Criminal Procedure Law
TThe Criminal Procedure Code of Ukraine sets out the general principles and special rules of Ukraine’s criminal procedure. The criminal procedure law in Ukraine has undergone multiple amendments since 2014, particularly in response to the armed conflict. However, these amendments have not provided a comprehensive resolution to the practical challenges that have been emerging, and those in relation to the investigation of international crimes are still being addressed using the procedure relevant for investigating ordinary crimes thereby leaving a significant gap in the application of the investigative standards.
During the first six months after February 24, 2022, the provisions of the Criminal Procedure Code of Ukraine were actively amended to adapt its provisions to new challenges.. The amendments included various aspects, including: incorporating new articles of the Criminal Code of Ukraine into the references in the criminal procedure legislation[130]; defining specifics of pre-trial investigation during martial law[131]; outlining the peculiarities of application of pre-trial measures[132]; establishing protocols for cooperation with the International Criminal Court[133]; and regulating the process for the exchange of prisoners of war[134]. None of the adopted provisions have proven to substantially facilitate the investigation of grave international crimes.
Rules of the Investigative Jurisdiction
The investigation of grave international crimes falls under the jurisdiction of the state security service in accordance with the Criminal Procedure Code of Ukraine “CPCU” (Articles 436, 437, and 438 of the CCU)[135]. In 2016, when the armed conflict had already been ongoing, the State Bureau of Investigations was established. This led to the transfer of investigative authority away from the prosecutor's office, with the transition completed by 2019. At the same time, the SSU retains exclusive jurisdiction over criminal proceedings arising from the armed conflict[136]. This directly contradicts the underlying rationale behind the reform of the SSU.[137]
In addition to the general provisions of the CPCU, Article 12 of the Law of Ukraine ‘On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine’ sets forth special rules concerning the areas under temporary occupation[138]. In practice, particularly following 24 February 2022, the implementation of this provision has led to confusion. Firstly, it applies only to the territories which are recognised as “occupied” at the legislative level. Presently, it only concerns Crimea. As for the other regions not under control of Ukrainian Government, there is an internal directive to extrapolate the same provision by the regional prosecutorial authorities, however it is not confirmed by the law. Existence of such an ambiguity makes the state position in court weak and open to defence challenge on procedural grounds and which may well result in a lost case.
Secondly, its application results in inconsistencies, as the investigative jurisdiction over cases involving grave international crimes committed on the Crimean Peninsula can only be determined by a decision from the Prosecutor General, whereas crimes committed in Donbas, Zaporizhzhia, and Kherson regions are handled under standard procedures. It means that if the territory is no longer under the control of Ukrainian authorities, the authorities with the relevant territorial jurisdiction could be transferred to the other territories under Ukraine’s control but continue to exercise jurisdiction over the uncontrolled territories. This provision was adopted as an additional legislative instrument for the period while the authorities restored their status quo due to the loss of control/occupation. Presently, the issue of jurisdiction has been resolved and therefore, article 12 is unnecessary and leads to ambiguity and potential procedural vulnerability of a case in court. Only in May 2024 was this provision removed from the law after a long period of application[139].
During the martial law imposed on 24 February 2022, the amendments to the CPCU addressed the procedural aspects of pre-trial investigations under this legal regime. However, they did not include the specifics of investigating crimes under international law. In terms of investigative jurisdiction:
- an option of establishing interagency investigative groups involving multiple pre-trial investigative bodies was introduced; it can be done through a resolution issued by the head of the respective pre-trial investigative authority[140]. In practice, this means that interagency investigative groups consisting of investigators from the SSU and the NPU or SBI are set in order to investigate violations of the laws and customs of war in cases where an investigative authority that has no investigative jurisdiction under Article 438 of the CCU can be engaged, such as the NPU, for instance. This is a solution that the parliamentarians came up with in order to provide the NPU with the authority to investigate alleged war crimes, which otherwise they do not have according to the CPCU.[141] However, it is important to note that creation of interagency investigative groups does not resolve the issue of the lack of jurisdiction for the national police. Their operation in practice is very time-consuming and cumbersome, which results in wasted time, resources and very likely lost evidence. NPU continues to be the first to arrive at the crime scenes, including those involving crimes under international law. However, as a consequence of the procedures currently employed, the admissibility of evidence collected by police officers prior to the establishment of an interagency investigative group could potentially be challenged in the court; a much more straightforward and logical solution would be to amend the CPCU to allow the NPU to have an investigative jurisdiction to investigate crimes under international law. Otherwise, to foresee a separate procedure which would empower the prosecutors to determine the jurisdiction for the authorities to investigate such crimes.
- reasons for changing investigative jurisdiction during martial law have been determined.[142] The pre-trial investigation could be delegated to another pre-trial investigative authority or transferred to a higher-level investigative unit within the same authority as determined by a decision made by the relevant representative of the public prosecutor's office. Given the large number of proceedings related to the armed conflict, the process of determining the investigative competence can stretch over several months — time which is effectively lost due to the lack of proper regulation
The above amendments to the CPCU adopted since February 2022 were primarily introduced to facilitate the use and ensure the availability of human resources from various law enforcement agencies for the purpose of conducting pre-trial investigations and prioritising criminal proceedings by involving various tiers within the internal structure of law enforcement agencies. For example, the territorial departments of the SSU are located exclusively at the central regional level, whereas the NPU has investigative departments at the regional level and territorial units across all regions. While an SSU investigator needs to travel from the regional centre to crime scenes in various locations within the region, police investigators can arrive at the scene more swiftly from the cities, towns or districts.
As outlined above, it is clear that the procedural approach to investigative jurisdiction requires well-defined coordination among pre-trial investigative authorities and a comprehensive shared strategic vision of the general approaches and priorities guiding their operations. Nevertheless the mechanism of transferring the investigations between different authorities (“due to ineffectiveness of investigation”) remains the only working one envisaged by part 5 of the article 36 of the CPCU.[143] The amendments introduced to the CPCU after 24 February 2022 increased expectations of the public prosecutor's offices that they would play a more substantive role in ensuring the overall coordination of pre-trial investigative authorities in investigation of crimes, including under international law. For example, interagency investigative groups had to become a practical tool for better coordination and the use of a standardised approach to investigations of crimes under international law. Different investigative authorities have an opportunity to exchange their experience and share human resources whose work should have been overseen and managed by the prosecutors. However, over the course of such a mechanism's existence, its effectiveness remains undetermined.
Rules of Courts’ Jurisdiction
Ukraine’s criminal procedure law does not contain any specific rules for establishing courts’ jurisdiction over alleged grave international crimes. Ukrainian courts largely lack technical and legal capacity as well as experience to adjudicate cases related to international crimes. Currently, there is no special court (similar to the High Anti-Corruption Court) which would have a mandate to handle a specific category of cases involving crimes under international law. Consequently, there are no special rules governing subject-matter jurisdiction pertaining to crimes committed in the context of armed conflict.
