Why Ukraine needs fair trials for Russian war crime suspects

Ukrainian article of the week published in the 26th edition of the "What about Ukraine" newsletter on April 11th, 2024. The article was written by Maia Orel for Hromadske and was translated for n-ost by Tetiana Evloeva.

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Why Ukraine needs fair trials for Russian war crime suspects

Whenever the Armed Forces of Ukraine liberates a settlement, law enforcement steps in, and immediately begins to record the war crimes committed by Russians. According to the Office of the Prosecutor General, between the day when the full-scale war broke out [24 February 2022] and 19 March 2024, over 124,000 such crimes were reported.

When law enforcement can identify the culprit and gather enough evidence of the crimes they committed, the suspect is summoned to appear before a Ukrainian court. However, as the accused and the justice system are mostly on different sides of the frontline, it’s common practice for Ukraine to hold their trials in absentia.

“In our legal system, we take the lead from the EU, however, there were have been no cases of a foreign invasion there since WWII, which is why no one really bothered resolving such legal challenges,” explains Chernihiv district judge Vladyslav Kukhta, speaking to Hromadske. In 2023, Kukhta presided over the trials of Russian soldiers accused of committing war crimes in the village of Yahidnte.

“The USA, United Kingdom and other NATO member states have the experience of prosecuting their own servicemen who committed war crimes in foreign lands, say, in Afghanistan or Iraq,” says Kukhta “However, enemy soldiers are usually put on trial after the hostilities are over. In those cases, both parties are present in the court. Our situation is different.”

At the present moment, Ukraine is working on a new procedure to investigate and try war crimes in court. “Considering our specific circumstances, this procedure meets the requirements of a fair trial,” says Kukhta.

What are the conditions that justify making such trials in absentia? What should the presiding judges be concerned about? Are there any guarantees that such court decisions will be enforced? Who acts as the defence counsel for the Russian military personnel?

Hromadske spoke to the experts who have firsthand experience of participating in such trials.

Dilemma: trial in absentia or no trial?

Consider the case of the village of Yahidne. Russian military personnel were accused of committing war crimes against the residents of that village in March 2022. The court hearings on several of those suspects were concluded in March 2024, a whopping two years later. By the end of that period, the testimonies of the victims were less detailed than their raw statements, as time had eroded the specifics from their memories.

“The full-scale hostilities in Ukraine have been going on for two years already, and there’s no knowing how much longer they are going to last,” says Kukhta. “What happens to the recollections of those survivors if we postpone the trial until the end of the war? Besides, not every one of those victims will live to see the war end. We either come hot on the heels and hold those trials in absentia, or we may never have the chance to hold them in praesenti.”

Judge Kukhta believes that recording testimonies from the survivors for history is not enough, as those statements can only become official evidence after being presented in a courtroom, with the proper cross-examination from the prosecutor and the defence counsel — as stipulated by the Criminal Code of Ukraine.

“Trials held in absentia provide us with an opportunity to qualify the atrocities against the civilians committed by the Russian military personnel as war crimes,” adds Kukhta.

The purpose of such trials should be to properly record those crimes and bring the perpetrators to justice.

“When it comes to war crimes, there’s no statute of limitations in place,” the judge adds, “which means that those sentences will sooner or later be enforced. At the same time, a tribunal [for instance] undertaking further investigations can refer to these case files.”

During the early days of the initial Russian invasion in 2014, the Ukrainian Code of Criminal Procedure was amended to allow trials in absentia for war crimes. The updated legislation provided the list of grounds for holding such trials.

Chernihiv regional prosecutor Serhiy Krupko explains that Russian military personnel committing war crimes is a breach of the Geneva Conventions and the laws and customs of war, as stipulated in Article 438 of the Criminal Code of Ukraine.

