The Rights of Persons Suspected and/or Accused of Grave International Crimes

Safeguards under Criminal Procedure Law of Ukraine

The presumption of innocence determines the scope of the rights and guarantees provided by the Constitution of Ukraine and criminal legislation to someone who is being prosecuted[554]. In this context, the functions of law enforcement agencies and prosecutors are related to proving a person's guilt in committing a criminal offence. Considering that justice for the alleged conflict-related crimes in Ukraine is administered based on general criminal procedure rules, alleged perpetrators of grave international crimes have the same possibilities to protect their rights in criminal proceedings as any other individual facing criminal accountability.

Ukrainian criminal procedure law outlines fundamental rights and guarantees for all participants in the process. The legislation distinguishes two statuses for the perpetrator: a suspect (a person who has been notified of suspicion as prescribed by Articles 276–279 of the CPCU, or a person detained on suspicion of committing a criminal offence, or a person in respect of whom a notice of suspicion has been drawn up but not served due to failure to establish the whereabouts of the person, provided all measures have been used as specified by the CPCU to serve the notice of suspicion) and an accused (a person whose indictment has been submitted to the court as prescribed by Article 291 of the CPCU)[555].

Such persons in criminal proceedings have the right to:

• know of the essence of the criminal offence and the contents of the notice of suspicion or charge against them;
• receive information about their rights, possibilities to protect their rights and the available procedural mechanisms;
• be represented in the proceedings by a defence counsel and receive qualified legal aid;
• play an active role in procedural actions and protect their rights in the course of the investigation. For example: to remain silent as regards the suspicion or charges against them or refuse to answer questions at any time; to provide explanation or testimony about the suspicion or charges, or refuse to provide those at any time; to collect and submit evidence to the investigator, prosecutor, or investigating judge; during the procedural actions, to ask questions, submit comments, and raise objections to the conduct of the procedural actions that are recorded in the protocol; to file a request to undertake specific procedural actions, security measures for themselves, their family members, close relatives, property, residence, etc.;
• have access to the criminal case file and to receive copies of procedural documents; and
• appeal against procedural decisions[556].
  

In addition to this, the accused has a broader set of procedural rights since they acquire this status at the trial stage and, accordingly, should be able to defend their rights before the court. These include, for example, the right to: participate in the cross examination of the prosecution witnesses during the trial or request their examination, as well as request the summoning and examination of defence witnesses under the same conditions as prosecution witnesses; collect and submit evidence to the court; express their opinion on motions of other parties during the trial; deliver statements during court debates, etc[557].

When notified of the relevant procedural status, the suspect or accused must also receive a reminder as to their rights and responsibilities, which is mandatory according to the CPCU[558].

When foreign nationals face criminal prosecution, they have additional procedural rights to:

• use their native language, receive copies of procedural documents in their native language or any other language they are proficient in, and, if necessary, use the services of an interpreter at the expense of the state; 
• meet with a representative of their country's diplomatic or consular mission, which the administration of the detention facility is obliged to provide[559].

The right to Defence

The CPCU provides for mandatory participation of a defence counsel in criminal proceedings. Such functions may be performed only by an advocate listed in the Unified Register of Advocates of Ukraine, or in respect of whom the Unified Register of Lawyers of Ukraine does not contain information on suspension or termination of their right to practice law[560]. The right to a defence counsel in criminal proceedings is granted to:

• a suspect;
• a person in respect of whom there is sufficient evidence to notify of suspicion of committing a criminal offence, but who has not been notified of suspicion due to their death;
• accused;
• convicted;
• acquitted;
• a person in respect of whom compulsory medical or educational measures are to be applied or the issue of their application is being considered[561];

Such persons may either choose a defence counsel on their own or exercise the right to receive free legal aid in accordance with Article 14 of the Law ‘On Free Legal Aid’[562]. Considering that the majority of criminal cases related to grave international crimes are considered in the absence of the suspect/accused or involve detained Russian military personnel who are unable to use the services of lawyers in Ukraine of their choice, a defence counsel from the free legal aid system is appointed to them by the investigating judge. He or she may be engaged for the entirety of the process or in a one-off procedural action.

In theory, the mechanism of free legal aid enables the suspect/accused to be properly represented and protect their rights in the process. Certain actions within criminal proceedings require the mandatory presence of a defence counsel, a stipulation put in place to ensure the admissibility of evidence.