The CPCU establishes two main types of jurisdiction over criminal proceedings:
- Territorial jurisdiction determines that criminal proceedings are conducted by a court situated within the geographical area where the criminal offence was committed. If multiple criminal offences are committed, the trial will be held by the court geographically located in the area where the alleged offence took place. If the offences are equally grave, the trial will be held by the court in the area where the most recent criminal offence was committed. In cases where the location of the criminal offence cannot be determined, the case will be considered by the court which has the territorial jurisdiction over the area where the pre-trial investigation was completed[144].
- Instance jurisdiction determines the court responsible for conducting criminal proceedings based on the stage it has reached: whether it is the first instance, appeal instance, or cassation instance[145].
In the context of armed conflict, amendments were made to the CPCU to introduce the possibility of transferring a case to a different court[146]. In essence, any court of first instance now has the authority to handle any case. During martial law, essentially there is no need to have the connection to the specific territory where the offence was committed. This creates a higher risk that the proceedings will be brought before a judge who has no experience with such cases and no applicable case law. This is what de facto is happening right now[147]. Such proceedings are typically dealt with following the principles, standards, and methodologies used for ordinary criminal offences.
This adversely affects the quality of criminal processes. The line of reasoning behind war crimes verdicts following 24 February 2022 resembles the reasoning that applies to ordinary criminal offences. This is particularly evident in cases involving premeditated murder or robbery, which are classified under Article 438 of the Criminal Code of Ukraine[148]. The context of the armed conflict is outlined only in the background part[149], which is often copy pasted from the Notices of Suspicion and indictments and lacks description of contextual elements pertaining to the nature and circumstances of an alleged crime[150]. There are rare individual decisions in which attempts have been made to implement the international legal standards.[151]
Timeframe for Pre-Trial Investigation
The CPCU clearly outlines the timeframe within which the pre-trial investigation in criminal proceedings must be completed. Up until 2014, the provisions regulating the matter determined the length of the investigation as linked to the moment when a person was notified of being a suspect. However, in 2018[152], criminal procedural law underwent amendments to establish a clear period for the investigations from the moment it was opened.
Considering that grave international crimes are classified as grave or especially grave crimes according to the Criminal Code of Ukraine, the timeframe for pre-trial investigation starting from the moment when information is entered into the URPTI until the day a notice of suspicion is served to a person was 18 months. Such pre-trial investigations must have been completed within two months from the day when the notice of suspicion was served. This period could be extended, yet typically, within this category, it should not have exceeded twelve months from the date when the person was notified of suspicion with relation to a grave or especially grave crime.[153] This principle applied in particular to grave crimes. This provision contradicted international due process standards, as investigations into grave crimes should not be time limited.
In the course of investigations, a variety of situations emerged concerning the application of this provision. Proceedings related to the aftermath of the armed conflict in Crimea and Donbas, registered following the 2018 implementation of the provisions, were integrated into the previously opened investigations. This was due to the fact that the new regulations were not retroactively applicable, and investigations had no temporal limitations. Alternatively, another approach was also used whereby individual episodes were extracted from the ongoing investigations as new investigations, thereby initiating a new time period and providing law enforcement agencies with additional time for investigation.
The consequences of the large-scale invasion shed a light on a different perspective in relation to these provisions. In a situation where hundreds and thousands of proceedings were registered daily throughout Ukraine after 24 February 2022, the procedural burden on both the public prosecutor's offices and courts was not factored in, considering the investigation period and the need to extend it. As a result, starting from late August 2023, the time for proceedings registered in February 2022 started to run out. Addressing the issue of their extension could have paralysed the entire criminal justice system as it would have needed to be done in tens of thousands of the investigations. Otherwise, these investigations might have had to be closed due to the expiration of the pre-trial investigation period[154].
Prosecutors were looking to the Parliament to address this issue[155]. Finally at the last minute the Verkhovna Rada of Ukraine (parliament) adopted the relevant law ‘On Amendments to Criminal Procedure Code of Ukraine Regarding Peculiarities of Calculating Timeframe for Pre-trial Investigation under Martial Law’[156]. The provisions of this law introduced an exception to the investigation periods during martial law for proceedings where no person had been informed of being a suspect since the moment when the information about a criminal offence had been recorded in the URPTI and from the date martial law was introduced. The time limit for the pre-trial investigation was not set for proceedings under Articles 437–439 and Article 442 Paragraph 1 of the CCU (aka international crimes).
However, these provisions were changed again. Within the framework of reforming the Specialised AntiCorruption Prosecutor’s Office new CPCU amendments were adopted in December 2023. Some of these amendments affected article 219 of the CPCU (time limits for pre-trial investigations).[157] The Law abolished any of the time period limitations for the pre-trial investigations having only left an obligation for the time period for completing pre-trial investigations following serving of the notice of suspicion.[158] This resulted in abolishing any of the previous amendments that concerned investigations of grave crimes. Therefore in the current version of the CPCU there are no clearly defined pre-trial investigation time limits.
International Standards on the Statutory Limits
The general rule that statutory limitations do not apply to grave international crimes is a norm of customary international law[159]. Firstly, it refers to the statute of limitations which would prevent the prosecution of such cases after a certain period of time. The trials after World War II formed a practical approach later enshrined in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968)[160] and the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes (1974)[161]. The work of the International Criminal Court, in accordance with the Rome Statute, is not subject to any statute of limitations for crimes under its jurisdiction[162].
In addition, pre-trial investigation time limits may also restrict the investigation of grave international crimes, forcing the authorities to hand the case over for trial within a certain period defined by law. Article 4 of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity obliges States Parties to abolish limitations under national law that may affect the prosecution of grave international crimes[163]. Based on the requirements of Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Court emphasises that the length of investigation of grave international crimes cannot be an argument rendering such investigation ineffective. The Court pointed out that the length of investigation in such cases is influenced by the gravity of the crimes committed, the large number of victims, and the significant public interest in the outcomes.[164]
There are several reasons for this approach.[165] Firstly, grave international crimes by their nature encroach on the interests, peace and security of the entire international community. Therefore, not only the country where the crimes took place, but also the international community as a whole is interested in a proper response to such acts. Secondly, the legal norms prohibiting the commission of such crimes have no temporal restrictions and are universal in terms of international law. In addition, they are based on the provisions of customary law, which places such regulation beyond temporal limitations. Thirdly, effective justice for these acts is a key deterrent for the future. At the same time, the investigation of grave international crimes is closely linked to the restoration of violated human rights and is the basis for building trust and developing cooperation between states.
