How are war-related court cases progressing? Interim findings of MIHR monitoring

The Media Initiative for Human Rights (MIHR) conducts analysis, provides coverage, and raises awareness about important developments in Ukrainian courts and the challenges faced in pre-trial investigations of crimes related to the Russian armed aggression. The MIHR also aims to encourage greater media involvement in reporting on this subject matter. MIHR journalists regularly attend trials and closely monitor criminal proceedings pertaining to international crimes committed within the context of the armed conflict.

Throughout 2022 and in early 2023, MIHR monitors tracked and communicated to journalists over 90 cases involving war crimes as defined by Article 438 of the Criminal Code of Ukraine (CCU). Out of these cases, MIHR monitors attended court hearings in 20 instances, documenting evidence, the parties’ positions, and the judges’ decisions. This analytical report is founded upon the collected data. 

International crimes encompass grave offenses that pose a threat to global peace, security, and well-being. Among the four categories of international crimes, war crimes stand out as direct violations of international humanitarian law (IHL) and are subject to criminal prosecution. The comprehensive definition of war crimes can be found in Article 8 of the Rome Statute of the International Criminal Court (ICC). 

The jurisdiction over international crimes falls within the purview of the ICC. National courts in countries experiencing armed conflicts may also handle such cases, and third countries can do so through the principle of universal jurisdiction. Additionally, the establishment of a specialized tribunal or hybrid court may be warranted to investigate the crime of aggression, as the ICC lacks the authority to address this international crime concerning the situation in Ukraine. Various practices have emerged, including the creation of hybrid courts or other specialized tribunals to investigate and prosecute international crimes.

National courts also play a crucial role in adjudicating international crimes. In the context of war crimes committed on Ukrainian soil, it is primarily the Ukrainian courts that handle the majority of these cases, placing a significant burden on their shoulders.

Although Ukrainian legislation does not explicitly employ the term “war crime,” Article 438 of the Criminal Code of Ukraine addresses the “Violation of the Laws and Customs of War.” This article encompasses specific elements of international crimes, including the following:

Mistreatment of prisoners of war or civilians; 

Expulsion of civilians for forced labor purposes; 

Unlawful appropriation of national property in occupied territories; 

Utilization of prohibited means of warfare as stipulated by international law.

The article also includes a reference clause that encompasses the responsibility for other violations of the laws and customs of war as stipulated in international treaties to which Ukraine is a party. 

The punishment for these transgressions carries a prison sentence ranging from 8 years to life. Additionally, Ukrainian legislation establishes criminal liability for the perpetration of the crime of aggression under Article 437 of the Criminal Code of Ukraine, titled “Planning, Preparation, Initiation, and Conduct of an Aggressive War.” In international law, the crime of aggression primarily targets high-ranking officials who issue orders. However, Ukrainian legislation does not fully align with the international standard as outlined in Article 437, as it allows for the prosecution of not only the senior official who directly oversaw the political or military actions of the aggressor country but also the executor of the order. 

Even prior to the full-scale invasion by the Russian Federation on February 24, 2022, Ukrainian courts had already handled cases under Article 438 of the Criminal Code. Nevertheless, the delivery of verdicts was slow, and there was a lack of established judicial precedents regarding the application of international law. Between 2019 and 2022, Ukrainian courts rendered only two such verdicts. 

Since the start of the full-scale Russian invasion and up until May 2023, the Prosecutor General’s Office of Ukraine has recorded a total of 86,902 instances of crimes falling under Article 438 of the Criminal Code. 

On a weekly basis, MIHR journalists monitor cases pertaining to the armed conflict. Based on their observations, it can be noted that as of May 2023, Ukrainian courts handle approximately 25 to 50 such cases each week.

In our analysis of criminal proceedings, we have focused on several key aspects, including:

•   The extent of openness in the proceedings and the accessibility granted to monitors and journalists during open court sessions.
•   The presence of characteristics indicative of an adversarial trial.
•   The thoroughness and effectiveness of the trial process.
•   The validity of the court’s decisions.
•   The transparency and clarity demonstrated in the execution of these decisions. 