“For those charged under this article, the Code of Criminal Procedure stipulates a possibility of trial in absentia,” says Krupko. “At the same time, the Prosecutor’s Office must prove beyond a reasonable doubt that bringing the defendant to the courtroom in person is impossible due to external circumstances.

“With the help of the Defence Intelligence of the Ministry of Defence of Ukraine, the SBU, the State Bureau of Investigations, the cyber police and other respective agencies, we determine the whereabouts of the defendant,” Krupko adds “Should the Prosecutor’s Office provide the court with sufficient evidence that the accused is currently staying either on the territories not controlled by the government or in Russia, the court makes a ruling regarding the possibility of hearing the case in absentia.”

For justice to be served, there is no room for slander

There are problems peculiar to trials in absentia.

The victim has a chance to give evidence in the trial, while the accused can’t speak in their own defence due to their absence in the courtroom.

As an example, one victim, a woman from Yahdne, claimed that a Russian invader stole her laptop. The investigation tracked a number of payments made with the victim’s account from the Russian town of Kyzyl (in the Republic of Tuva), verifying the victim’s statement. But what if the belongings claimed as “stolen” never “turn up” anywhere? What if the alleged crime is not a theft or robbery, but something different? For justice to be served properly, there should be no room for slander.

“The court never draws solely upon the victim’s testimony,” argues Judge Kukhta. “We also have regard for the testimony of other witnesses, as well as the findings of special services, and physical evidence. That is, the court ruling is supported by the weight of evidence. It’s just the absence of the accused that makes the extraction of evidence more difficult.”

Or take another typical case: it is impossible to personally serve a Russian with charges when they are not physically present on the territory of Ukraine.

In those cases, the Ukrainian Code of Criminal Procedure stipulates the option of serving someone with charges via publication in national media and on the official website of the Office of the Prosecutor General.

But do the Russian military really read the Uriadovyi Courier or the Prosecutor General’s website? If possible, the prosecutors also resort to informing the suspect’s military unit, or even the suspect in person (via messengers).

“That way, we allow the Russian military personnel to familiarise themselves with the procedural decisions regarding themselves during the entirety of the hearings,” says prosecutor Serhiy Krupko.

“We can’t post the documents to the accused, nor can we use diplomatic channels,” complains Judge Kukhta, “as those means of communication between Ukraine and Russia are currently severed. We can’t fully guarantee that the accused is properly aware of the criminal investigation against them.

“We cannot say with 100% certainty whether the accused is even alive at the time of the trial, as the court proceedings last for months, and the Russians are notoriously bad at keeping track of their fallen.

“As a judge, I’m concerned by this. It puts a higher pressure on the courts, as they must ensure that the trial is fair and that justice is served under such unfavourable conditions for the defendant.”

“One can’t refuse to defend a suspected war criminal”

While the victim has a right to accuse someone, the accused has the right to defend themselves, even if the charge is being a war criminal. When present, the accused can waive their right to counsel, however, during the in absentia trials participation of a public defender is required.

Those public defenders have it tough: they have to do their best while being deprived of the opportunity to coordinate the line of defence with the accused.

Public defenders for those accused of war crimes are appointed by the Centres of Free Legal Aid, by the ruling of either investigators or prosecutors. Here we’re talking about the lawyers funded from the state budget of Ukraine. There is no specific selection process for appointing a lawyer for a suspected war criminal for their trial in absentia.

Lawyer Mariia Naselenko explains that the lawyers appointed by the Centres of Free Legal Aid are scheduled to take on this job.

“Should the investigator or prosecutor send a request for a public legal defender for some criminal case, the one that’s on duty on that day will be appointed,” she explains.

This is how Naselenko herself was appointed as a public defender in the Irpin court for Aleksandr Visielkov, a Russian soldier accused of brutal treatment of civilians during the Russian military occupation of the Kyiv region.

“One can’t refuse to defend a [suspected] war criminal unless there’s a legitimate reason, like an illness of the public defender,” says Naselenko. “In this case, emotions are a testament to the lawyer’s lack of professionalism.”

