Specific legal provisions

Specific legal provisions

Chain of custody

The provisions of the criminal procedure legislation of Ukraine do not define a special procedure for the transfer of evidence between pre-trial investigation and prosecution authorities (chain of custody). While the legislation clearly defines the procedure for conducting investigative actions, obtaining and procedurally processing evidence, the range of persons who may be involved in the investigation, and the procedure for conducting covert investigative actions, these provisions do not require the authorities to record who has access to the collected information and at what time, or how the evidence is transferred.

In reality, all information collected by the investigator or prosecutor during the investigation of a particular case is included in the body of materials registered as part of the investigation logged in the URPTI. The entire investigation process may include materials collected in a general manner, as well as those that have limited access. They may be contained in classified volumes and are stored in a separate established procedure.

Additional preservation requirements are provided only for material evidence obtained in criminal proceedings. The general rule of the CPC of Ukraine stipulates that the party to whom such evidence is provided is responsible for the preservation of such evidence[257]. The responsibility for the preservation of material evidence attached to the criminal proceedings lies with the investigator of the relevant investigative body conducting the criminal proceedings[258]. There are two types of material evidence:

• stored together with the criminal case file - they are small in size and can be directly attached to the case file. They are packaged and sealed in a way that makes it impossible to tamper with them;
• stored separately from the criminal case file - they are quite bulky and require a special storage location. To identify such evidence, a tag with information about the number of the criminal proceedings, the type and date of the procedural action during which it was seized, and the signatures of the persons present during the action shall be attached to it[259]. 

Each pre-trial investigation body must keep a register of the material evidence in its custody. This register records information about the number of criminal proceedings in which such evidence was seized, the data of the responsible person, and information about the procedural action taken. The basis for registering information on physical evidence is the protocol of the procedural action during which the evidence was seized. If a decision is made to change the place of storage of evidence, this fact must be supported by a relevant document[260].  In addition, it is provided that material evidence cannot be stored in conditions that may lead to its destruction or damage[261]. 

The CPC of Ukraine stipulates that prior to completion of the pre-trial investigation, the investigator or prosecutor, at the request of a party to the criminal proceedings, must provide case files for review. Exceptions are allowed only in relation to data on the application of security measures to persons involved in criminal proceedings, as well as those materials, the familiarization with which at this stage of criminal proceedings may harm the pre-trial investigation[262]. In practice, it is up to the investigator or prosecutor to determine the extent to which materials may be disclosed to the victim's representative or the defense while the investigation is ongoing. At this stage, the prosecution's position has not yet been finalized, so the requirements of the law allow not to fully disclose the array of information collected to the other party.

The case file designated for submission to the court is formed when preparing a notice of suspicion and an indictment in criminal proceedings. At the same stage, the CPC of Ukraine stipulates that the collected materials should be disclosed to the defense and provided for familiarization, the opportunity to make a copy and reflect the collected evidence[263]. 

The CPC provides for a full definition of what is included in such materials at this stage of court proceedings. The list includes the following:

• documents and other materials submitted to the court during the trial by the parties thereto;
• court decisions and other documents and materials relevant to the criminal proceedings[264]. 

The limits of existing legal regulations do not take into account the practical challenge involved in collecting, safely preserving, and maintaining the chain of custody on evidence relevant to investigations of core international crimes committed after 24 February 2022. Among them are: 

• change of jurisdiction in war crimes proceedings, resulting in the transfer of materials between different pre-trial investigation bodies; 
• involvement of many bodies in investigative actions, after which it is difficult to collect the results of their work within one criminal proceeding;
• large scale of registered crimes and the need to systematize criminal proceedings, as the evidence collected on specific facts of crimes may be relevant for the investigation of larger-scale and systemic actions; 
• a common practice of splitting criminal proceedings against identified defendants, in which the collected evidence should be duplicated in different case files; 
• regular seizure of material evidence, in particular at the sites of shelling, which requires appropriate storage;
• expanding practice of collecting information from open sources and electronic evidence in the investigation of war crimes, which requires a separate storage system and regulation of the procedure for access to such data.