As a result of the analysis conducted by MIHR monitors, a series of challenges have been identified that warrant attention from courts, litigants, experts, and the media. This analysis aims to present and examine these challenges, offering potential solutions to address them effectively.

Within this paper, we will outline and evaluate the intricate issue of access to court proceedings (i), shed light on the burdens posed by court overload (ii) and the formal handling of cases (iii), explore the complexities surrounding the in absentia procedure (iv), and delve into the challenges associated with sentence enforcement (v).  

I. Complicated access to court proceedings 

The core principles of justice, namely the publicity of the trial and its comprehensive recording through technical means, are enshrined in paragraph 6 of Part 1 of Article 129 of the Constitution of Ukraine. The Law of Ukraine On the Judiciary System and the Status of Judges further affirms that court decisions, hearings, and case-related information should be open to the public, except in cases explicitly specified by law. Open court sessions are accessible to anyone, although individuals may be removed from the courtroom if they display disrespect towards the court or litigants. 

Both attendees and journalists have the right to capture photos, videos, and recordings of the proceedings without requiring separate permission. However, certain restrictions must be acknowledged. Broadcasting of a hearing can only occur with the court’s authorization. 

The recording or authorized broadcasts must not hinder the court’s work or violate the procedural rights of the parties involved. Additionally, the court reserves the authority to determine the appropriate location within the courtroom for filming.

In criminal proceedings across all court instances, public access is permitted. This provision is outlined in Article 27 of the Criminal Procedure Code of Ukraine (CPC), addressing the “Publicity and openness of court proceedings and full recording by technical means of court hearings and procedural formalities.” Part 6 of Article 27 explicitly grants individuals present in the courtroom the right to transcribe, make notes, and use a dictaphone. However, when it comes to filming and recording in criminal proceedings, permission is granted through a court order. The court must consider the opinions of the parties involved and assess whether such actions would detrimentally impact the trial.

Due to quarantine, individuals who are not parties to proceedings may face restricted access to court hearings. The quarantine measures were implemented by the Cabinet of Ministers of Ukraine in accordance with the Law of Ukraine On Protection of the Population from Infectious Diseases. The court also possesses the authority to decide whether to close all or a portion of the court proceedings, considering the following reasons:

1) If the accused is a minor;

2) In cases concerning violations of sexual freedom and sexual inviolability of individuals;

3) When personal or family life details or circumstances that degrade a person’s dignity may be disclosed;

4) If an open session risks the disclosure of legally protected secrets;

5) To ensure the security of participants involved in criminal proceedings.

On February 24, 2022, President Volodymyr Zelensky issued a decree instituting martial law in Ukraine. The Law of Ukraine On the Legal Regime of Martial Law governs various aspects, including the functioning of the courts. According to Article 26 of this law, in areas under martial law:

1. Only courts have the authority to administer justice, and their establishment follows the provisions of the Constitution of Ukraine.
2. Any attempts to expedite or prolong legal proceedings are strictly prohibited.
3. In situations where courts cannot operate at their regular locations, changes may be made to the territorial jurisdiction of cases or the court’s physical location.
4. The establishment of extraordinary and specialized courts is strictly forbidden.

This law does not restrict the attendance of public visitors during court hearings under martial law.

However, there are regulations in place to ensure the safety of court personnel and visitors. On March 2, 2022, the Council of Judges of Ukraine issued recommendations regarding court operations during martial law. In certain regions where there is increased danger due to the armed aggression of the Russian Federation, access to hearings may be restricted for non-participants.

Based on MIHR monitoring, it has been observed that the majority of trials involving alleged war criminals are conducted without the presence of the public and media. One contributing factor to this situation is the imposition of artificial barriers by judges. To illustrate the challenges faced by journalists in gaining access to court hearings, consider the following examples.

