Operation and Capacity of the Courts of Law to Administer Justice for International Crimes

Ukraine's courts system is divided into courts of first instance (local courts), appeal, and cassation), have territorial jurisdiction and specialisation. Criminal proceedings are within the jurisdiction of general courts and are conducted in local courts and appeal courts, with the Supreme Court serving as the court of cassation[392]. Since the onset of the armed conflict in Ukraine in 2014, there have been recurring discussions about reinstating the military court system[393]. This stems partly from the reform of the military prosecutor's office, which was abolished in 2019[394]. Some voice concerns regarding the fitness of civilian courts to administer justice in cases that involve military personnel[395]. However, such proposals have not yet gained enough traction[396].

The challenges faced by the judicial system as a result of the armed conflict have accumulated and multiplied the issues already encountered in the work of other authorities. The courts are responsible for making decisions in criminal proceedings; hence, all substantive or procedural legal challenges that arise during an investigation should be addressed by a judge.

Judicial Reform

Judicial reform has been underway in Ukraine since 2015[397]. The need for it arose due to the process of Ukraine's integration into the EU and to bring the national governance standards in line with those of the EU, in particular, to ‘...continue reforming the judiciary and the judicial system to further strengthen the independence, impartiality, and professionalism of the judiciary and courts...’.[398]. The reform was launched with the adoption of the new Law ‘On the Judiciary and Status of Judges’ in 2016[399]. The key elements of the reform included:

• amendments to the Constitution of Ukraine in the area of justice, including the possibility for the Verkhovna Rada of Ukraine to consider the ratification of the Rome Statute of the International Criminal Court (the provision entered into force on 30 June 2019)[400];
• the creation of the Supreme Court as the highest level of the Ukrainian justice system[401];
• the possibility of holding an open competition for the positions of judges[402];
• the establishment of the High Council of Justice to oversee the organisational aspects of the judiciary, including the appointment, dismissal, and transfer of judges[403];
• the establishment of the High Anti-Corruption Court, which is currently the only specialised court within the Ukrainian justice system to invite and engage international experts in the selection of judges[404];
• a change of judicial self-government bodies[405];
• a gradual increase in the salaries of judges to ensure their integrity;
• stripping the public prosecutor's office of its extrinsic functions: overseeing the protection of human and civil rights and freedoms; overseeing the adherence to the laws on these issues by executive authorities, local self-government bodies, their officials and employees (the so-called ‘general oversight’); overseeing the adherence to the laws in the execution of courts decisions in criminal cases, as well as in the application of other coercive measures related to the restriction of personal freedom of citizens[406].

Majority of the problems in implementing the reform arose in relation to the new process for selecting and appointing judges. The establishment and launch of the High Council of Justice spanned almost six years, during which the rules governing its activities were twice radically amended[407]. The challenges included blocking the participation of international experts in the process of selecting judicial self-government bodies, and influence on the appointment processes by other judicial authorities (the Constitutional Court of Ukraine and the Kyiv District Administrative Court)[408]. In February 2022, a few days before Russia's full-scale invasion of Ukraine, the HCJ’s work was completely blocked, as 10 of the 21 members resigned and it lost the necessary quorum. Only at the beginning of 2023, during an extraordinary congress of judges, 8 new members to the High Council of Justice were elected, allowing it to restart its work[409].

Furthermore, for a long time, there were no regulated criteria to be applied during the competition for judicial candidates. As per the amendments to the Constitution of Ukraine, three entities at once: the Congress of Judges, the President of Ukraine, and the Verkhovna Rada of Ukraine - in accordance with their quota for appointments - could set their own criteria for the competition, form commissions, and determine the involvement of international experts and civil society representatives. In practice, the criterion of ‘integrity’ sparked the most controversy as it was interpreted differently by different competition commissions, including those selecting candidates for the High Council of Justice[410].

The Impact of the Long-Term Judicial Reform

Due to the problems that arose during the six years by the judicial system in the appointments to the governing judicial bodies, the cleansing of the judiciary and lustration following the Revolution of Dignity, there has been a growing shortage of judges in the system[411]. The issue became particularly acute in 2020 when the five-year term since the initial appointment of judges after the reform elapsed, but the issue of their indefinite term was not resolved[412]. At present, the system faces a shortage of judges amounting to 30–35% of the total number of positions[413].