Preservation of evidence

Alongside the process of evidence collection, the issue of its preservation comes to the fore. In the context of international courts, the manner in which evidence related to grave international crimes is preserved has a direct impact on its admissibility in subsequent court hearings. Presently, Ukrainian legislation offers somewhat narrow criteria for preserving evidence during the pre-trial investigation phase. Thus, an investigator or prosecutor in criminal proceedings can seize:

• material evidence;
• items and documents that are prohibited from circulation (unless the owner has a permission to purchase and store them);
• identification documents of detainees, suspects, or accused (defendants);
• any other documents pertinent to the case at hand;
• money and other valuables found during the seizure of the property of suspects, accused, defendants, or persons who bear material liability for their actions, which can be seized to compensate for material damages or enforce a sentence in terms of property confiscation[265].

Existing procedure does not provide for a mechanism for the long-term preservation of evidence in digital formats (as it predominantly relies on paper-based documentation) and storage. It also does not establish guidelines for accessing designated storage sites. Consequently, the matter of dedicated servers for holding digital data, which serves as evidence in criminal cases, remains unresolved both in terms of legislative regulation and practical implementation.

Following the full-scale invasion, the Office of the Prosecutor General was granted storage space on Microsoft and Amazon servers, as international aid, to store evidence in a digital format. Yet, it is not clear how this digitally stored information should be protected. There is no national legislation to regulate this issue which means it is a vulnerability which will be exploited by defence once a case goes to trial. In addition, the OPG are using other technical programmes for processing evidence such as Palantir, Microsoft Azure and Skydio drones, whose use is not regulated either[266].

There are also ongoing discussions about establishing an independent information system centred around the OPG, designed to preserve and analyse evidence of grave international crimes. The SMEREKA system is supposed to enhance the coordination and performance of prosecutors, along with improving procedural guidance[267]. However, it will be used for all criminal proceedings within the e-Case database, which aims to digitalise criminal proceedings, rather than being exclusive to grave international crimes. Discussions concerning the technical decisions and special systems such as SMEREKA must also include development of specialised legal regulations aimed at protection and storage of the data, considering security risks posed by the international armed conflict.

Issues frequently emerge regarding the preservation of large-sized material evidence. Responsibility for storing it primarily falls on the pre-trial investigation bodies and the court. These items can also be entrusted for storage to businesses, state institutions, and organisations, a process which must be duly documented with a corresponding protocol[268]. In this context, it is entirely appropriate to raise questions about the places where items like shell fragments or confiscated military equipment—potentially critically important evidence in war crime trials—are stored. In practice, this means that each department of the pre-trial investigation body must have enough dedicated space to accommodate all seized physical evidence. Their storage requires space, specific conditions, and long-term retention for the duration of the investigation. Most investigative departments in the regions do not have the proper conditions and infrastructure for such storage.

Weapons and ammunition are typically stored in the commercial units of the Ministry of Internal Affairs (MoIA) and Security Service of Ukraine, as well as their regional and local departments following inspections, and also state forensic centres, military unit warehouses, or warehouses of designated state enterprises or organisations[269]. Given the ongoing armed conflict on the territory of Ukraine and the continuous artillery, drone, and missile attacks since 24 February 2022, there is an increased risk of the destruction of the physical evidence, as many storage locations are targeted. For example, mobile phones of Russian soldiers, potential evidence sources, often do not make it into criminal investigations. They are either confiscated in the field by military personnel without passing them on to the investigative authorities or destroyed in combat.

When a court makes a decision in criminal proceedings or decides to close it, the issue of seized evidence is addressed separately[270]. In the context of investigating grave international crimes, evidence obtained in one proceeding may be relevant for another. Thus, it is crucial that the protocols for evidence preservation and related procedural decisions acknowledge the possible impact that the evidence may have on the investigation of other alleged grave international crimes.