Case Investigation Standards: Foreign Regional Experience
One of the fundamental tasks of justice for grave international crimes is to end impunity. The effectiveness of its implementation in practice depends on the cooperation of international justice mechanisms, such as the ICC, and national systems. Given the limited capacity of international justice mechanisms, national systems should be strengthened or rebuilt to ensure effective prosecution of such cases.[166]
The practice of different countries after the events of World War II has shown that the specialisation of investigative, prosecutorial and judicial bodies can ensure effective investigation of grave international crimes and distinguish approaches to their prosecution from ordinary crimes. Thus, the United States, Germany, Canada, the United Kingdom, and Australia were among the first countries to introduce investigation of grave international crimes into their national systems. The basis for their work was the conclusions of national commissions of inquiry into crimes committed in the territory of these countries.[167]
The adoption of the Rome Statute of the ICC, as well as proliferation of the application of the universal jurisdiction principle by different states, led them towards finding solutions to effectively incorporate the prosecution of grave international crimes into the national justice systems. In addition to establishing specialised units at the level of investigative, prosecutorial and judicial authorities that provide the appropriate level of expertise, building the infrastructure at the national level required an appropriate legislative framework. Germany, the Netherlands, Sweden and France are among the countries that have been able to implement such solutions.[168]
The effectiveness of such units directly depends on the political will to support their activities, the availability of necessary resources and a suitable quality of the legal framework for their work. In addition, the relevant units should be staffed by professional employees with specialist knowledge and skills in investigating grave international crimes. In addition to investigators, prosecutors and judges, specialisation may be required from experts and specialists involved in the investigation of specific crimes[169]. Therefore, additional state resources should be directed to the setting up and support of the relevant training and professional development programs.
The EU states, pursuant to the provisions of the Rome Statute of the ICC, have determined that the work of investigative authorities and migration services is fundamental in identifying the facts and perpetrators of grave international crimes. Establishing separate specialised units at the level of these authorities can ensure the implementation of the principle of complementarity in the work of the ICC by the relevant states. At the same time, the information obtained by such units becomes the basis for interstate cooperation.[170] For example, in the Netherlands, specialised units for grave international crimes were created in the immigration service, police and the prosecutor’s office. Specialisation has also been introduced among investigating judges, judges of first instance and appellate courts. In addition, a separate unit within the Ministry of Justice ensures international cooperation in the investigation of such cases and develops general policies at the national level.[171]
States with the specialisation in the investigation of such cases based on the principle of universal jurisdiction have the judges at the first instance or appellate level who were trained to consider grave international crimes. For example, this approach has been implemented in the Netherlands as the final element in the establishment of the special war crimes unit. Other countries, on the other hand, have a separate procedure for reviewing this category of cases without a requirement for specialisation at the level of the judiciary. In Germany, a panel of 3-5 judges is formed to consider a specific incident of a grave international crime. In France, the relevant proceedings are considered by an ad hoc court consisting of three judges and six jurors.[172]
Given the scale of grave international crimes subject to investigation at the national justice system, specialisation only at the level of the judiciary may not be an adequate solution. For states directly affected by armed conflict, the establishment of separate specialised courts is a necessary step to ensure effective justice. They can be integrated into the national justice system or exist outside of the system, composed exclusively of national experts or include an international element - the design of such a court will depend on the requirements, the nature of the violations and its personal jurisdiction, the quality of national legislation, available financial resources and other factors.[173] In any case, such courts rely on the work of specialised units within the investigative and prosecutorial authorities.
One example of the successful operation of such a separate court is the Special Criminal Court for the Central African Republic. It was established as a hybrid court (combining national and international experts) within the national justice system and includes separate units of investigators, prosecutors and judges[174]. In addition to its work at the national level, the Court cooperates with other national justice mechanisms and the International Criminal Court[175].
Domestic Evidentiary Standards
Sources and Status of Evidences
The CPCU does not determine a specific approach to gathering evidence and conducting procedural actions when investigating crimes under international law. The general rules of evidence and procedure in Ukraine require that evidence must be examined during the trial. Certain types of evidence collected during the pre-trial investigation will be relevant only for the preparation of a notice of suspicion and an indictment. Interviews of the victims and witnesses conducted during the investigation stage is inadmissible evidence in court unless their testimonies are examined during the trial in the presence of a judge. Protocols of procedural steps, physical evidence and expert conclusions obtained during investigation must be considered by the court. The standard procedure for conducting criminal proceedings is also applied in the context of the ongoing armed conflict in Ukraine. However, since 2014, Ukrainian investigators and prosecutors were faced with the necessity to examine certain types of evidence that are not included in the criminal procedure law due to the distinct nature of investigations of crimes under international law.
Information from Open Sources:
Status of the open-source information can be analysed through the prism of several provisions of the CPCU. Firstly, Article 84 stipulates that the sources of evidence include testimony, material evidence, documents, and expert opinions[176]. Secondly, Article 99 outlines the types of information that can be deemed a document in criminal proceedings. Approved formats include photographs, audio and video recordings, as well as other media[177]. The definition is primarily focused on the treatment of information obtained from closed sources, yet courts evaluate the use of information from open sources under these very same provisions. Courts have the discretion to accept information from open source as admissible evidence if it was collected and documented in accordance with the requirements of the CPCU. However, other provisions of the law require investigators and prosecutors to present a written transcript of this information when using it in a criminal investigation. For instance, an inspection report which describes where the photo or video was published[178].
The use of information from open sources became trendy in the investigation of grave international crimes in Ukraine, yet its handling by authorities and other stakeholders remains somewhat regulated with a low standard. Consequently, some prosecutors and investigators try to use data from open sources as evidence, albeit applying the same methodology prescribed by the CPCU used for closed source information under Article 99. There are neither requirements nor standards of verification of the open source information contained in the CPCU.
It is important to consider existing limitations of the Ukrainian procedural legislation in this area. For example, if relevant information was collected by a third party (an NGO) and is stored in a digital archive on the servers outside of Ukraine or a cloud, Ukrainian authorities cannot automatically use this information in their investigations as it would be inadmissible. The only way to “legalise” this information for the purposes of Ukraine’s CPC, is for the authorities to use these links as a tip of what to look for and retrace all the investigative steps as required by the CPC provided that the links are still available online in Ukraine and have not been deleted. Such an approach does not correspond with the international standards of preservation of information from open sources, it leads to loss of possibly important evidence and severe limitations of its use.
Furthermore, as mentioned above, treating information from open sources the same way as closed sources means that there is no requirement for as rigorous verification as required by the international standards. This leads to the unreliability of such evidence and undermines quality and fairness of the investigation.
Investigation of grave crimes requires technical solutions which will alleviate hardship experienced by the investigative authorities and facilitate better coordination among them. Following the start of the full-scale invasion, the OPG set up a webportal warcrimes.gov.ua, which was presented to the general public as a “hub of digital evidence”[179]. Anyone can share information through the portal with the OPG including photos and videos from a place of an incident along with their contact information. On the one hand, the portal is an additional communication channel for witnesses and authorities[180]. On the other hand, using this information for the purposes of the investigation means that authorities must set up data protection protocols as well as ensure their preservation on the suitable servers. This remains a significant challenge for the authorities, and there is no publicly available information to this effect on the webportal. In addition, sharing of the data does not have any connection to a specific investigation and the evidence collection procedure. Therefore, authorities must spend time and resources to formally track down photo and/or video files with an attached statement from the original source.