On January 11, 2023, the Brovary District Court of Kyiv Region held a hearing in the case of two Russian soldiers, Alexei Bulgakov and Alexander Vasiliev. The court security initially denied entry to the MIHR journalist, granting access only after obtaining permission from Judge Oleksandr Skrypka, who presides over the case. Prior to the hearing, Skrypka insisted that the journalist read and sign a “memo for media workers” as a prerequisite for attending the court session. While such a memo may provide useful information, it should not be used as a condition for journalists to exercise their right to be present at court hearings.

On April 14, 2023, the Solomyansky District Court of Kyiv convened for a hearing in the case of Oleg Ilyin, a Russian sniper charged with the murder of a civilian in Ukraine. The court security requested the MIHR journalist to submit a petition to “attend an open court session” and informed that public visitors had limited access to hearings during martial law, citing an order from the presiding judge of the Solomyansky court. To gain entry, the security guard contacted the judge for permission. Ultimately, the hearing in Ilyin’s case did not take place on that day. 

Similarly, on May 10, 2023, an MIHR journalist was denied access to the trial of former MP Ilya Kiva in the Lychakiv Court of Lviv. The reason given was “quarantine restrictions” due to Covid-19. However, it is worth noting that another local journalist was present in the courtroom, suggesting a possible abuse of the restrictions.  

In response to these incidents, MIHR monitors submitted a request to the State Judicial Administration (SJA) seeking clarification on the rules for media access to court hearings. The SJA replied that journalists do not require a separate permit to film and record during court proceedings, but they must adhere to the restrictions established by law. Broadcasting during hearings necessitates a court order, and the chief of staff of the court is responsible for ensuring the proper organization of the trial, as stated in Article 155 of the Law of Ukraine On the Judiciary System and the Status of Judges.

Andriy Yakovlev, an expert of the MIHR, emphasizes the importance of transparency in open trials to achieve two primary objectives. Firstly, it ensures protection against secret proceedings and enables the assessment of the quality of justice through public oversight. Secondly, it serves as a preventive measure, deterring the recurrence of similar crimes. 

“When a court denies access to journalists or monitors, the public is unable to verify the transparency of the procedures, assess the impartiality of the court, and determine if the proceedings were adversarial. The public also has the right to understand how the court and the prosecutor’s office fulfill their functions. Without such transparency, problems may arise, including violations of the right to a fair trial when adversarial proceedings and impartiality are lacking,” explains Andriy Yakovlev. 

Volodymyr Rysenko, a lawyer and member of the Kharkiv Anti-Corruption Center NGO, raises an issue regarding the inability of public visitors to attend online court hearings. According to the Law of Ukraine On the Judiciary System and the Status of Judges, any Ukrainian citizen can attend any hearing, but only physically. However, public visitors are not permitted to attend court hearings conducted online. Nevertheless, MIHR monitors were able to participate in a remote session of the Dzerzhynsk City Court in Donetsk Region through an online platform, as their request was granted and they faced no impediments.

“Given that some courts are currently non-operational, numerous cases have been transferred to courts in different regions of Ukraine. Additionally, many citizens have evacuated their regions and even the country as a whole. Consequently, the current limitations on attending online hearings effectively restrict openness,” concludes Volodymyr Rysenko. He believes that the state has the power to address this situation. 

To achieve this, two simple steps can be taken:

1. Amend the law to grant not only the parties involved but also public visitors the right to participate in online hearings.

2. Implement restrictions within the E-Court system to ensure that a public visitor cannot disrupt the hearing. Specifically, the visitor’s microphone should be controlled by the secretary rather than the visitor themselves.

The MIHR monitors had the opportunity to attend a remote court hearing related to charges of collaboration. This occurred during their monitoring visit to the Dzerzhynsk City Court in Toretsk, Donetsk Region, as part of the efforts of the “Ukraine. Five in the Morning” Coalition. In March 2022, the Dzerzhynsk court transitioned to a remote work format to ensure the safety of its staff. However, a portion of the court’s personnel still operates in Toretsk, enabling local participants to join the hearing.

The MIHR submitted an oral request to participate in the hearing to the judge rapporteur of the court, who forwarded it to the presiding judge. The presiding judge did not object to the presence of visitors, and the court’s chief of staff facilitated the remote connection of monitors via video link. 