Standards

Evidence of an uninterrupted chain of custody is important to prove the integrity of evidence from the moment it is seized or collected until it is presented in a criminal court or other accountability mechanism[271]. Establishing and following a chain of custody procedure is an integral part of the admissibility and reliability of evidence in a court of law. Under the Regulations of the Office of the Prosecutor of the International Criminal Court, the Office of the Prosecutor which is responsible for ensuring the continuous transfer and storage of[CE1]  documents and other types of evidence at the investigation stage[272], while the responsibility for evidence at the trial stage rests with the Registry of the Court[273].

International standards for the handling of evidence emphasize the following basic rules:

• the  procedure for the transfer of evidence should be ensured from the moment the evidence is collected and continues until and after its presentation in court; 
•  the procedure for the transfer of evidence should not be violated and the evidence should remain safe at all times; 
• all records of collection and maintenance of evidence should be recorded and documentation of their storage should be available for the purposes of the trial[274].

In order to determine whether the procedure for transferring evidence has been followed, where and by who and from who the evidence was collected  or received  and whether it was transferred to other persons or bodies and how such transfer was carried out should be clearly recorded. The specifics of the procedure for transferring evidence may include requirements for its identification/registration, execution of a protocol or notes on its receipt, separate packaging with a certifying signature, adding notes to the evidence, as well as recording the process of transferring the evidence received[275].   

Proof of the integrity of the evidence is ensured with the help of  a database created specifically for the justice mechanism. In particular, the relevant database of the Office of the Prosecutor of the International Criminal Court allows for the registration and storage of evidence collected at various stages of the investigation, records the circumstances of the collection of evidence, assigns a unique registration number to it, displays metadata of electronic evidence, and provides access to information to the defense during the trial[276].

With the development of technology and the growing role of open-source information, these approaches are being extended not only to work with victims and witnesses, physical evidence and expert opinions, but also with databases and information in electronic form. For example, the Office of the Prosecutor of the International Criminal Court has created the OTPLink platform to receive information from external sources, which digitally stores the records of procedure for data transfer[277]. 

Given that the evidence collected in the framework of domestic investigations may be considered as a source of information, in particular, for the International Criminal Court and other national jurisdictions, or the JIT, the domestic legal requirements for the procedure of its transfer may be a factor that could negatively affect the admissibility of this evidence in criminal proceedings linked to those mechanisms. Against the background of implementation of the Rome Statute into Ukrainian legislation, the regulation of the chain of custody procedure should be considered as part of any amendments to the criminal procedure legislation. In particular, the procedure for the chain of custody of evidence should be clearly defined and the issue of requirements for its preservation should be regulated.

Protection of victims and witnesses

Protecting witnesses is crucial when ensuring justice for grave international crimes. Victims, being vital bearers of critical information, face threats not only to their life and health but also to their families and loved ones. Alongside the investigations into the alleged international crimes committed in Ukraine since 2014, there have been numerous cases when witnesses, who could provide information helping to hold Russia accountable, were assassinated[278].

At present, Ukrainian law does not adequately address the issue of witness protection. The 1993 Law of Ukraine ‘On Ensuring the Security of Persons Participating in Criminal Proceedings’[279], remains the only piece of legislation on this matter. It only underwent minor revisions following the introduction of the new Criminal Procedure Code of Ukraine in 2012 and its subsequent amendments. Its provisions also extend to safeguarding victims of grave international crimes.

The law includes the following available witness protection measures:

• personal protection, protection of residence and property;
• provision of special personal protective equipment and alerting of potential danger;
• use of technical devices for monitoring and intercepting phone calls and other communications, visual surveillance;
• alteration of documents and appearance;
• change of workplace or place of study;
• relocation to a different residence;
• admission into pre-school educational institutions or social protection institutions;
• guaranteeing the confidentiality of personal data;
• closed trial[280].