When evaluating open-source information as evidence, courts primarily pay attention to the requirements of the CPCU on the proper procedural processing of such data. Determinations of its reliability will depend on the such things as way it is recorded and collected[181]. Separate approaches [CE1] to open-source information use have been developed in proceedings on crimes committed against the foundations of national security of Ukraine[182], in cases involving allegations such as public statements or dissemination of certain information, including in the public domain on the Internet (e.g., Article 109(2) of the CCU 'Actions aimed at violent change or overthrow of the constitutional order or seizure of state power'; Article 111-1(1) of the CCU 'Collaboration activities'; Article 114-2 of the CCU 'Unauthorized dissemination of information on the sending, movement of weapons, armaments and ammunition to Ukraine, movement, movement or deployment of the Armed Forces of Ukraine or other military formations established in accordance with the laws of Ukraine, committed under martial law or a state of emergency')[183].
In proceedings for core international crimes, information from open sources is actively used during the investigation to identify individuals[184]. In addition, in particular, in the jurisprudence under Article 437 of the CCU, the Supreme Court emphasized that such evidence in the proceedings was used as circumstantial evidence in the aggregate and in conjunction with other data that directly incriminated each of the convicts in committing the crimes charged[185].
The process of preserving such information is merely the first step to ensure its admissibility as evidence for grave international crimes. Although Article 99 of the CPCU refers to the verification of information by investigators or prosecutors, Ukrainian legislation lacks a prescribed algorithm for doing it. The verification of such information is left to the discretion of the investigators, and its admissibility as evidence to the discretion of judges. This means that any electronic file, even if unverified, can potentially be used as evidence. It is only during the direct examination of the complete evidence that the court might raise concerns about its credibility, yet there is no specific mechanism for its verification at the pre-trial investigation phase. This approach ultimately affects the quality and objectivity of judgments. It is particularly problematic in the context of proceedings in absentia, since in such cases there is virtually no mechanism for the defense to “test” the quality of such evidence. In the future, if the relevant amendments regarding the right to review a court decision rendered in absentia are introduced into national legislation, non-compliance with international standards in the use of information from open sources as evidence may become a ground for appealing such decisions.
Standards
Open source information has become one of the types of evidence of grave international crimes. Currently, such data is being collected in the context of investigations into the situations in Syria, Myanmar, Libya and Ukraine as part of the work of various justice mechanisms.
Established by the UN, the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic (IIM) has become a hub that accumulates the collected data on alleged grave international crimes for subsequent proceedings in national, regional and international courts or tribunals[186]. The work of the mechanism ensures the continuous collection of relevant information in accordance with the standards of international criminal law, as well as an uninterrupted chain of custody of evidence at its disposal[187]. The 2018 report of the UN Commission of Inquiry on Syria states that the volume of video and other images - as well as the role played by social media - is unprecedented in any other accountability process with respect to international crimes[188].
The Independent Investigative Mechanism for Myanmar, established by the UN, has the mandate to collect, among other things, "photographic, video or other audiovisual imagery or material, digital or other electronic items"[189]. The information obtained by the Mechanism was used in the ICJ case concerning alleged genocide in Myanmar[190]. At the same time, the Gambia, in parallel with the ICJ case, initiated legal proceedings against Facebook in the United States, pointing out that the social network began to delete content that could serve as evidence for justice processes. Facebook was actively used by Myanmar officials not only as a news portal, but also to disseminate information about various violations. In addition, given the ongoing investigation process, Facebook had to disclose personal information of users who disseminated such information in order to confirm its credibility[191].
The work of the International Criminal Court is currently closely related to the assessment of the admissibility of open source data as evidence[192]. Rule 63(2) of the ICC Rules of Procedure and Evidence establishes the authority of the Chamber to assess freely, at its discretion, all evidence submitted in order to determine its relevance or admissibility193]. This allows the Court to take a broad approach to evaluating evidence and examining its various types.
In the Bemba case, the Trial Chamber, in assessing media reports as evidence, noted that press reports may be admitted for limited purposes to be determined on a case-by-case basis, such as corroborating other pieces of evidence or assessing the prosecution's claim that the acts committed were known to the general public, which may have an impact on proving the accused's knowledge of the crimes charged[194].
In the case against Al-Werfalli, the Court used videos from social media as evidence to issue an arrest warrant. The ICC admitted the posts by the Media Centre of the Al-Saiqa Brigade depicting instances of extrajudicial executions[195]. When considering the admissibility of open-source data in the Al Hassan case, the ICC found no procedural bars that precluded the admission of such information, provided that the relevance and probative value of each document is substantiated, and noted that consideration thereof would be better rendered in light of the entirety of the evidence[196].
To systematise approaches to working with this category of information, the Berkeley Protocol on Digital Open Source Investigations was developed. Its standards cover the possibility of using information on grave international crimes and serious human rights violations[197]. It describes approaches to identification and collection of such information, conditions for its preservation, verification, and further analysis. The Protocol sets out the basic principles that must be observed when working with open source information:
- Professional principles, which include accountability (open source investigators must be accountable for their actions, which can often be ensured through clear documentation, record-keeping and oversight), competency (open source investigators must have proper training and technical skills to execute the activities in which they engage), objectivity (open source investigators should understand the potential for personal, cultural and structural biases to affect their work and the need to take countermeasures to ensure objectivity), legality (open source investigations should comply with applicable laws, which means that investigators need to have a baseline understanding of the laws that apply to their work) and security awareness (investigators must be aware of their work and the consequences of their actions).
- Methodological principles, which include accuracy (only relying on credible materials for investigations), data minimization (digital information should only be collected and processed if it is justified for an articulable purpose, necessary for achieving that purpose; and proportional to the ability to fulfil that purpose), preservation (prevent undercollection of information so that relevant and potentially probative evidence is not lost), and security by design (organisations collecting information should invest in and implement appropriate technical and structural measures to ensure secure operations).
- Ethical principles which require adherence to the principle of dignity, humility, inclusivity, independence and transparency[198].
The Berkeley Protocol standards are also used by the ICC as a requirement for working with open source information. In 2022, the Office of the Prosecutor of the ICC, together with Eurojust, presented the guidelines for civil society organisations on documenting international crimes and human rights violations for accountability purposes, which include references to the Berkeley Protocol in relation to investigating open-source information[199]. The Office of the Prosecutor General also started to look for ways to implement Protocol's standards in practice, having formally instructed oblast prosecutor offices on requirements on how to document open source information. As discussed above practical implementation remains inadequate due to domestic legislative limitations.