“To participate in the remote trial, journalists, monitors, and free listeners must submit a request to the court,” explains the Dzerzhynsk court’s chief of staff. “If approved by the judge, individuals must come to the court, where the secretary will assist them in joining the session. Public visitors and journalists have their microphones turned off, allowing them to solely listen and observe.” 

The MIHR monitors also attempted to join a remote court session at the Selydove City Court in Donetsk Region. Although the presiding judge did not object to the monitors’ access, due to an air raid alert and the threat of shelling in the city, no one from the Selydove court could connect to the hearing. Instead, the judge and trial participants joined from other regions.

II. Excessive workload of courts coupled with abnormally expedited case hearings

Excessive workload of courts poses another problem in the trials of war crimes. Since the onset of armed aggression in 2014 until the full-scale invasion, criminal cases have been initiated under Article 438 of the CCU, but they have been insufficient to establish a robust jurisprudence on war crimes.

MIHR journalists conducted an investigation into the workload of 25 Ukrainian courts handling cases under Articles 438 and 437 of the CCU. Each of these courts has approximately a thousand criminal cases under consideration, with only a few relating to war crimes. For instance, the Shevchenkivskyi District Court of Kyiv has 2,946 criminal cases, of which 8 involve charges of “violation of the laws and customs of war.” In the Darnytsia District Court of Kyiv, where 3,072 criminal proceedings were pending as of May 2023, only 1 verdict had been delivered under the same Article 438. Similarly, the Desnianskyi District Court of Kyiv had 833 active criminal proceedings during the same period, including 2 under Article 438. The Makariv District Court of Kyiv Region handled 6 proceedings under this article, with one resulting in a verdict. In total, the court had 270 criminal proceedings as of May. 

However, it is worth noting that verdicts are being issued unusually quickly. For instance, Vadim Shishimarin, a 22-year-old Russian military officer and commander of the 4th Guards Kantemyr Tank Division, was sentenced in four sessions. On February 28, 2022, he killed civilian Oleksandr Shelipov, who was cycling in Sumy region. Shishimarin was captured on March 1. On May 23, 2022, the Solomenskiy court sentenced him to life imprisonment. Shishimarin became the first Russian military officer convicted of war crimes in Ukraine.

Likewise, Russian soldiers Alexander Ivanov and Alexander Bobikin, who targeted civilian infrastructure in Kharkiv Region with Grad MRLS rockets, received their sentences in three hearings, two of which dealt with preventive measures and the appointment of an indictment for consideration. The case was heard in the Kotelevsky District Court of Poltava Region.

On February 24, 2023, the Dzerzhinsky District Court of Kharkiv scheduled the trial of Russian pilot Maxim Kryshtop’s case, and on March 2, it issued a verdict. 

This expedited court process can be seen as an attempt to address the public’s call for justice. However, it also raises another concern – the formal handling of cases. 

III. Formal handling of cases

According to the MIHR monitors’ observations, a significant number of trials involving Russian military personnel and war crimes exhibit a formal approach, lacking objectivity. 

This analytical report does not delve into the investigation process but focuses on the trial itself, the defense of the accused (1), adherence to the constitutional principle of adversarial proceedings (2), and the sentencing process (3). 

1. Defense of the accused: 

In nearly all cases analyzed, defendants who were tried in absentia were represented by attorneys from the Free Legal Aid Center. Article 59 of the Constitution of Ukraine mandates that the state provides the accused, including alleged war criminals, with legal aid of an appropriate level. Without this, a court verdict would not be in compliance with international humanitarian law (IHL).

In every trial reviewed by MIHR monitors, the accused had legal representation. Therefore, formally speaking, the right to defense was upheld in 100% of the analyzed cases. However, ensuring the right to defense encompasses more than just the physical presence of a lawyer in court; it also entails their professional actions to protect the rights of the accused. 