“You defend a [suspected] war criminal the same as you would an ordinary citizen, as if they are sitting right next to you in the courtroom,” says Naselenko. “The defence is based upon careful consideration of the rules and proceedings stipulated in the Ukrainian Code of Criminal Procedure and the international conventions.

“Say, the defence has to analyse whether the prosecutor’s office and the investigators complied with the requirements of the Code of Criminal Procedure when gathering evidence for the crime. After all, any violation of those requirements challenges the integrity of the evidence. Besides, one should keep in mind that the [suspected] war criminal is a military personnel who swore allegiance to his country, and therefore his mission on the territory of Ukraine was defined by his military duty, namely statutes, and orders from higher-ups in the chain of command.

“Does simply following orders constitute a crime? The aggressor state may not recognise the international law and thus violate it. However, Ukraine adheres to international law. Therefore, we have to understand whether the Russian military personnel acted in violation of the international documents regarding the laws and customs of war.

“If they did violate those laws and customs, their behaviour was criminal. It is up to the public defender to analyse that military serviceperson’s actions from that point of view.”

“The just court must provide equal conditions for both parties”

According to Judge Kukhta, every defence counsel comes up with their own tactics. Most of the time, they dwell on the fact that a military serviceperson couldn’t refuse to execute the order of their commander. Or they point out the mistaken identification by the victim when presented with images of Russian servicemen. Others note that their specific defendant never committed the crime themselves, however, and only stood by while the crime was being committed by other Russian military personnel. For instance, when a suspect was standing by a man who threw a hand grenade under the victim’s feet.

Judge Kukhta emphasises that “Regardless of the defence tactics, the lawyers are hardly ever flaccid. They ask the victims numerous questions, so sometimes those victims take offence at them. However, the defender must ascertain whether their client was aware of the culpability of their actions.

“ Should the defence counsel be flaccid, the court may request another defender from the Centre of Free Legal Aid, as a flaccid layer fails to secure the defendant’s right to a representation.

“The just court must provide equal conditions for both parties,” adds Kukhta. “If the court is unfair, the criminal can get their sentencing revoked — would that be better for the victims if the criminal escapes punishment due to the negligence of the court?”

According to the General Prosecutor’s Office, over 98 persons have been convicted of violating the laws and customs of war since 24 February 2022. 15 of those verdicts were appealed against. 13 of those verdicts were upheld, while another two appeals are ongoing.

The last resort for a defendant is the court of appeal in the Supreme Court of Ukraine, where a defence attorney can file a causational appeal.

At a journalist’s request from Hromadske, the General Prosecutor’s Office informed that “as of now, the court of cassation hasn’t revised any verdicts of the aforementioned category,” while the Supreme Court, responding to the same request, informed that between the day when the full-scale war broke out,24 February 2022, and 1 March 2024, one cassation appeal was heard in the Court, and the initial verdict was upheld.

Future prospects: extradition for war criminals from third countries

Information on the sentences for war criminals is published on court.gov.ua. Even if the convicted Russians fail to find their information there, it is unlikely they would risk visiting Ukraine after the war. It remains unclear whether there will be any agreement between Ukraine and Russia on extraditing Russian war criminals after hostilities end. Therefore, one can but hope that some other country visited by the convicted war criminal will extradite them to Ukraine.

“Those convicted in Ukraine in absentia can be detained by a third country,” says Kukhta. “If there’s an extradition treaty between that state and Ukraine, that country’s court can decide whether the conviction in absentia complied with international law, and, accordingly, whether they should extradite the convict to Ukraine. We will not be able to influence their decision in any way.”

While we can reiterate time and again that we must not give concessions to Russians accused of war crimes, their treatment by the Ukrainian courts is by no means lenient. We must do our best to enforce their rights during their trial in absentia, so that later those criminals are left with no pretext to overturn their conviction.