Intelligence data:
In the context of the armed conflict, a significant volume of information relevant for investigating violations of international humanitarian law comes from the data obtained by intelligence agencies. However, the use of such data is prohibited according to the criminal procedural legislation of Ukraine. The CPCU establishes the principle of evidence admissibility, stipulating that evidence is admissible if acquired in accordance with the procedure outlined by this Code[200]. However, both the content and the means of obtaining intelligence information are classified as state secrets, the disclosure of which could jeopardise the national security of the state[201]. Therefore, in reality, intelligence data remain beyond the legal scope of criminal proceedings, as confirming the source or acquisition method of such information would be impossible. Even if amendments are made to the CPCU, allowing the use of intelligence data as evidence, it will be difficult to implement them in practice without the relevant decision by the intelligence agencies on declassifying the information, as they will violate the provisions of special legislation that pertains to protection of the classified information.
Witness and victims testimony:
While many witnesses or victims of grave international crimes have become internally displaced, fled the country, or are in the occupied territories, an opportunity to conduct remote interviews at the pre-trial investigation stage becomes crucial. The CPCU does grant the right to conduct interviews, as well as the identification of persons or items via video conference[202]. However, this can be procedurally implemented only within the territory under Ukraine’s control, which falls under the jurisdiction of pre-trial investigation bodies.
In practice, investigators and prosecutors often look for solutions to address this challenge. It is easier when a person is in Ukraine controlled territory, as the investigative action can be entrusted to the relevant local law enforcement agency. However, when a witness or a victim is abroad or in the occupied territory, the situation becomes more complex. Some proceedings involve communicating with such persons via a video call, and the outcomes of these conversations are documented in reports that are then included in the investigation file. While such reports may not carry the same weight as official interview records, they serve to preserve the information obtained. Nevertheless, CPCU envisages a general rule according to which in order to obtain testimony, an investigator or a prosecutor must interview them. Another common practice is to interview people abroad at Ukrainian embassies, as those are considered Ukrainian territory and fall under national jurisdiction. Such methods do not eliminate the need for their direct examination during trial.
Furthermore, the CPCU also allows for an interview of a party to an investigation before an investigative judge during the pre-trial investigation phase[203]. Also during the martial law regulation under part 11 of art. 615 CPCU allows the use of videorecording of the witness, victim or a suspect (provided there is also a defence lawyer present) in the court, without the need to record the video before an investigative judge[204]. This option is particularly important given the risk of losing testimony over time, especially considering the duration of investigations and the context of armed conflict. The interview process is similar to that used during court proceedings and is applicable to witnesses and victims. An amendment from 28 July 2022 allowed for following the same interviewing procedure for those persons regarding whom an authorised entity made a decision to exchange as a prisoner of war[205]. However, since the court directly examines evidence, the testimony obtained during the pre-trial investigation may be struck out during the trial due to the lack of opportunity to examine this person in the courtroom during the hearing. Even if the proper procedure is followed, the court may initiate a re-examination of a witness or disregard their testimony when making a decision[206].
International experts:
Foreign experts have been engaged in the investigations of crimes committed in the context of armed conflict since 2014 and this has become particularly widespread practice following the full-scale invasion. At the same time, the CPCU has not yet established a clear regulation outlining the procedural status of such persons. Carrying out any type of legal examination by international or external experts is strictly prohibited and foreign experts require official accreditation according to Ukrainian law in order to be engaged in other matters[207]; procedural status of an expert is confined to providing advice in a very limited specific area of expertise whereby there is no availability of internal specialists[208].
Amendments to the CPC of Ukraine as of 9 October 2024 provide that representatives [CE1] of a foreign state or international organization may also act as a experts and specialists in the field of chemical, biological, radiation, nuclear or other weapons[209]. In practice, this means that such specialists can only be involved in investigating the facts of shelling and the use of various specific types of weapons, mainly when inspecting crime scenes. Their involvement does not replace the need for expert examinations, but at the same time allows them to produce certificates and conclusions, for example, on the type of weapon used, ammunition, and traces of explosion.
Engaging foreign experts as legal specialists might be perceived as an attempt to substitute the functions pertaining to the justice system, as this competence is typically associated with investigators, prosecutors, and judges. Lack of clearly defined legal status leads to questions regarding certainty of allowing them access to the investigation case files, their engagement as psychologists or specialists when providing conclusions or recommendations[210]. For instance, there is an ongoing debate about whether providing such access could potentially be seen as disclosure of confidential pre-trial investigation information and responsibility of the person who shared the materials.
Evidence collected using technical means:
A similar situation exists with the use of new technical equipment provided to Ukraine in the form of technical assistance for investigating grave international crimes. For example, mobile DNA laboratories are an exceptionally useful tool, particularly when investigating mass graves, enabling swift body identification[211]. However, in reality, the results of the examination from such a lab cannot be included as evidence into the case file as evidence since such technical equipment is not listed as an examination tool according to the existing domestic standards. Instead methods and equipment that are allowed are restricted to those listed in CPCU, they are a lot less efficient and a lot more resources and time consuming. For these tools to actually enhance the process of collecting evidence, they must be integrated into the national expert methodology.
Investigation protocols during the period of martial law
The CPCU outlines a distinct set of rules governing criminal proceedings during the period of martial law. Since 24 February 2022, these provisions have undergone several rounds of amendments[212], which hinders the establishment of a sustainable legislative and implementation practice built upon a strategic vision. Instead, it looks like an ad-hoc adjustment of provisions that already exist. During the period of martial law:
- if the URPTI is unavailable, an investigator or prosecutor issues a resolution to open a pre-trial investigation (though the information should be entered into the URPTI at the earliest opportunity; the moment when the resolution is issued is considered to be the start of the investigation). Under normal circumstances, the information about an offence must be entered into the URPTI within 24 hours. The shift to a paper-based mode introduced the risk of multiple regions or different law enforcement agencies concurrently registering proceedings for the same incident, making it impossible to verify this information. The only authority capable of monitoring such duplications is the OPG, and it implies that the Office undertakes a thorough analysis and makes decisions as to systematisation of these investigations;
- a search or inspection of a person's residence or other property or a search of a person can be conducted without witnesses present, as long as the investigative action is continuously recorded. This practice simplified the evidence collection process, especially in unsecured zones, but introduced the possibility of breach of the investigative actions. Under such circumstances, the search report and the recording stand as the only evidence following the search, and they cannot be corroborated through the testimony of external witnesses;
- the head of a public prosecutor's office may exercise certain powers of an investigative judge[213]. Most judges expressed critical reservations about this innovation, as it substantially augments the authority of a public prosecutor's office and diminishes additional oversight by the court throughout the pre-trial investigation[214];
- the timeframe for certain procedural actions has been removed and replaced with the directive ‘to be carried out immediately’[215]. In such cases, the practical application of the principle of legal certainty becomes compromised. For instance, if previously a search needed to be conducted within a specified time period, otherwise the search warrant would become void, and any evidence seized would be deemed inadmissible, the determination of ‘immediate’ is now subject to the investigator's and prosecutor's discretion and can be justified in various ways;
- a person can be detained without a decision from an investigating judge or court, which creates a risk of arbitrary detention;
- the head of the public prosecutor's office may extend the duration of the decision to keep a person in custody upon the request of the prosecutor or upon the request of an investigator agreed with the prosecutor. This practice removes judicial review from the process, as the decision regarding detention can be made automatically, instead of scrutinising the grounds for detention;
- court’s jurisdiction over the cases is determined in accordance with the territorial principle over the pre-trial investigation body that concluded the pre-trial investigation, or alternatively, another court as designated in accordance with the procedure provided for by law;
- the testimony of a witness, victim, or an accused (subject to the participation of a defence counsel during the interview) can be admitted as evidence in court, provided that the interview is recorded using authorised technical means. This provision essentially provides an alternative to conducting interviews before an investigative judge under the general provisions of criminal procedure. In contrast to the procedure outlined in Article 225 of the CCU, a judge does not have an opportunity to ask questions during such an interview and oversee the interview process;
- the defence lawyer of a suspect or accused may remotely participate in the investigation;
- copies of the casefile must be kept in an electronic format by the inquiry officer, investigator, or prosecutor;
- the court may limit announcement of the judgement’s resolution part, while ensuring that the complete text of the judgement is provided to the parties on the same day when the judgement is pronounced[216].
