Background to the Legislative Challenges
Over the past eleven years of the ongoing armed conflict in Ukraine, there have been numerous amendments made to the criminal and criminal procedure laws. However, these amendments were not organised in a systematic manner due to the lack of practical strategic vision among policymakers and implementers of this legislation. Although there have been a number of strategies and strategic plans prepared by the international experts for the Office of the Prosecutor General (the OPG), they have remained unimplementable for the most part due to the lack of basic legislation in place. Those legislative amendments that have been adopted were chaotic and inconsistent with the needs and priorities, mostly of an ad-hoc and reactionary nature. Instead, the legislators have needed to address the following fundamental challenges comprehensively:
- lack of access for the investigative authorities to some of the territories where the alleged violations took place;
- lack of jurisdiction for national police to investigate war crimes;
- to establish and regulate cooperation with the military in order to carry out tasks that are primarily the responsibility of law enforcement agencies but cannot be implemented due to the ongoing hostilities and restricted access to certain territories;
- the possibility to use classified intelligence information and open-source data as evidence;
- preservation of evidence for prolonged periods of time;
- ensuring chain of custody documentation
- moving of a large number of victims/survivors and witnesses within Ukraine or abroad and thus their unavailability during investigation;
- lack of access to perpetrators;
- protection of victims and witnesses from intimidation and various safety and security risks;
- insufficient fair trial guarantees;
- establishing guarantees for the implementation of a victim-oriented approach;
- proportionality of sentences to the rank of perpetrators and degree of gravity of committed crimes;
- safeguards for the defence lawyers guaranteeing physical and mental safety and security;
- lack of capacity to ensure presence of the victims and witnesses who are based abroad or in the occupied territories for procedural actions or court proceedings;
- etc.