Typically, trials of alleged war criminals take place after the conclusion of an armed conflict. The International Military Tribunal in Nuremberg and the International Military Tribunal for the Far East dealt with war crimes committed by the Nazi regime and the Siew regime, respectively, during World War II. The International Criminal Tribunal for the Former Yugoslavia addressed crimes committed on its territory since January 1, 1991. The International Criminal Tribunal for Rwanda focused on those responsible for the genocide against the Tutsi people. The establishment of the Special Court for Sierra Leone aimed to prosecute individuals accountable for crimes committed during the civil war in that country.

To date, the International Criminal Court (ICC) has issued convictions in four war crimes cases. Al-Mahdi was found guilty as a co-conspirator for intentionally directing attacks on religious and historical sites in Timbuktu, Mali, in June and July 2012. In the Bemba case concerning the situation in the Central African Republic, five individuals were convicted of crimes against justice related to false testimony in the case. 

Another case involved Germain Katanga, who was found guilty as an accessory to murder, including crimes against humanity, war crimes, attacks on civilians, destruction of property, and looting during an attack on the village of Bogoro in the Ituri district of the Democratic Republic of the Congo on February 24, 2003. In the fourth case, Thomas Lubanga was found guilty of recruiting, conscripting, and actively involving children under the age of 15 in hostilities, constituting war crimes.

War crimes have also been prosecuted at the national level. For example, during the Leipzig Trials in 1921, 12 German military officers from World War I were tried before the German Supreme Court. On July 19, 2005, three UK soldiers were charged with war crimes committed against Iraqi prisoners between September 13 and 15, 2003. This marked the first instance of a national court using war crimes charges against its own citizens as defined by the ICC Statute. The case was heard in a national court as the ICC’s jurisdiction applies only when a state court is unable or unwilling to hear the case. The trial commenced in April 2006.

However, the situation in Ukraine differs as war crimes trials are currently ongoing during the active phase of the armed conflict. For Ukrainian society, the emotional impact of cases against Russian military personnel is exceedingly strong. Consequently, public pressure can influence the quality of defense, a sentiment corroborated by lawyers from the Free Legal Aid Center in informal discussions.

“Don’t film me, I don’t want to be seen in this case, it’s embarrassing as it is. Tomorrow someone will run into me and ask: ‘Who are you defending?’,” said one of the defense lawyers to the MIHR journalists before the trial of nine Russian military personnel accused of a war crime. Subsequently, all of them received sentences exceeding ten years in prison. 

Other defense lawyers demonstrated a similar attitude towards their clients. For instance, when questioned by a court official about whom he represented, one of the lawyers responded, “Orcs.” Another lawyer replied to an MIHR journalist, saying, “Why, are they people?” in reference to his clients accused of mercenarism. 

We emphasize that this represents the subjective standpoint of the defense lawyers, captured outside the trial, and it is likely that it would not have significantly affected their active defense of the accused during the trial itself. However, monitoring reveals that the defense is often merely nominal. Through the analysis of court hearings, we have identified systemic issues that confirm the perception of a primarily formal defense:

• During the preparatory hearing, defense lawyers objected to the indictment and pointed out its shortcomings in only 1 out of 10 cases. In the remaining cases, defense lawyers concurred with the prosecutor during the initial review stage. 
• During the examination of the merits, defense lawyers frequently allowed most of the prosecutors’ motions to be considered by the court without raising any objections. 
• During the debates, defense lawyers seldom presented their own arguments in defense of the defendants, often aligning with the prosecutor. For example, one defense lawyer’s entire speech was as follows: “Dear court, we have concluded the deliberation of this challenging case, which is a heavy burden for all involved, so to speak. I believe that the prosecution did not violate the provisions of the CPC and has presented evidence of guilt. Perhaps, if the defendants had been present at the court hearing, some mitigating circumstances might have arisen. Perhaps. However, at present, I cannot point to any. Therefore, I request the court to impose [punishment] on my clients within the sanction of the article under which they are charged.”
• The announced verdicts were rarely appealed by defense lawyers, especially when they were unfavorable to their clients. We analyzed 30 verdicts under Article 438 of the CCU issued from 2022 until May 2023. Eight of them were appealed, accounting for approximately 25%. In another seven cases, appeals have not yet been filed, but the filing period has not yet expired. The remaining 15 cases were left without any appeals being lodged in the end. 