The enacted rules frequently conflict with the general provisions of criminal process. For instance, the rules regarding the time scope and the delegation of judicial powers to the public prosecutor's office have introduced a risk of potential abuse of their authority. Decisions were made even in situations where there was an option to appeal to the investigative judge through the standard procedure. In particular, this practice posed a risk to the proper gathering of evidence[217]. The emphasis was placed on expeditious decision-making at the expense of adhering to the principles of due process. Furthermore, due to the frequent amendments to these provisions, it becomes a challenge to establish a consistent approach to the effective practical implementation.
It is important to highlight the necessity of maintaining digital copies of criminal proceedings. On the one hand, this approach increases chances of safeguarding them in the midst of the ongoing armed conflict, which adds an extra risk of their destruction. On the other hand, the procedure and regulations for storing such records are yet to be established, including the issues of requiring a specific format, storing them on a personal computer or the relevant authority’s server, etc. Therefore, there is still a risk of losing files in a digital format if they are not properly stored. Despite the fact that the provisions of the CPCU on electronic criminal proceedings[218] have been in force since 15 December 2021, this system has not been put into practical operation yet. Presently, there are ongoing discussions among prosecutorial and investigative authorities as to the development of such a system, its functions and interface, and inclusion of certain technical solutions for the armed-conflict related violations[219]. There are reports that this solution should be a new E-case management system with the subsequent possibility of connecting judicial authorities to it. Within this system, the SMEREKA database should function as a basis for structuring evidence of war crimes[220].
Proceedings in absentia
The procedure for conducting special pre-trial investigations and hearing cases in the absence of the accused (in absentia) was introduced into the CPCU on 7 October 2014[221]. This mechanism was expected to facilitate the prosecution for crimes committed in the context of the armed conflict in Ukraine's territory. However, it continues to receive significant criticism, especially concerning its adherence to the human rights standards.
Cases may be heard in absentia based on a decision made by the investigative judge and only for a specific list of criminal offences[222]. Currently, a prerequisite for opening such proceedings is that a suspect is evading the investigative and judicial authorities by residing in the temporarily occupied territory of Ukraine or in a state recognized by the Verkhovna Rada of Ukraine as an ‘aggressor state’ with the intention of avoiding criminal liability and/or is listed on the international wanted list[223].
From 2018 to 2021, the practice of conducting proceedings in absentia was effectively halted. Up to that point, the requirement to place an individual on the international or interstate wanted list was discretionary. However, the jurisdiction of pre-trial investigation bodies was about to be changed with the establishment of the State Bureau of Investigation, so the Transitional Provisions of the CPCU contained amendments regarding the in absentia procedure[224]. Consequently, the practice of in absentia proceedings was suspended starting from 27 November 2018, because law enforcement agencies were unable to place individuals on the international wanted list, and the procedure for placing a person on the interstate wanted list was not established. In 2021, amendments were made to the criminal procedure law[225], introducing a new procedure for handling cases in absentia:
- a new requirement for initiating a special investigation was introduced, which involves a suspect evading a summons, i.e., failing to appear without a valid reason on more than two occasions[226];
- a procedure for notifying a person of a summons has been established, which includes sending it via post, email, or fax, as well as making a phone call or sending a telegram. If it is reasonably impossible to deliver such a summons to the person, it will be published in nationally distributed mass media and on the official website of the Office of the Prosecutor General[227];
- if there is information indicating that the person is located within the territory of a foreign state, a request for international legal assistance is sent to facilitate the serving of the suspect with a summons;
- when requesting a special pre-trial investigation from the investigating judge, it is mandatory to provide evidence demonstrating the person’s departure to or presence in the temporarily occupied territory of Ukraine or the Russian Federation, along with the circumstances confirming that the person is hiding with the intent to avoid criminal liability;
- it is necessary to apply to the investigative judge or court with a request to impose a preventive measure in the form of detention on such a person;
- the decision to initiate a search for the suspect can be made by an investigator or a prosecutor[228];
- f the accused appears at the trial stage, the accused and their defence lawyer have the right to submit a request for the re-examination of specific evidence that was examined in the absence of the accused[229].
In absentia proceedings have been widely used by the judicial system since 2014, particularly following 24 February 2022. Russia's full-scale invasion of Ukraine, 730 people have been notified of suspicion for crimes under Article 438 of the Criminal Code of Ukraine, 702 of these referred to proceedings in absentia (96% of the total). Under this qualification, indictments against 524 people were submitted to the court, 499 of them in absentia (95% of the total). Based on the results of the proceedings, verdicts were delivered against 137 people, including 119 in absentia. While proceedings under Article 438 of the CCU include proceedings against detained Russian military despite 75% of cases being considered in the absence of the accused, all 138 verdicts under Article 437 of the Criminal Code of Ukraine were delivered in absentia[230]. Although there is a growing realization that in absentia proceedings are used as a tool for generating statistics and that this leads to abuse of the justice system, the demand for the use and availability of this mechanism among investigators, prosecutors and judges remains high. However, in fact, none of the verdicts handed down in absentia have been enforced in Ukraine. In addition, in absentia proceedings are not allowed in many EU countries and in the United States in the context of investigation and prosecution of the most serious crimes, given that they effectively make it impossible to observe the accused’s right to a fair trial. The use of this mechanism is possible only in cases where there is a high public demand and the position of the victims themselves. However, the results of a study conducted by ULAG in 2022-2024 show that in absentia proceedings do not satisfy the demand for justice in the context of Russia's armed aggression against Ukraine (63% of respondents do not consider in absentia proceedings to be an effective form of justice)[231].
