury in the performance of their duties, including in the investigation of international crimes. This issue requires amending the Law of Ukraine “On the Prosecutor's Office”. On 12 June 2023, parliamentarians submitted the relevant bill to the Verkhovna Rada of Ukraine (Draft Law No. 9380 of Ukraine “On Amendments to the Law of Ukraine ‘On the Prosecutor's Office’ on Guarantees for Prosecutors Exercising Powers in Criminal Proceedings in the Areas of Military (Combat) Operations”). However, it has not yet been submitted to the session floor for consideration.
- Ukrainian legislation sets a limit on the number of employees of the Security Service of Ukraine. These figures cover all employees, including not only investigators. In reality, their number is much lower than the official figures, which consequently affects their ability to cover the entire range of investigations under their jurisdiction.
- In practice, the introduction of interagency investigative teams in the Criminal Procedure Code of Ukraine did not solve the problems that arose with the jurisdiction of proceedings under Article 438 of the Criminal Code of Ukraine. The tool of interagency investigative teams has not become widespread, but is a separate and temporary measure to assist SSU investigators by NPU investigators in conducting priority investigative actions or a large number of them. This does not fundamentally affect the effectiveness of the investigation, and the transfer of criminal proceedings in accordance with Article 36 of the CPC of Ukraine remains the only mechanism to reduce the workload of SBU investigators.
- The priority of Ukraine's security agencies throughout the armed conflict since 2014 has been to investigate crimes against the foundations of national security, as compared to grave international crimes. The SSU increased its attention to these proceedings after Russia's full-scale invasion of Ukraine, but the scale of the events did not change the agency's overall approach.
- After Russia's full-scale invasion of Ukraine, the SSU tried to find ways to increase its human resources. As a solution, the SSU used a mobilization process to recruit former prosecutors who had failed or refused to pass the certification to the SSU's investigative units.
- Prosecutors' offices bear a significant burden of investigating the consequences of the armed conflict and criminal proceedings in general. Against this background, decisions on social and material support for employees are disproportionate to the functions they perform. Compared to law enforcement and judicial authorities, the support of prosecutors is neglected and is considerably lower. This affects both the motivation of employees and the stability of the entire prosecution system.
Reviewer: Prosecutor
Comments to the publication:
- Especially after Russia's full-scale invasion of Ukraine, it became clear that regional issues remain the responsibility of the relevant state authorities at the regional level. The interests of victims and attention to the prosecution of events in the Crimean Peninsula and Donbas since 2014 have been the responsibility of law enforcement and justice authorities in the respective regions, and have not received adequate attention from the center in terms of general policy development.
- At the national level, Ukraine and its law enforcement agencies had high expectations for Interpol as an effective mechanism for tracking down suspects in proceedings related to the armed conflict. However, after the first requests in 2014, it became clear that it was impossible to use it in practice.
- Several problems have been identified in the qualification of crimes under Article 438 of the Criminal Code of Ukraine and the application of the provisions of international humanitarian law treaties ratified by Ukraine. The first is the quality of translation of texts into Ukrainian. Different terms could be used in the conventions, or some Ukrainian versions of the documents may have missing parts of articles. Secondly, not all conventions have official translations into Ukrainian. This situation has a negative impact on the practice and clarity of interpretation of the relevant provisions in criminal proceedings. The issue of changing the translation remains unresolved.
- The jurisdiction of the investigating authorities under Article 438 of the Criminal Code of Ukraine remains a practical challenge. Perhaps, as an option for legislative amendments, Article 216 of the Criminal Procedure Code of Ukraine should provide for the possibility for the prosecutor to determine the jurisdiction of international / war crimes / those specified in Chapter XX of the Criminal Code of Ukraine to any of the pre-trial investigation bodies. This may be a justified decision because not only the SSU, but also the NPU and the SBI are involved in such investigations. If each of these agencies is granted jurisdiction over the investigations, in practice, there may be competition between them, and the prosecutor may be the regulatory authority in this case.
- The need to recognize information obtained through intelligence activities as evidence has long been debated. Alternatively, by analogy with the documents provided for in Article 99(2)(2) of the Criminal Procedure Code of Ukraine, it is possible to add “by intelligence agencies in compliance with the Law of Ukraine ‘On Intelligence’. This law has similar principles as the Law of Ukraine “On Operational and Investigative Activities” (Articles 13-28).
- Conducting interrogations of victims and witnesses located abroad via video conferencing may potentially be perceived as a violation of the requirements of Section IX of the Criminal Procedure Code of Ukraine and conventions/treaties on mutual assistance in criminal matters, as it may be interpreted as interference with the sovereign rights of the host state. Therefore, in practice, this option is definitely not a solution to the problem for interrogating such persons.
- As for the regulation of involvement of foreign experts in criminal proceedings, it is possible to propose that the Criminal Procedure Code of Ukraine provide for the possibility for an investigator or prosecutor to obtain advisory opinions in a special field, a kind of amicus curiae, whose recommendations cannot be obtained in another procedural manner.
- The provisions of the Criminal Procedure Code of Ukraine in some respects provide for too much control by the judiciary during the pre-trial investigation. This approach generally also affects the workload of courts and their resources required to hear proceedings.
- In general, the issue of interrogations at the pre-trial investigation stage is somewhat losing its relevance. Interrogation protocols drawn up at the investigation stage are irrelevant to the court, given the principle of direct examination of evidence. They can only be used to prosecute a person for giving false testimony. At the same time, there is a competition between the requirements of Article 225 and Part 11 of Article 615 of the Criminal Procedure Code of Ukraine. As a way to unify this procedure, it may be worthwhile to provide for some safeguards, such as conducting such interrogation with the participation of a lawyer, to ensure the right to cross-examination.
- Ukrainian legislation, given the conditions and challenges of the armed conflict, should underscore the investigation of war crimes as a priority for pre-trial investigation bodies. It is important to ensure that these investigations become the focus of their work, and not just a pretext for media appearances. At the same time, the effectiveness of the investigation should be clearly controlled by the internal management. The current approach leads to the situation when agencies that do not have jurisdiction under Article 438 of the Criminal Code of Ukraine investigate proceedings on a residual basis.
- In practice, both judges and pre-trial investigation and prosecution agencies are affected by the consequences of the armed conflict. Massive missile attacks, general insecurity, risks to energy infrastructure, and security conditions at the workplace all require changes in approaches to work and its organization.
- The practice of investigations shows that many people are not aware that they are actually victims of war crimes. People consider themselves victims when damage is done to their health and property, but sometimes they do not realize this either.