Security Service of Ukraine
The internal structure of investigative units of the security services is based on the territorial and subject matter principles. Since 2014, both the Main Department of the SSU in the Autonomous Republic of Crimea and the Main Department of the SSU in Donetsk and Luhansk regions were the ones primarily focused on the armed conflict. Certain significant criminal proceedings have fallen under the jurisdiction of the Main Investigation Department of the SSU. The establishment of a dedicated unit within the Main Investigation Department of the SSU specialising on pre-trial investigation of criminal cases arising in the context of the armed conflict only began in the latter half of 2021 and was finalised in the spring of 2022. However, the regional branches of the SSU still lack such specialised units[305].
The Security Service of Ukraine has significantly fewer investigators compared with the National Police of Ukraine. The law states that the general number of the SSU employers is 27,000 during peacetime and 31,000 during special periods and include not just investigators but all the staff. These figures are set by the President of Ukraine upon the recommendation of the head of the SSU within the constraints of the State Budget of Ukraine[306]. Moreover, compared to the police, the territorial structure of the security service is less extensive, covering only the regional level, which means that fewer personnel are involved in the work.
The SSU investigators have the primary procedural duty to investigate grave international crimes committed on the territory of Ukraine. Based on the rules of jurisdiction set forth in Article 216 of the CPCU, they are responsible for crimes against Ukraine's national security as well as crimes against peace, human security, and international law and order. Consequently, if another pre-trial investigation body registers criminal proceedings with preliminary classification under articles within the SSU's jurisdiction, such proceedings are transferred to the security service for further investigation or assigned to another pre-trial investigation body afterwards.
Article 36 of the CPCU allows for the transfer of criminal proceedings either to another pre-trial investigation body or another unit within the same body. This procedure is actively used in criminal proceedings related to the armed conflict which allows the National Police of Ukraine or the State Bureau of Investigation to investigate alleged violations of the laws and customs of war. The decision to reassign the case due to another authority’s ineffectiveness can be justified, for example, by the failure to take the necessary measures within the criminal proceedings, failure to conduct the necessary investigative actions, failure to comply with the prosecutor's instructions, or other grounds. After the CPCU introduced the possibility of creating interagency investigation groups, the process of transfer of the proceedings between different pre-trial investigation bodies was simplified. In practice, however, the use of such a mechanism has remained limited and the process of transfer as was mentioned above is regulated by part 5 of article 36 of the CCU (ineffectiveness of investigation). However, the SSU remains the leading body in all proceedings and must assign investigators for such a group in each case. Consequence of such a complicated approach is that between transfer of investigations back and forth among the authorities, the process of investigation itself is put on hold and in the three to four months that it takes to reactivate it, valuable evidence is lost, witnesses become unavailable due to them moving, etc.
Based on an internal agreement between the pre-trial investigation and prosecution authorities, the Security Service of Ukraine is focusing on investigating the following incidents under Article 438 of the Criminal Code of Ukraine:
- attacks on vital civilian infrastructure, cultural heritage sites, nuclear facilities, educational and medical institutions, grain storage facilities, as well as attacks on civilian targets resulting in widespread destruction and significant civilian casualties;
- large-scale theft of food (grain crops, etc.);
- cases of ill-treatment or other unlawful acts against prisoners of war;
- deportations and unlawful transfer of population.
Additionally, the SSU deals with situations involving the operations of headquarters, commandant's offices, and command posts of enemy troops and other occupation authorities. These are investigated under Article 438, but are also related to crimes against the foundations of national security.
The practice of investigating grave international crimes by the Security Service of Ukraine has a number of challenges that need to be addressed:
- the SSU prioritises investigating offences against the foundations of national security. Under martial law in Ukraine, these crimes come to the forefront of the SSU's work. The SSU addresses security concerns both in the territory beyond active hostilities and in the liberated areas[307]. Consequently, along with the registered proceedings concerning grave international crimes, the number of registered offences against national security is increasing[308];
- security service investigators lack experience in dealing with violent crimes. A large percentage of violations of the laws and customs of war contain acts of violence, including premeditated murder, torture and ill-treatment, sexual violence, unlawful detentions, etc. Typically, general criminal offences such as these fall under the responsibility of the police. SSU investigators thus often lack hands-on experience dealing with recording torture or corpses of the deceased victims. Investigators need to have basic skills in working with victims of such crimes. Additionally, there should be special expert units for taking biological samples and collecting physical evidence[309]. The gaps in professional experience can lead to repeat victimisation and negatively affect the quality of the evidence gathered;
- investigators need specialised training in dealing with grave international crimes. The need for training on the specifics of war crimes investigation and international standards for working with them remains relevant. Although the armed conflict in Ukraine has been ongoing since 2014 and the scale of its consequences increased significantly after 24 February 2022, the training programmes for SSU investigators in this regard were isolated and not systematic. Given the investigators' experience and their exclusive jurisdiction over these types of crimes, they should be prioritised for professional training among other law enforcement bodies.
- a significant share of the information handled by the SSU investigators is classified. Given the nature of its functions, most of the information collected by the Security Service is intelligence. According to SSU leadership, this information, among other things, forms the basis of investigations into the consequences of the armed conflict on the territory of Ukraine[310]. However, under Ukrainian criminal procedural law, this information may often be deemed as inadmissible evidence[311], since the procedure for obtaining it is classified and protected by law and cannot be disclosed[312]. Therefore, such information alone will not be sufficient for the investigation to prove that a crime has been committed[313];
- heavy workload for investigators in the regions. The organisation of work within the SSU is such that the majority of criminal proceedings are handled by territorial units, while the Main Investigation Department of the SSU investigates cases of exceptional importance, with priorities set by the department itself. Hence, the main work in areas affected by the armed conflict and those liberated from Russian control remains the responsibility of the regional departments. Until now, the SSU has not developed effective solutions to strengthen the resources in the regions. Consequently, against the background of escalating demands from these areas, the regional departments are forced to organise work on the ground on their own or, as an alternative solution, to transfer proceedings to other investigative authorities;
- low motivation of investigators. The heavy workload, lack of human resources, and prioritisation within the SSU adversely affect staff motivation. Although Ukrainian criminal procedure law leaves the SSU investigators with the entire burden of addressing grave international crimes, they are still ill-equipped to meet the challenge. Additionally, the question of reforming SSU is still open, with plans to streamline its functions and downsize its personnel[314].
Amidst the ongoing armed conflict, the SSU's focus remains on addressing security rather than investigating grave international crimes. Following 24 February 2022, the agency’s official position is that their attention has also turned to the work with internal human resources, with one of its current priorities is defined as ‘self-cleansing of the system’[315]. In practice, however, in order to increase human resources SSU uses possibilities of drafting and increases its human resources by hiring former investigators and prosecutors who had failed attestation during the reform in 2019. In addition, discussions around the reform of the Security Service of Ukraine have been ongoing since 2019[316]. The main point regarding the investigation of grave international crimes is that SSU investigators may lose their investigative functions, and their jurisdiction will be distributed among other authorities. In particular, jurisdiction over crimes under Article 438 of the CCU should be transferred to the State Bureau of Investigation. Presently, discussions on the content of this reform are ongoing, but the process has been suspended due to martial law[317].