At the moment, the quality of the criminal procedure legislation governing this matter does not meet the standards of a fair trial in the following aspects:
- First, there is ongoing debate regarding the process of notifying the person and whether it can be deemed appropriate. The website of the Office of the Prosecutor General, along with the “State Courier” publication, can hardly be regarded as accessible sources of information in the occupied territories or within the territory of the Russian Federation where most of the Ukrainian websites, particularly government related, are blocked;
- Second, the legislation does not offer additional possibilities for suspects or defendants to appeal against decisions made in absentia beyond the standard procedures. Current interaction of the CPCU does not envisage an unconditional right of the accused who received an in absentia sentence, to have his case re-examined, which contradicts the ECtHR caselaw and potentially violated his or her right to fair trial.
- Third, due to the non bis in idem principle, in absentia judgments, having their procedural deficiencies and limited possibilities for appeal, notably diminish the likelihood of securing justice through the International Criminal Court or other mechanisms.
The trial over the downing of flight MH17 in Donbas on 17 July 2014 was an exception in the aftermath of the armed conflict in Ukraine. Despite the fact that the case was heard in absentia, much attention was paid to the adherence of fair trial standards both during the pre-trial investigation and trial. In particular, the efforts of the prosecutor's office and the JIT were to ensure that the defendants were aware of the proceedings against them, resulting in one of the subjects of the proceedings engaging his own lawyer to represent him. Also, the trial itself was conducted within the jurisdiction of the Netherlands, in accordance with the standards and requirements of their process. In addition, all the defendants were low- or mid-level perpetrators, as opposed to senior perpetrators. Finally, there was a request and consensus from the relatives of those who perished in the air crash.
Standards for proceedings in absentia
In the context of exercise of the right to a fair trial, in absentia proceedings are turned to in the situations where no clear assurance is obtained that a person may be physically present during the trial and fully defend him/herself, or where a person tries to evade justice. Furthermore, in the case of Sanader vs. Croatia[232], the ECHR determined that given the severity of the committed war crimes, strong public interest and the intention of the victims to achieve justice in such crimes, the use of in absentia court proceedings did not violate the right to a fair trial provided that at the same time the rights of the accused were not ignored. In its case-law, the EtCHR analysed, in particular, what was meant by ‘due notice:’ ‘informing a person about the prosecution commenced against him/her is such an important step that it should be made in accordance with procedural and legal requirements on the merits which can ensure effective exercise of the right of the accused; it is not enough to have a vague and informal knowledge’[233].
In 1983, the UN Human Rights Committee in the case of Mbenge v. Zaire noted that in absentia procedure is not illegal by itself because there is the presumption that the State takes all the steps to properly inform the accused about the proceedings against him: ‘Judgement in absentia requires that, notwithstanding the absence of the accused, all due notification has been made to inform him of the date and place of his trial.’ The UN Committee was of the view that the State did not implement proper steps to inform the accused appropriately, and that Article 14(3) of the International Covenant on Civil and Political Rights was violated by the fact that he learned about his trial in his absence from the media[234].
As for the position of the International Criminal Court with regard to this issue, presently the main source of guidance are the two decisions in Saif Al-Islam Gaddafi case[235]. The Pre-trial Chamber noted that it was not up to the Chamber to challenge the correctness, nature or qualification of judgments passed by national courts of States, unless there were compelling reasons to do so. During in absentia trial, the court should grant the accused the whole range of procedural rights and guarantees, and in case the accused turns in during the trial or even after the verdict is delivered in absentia, the accused should have the opportunity for a review of his case in court. Furthermore, in the above-mentioned case and in the case v. Jean-Pierre Bemba Gombo[236] ICC separately emphasised the adherence to the non bis in idem principle. In the context of in absentia proceedings, this was interpreted in a manner that the thoroughness and quality of the process at the national level, proper qualification of acts, and prevention of amnesties or pardons for grave international crimes all influence the fact that a national court's verdict will be recognised by an international court or tribunal as being consistent with this principle and not creating grounds for a retrial.
The most recent decision of the ICC which considers in absentia trial at the national level was the position of the Court’s Appeals Chamber in the case of Saif Al-Islam Gaddafi[237]. Thus, the Court noted that despite the fact that Mr. Gaddafi attended a number of hearings via video-link and that his counsel attended some hearings, this trial may not have been regarded as held in the presence of the accused. This was also the Libyan Government’s position. At the same time, the judgement rendered by the trial court under Libya’s legislation may not be considered final since according to the procedural laws Mr. Gaddafi has the right to a review of the sentence delivered in absentia. To confirm the correctness of bringing a person to justice, for the ICC it is important that the trial against this person is fair and this person has the opportunity to appeal against the judgement to a higher court.
At the same time, the ICC in its own jurisprudence considers the possibility of resolving certain procedural issues in the absence of the accused in order to speed up the duration of the case and enable victims to access support measures. In the case of Joseph Kony, the Pre-Trial Chamber decided to consider the confirmation of the indictment in absentia[238]. It was found that Mr. Kony cannot be found within the meaning of Article 61(2)(b) of the Statute, as 'despite the considerable efforts of the Registry and other relevant stakeholders to trace him since the issuance of the arrest warrant', his whereabouts remain unknown[239]. Such a decision is the first in the Court's jurisprudence and, depending on the outcome of its consideration, we can expect this practice to spread. The hearing is scheduled for 9 September 2025[240].
There is an exemplary resolution adopted by the Committee of Ministers of the Council of Europe, Resolution (75)11 of 19 January 1973 ‘On the Criteria Governing Proceedings Held in the Absence of the Accused’. This Resolution is a document of soft law; however, it confirms the presence of European consensus in the matters of establishing the validity of charges under in absentia procedure. The Resolution sets forth the standards regarding the content of the summons, the opportunities for the accused to exercise his/her rights in the proceedings and additional guarantees of retrial of the case[241].
Such countries as Denmark, the Netherlands, Germany, Sweden and others allow trials in absence of the accused under the following conditions: the accused has been properly notified about the trial; the sentence he/she can get does not exceed 3 years (this is the maximum sentence in the said countries and concerns Austria); the charges are mostly about financial crimes or crimes against property; he/she is guaranteed the right to defence; he/she is guaranteed the right to retrial[242].
Joint investigation teams (JITs)
Collaboration between states in criminal proceedings is one of the forms of international cooperation. In accordance with Article 523 of the Criminal Procedure Code of Ukraine, international cooperation in criminal proceedings encompasses the necessary actions to facilitate international legal assistance, such as serving documents, conducting specific procedural actions, extraditing persons who have committed a criminal offence, temporarily transferring persons, taking over criminal prosecution, transferring convicted persons, and executing sentences. It's worth noting that international treaties ratified by Ukraine may establish additional forms of cooperation in criminal proceedings beyond those outlined in the Code[243].