For example, as of 1 January 2022, there were 1632 vacant positions out of a total of 7304 of judges in local and appellate courts[414]. In 2020, there were 4991 judges authorised to hear cases, which is just 70.9% of the total number of positions, while the corresponding figure in 2019 was 67.9% (4772 judges)[415].

The situation affected access to courts, case processing times, and the overall functioning of individual courts:

• The workload distribution for judges depends on the number of positions filled in the courts. If a judge works overtime due to inability to redistribute the workload within the court, the available time for procedural deadlines to resolve issues and deliver decisions is reduced;
• Judges are forced to postpone case hearings as they are physically unable to comply with the deadlines. In particular, pre-trial investigation bodies have complained that judges fail to make decisions on motions for permission to conduct a special pre-trial investigation, which should be considered within ten days from the date of the request submission. Instead, such requests remain pending in court sometimes for months;
• The shortage of judges in courts makes it impossible for certain local courts to function, thereby severely restricting the right of individuals to access justice (for example, in 2021 Ukraine had the highest number of applications against - 59 at the ECtHR raising length of the proceedings[416], in 2023 although the number was reduced to 38 (full-scale invasion was likely a factor), it was still the highest among member states[417]). 

Thus, in 2019, one judge of a local general court considered an average of 1080 cases per year. In 2020, this figure was 872 cases per year[418]. While criminal proceedings are only a part of this data, first instance judges still bear the heaviest workload. Moreover, there is a significant staffing issue with court administrative personnel. As of 22 November 2022, courts of various instances had 4606 vacant positions, including judicial assistants, trial secretaries, court administrators, IT experts, consultants, and more[419].

The length of the reform, coupled with constant changes, leaves a lot of room for the development of the judiciary. Attention is paid to the development of democratic processes based on a network governance approach, the development and effectiveness of the standards of ethics and integrity, and to promoting transparent collaboration between branches of government[420]. Another important factor that requires attention is the formation and implementation of courts budgets based on their needs and equitable distribution of funds among the them[421].

The Impact of the Changes in the Territorial Jurisdiction of the Courts

Ukrainian legislation authorises the High Council of Justice to change the jurisdiction of a court upon the recommendation from the Head of the Supreme Court to the nearest territorial court if administration of justice is impossible due to objective reasons:

- during martial law;

- during a state of emergency;

- in connection with a natural disaster;

- in connection with military operations;

- in connection with anti-terrorism measures;

- in connection with other extraordinary circumstances[422].

Since the beginning of the armed conflict on the territory of Ukraine in 2014, the operation of courts in the Autonomous Republic of Crimea and the city of Sevastopol, and certain districts of Donetsk and Luhansk regions has become objectively impossible. The administration of justice in these areas was significantly hindered by the ongoing hostilities; the threat to the safety and security of judges; the occupation of territory or the establishment of Russian control over certain areas; and the inability to access court facilities. After 24 February 2022, similar problems also occurred in Sumy, Chernihiv, Kyiv, Zaporizhzhia, Kharkiv, Kherson, and Mykolaiv regions. Therefore, decisions have been made on numerous occasions to change the territorial jurisdiction of these courts[423].

In particular, as of 7 August 2023 the territorial jurisdiction of 14 courts in Donetsk region, 3 courts in Zhytomyr region, 18 courts in Zaporizhzhia region, 4 courts in Kyiv region, 16 courts in Luhansk region, 3 courts in Mykolaiv region, 4 courts in Sumy region, 24 courts in Kharkiv region, 23 courts in Kherson region, 26 courts in Chernihiv region, 30 courts in the Autonomous Republic of Crimea and the city of Sevastopol was changed[424]. In comparison, as of 5 February 2025, the jurisdiction of 22 courts in Donetsk region, 18 courts in Zaporizhzhia region, 16 courts in Luhansk region, 1 court in Sumy region, 9 courts in Kharkiv region, 19 courts in Kherson region, 30 courts in the Autonomous Republic of Crimea and the city of Sevastopol remains unchanged[425].