Andriy Yakovlev emphasizes that defense lawyers have an obligation to adhere to the highest standards of free legal aid, as this is crucial for ensuring the right to a fair trial. This requirement is explicitly stated in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 

When the work of lawyers fails to meet these standards, the fairness of the trial is compromised because the defense does not effectively counter the prosecution as it should. In such cases, there is no opposition to the prosecutor’s evidence and arguments. As a result, trust in the court diminishes, and its decisions may be deemed unfair, leading to accusations of violating the right to a fair trial by the state. 

“The state must establish conditions where the prosecutor faces a competent defense. If there is a lack of proper defense, the state must intervene by replacing the lawyer. Otherwise, this represents a significant flaw in the justice system,” emphasizes Andriy Yakovlev. 

2. Adversarial nature of proceedings: 

Due to the formal defense, the trial of alleged war criminals deviates from the essential characteristics of an adversarial process, which are vital for the fair consideration of any case. 

In such trials, the judge assumes a passive role, merely listening to the prosecution without being able to adequately assess the quality of the defense’s arguments. This pattern was evident in the majority of the cases we examined. 

As stipulated in Article 6 of the European Convention and the Geneva Conventions, the court has the responsibility to examine the validity of the charges. To achieve this, it is crucial to maintain a sense of competition and equal conditions for both the prosecution and defense. 

“The fairness of the trial necessitates equal opportunities for both sides to present evidence,” says the MIHR expert, adding: “Instead, the court often assumes a passive stance, merely evaluating the arguments presented. If the prosecution presents weak evidence, it is the role of the defense to bring this to the court’s attention. Failing an active defense, there is a significant risk of a verdict based on unconvincing evidence.” 

Consequently, many verdicts become merely formal, with the court inadequately justifying its position and failing to reflect the adversarial nature of the legal process. 

3. Passage of verdicts: 

National court judgments must adhere to IHL for recognition both within Ukraine and abroad. This is the sole means to demonstrate the capacity of the national judicial system in handling complex cases of international crimes committed during armed conflicts. 

To illustrate instances of a formal and comprehensive approach to sentencing, we will examine two court cases involving “military commissars” from Crimea accused of forcibly conscripting local residents into the Russian army. 

Both cases were heard by the Darnytsia District Court of Kyiv. The essence of the charges bears significant similarities. Konstantin Kacharov received an 11-year prison sentence. In occupied Crimea, he served as the “military commissar of the Simferopol district and the city of Alushta of the Republic of Crimea.” The court determined that Kacharov had actively participated in conscription campaigns in Crimea since 2015. Initially, civilians were enlisted in military units stationed in Crimea, and later those drafted were dispatched to other military units in the Russian Federation.

“Overall, between 2015 and 2020, disregarding numerous international obligations, the occupying authorities carried out 11 conscription campaigns, resulting in over 25 thousand civilians from the TOT of the Autonomous Republic of Crimea being summoned for military service in the armed forces and other military formations of the Russian Federation,” states the verdict against Kacharov.

In the case of Oleksandr Kabashnyi, identified as the “senior assistant military commissar of Feodosia and Kirovsky district of the Republic of Crimea,” the court found no evidence implicating the accused in all 11 conscription campaigns. Instead, the court established that Oleksandr Kabashnyi had been involved in conscripting Crimeans since 2019. Therefore, he received an 8-year prison sentence.

Both verdicts make reference to the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and other international documents. However, there are differences in the comprehensiveness of the reasoning behind the decisions.

The Kabashnyi judgment provides more substantive analysis regarding compliance with IHL and the logical framework of international criminal law. Andriy Yakovlev highlights several nuances that the judge focused on in this verdict. Specifically, the court provided an explanation as to why the actions constituted a war crime, despite the absence of such a term in the CCU.

Moreover, the court examined the trial conditions, assessing whether the in absentia proceedings were lawfully ordered, and scrutinized how the defendant was notified. The judge delved into the announcement procedure in detail, including the examination of computer screen shots displaying the message.