The criminal procedure law of Ukraine permits the creation of joint investigative teams to carry out pre-trial investigations of criminal offences committed across multiple states or when the interests of these states are implicated. Members of JITs work closely together, streamlining primary investigative objectives, conducting procedural actions, and sharing information. Their activities are overseen and coordinated by the initiator of the JIT or one of its members[244].
The CPCU provisions concerning international cooperation pertain to the provision of assistance within specific criminal proceedings. Cooperation should entail a clear division of tasks among team members and a joint vision of the intended outcome of such proceedings. These requirements are set out in the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters. According to the provisions of this protocol, a joint investigation team may be established, in particular, in cases where:
- the investigation of crimes by one Party necessitates complex and extensive investigative measures involving other Parties;
- multiple Parties are investigating crimes, the circumstances of which demand coordinated and collaborative actions on the respective Parties' territories[245].
The regulations governing the operation of a JIT as a form of international legal cooperation in criminal proceedings are applicable to investigations involving all categories of crimes, including grave international crimes. Since 24 February 2022, Ukraine has been promoting the use of JITs as a tool to investigate crimes under international law and collaborate with other countries conducting national investigations into these matters.
Despite the limited resources, active phase of the armed conflict on the territory of Ukraine, and challenges of undertaking various investigative actions amidst ongoing hostilities, Ukrainian law enforcement agencies aim to achieve rapid progress in the investigation of war crimes. The JIT established to investigate the crash of MH17 flight on 17 July 2014 and the subsequent trial based on its findings held in the Netherlands are often referred to as an example of good practice of Ukraine’s efforts in this area. When comparing the current interstate JIT set up following the full-scale invasion with the MH17 case JIT, what is often ignored is that the latter was focused on investigating a sole incident rather than examining all the crimes under international law. In case of the investigation into the MH17 shootdown, the goals and objectives of the investigation, the judicial jurisdiction of the proceedings, and the evidence collection standards were all well-defined. Instead, the new JIT became the basis for a large-scale effort to collect evidence of the crime of aggression committed against Ukraine and the creation of the International Center for the Prosecution of the Crime of Aggression against Ukraine (ICPA)[246]. Its task is to process a massive volume of information and operate without a clear jurisdictional basis for future prosecution of this crime.
Experience in investigating grave international crimes of the current JIT members is very limited. This results in increased workload on its members and generates great expectations from those interested in successful prosecution of crime of aggression. Nevertheless, the issue of where the collected evidence will be used in relation to the crime of aggression and other alleged grave international crimes remains unresolved. In particular, there is a question of how the JIT and the ICC, both involved in the work of the ICPA, will interact together. Considering that the practice of the JIT investigating grave international crimes is new, this initial experience can serve as a valuable foundation for similar situations in the future, and it is important to develop it into an effective mechanism.
Cooperation with the International Criminal Court
On 3 May 2022, the CPCU was updated to include a section that details the special provisions of cooperation with the International Criminal Court (ICC)[247]. While certain provisions within this section are linked to the ratification of the Rome Statute of the ICC and are not yet legally binding[248], it should be highlighted that the newly adopted amendments are to be applied in conjunction with the declarations of the Verkhovna Rada under article 12(3) of the Rome Statute on accepting the ICC jurisdiction[249].
This section regulates Ukraine's cooperation with the international judicial authority, yet there was no proper legal basis for this cooperation in the form of an international legal instrument ratified by Ukraine at the time of the amendments to the CPC. This could be either the ratification of the Rome Statute or an official cooperation agreement between Ukraine and the International Criminal Court. Mere declarations acknowledging the Court's jurisdiction and amendments to the CPCU are not sufficient to establish that Ukraine has taken on commitments before the ICC. Consequently, there is no certainty that the provisions related to the arrest of persons upon the ICC's request, their subsequent detention, and the particulars of execution of the Court's requests will not be altered unexpectedly and will be consistently implemented.
Ukraine officially became the 125th state party to the International Criminal Court on 1 January 2025[250]. Therefore, in fact, from this moment on, we should talk about the full implementation of the obligations to cooperate with the ICC and the application of this section of the CPC of Ukraine in practice. From this moment on, cooperation with the ICC is a direct obligation of Ukraine as a state party to the Rome Statute and cannot depend on the priorities of state authorities. In addition, when the CC of Ukraine and the CPC of Ukraine were amended in connection with the ratification of the Rome Statute, the note to Section IX2, which limited its effect to 'persons who carried out the armed aggression of the Russian Federation or the aggression of another country against Ukraine', was excluded[251].
Upon examining the adopted provisions as a whole, the following observations can be made:
- the provisions effectively establish Ukraine's rights at the level of a full-fledged state party to the Court. Specifically, they allow Ukraine to appeal against ICC’s decisions or submit requests to the Court;
- the provisions – in the cooperation context – lean heavily on the terminology of the Rome Statute and its interpretation in accordance with its provisions. After the ratification of the Statute, its provisions became part of national legislation and, accordingly, an official translation of its text into Ukrainian was approved. However, the quality of this version does not reflect all the specifics of the terminology used in the original language of the Rome Statute. Instead, the translation offers equivalents under the Criminal Code of Ukraine, which denote other concepts that relate exclusively to the qualification of ordinary crimes. For example, the form ‘aiding and abetting’[252] in the official translation of the Rome Statute into Ukrainian is equated with the terms ‘aiding and abetting’[253] by analogy with the forms of participation in the commission of a crime under the CCU[254].
- the provisions permit the transfer of proceedings to the ICC. Yet, the legal implications of such a decision in view of other provisions of criminal procedure law remain unspecified. In particular, what exactly happens to the parallel proceedings opened in Ukraine in this instance and what basis for subsequent decisions would be;
- a conflict arises concerning management of evidence. The ICC adheres to its own standards, which affect the admissibility of evidence during court proceedings. At the same time, the provisions of Ukraine's national legislation have not been harmonised and aligned with the Court's standards which leads to broad discrepancies and lack of legal certainty in their application[255].
On 20 September 2022, the Verkhovna Rada of Ukraine amended the said section of the CPCU as a response to practical problems in the implementation of the adopted provisions. The amendments allow the proceedings to be carried out not only by the ICC Prosecutor, but also by the Court’s personnel authorised by him/her and mentioned in the request. Furthermore, these proceedings conducted on Ukrainian territory by the Court's authorised personnel require the approval from the Prosecutor General of Ukraine[256]. Essentially, the power to decide on the evidence collection by the representatives of the Office of the Prosecutor of the ICC in Ukraine rests solely with the Prosecutor General of Ukraine. This grants him/her the discretion, for instance, to choose which pieces of information from the criminal proceedings can be shared with the ICC upon request, whether or not to grant access to the suspects, or which crime scenes the ICC's investigators and prosecutors are permitted to inspect.