In the context of Russia's full-scale invasion of Ukraine, the Supreme Court provided recommendations to the courts of first instance and appellate court in the event of the seizure of settlements:

• preserving human life and health is a priority for the court administration;
• it is recommended to use evacuation corridors and leave the settlement;
• if possible, courts should remove active cases, particularly those pending before judges, or at least the most important (high-profile) cases should be removed;
• courts should digitalise case files and prepare servers with data on human resources and accounting or other portable storage devices with this information for transportation;
• any relocated files must be transferred to the court with the appropriate territorial jurisdiction[426].

It remains to be seen how effectively these recommendations are implemented in practice. Following 24 February 2024 security situation has been changing in different regions, therefore, the main responsibility for decision-making was placed on the judges of the courts in question. 

The security situation in the regions varies depending on the regaining or loss of control by Ukraine over the territories[427]. However, courts in Crimea have not been functioning since 2014. The process of restoring territorial jurisdiction is influenced by various factors including: the degree of damage to the court's physical infrastructure (in particular, its premises); the territory where the court is located, including whether it has been demined; the functionality of systems vital for the court operation (power and water supply, communication); the availability of other authorities and services in the region; the ability of judges returning to the area to maintain a normal standard of living (e.g. condition of residential premises, operation of communication systems, etc.). All these have an enormous impact on the quality of justice that the domestic judicial system has the capacity to ensure.

Challenges Faced by the Judiciary

During the in-depth and focus groups interviews judges themselves have identified several ways in which the armed conflict has affected their work:

• The caseload. In addition to severe delays in the appointment of judges[428], there is uneven caseload distribution in the first instance courts in the areas directly affected by hostilities or where courts had to relocate as a result of the armed conflict. The general rules of territorial jurisdiction assign to such courts the proceedings related to international crimes, as allegedly the majority of them are committed in their territorial jurisdiction. These courts are seeing a significant increase in the number of cases related to crimes against the foundations of Ukraine's national security, which are systematically topped off by cases out of the liberated territories or areas affected by the armed conflict. Ukrainian courts have begun to develop practice of considering such cases since 2014, but after 24 February 2022, the number of regions where this practice has become relevant has grown considerably. However, the judges there lack experience, knowledge and resources to consider cases of international crimes[429]. 
• Lack of caselaw. Before 24 February 2022, cases with legal classification under Articles 437 and 438 of the CCU that were brought to court were rare, and such practice was an exception to the general legal classification of the consequences of the armed conflict. The situation changed following Russia’s full-scale invasion of Ukraine with a significant number of cases of this category brought to court, both in relation to detainees/ PoWs and under special procedure (in absentia). However, this influx did not result in generating a consistent approach by the judiciary[430].

Additionally, multiple amendments to Ukraine's criminal and criminal procedure legislation have led to a situation where the established approaches lost their sense due to changes in legal norms or such changes contradicted the general newly created approaches to considering cases over the need to implement the new provisions. For instance, the active application of Article 615 (delegating powers of investigative judge to a prosecutor during martial law) of the CPCU raises questions about the appropriateness of the evidence collected under its procedure, which allows the use of the prosecutor's decision without appealing to the investigative judge[431].

• Inefficiency of the system of in-service training of judges. Since 2014, there has been a demand among judges for specialised training in international law caused by the need to consider cases of international crimes. However, within the system of in-service training of judges, such training programmes on international criminal and humanitarian law were not introduced or were selective and thus limited in their content[432]. International and non-governmental organisations offered training activities on international law applicable in armed conflict, but they failed to reach a significant number of judges[433]. Although judges themselves expressed the need for further training in the application of international humanitarian law, many of them particularly the ones in the regions do not have access to such training programmes[434].
• Lack of interaction with other authorities within the justice system. Judges have pointed out that law enforcement agencies have retained a focus on quantitative indicators in their work, which directly affects the quality of procedural documents and of evidence collected. Often the priority is given to the speed of proceedings over substance. Each institution in the justice system should carry their own share of responsibility in the chain to ensure an effective justice process. Instead, such an approach of law enforcement authorities results in shifting their part of responsibility to the courts as the ultimate decision-makers. Furthermore, judges have noted in the polls the low level of training of investigators, prosecutors, and lawyers in international humanitarian law[435].
• Safety concerns. Judges who consider cases related to the armed conflict face an increased risk to their personal safety and security. Since 2014, judges have reported receiving threats directed at them or their families[436]. The key factor affecting their safety is the public perception of these cases and the attitude of people, which is manifested both through their activity on social media and provocations during court hearings. Hate speech against judges who attempt to maintain fair and impartial proceedings is becoming a common occurrence, which is also a form of pressure on the court by society. Judges also highlight that the impact of the armed conflict on society is expressed, among other things, through a heightened negative perception of the judicial system.