“It should be noted that the court’s conclusions can be subject to review if the person was unaware or could not have been aware of the in absentia proceedings,” reminds Andriy Yakovlev.

Most significantly, the court demonstrated the adversarial nature of the process, taking into account the well-reasoned motions from the defense and deeming certain evidence inadmissible.

On the contrary, lawyers believe that the verdict against Konstantin Kacharov relied on a formalistic approach. It lacks any arguments pertaining to “consideration in absentia” altogether. Additionally, the evidence to establish his guilt includes a suspicion and a wanted notice, which should not be included in this category, as these documents merely suggest that the investigation assumes the person may have committed a crime.

These aspects of the proceedings are crucial, as they impact the compliance of the Ukrainian court’s decision with IHL. The Additional Protocol to the Geneva Conventions emphasizes the requirement to notify the accused, calls for an open and fair trial, and mandates that the judges’ task is to substantiate in the verdict how these requirements have been met.

IV. Unconvincing in absentia process

In absentia refers to a distinct form of pre-trial investigation and trial conducted in the absence of the suspect or accused. The concept of special pre-trial investigation is outlined in Article 297 of the CPC, which determines the types of crimes that can be subjected to this procedure and emphasizes the requirement for a decision by the investigating judge in criminal proceedings. Crimes falling under Articles 437 and 438 of the CCU are eligible for special pre-trial investigation in absentia.

Given the unique nature of this pre-trial investigation, it is crucial to ensure that the rights of all parties involved are respected. One potential issue is the suspect’s failure to receive a summons to appear in court. Article 297-5 of the CCU states that the summons should be sent to the suspect’s last known place of residence or whereabouts, and must also be published in the Government Courier newspaper and on the official website of the Prosecutor General’s Office (PGO). It is presumed that once such publications are made, the suspect is duly informed of their content.

The monitoring data reveals that the process of notifying the accused in cases conducted in absentia often consumes a significant amount of time, equal to or even surpassing the duration of the actual trial. This unfolds as follows:

• During the preparatory court hearing, the parties attend, and the prosecutor presents evidence of the accused’s summonses being published on the website of the Prosecutor General’s Office (PGO) and in the Government Courier newspaper. 
• The court then instructs the prosecutor to repeat this procedure two more times, scheduling a hearing after each repetition.
• Only after the third publication of the summonses does the preparatory hearing commence. 

However, how effective is this time-consuming procedure during the trial? And is there a risk of verdicts being appealed in the future? Andriy Yakovlev shares his perspective: 

“The PGO website lacks a system to search for summonses by name. The standards for proving proper notification are rather stringent, so we do not fully meet this requirement. Consequently, there is a potential for verdicts to be appealed to the European Court of Human Rights (ECHR).” 

To shed light on the notification procedure comparison between Ukraine and the Netherlands, we analyzed the court proceedings in the MH17 case against Girkin, Kharchenko, Dubinsky, and Pulatov. In the Dutch court, during the initial hearing, the judge acknowledged that the summonses are sent to the registered residential address in the Netherlands, if known. If the address is unknown, the summonses are sent through the Russian prosecutor’s office or directly to the correspondent. The summonses are translated into the language of the person’s country of residence, and the delivery date is documented. If the defendant fails to appear, it is announced that representation in court is permissible. In cases where the address is unknown and the person cannot receive the summonses, the court may proceed after examining the proper service of the summonses. 

International legal aid played a crucial role in this case conducted in absentia. According to Supreme Court Judge Mykola Mazur, the process of notifying the defendants in the MH17 downing case by the court in the Netherlands unfolded as follows:

• The notice was sent by the prosecution, not the court.
• One defendant was officially served through the Russian authorities.
• The other defendants were served through unofficial channels, such as VKontakte, messenger links, and a phone call, followed by a voice examination.
• The notice included information on how to stay informed about upcoming court dates and how to contact the prosecutor with any inquiries.
• The notice provided background information on the procedure, the rights of the accused, and the consequences of failing to appear in court.