Defence lawyers with experience in cases under Article 438 of the CCU indicate the challenges they have encountered: negative public reaction to the defence of the accused/suspect; lack of established case law, consequently guidance; lack of access to the suspect/accused; the need to acquire new knowledge and skills; and overt or covert bias among the judges, which inevitably results in a guilty verdict, negating the purpose of an effective defence. The defence lawyers also highlight the negative public perception of adequate defence to persons accused of war crimes. The stereotypical association of a defence lawyer with their client is particularly evident in such cases, impacting how defence lawyers are perceived in this context[563].

The greatest threat for the defence lawyers in conflict-related cased is to their life and health[564]. This is especially true when clients choose their own defence counsels[565]. On the other hand, engagement of defence lawyers from the state’s free legal aid system may raise questions over their personal impartiality. The state, in this case, acts as a customer of services, controls the quality and limits their provision, which in turn may become a factor affecting defence counsel’s strategies and decision in the process. In addition, a lawyer may be affected by the consequences of the armed conflict, which may be felt in the course of his or her work as a defence counsel for a Russian military officer charged with grave international crimes. For example, after 24 February 2022 there were cases where lawyers sided with the prosecution during court hearings[566] or did not draw the court's attention to the need to thoroughly investigate all circumstances of the case during the public trial of the Russian servicemen[567].

Similarly, instances of violations of the right to defence in cases of Russian prisoners of war are cited in the Report of the Office of the UN High Commissioner for Human Rights (OHCHR) on the Treatment of Prisoners of War and Persons Hors De Combat in the Context of the Armed Attack by the Russian Federation Against Ukraine. For example: ‘...Although all the defendants were assigned free legal aid lawyers, in a number of cases, they could only meet them for the first time or consequently during court hearings, which often took place via teleconference. These defendants were thus deprived of the right to speak confidentially with their lawyers before the hearings and the right to prepare a defence. Moreover, some interviewees claimed their lawyers sided with the prosecutors, advising them to plead guilty for a swifter release as part of an exchange. POWs were told by prosecutors, SBU officers, and sometimes their lawyers, that if they did not plead guilty, the investigations and court proceedings in their case would last for years with little prospects of release upon exchange’[568].

Another scenario emerges in cases tried in absentia. Often, defence lawyers appointed from the free legal aid system play a role that is merely to ensure formal compliance with the requirements of the criminal procedure legislation. In some instances, defence lawyers in such proceedings do not actively participate in the process[569]. In these cases, the prosecution presents all information about the alleged illegal actions of the suspect or accused to the court, and the presence of a defence counsel is merely a procedural formality to ensure the legality of the entire process. In other trials, defence counsel actively present their case even in the absence of the accused. They use all the shortcomings and gaps of criminal and criminal procedure legislation, as well as prosecution’s shortcomings during the investigation, to strengthen the defence position[570]. However, such a proactive and earnest disposition may result in tragic outcomes from public hatred and persecution to murder[571].

At the same time, the national legislation of Ukraine and international standards[572] governing the legal practice safeguards are designed to ensure the independence and impartiality of a defence counsel in the process, the conditions for effective professional activity and proper defence. In particular, they provide for protection against interference with a lawyer's legal stance or association of the lawyer with the client, the counsel’s personal safety; a prohibition on holding defence lawyers liable for their statements in a case (including those reflecting the client's position) or comments in the media, as long as they do not breach the counsel's professional duties; and the  possibility for a defence lawyer to refuse to represent a client in case of a conflict of interest[573].

Unfortunately, there were violations of the rights of lawyers working on cases related to the consequences of the war even before the full-scale invasion. For instance, the report of the Office of the United Nations High Commissioner for Human Rights titled ‘Human Rights in the Administration of Justice in Conflict-Related Criminal Cases in Ukraine’[574] cites 12 documented attacks against privately contracted lawyers between 2014 and 2020 which are believed to have been motivated by their professional activities. The report further expresses concern over the authorities' failure to prevent and investigate these incidents. Investigations into documented attacks mentioned in the report failed to lead to the identification or prosecution of perpetrators. Given the demand for justice and the general pain inflicted by the Russian aggression on Ukrainian society, the situation may potentially escalate after the full-scale invasion when thousands of cases on international crimes will be sent by investigative authorities to courts and public trials will begin.

The facts above and risks in criminal proceedings related to the consequences of the armed conflict in Ukraine indicate potential challenges to ensuring the right to a fair trial. Despite the negative public sentiment towards alleged perpetrators of grave international crimes, in order to ensure a legal process in line with international standards, it is crucial to ensure their effective implementation at every stage of the proceedings: from ensuring equal guarantees for the defence to amending relevant legislation. At the same time, training of lawyers in international humanitarian law and international criminal law is an important step along with the training of other participants in the criminal process[575].

