Participation of Victims of Grave International Crimes in Justice Related Processes

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:

1. 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].

2. “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].

3. 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.

Access of Survivors to Justice

Numerous issues within the Ukrainian justice system affect the level of public trust in the relevant authorities among the population. Since the onset of the armed conflict in 2014, the survivors’ demand for justice has increased significantly, but the perception of the justice system's effectiveness has not adapted to properly respond to such a demand[535]. In particular, the results of the nationwide polls show that six months after the full-scale Russian invasion only 5% of respondents had contacted Ukrainian law enforcement agencies in relation to the armed conflict[536]. When asked about the mechanisms of justice for grave international crimes committed in Ukraine, 5% of respondents expressed confidence in the effectiveness of Ukrainian courts. Conversely, 63% of respondents mentioned special courts with the participation of national and international judges, and 23% leaned towards international institutions[537]. Meanwhile, non-governmental organisations enjoy a much higher level of public trust at 41.1%, compared to law enforcement agencies like the NPU at 27.3%, prosecutors at 11.4%, and courts at 11.3%[538].

Since 2014, a large number of non-governmental organisations have focused their work on documenting armed conflict-related violations in Ukraine. Starting with the events in the Crimean Peninsula and Donbas, and across the entire country since 2022, evidence of grave international crimes and significant human rights violations has been continuously collected in Ukraine[539]. NGOs are not restricted by the criminal procedure legislation, so many challenges faced by law enforcement agencies are not relevant for their activities. Specifically, the work of NGOs has made it possible to record the events in the occupied Crimea. In turn, NGOs have taken on the responsibility to provide support to survivors of the armed conflict, which includes assistance in tackling humanitarian and social issues, as well as legal aid, such as representing them in national and international justice related processes (victims representation).

Due to the large number of NGOs addressing related issues pertaining to documenting grave international crimes, it is important to ensure cooperation between them. Since 2014, the situation has persisted where the same survivors can be interviewed by representatives of different NGOs, which increases the risk of re-traumatisation. Moreover, with the ongoing investigation by the ICC into the situation in Ukraine, the existence of multiple versions of survivors’ testimonies may negatively affect the Court's proceedings or even render their testimony irrelevant to the Court. And although the ICC together with Eurojust published the Guidelines on documentation, they are rarely adhered to[540].  On the flip side, some of the survivors are so anxious to get justice that they are willing to tell their stories as many times and to people (NGOs, investigators, journalists) who will listen. A balance needs to be also struck between the strict requirements of formal investigation, where a victim should not be interviewed multiple times and the need to promote legislative changes through advocacy which is most effective when it is based on real stories and testimonies of the victims and survivors.

In turn, NGOs try to cooperate with national justice institutions and highlight the systemic problems faced by survivors. The authorities also facilitate this interaction by engaging civil society in discussions on issues related to the armed conflict or aspects of the authorities' activities. However, the biggest challenge for NGOs is how to make the information they collect admissible in criminal proceedings. According to the general rules of the CPC of Ukraine, such information cannot be used as evidence in the proceedings. Potentially, such data may be considered as:

• hearsay: the CPCU allows for the use of hearsay evidence. Procedurally, this means that representatives of NGOs who have collected the relevant information should testify as witnesses. However, compared to other types of evidence obtained directly, such information will have less probative value in criminal proceedings[541];
• material evidence: material evidence collected directly by NGOs at crime scenes also cannot be used in accordance with the CPC requirements. If the proper procedures for collection are not followed, there is a risk that such evidence will be declared inadmissible in court[542];
• appeals: given the challenges in the information exchange between NGOs and law enforcement agencies, the most effective method for domestic criminal proceedings is still the exchange of information. This involves providing written information as to the facts of the alleged crimes committed and the relevant contacts of the survivors with their permission. This method ensures that the data source is verified and the information about the data source can be attached to the proceedings. Therefore, the direct collection of evidence will be the responsibility of the authorities[543].

Regarding the engagement of survivors in criminal proceedings, the procedural status of “the one who suffered” offers the most opportunities to protect their rights. These range from the ability to present evidence in criminal proceedings to the right to file a civil lawsuit for compensation for damages within a criminal case. Such a person, either in person or through the lawyer can actively participate in the criminal proceedings, stir in a certain direction, and receive up-to-date information about its outcomes. However, this requires being proactive, as even to receive updates about the investigation is not automatic, it is necessary to contact and keep in regular touch with the investigator or prosecutor in the case.