V. Complex mechanism of verdict enforcement

A court decision that has become legally binding must be enforced within the specified timeframe outlined in the Criminal Procedure Code (CPC). Andriy Yakovlev highlights the challenges involved in enforcing verdicts rendered through the in absentia procedure. Under this procedure, it is assumed that a person has chosen not to participate in the trial, thereby justifying a trial in absentia. However, proving this refusal can be problematic. It requires documentation confirming that the individual was aware of the trial, suspicion, and charges, and consciously decided not to exercise their right to participate in person. Under Ukrainian law, publication on the PGO website is considered sufficient evidence of notification, but the website itself is challenging to navigate. Consequently, other states may not recognize this as evidence of the individual’s refusal to engage in the investigation and trial.

The expert refers to the mentioned case of the MH17 trial, where the extensive efforts were made to notify the defendants about the proceedings.

“In Ukraine, investigators lack motivation to actively search for the accused and deliver formal notices of suspicion. Even the information provided on the Prosecutor General’s Office (PGO) website offers only a summary. However, the in absentia standards, as established in the case law of the European Court of Human Rights (ECHR), require more comprehensive information to be made available, including details about the ongoing investigation, the overall case, and the nature of the charges. This ensures that individuals can make informed decisions about their defense. While we are in the process of developing a system to address these cases, the actual impact and credibility of the verdicts will likely remain limited,” explains Andriy Yakovlev.

If the accused is hiding in another country and the criminal proceedings were held in absentia, the execution of the sentence is governed by international cooperation. It is evident that Russia will refuse to extradite its citizens to Ukraine or initiate criminal proceedings against them. However, the Convention on International Cooperation in the Investigation and Prosecution of Genocide, Crimes against Humanity, War Crimes and Other International Crimes adopted in May 2023 (expected to be ratified by the Ukrainian Parliament, according to information available to the MIHR) may aid in holding the perpetrators accountable. The Ministry of Justice of Ukraine emphasizes that the Convention enables courts, pre-trial investigation authorities, and prosecutors to receive international legal assistance in gathering evidence and facilitates the extradition or transfer of suspects or convicted war criminals who are hiding abroad. However, Yakovlev believes that this may also present challenges as the accused could argue that Ukraine does not fully comply with all the requirements of the in absentia procedure.

At the request of MIHR journalists, the PGO provided an explanation of Ukraine’s cooperation with Interpol and Europol, both of which play a role in enforcing court decisions when the accused is outside Ukraine. Ukraine’s interaction with Europol occurs through the Department of International Police Cooperation of the National Police of Ukraine, under the operational and strategic cooperation agreement signed on December 14, 2016.

Since November 4, 1992, Ukraine has been a member of the international criminal police organization Interpol, with cooperation taking place through the National Police of Ukraine. However, it is important to note that Interpol does not include war criminals from the Russian armed forces and Russian officials on their wanted list, as per the organization’s rules. Article 3 of the Interpol Statute strictly prohibits any interference or actions of a political, military, religious, or racial nature.

Andriy Yakovlev provides an example where a war crimes convict was nonetheless detained with the help of Europol. This occurred in the case of January 13, 1990, in Vilnius, where a Lithuanian court convicted a Ukrainian citizen named Oleksandr Radkevych of war crimes and crimes against humanity. Europol ordered his detention based on the Lithuanian court decision. However, the arrest warrant was later revoked by a Greek court, where Radkevych was detained, due to procedural violations that were proven by the defense, particularly in the preparation of the extradition order. 

Enforcing court decisions made in absentia for war crimes committed by Russian military personnel poses challenges. To effectively apprehend Russian military personnel accused of war crimes, it may be necessary to initiate proceedings based on the principle of universal jurisdiction in countries where such a procedure is provided.

This analysis is a product of the Media Initiative for Human Rights, which is part of the project “Trials on the Events of the War in Ukraine: Monitoring, Coverage, Analysis”. The project is supported by the United States Agency for International Development (USAID) under the Justice for All Program. The opinions and views of authors expressed in this publication do not necessarily reflect those of USAID or the US Government.