The widespread availability of weapons, particularly in the regions directly affected by the armed conflict poses an additional risk to participants in the judicial process. Judges refer to several types of threats, including: direct attacks on the court or individual judges; provocations and disruptions during court hearings; demonstrative actions to intimidate and exert certain pressure on judges; continued interference by law enforcers in specific cases; pressure on family members of judges who found themselves in the territories occupied by the Russian Federation and/or by their proxies; instances of individual retaliation from relatives or groups/communities that supported the accused of committing a war crime. Additionally, there may be other factors that cause a negative or more aggressive attitude towards judges. Examples include a judge's lack of military experience (‘a civilian sentencing a military officer’); gender aspects (when a civilian female judge delivers a verdict to a male military serviceman); or the judge's status of an internally displaced person. As a procedural tool to protect themselves, they often use recusal in proceedings, but its implementation directly depends on the judge's personal conviction and perception of both the case and the surrounding circumstances[437].

• Working conditions of the courts. After the start of Russia's full-scale invasion and the armed conflict spreading across all of Ukraine, its impact became noticeable in the day-to-day operations of the courts. The daily missile attacks forced revision of a working mode during air raid alerts[438] ensuring security as the conditions would allow: availability of a shelter in or near the court building, taking technical breaks in court sessions in case of danger, postponing court hearings, and restricting transportation of detainees, suspects, and the accused to the courtroom. Due to the pressure of limited procedural timeframe, heavy caseload, some judges are forced to continue working even during air raid alerts.

Other factors affecting the working conditions in the courts include daily challenges associated with the lack of communication and Internet connection, blackouts and power cuts that prevent technical recording of sessions or remote hearings[439]. Courts still lack backup power supply (generators) or autonomous means of communication to hold hearings remotely. The conditions in which courts operate after the restoration of their territorial jurisdiction in areas liberated from Russian control deserve special mention. The effectiveness of court operations is directly influenced by the living conditions in a particular area and the state of court buildings and services provided[440].

• Court resources. The issue of insufficient funding of the courts has deteriorated over the course of the armed conflict in Ukraine. Judges raise concerns about the financial and technical support of the courts: the availability of adequate premises, appropriate equipment to ensure the court operations and enable remote trials, as well as adequately resourced court convoys, to which judges often have to adapt when scheduling hearings. The state budget requirements and the availability of funding determine the possibility to appoint new judges and ensure that there is adequate and sufficient staff to meet the needs of the court[441]. Given the transfer of judges and shifts in the territorial jurisdiction, the resources allocated to their work should be redistributed in accordance with the existing caseload and adjusted for the needs arising from the circumstances of the ongoing armed conflict, however, concerns are raised that it does not happen on a regular and orderly basis[442]. 
• Challenges in public communication of cases related to the armed conflict. Amidst the ongoing armed conflict, proper communication about trials and their results remains a challenge for the judicial system of Ukraine. Trials on war crimes and crimes against the foundations of national security remain open to the public unless the court opts for a closed hearing. However, the legal language of the court decisions remains difficult for the general public to understand and may often be the subject of manipulation in the media. Communication of certain decisions remains a challenge due to differences of perceptions between the population in the occupied or non-government controlled areas and areas that remain under Ukraine’s control. This is turn jeopardises reconciliation process by the time the territories are liberated and returned under Ukraine’s control[443].

National courts operating in the conditions of armed conflict remain the driving force behind the development of national case law concerning grave international crimes. First instance courts have significant caseload in this category of cases. Between 2014 and 24 February 2022 court hearings in such cases were rare and judges tried to postpone the proceedings because they did not want to consider such cases as they considered them politically charged and also they lacked necessary knowledge and experience in international criminal and humanitarian law. Following the full-scale invasion, courts found themselves under huge pressure due to the need to consider cases related to international crimes regularly without the possibility to delay proceedings or recuse themselves.

