Status of Victims in Justice Process
Ukrainian national legislation does not contain a definition of the term “victim”. However, those who have suffered from the crimes during armed conflict can actively participate in criminal proceedings. The CPCU provides for three procedural statuses that survivors of grave international crimes may have:
- Applicant: an individual or legal entity that has filed a complaint or report of a criminal offence with a public authority authorised to initiate a pre-trial investigation, and is not a victim[526]. The applicant's rights in the proceedings are limited, as this person has not suffered as result of the crime, but only informs the law enforcement authorities of the circumstances known to him or her for the purpose of opening a criminal investigation. Therefore, the procedural status of an applicant allows them to:
- receive a document from the relevant authority confirming the acceptance and registration of their report, in particular, an extract from the Unified Register of Pre-trial Investigations;
- provide items and documents to substantiate their report; and
- receive information about the completion of the pre-trial investigation[527].
- “The one who suffered” (direct translation): an individual who has suffered moral, physical or material damage as a result of a criminal offence, as well as a legal entity that has sustained material damage[528]. Their legal status provides them the most extensive possibilities to participate in the justice process. On the one hand, the investigations are aimed at discovering the circumstances of the harm caused to such an individual, and on the other hand, they provide an opportunity for redress based on the outcome of the investigation. Their procedural status provides for the following rights:
- the possibility to appoint a representative and participate in the proceedings through the representative or directly;
- the right to be informed about the progress of the proceedings, the content and substance of the suspicion/charge, and procedural decisions concerning the suspect/accused, including the possibility to get access to the contents of the case file and obtain copies of relevant documents;
- the possibility to submit evidence during the investigation and trial;
- the right to participate in investigative (search) and other procedural actions;
- the right to provide explanations or refuse to do so;
- the possibility to seek protection for themselves, close relatives or family members, property, and residence, when there are legitimate grounds for that;
- the right to appeal against procedural decisions;
- the right to compensation for damage inflicted by the criminal offence in accordance with the procedure provided for by the law; and
- the opportunity to express their opinion during sentencing[529].
The CPCU also requires from the “victim” to maintain confidentiality of the pre-trial investigation and appear in a timely manner when summoned by an investigator, prosecutor, investigating judge, or court to participate in procedural actions[530].
- Witness: an individual who knows or may know circumstances to be proved in criminal proceedings and is summoned to testify[531]. The possibilities granted to a witness based on their procedural status are exclusively related to the information they can provide as evidence. For this role in criminal proceedings, it does not matter whether the person has suffered from the crime, but rather the information they can provide to the investigators. Thus, the status of a witness does not grant one the right to seek redress for the harm suffered. The CPCU provides for the following rights of a witness:
- to know in connection with what and in which criminal proceeding they are being interviewed;
- to receive professional legal aid from a lawyer during the proceedings;
- to refuse to testify if it may harm the person or his/her family;
- to use notes and documents when giving evidence in cases where the testimony relates to any calculations and other details which are difficult to keep in memory;
- to get access to the interview report and request it to be adjusted, amended, or supplemented with comments, as well as to make such amendments and comments by their own hand; and
- to apply for security in cases provided by the law[532].
Under Ukrainian criminal procedure law, any information deemed legally classified is excluded from the information that a witness may disclose[533]. Therefore, even if a person has such confidential information, it cannot be the subject of his/her testimony in the proceedings. At the same time, a witness in criminal proceedings is required to provide only truthful information, as there is criminal liability for providing knowingly false testimony[534]. Moreover, witnesses are cautioned about criminal responsibility for refusing to provide statements.