The legislation on free legal aid defines certain categories of survivors of armed conflict among the aid recipients, which should make legal services more accessible. These categories include:

• Internally displaced persons;
• Ukrainian citizens residing in the temporarily occupied territory on issues related to the protection of violated, unrecognised, or disputed rights, freedoms, or interests of individuals (including compensation for harm resulting from restrictions on the exercise of ownership of real estate or the destruction or damage of such property) in connection with the Russian Federation's armed aggression and the temporary occupation of Ukrainian territory;
• Victims of criminal offences against sexual freedom and sexual inviolability, torture or ill-treatment during hostilities or armed conflict – in criminal proceedings initiated upon the commission of such criminal offences;
• Persons in respect of whom, in accordance with the Law of Ukraine ‘On Social and Legal Protection of Persons Deprived of Personal Liberty as a Result of Armed Aggression Against Ukraine and Members of their Families’, the fact of deprivation of personal liberty as a result of the armed aggression against Ukraine was established - during such deprivation of liberty and after release in connection with the protection of rights and legitimate interests violated due to deprivation of personal liberty as a result of armed aggression against Ukraine[544].

The Office of the Prosecutor General has now taken over the function of communicating with survivors. A separate internal document was adopted within the prosecutor's office that defines approaches to working with survivors of grave international crimes[545]. This document provides for the introduction of a support mechanism through the following components:

• The establishment of a Coordination Centre for Victim and Witness Support[546].
• The introduction of coordinators for victim and witness support who will act as part of the Coordination Centre.
• The work of the Interagency Working Group to improve coordination between state authorities and non-governmental organisations.
• The establishment of a referral mechanism based on institutional arrangements between the Coordination Centre, law enforcement agencies, ministries and departments, and other support services to take measures to protect and comply with security mechanisms, provide counselling, and other relevant assistance to witnesses and victims[547].

The mechanism suggests specific actions such as the establishment of a record-keeping system, assessment of the risk of retraumatisation, and provision of clarifications on the rights of victims and witnesses during proceedings[548]. Despite the proposed measures, the adopted mechanism does not cover the protection of victims and witnesses. Rather, it centres on tackling social, psychological, and legal issues associated with their participation in criminal proceedings. The process of interoperability with pre-trial investigation authorities is still unresolved, as both the Coordination Centre and the mechanism were instituted exclusively on the basis of the OPG and regional prosecutor’s offices. It remains unclear how the Support Centre will communicate with other authorities. Presently the only available format is through an establishment of another interagency working group, however, all its communications will be advisory in nature and not likely taken into consideration by the other participants.

Finally, the lack of witness and victims protection programmes and legislation makes it unclear how the authorities will ensure their safety and security should they decide to actively engage with them. The Support Center is presently operating as a referral entity to other external organisations that provide the actual assistance. As of January 2025, the Center reportedly provided assistance to more than 1,100 victims, most of whom were children (873)[549]. The Center's work has also expanded in regions where specialized prosecutor’s offices for crimes committed in the armed conflict operate.

The intensification of negotiations on Ukraine's accession to the EU has raised a number of issues, including in the field of justice, which need to be reformed with effective solutions in line with European standards. One of these areas is the support for victims of violent crimes, as well as reforming the system of security measures for victims and witnesses in criminal proceedings[550]. Despite the fact that EU recommendations for Ukraine do not specifically focus on the protection of victims of international crimes, it is expected that the already established infrastructure in the form of the Center will expand its activities to a wider range of people.

Following the example of the Center, the issue of working with victims and witnesses has also begun to be raised at the level of the judiciary. On 11 November 2024, the Council of Judges of Ukraine approved the Protocol for Courts on Working with Vulnerable Victims and Witnesses[551]. Its approach should be applied not only to work with victims and witnesses of grave international crimes. For example, the Protocol contains a list of vulnerable categories of victims, including victims of violent crimes, women, children (among others) who should be able to access protection and security measures. The Protocol also envisaged that with donor support, four courts would launch pilot projects to create comfortable conditions for victims and witnesses in the courtroom[552], but given the political processes, it is unclear how this initiative will end and whether the judiciary is able to implement new approaches on its own. 

Given the lack of unified approaches to working with survivors of atrocity crimes in accordance with international standards (in particular, measures to prevent victims from the risk of re-traumatisation and effective witness protection measures[553]), not all survivors feel prepared to actively engage in the process. Its length, the need to participate in a large number of procedural actions and provide testimony multiple times both at the pre-trial investigation and trial, the potential direct interaction with the accused during the trial, or even trials in absentia of the accused, which does not guarantee the execution of the court's decision and lack of quality state support — all of this negatively impacts the mental well-being of survivors and their intention to see the process through. Furthermore, the initiatives adopted to date do not introduce a systemic approach to assisting survivors; instead, they propose ad-hoc solutions. For these initiatives to have a sustainable impact and establish consistent practices, an appropriate system aimed at victim identification and support must be developed and maintained by experienced and competent professionals at all levels and reinforced by appropriate legislative framework.

Victims and survivors should be placed at the centre of the justice related efforts whereas presently they are mostly regarded and treated as means to an end by the domestic justice system.