Since the beginning of the armed conflict in 2014, the Supreme Court of Ukraine has considered only one case pertaining to the article 438 of the CCU violation[444]. Despite the opportunity to analyse and determine basic principles in classification of the alleged crime as a violation of laws and customs of war, the court has failed to set a precedent in interpretation that could be used as guidance by the courts of the lower instances[445]. However, the decision of the first instance court was progressive in part which concerned the analysis of the elements of crime under article 438 and is different to the similar decisions in this category of cases[446].

One case under article 437 (waging the war of aggression) reached the cassation chamber of the Supreme Court. For more than three years the decision was being postponed. Despite lengthy discussions and consultations at the Supreme Court pertaining to the definition of a “perpetrator”, following the full-scale invasion doubts arose as to whether the decision will be issued at all. On 28 February 2024 the Supreme Court finally adopted the long-awaited decision[447]. As a result the Grand Chamber of the Supreme Court reached a conclusion that the status of accused did not fall under the definition of a “perpetrator” under article 437 CCU, therefore their previous sentence was overturned and case dismissed. At the same time, the Court provided a fairly detailed position on the subject of the crime under Article 437 of the Criminal Code of Ukraine, which is currently being discussed as one that should be taken into account when amending the crime of aggression under Ukrainian law.

While investigative and prosecutorial bodies are introducing specialised units investigating international crimes, there had been no discussion pertaining to similar initiative in the courts of law[448]. However, on 9 January 2025, the Verkhovna Rada of Ukraine adopted a draft law introducing the specialization of judges in war crimes and core international crimes[449]. In practice, this proposal will be difficult to implement due to the lack of judges and their workload due to the high number of cases[450]. For example, as of 23 July 2024, the Irpin City Court of Kyiv Region had 36 proceedings pending under Article 438 of the Criminal Code of Ukraine regarding crimes committed in the cities of Bucha and Irpin, and the villages of Hostomel, Vorzel, and Kotsiubynske[451]. Therefore, all judges of this court were involved in the consideration of these proceedings. In such cases, the introduction of specialization will increase the workload of individual judges, the timeframe for consideration of cases, and make it impossible to have a proper trial. 

1. In the majority of the proceedings concerning international crimes, it is not always possible to predict which court will have the jurisdiction to hear the case (due to the principle of territorial jurisdiction). 
2. There is an automatic case distribution system within the courts that distributes cases among the judges of the same court. Therefore, in practice, it may be difficult to predict which judge will be appointed to consider the case. 
3. In addition to the cases on alleged war crimes, a larger number of cases related to the consequences of the armed conflict is considered, such as crimes against the foundations of national security. There is a good number of judges who support the initiative to introduce a specialisation in grave international crimes within the courts system[452]. However, effectiveness of such specialisation can only be ensured if this approach is applied at all levels of the justice system and works in concert with one another.

A combination of challenges in the investigation of the proceedings poses obstacles to ensuring an objective and impartial trial. Cases against detained Russian servicemen after 24 February 2022 activated the debate on the ability of Ukrainian national courts to consider such cases objectively and impartially. There are concerns about the capacity to ensure the right to a fair trial in the context of these trials. In particular, these are related to protection against self-incrimination, coercion to confess guilt through the possibility of using the prisoner of war exchange procedure, and the exercise of the right to defence[453]. Judges rely on the investigative and prosecutorial authorities to ensure the quality of evidence and proper proof in the process, which is the cornerstone of ensuring the right to a fair trial and objectivity. Nonetheless, providing a good response to the public demand for justice remains a challenge for the Ukrainian court system. The impact of personal experience of the parties to the criminal proceedings as victims of the armed conflict on impartiality of proceedings is also a matter of concern.  Some judges see a risk if a particular judge or their family members suffered harm as a result of the armed conflict. When evidence is insufficient, judges may delay the trial or issue guilty verdicts based on society’s and or political expectations as opposed on sufficient grounds[454]. Moreover, judges hesitate to issue acquittals in these cases due to potential reactions they may cause among public and political leadership.