Capacity of the Penitentiary System of Ukraine

The penitentiary system of Ukraine comprises 182 institutions, including 29 located in the area of Donetsk and Luhansk regions outside of Ukraine’s control and 5 in the Crimean Peninsula, and 7 facilities in other areas under Russian control[576]. There are no convicts held in 39 facilities (of which 22 are correctional colonies) due to the optimisation of the system. As of 1 January 2023, there were 42,726 detainees in penitentiary institutions and remand facilities, including 27,179 individuals in 61 active penitentiary institutions, out of which 20,978 people were in medium and maximum security correctional colonies[577].

Discussions have been ongoing for years about the limited capacity of the detention facilities. The length of court proceedings, repeated application of preventive measures in the form of detention, and the lack of resources needed to renovate the penal system's facilities lead to overcrowding in both temporary detention facilities (remand centres) and prisons[578]. Since 2017, the system has been trying to optimise existing penal institutions by inactivating certain places of detention and relocating convicts to facilities with better conditions[579]. At the same time, the general conditions of detention in such places remain the subject of individual applications to the European Court of Human Rights, and its decisions allege systemic violations of human rights guarantees[580].

Following the full-scale invasion of Ukraine by the Russian Federation, the available penitentiary facilities were reassessed. These institutions were supposed to be used to ensure the detention of Russian military personnel, both those who were detained as prisoners of war and those who were later convicted by the Ukrainian courts. Thus, 51 detention facilities and 1 camp for the detention of prisoners of war were created from the available resources of the penitentiary system at the expense of existing places of detention[581]. The detained prisoners are isolated in these areas, and their regime of detention includes compulsory labour. According to the Ukrainian Minister of Justice, these facilities comply with the requirements of international humanitarian laws, which define guarantees for prisoners of war[582]. 

The greatest challenges in practice began to arise when captured Russian servicemen started to be prosecuted by national authorities. At the stage of investigation, they are not subject to preventive measures in accordance with the requirements of the CPCU. This approach is based on the idea that there is no risk of their absconding from justice, as they are already in places of deprivation of liberty within the meaning of IHL.

Some of the POW detention facilities continue to operate as remand centres, where Russian military personnel are held separately from other detainees, but within the same facility. This approach further complicates the normal routine of the facility: prisoners have to be additionally guarded, as other detainees may pose a threat to their lives and health. In addition, Russian prisoners of war have limited access to communication with the outside world. Any contact with the detainees is carried out only with the permission of the investigator in the criminal proceedings against them. And given the context of the armed conflict and their Russian citizenship, such persons are ultimately able to communicate only with their defence counsel from the free legal aid system which could potentially be classified as a violation of the Geneva Conventions (III).

A distinct legal status in criminal proceedings is provided for convicted persons - an accused whose court verdict of guilty has entered into force[583]. The type of institution where an individual is placed is determined by the sentence. Considering that the penalty for grave international crimes under the CCU is either a fixed-term imprisonment or life imprisonment, the relevant facilities for the execution of such sentences are general correctional colonies[584].

Official statistics do not specify how many inmates in penitentiary institutions were convicted of grave international crimes among the total number of prisoners. It is also impossible to establish how many Russian prisoners of war have actually been transferred to serve their sentences after their conviction (as of 01 January 2024, a total of 73 sentences were passed under Article 438 of the Criminal Code of Ukraine)[585]. Given the processes of exchanging such persons for captured Ukrainian military personnel, it remains an open question how long they are held in detention facilities or how quickly they are repatriated to the RF as part of prisoner swap[586]. Such information is difficult to verify in practice as access to court decisions under Article 438 of the CCU in the register of court decisions is limited, and information on decisions on the release of persons from serving their sentences and pardons is classified.

Based on the statistics of the registered grave international crimes in Ukraine, the number of potential convicted persons who could be placed to serve their sentences in the relevant facilities may exceed the number of persons currently held in penal penitentiary institutions. That is assuming that these individuals will be prosecuted and serve their sentences in Ukraine in all proceedings initiated at the national level. These demands do not correspond to the existing infrastructure of the system, particularly regarding the number of correctional colonies, and are not factored into the calculation of budget allocations needed for the development of the penal system[587].

Claims that the national justice system is able to handle all registered proceedings for grave international crimes overlook among other things the factor of execution of the sentences. There may not be enough space in the penitentiary system for the anticipated number of convicts. On the one hand, most trials are currently held in absentia, which so far removes the problem of how to execute a court sentence in practice. On the other hand, in anticipation of the enforcement of such verdicts in the future and potential extradition of convicts from other states, the penitentiary system must be prepared to accommodate these individuals, ensuring that the conditions will not violate prisoners’ human rights.