Assistance from Other States
Although the armed conflict in Ukraine has been ongoing since 2014, official reports from state authorities on international assistance from other countries only began to appear after 24 February 2022. For instance, several missions of French experts worked, inter alia, on collecting evidence in Kyiv region[511] and were involved in investigating events in Kharkiv region[512]. France also donated a mobile DNA laboratory to the Office of the Prosecutor General and trained ten Ukrainian experts in the use of the provided materials and equipment[513]. In addition, forensic experts from Slovakia[514] and Polish experts worked in Ukraine to examine the sites affected by shelling in Kyiv, Mykolaiv and Borodianka[515].
Rules governing engagement and participation of experts are contained in the Criminal Procedure Code of Ukraine which does not provide for such a procedure of providing international assistance to Ukrainian law enforcement as visits of foreign experts to Ukraine. Despite public expressions of support of this format of cooperation, the evidence obtained by these experts is inadmissible in official proceedings. Thus, for instance, findings from mobile DNA laboratories must undergo forensic verification by the state approved forensic examination centres, the conclusion of which can then be included in the case file[516]. In practice, investigators and prosecutors do not understand how to properly and officially utilise all such international assistance.
Another permanent form of assistance to Ukrainian law enforcement agencies with investigations was established by the United States of America, the United Kingdom, and the European Union[517]. The Atrocity Crimes Advisory Group (ACA) for Ukraine was established to support the Office of the Prosecutor General[518]. The primary objective of the group is to streamline coordination and communication efforts to ensure implementation and development of best practices, avoid duplication of efforts, and encourage the expedient deployment of financial resources and skilled expert personnel to respond to the needs of the OPG as their beneficiary. The ACA activity is composed of the following elements: the work of the Advisory Group to the OPG, made up of experienced war crimes prosecutors, investigators, military analysts, forensic specialists, and other experts based in the region on a permanent basis; Mobile Justice Teams composed of both international and Ukrainian experts, which are created and deployed to increase the capacity of the OPG War Crimes Unit and regional prosecutors to conduct field investigations. The teams are[519].
The ACA has actively supported the Office of the Prosecutor General in its efforts to investigate grave international crimes. This support ranges from general advice on the overall work organisation and the development of strategic approaches in similar proceedings, to the assessment of individual cases, preparation of legal analysis and collection of evidence on the ground. In practice, it was the ACA that was expected to assume coordination functions carried out by the public prosecutor's offices[520]. Specifically, the ACA facilitated the creation of a specialised unit for conflict-related sexual violence within the War Department of the OPG. The ACA's efforts, as highlighted in public statements by the OPG “have pioneered a unique model of international cooperation in the investigation of grave international crimes”[521].
While lack of the national authorities' capacity to investigate and prosecute such an immense number of alleged atrocity crimes generates a need for the international assistance, engagement and participation of international experts puts in jeopardy the integrity of the investigations and undermines the chances of successful prosecutions in courts at the domestic level. Incidentally, Ukraine’s legislation does not allow for retroactive application.
Therefore, even if the law was amended so as to grant a proper legal status to international experts, investigations, where there has already been such an interference, could still be considered as “contaminated”.
Separately, back in 2021, the OPG established the International Expert Council on Crimes Committed in the Context of the Armed Conflict[522]. It brings together national and international experts in international law, representatives of non-governmental organisations and journalists. However, it is difficult to fully assess the significance and outcomes of the Council’s work, given the ongoing discussions on various proposals and the ever-expanding scope of its topics[523]. However, when the Council examines various aspects of the investigation of grave international crimes, its thematic panels do not coordinate with each other, each promoting solutions in their designated thematic areas in silos.
For instance, one of the outputs of the CRSV sub working group was the draft Law of Ukraine ‘On Amendments to Criminal Procedure Code of Ukraine Regarding Improving the Procedure for Pre-trial Investigation and Trial in Criminal Proceedings on Crimes Related to Sexual Violence Committed in Context of Armed Conflict’ (Reg. No. 9351 dd. 05.06.2023[524]). The draft proposes amendments to the CPCU exclusively in the context of investigating conflict-related sexual violence. At the same time, the rules of criminal procedure require general amendments to facilitate the investigation of grave international crimes, which this draft does not address.
It is quite difficult to analyse the efforts of other states to investigate the consequences of the armed conflict in Ukraine after 24 February 2022 through the prism of the legislation.
- While Ukrainian criminal procedure law defines the forms of international legal cooperation between states through bilateral and multilateral treaties, not all actions of states clearly fall within their scope. Firstly, Ukraine's national legislation refers to specific criminal proceedings within which international legal assistance can be provided. Given the number of proceedings related to the consequences of the armed conflict in Ukraine, it is difficult to determine which specific incident requires international assistance. Ultimately, from the common-sense perspective, all these proceedings require such assistance.
- Secondly, in order to receive international legal assistance, a state must make a formal request based on a treaty on legal assistance between states. Such a request should specify the scope of the assistance and detail the procedural actions required.
- Thirdly, according to the CPCU, foreign experts do not have a legal status in Ukraine and they cannot provide formal assistance in the domestic investigations. Instead, the framework of international legal assistance envisages their cooperation with the national authorities and participation in their activities within criminal proceedings[525].
Provided that Ukraine is a civil law system unless their status is defined in national legislation one cannot presume that these experts have an official role in criminal proceedings, as well as authority or legal capacity to undertake procedural actions. This creates a problem of admissibility of information obtained through the work of such experts. There is a risk that the evidence collected may not meet the criterion of legality. Considering that international experts assist in the investigation of specific criminal proceedings, there is also a challenge of granting them access to the case files as such actions may be perceived as breaching the confidentiality and integrity of the pre-trial investigation. The consequence of disregarding these rules may result in lost cases in courts due to the violations of procedure.
While Ukrainian justice system authorities welcome the assistance of foreign counterparts in the investigation of war crimes they cannot benefit from it without a proper legal basis. If international expert support is to be considered an effective form of collaboration with law enforcement agencies a relevant legislative framework must be created.