Since 2014, security measures have been implemented for the participants in criminal proceedings concerning crimes linked to the armed conflict at various stages. While this practice has not been universally adopted, it has been applied in certain cases. Courts have opted to alter the personal details of witnesses[281] and examine them in closed sessions[282]. Yet, in reality, these measures often fall short of adequately protecting witnesses. Even if their personal details are altered, the background details of a case can still hint at their identities. Furthermore, during the trial, as the court examines the evidence, there is a risk that the identities of these protected individuals might be inadvertently revealed. After the full-scale invasion, in some categories of cases, in particular, conflict-related sexual violence, the practice of applying protection measures to victims is being introduced, although current Ukrainian legislation provides for such protection only for witnesses. In particular, these individuals have their personal information altered. During an investigation there is uncertainty regarding how investigators, victims representatives, and the court should proceed given the lack of clear guidelines at the legislative level.

Ukraine's existing witness protection legislation needs an overhaul, both regarding the types of protective measures offered and the regulatory oversight of human resources responsible for implementing these measures in practice. On 12 July 2021, the Verkhovna Rada of Ukraine registered two draft laws centred on enhancing the security of those involved in criminal proceedings, and others acting in the interests of justice (Reg. No. 5752[283] and Reg. No. 5751[284]). Both draft laws aim to reform Ukraine's existing witness protection framework, asserting that the existing system is substantively and cost-ineffective. It was also noted that those provisions should apply to criminal proceedings related to the commission of ‘war crimes and other international crimes. The parliament has yet to fully examine the merits of both documents.

In order to effectively protect victims of grave international crimes, Ukraine's witness protection system should consider various factors. These include evaluating the significance of the information a witness offers, ensuring proper protection of the witnesses' personal information, addressing challenges related to access to territories and people, understanding the dynamics of the armed conflict and ongoing hostilities, and accounting for the length of the domestic legal proceedings.

Legal status of a victim of an armed conflict

Until now, there is no clear definition of the status of a victim of an armed conflict at the legislative level. Current discussions aimed at defining this category primarily revolve around the provision of social protection and legal guarantees rather than the need to align the national legislation with international law in this regard. Instead of investigating the actual harm inflicted due to or in the course of an armed conflict, determining the legal status is tied to bureaucratic procedures. For instance, discussions which started in 2014 about the legal status of those unlawfully detained in the armed conflict on the territory of Ukraine centred around potential financial aid for such individuals or their families, rather than providing guarantees pertaining to their legal status granted under international humanitarian law. It was only in 2022 that a law was adopted that defined the category of persons deprived of their liberty in connection with the armed conflict, as well as social guarantees for the families of such persons and issues of their social support upon their return. At the same time, the issue of special guarantees for such persons within the justice process is not raised in the document, except for their right to receive free legal aid[285].

After 24 February 2022, discussions expanded to other categories of victims of the violations of the laws and customs of war. On 17 June 2022, the Cabinet of Ministers of Ukraine set up the Coordination Centre (Staff) for the Protection of Rights of Persons Deported or Forcibly Displaced due to the Armed Aggression of the Russian Federation against Ukraine[286]. The activities of the Coordination Centre primarily focus on the general category of victims rather than a specific legal status of such individuals. On the other hand, there is also a pressing need to precisely define the category of ‘deported or forcibly displaced persons,’ which is not included in Ukraine's national legislation. In its operations, the Headquarters concentrates on issues related to persons who, due to the armed conflict, ended up in Russian territory through deportation, evacuation, or self-imposed exile and wish to return to Ukraine. Although the actual range of persons receiving assistance from the Headquarters goes beyond deported civilians, they are all categorised as such by the Centre for the purposes of its activities.

The problem with initiatives that seek to define and regulate the status of particular groups of victims affected by the armed conflict is that while this status is linked to the fact that grave international crimes were committed against these individuals, it does not include a thorough examination of the circumstances and nature of these offences. For instance, if a civilian was injured as a result of the anti-terrorist operation or other measures to ensure national security and defence, repulsion and deterrence of the armed aggression of the Russian Federation in Donetsk and Luhansk regions, they were required to provide (among other documents) an excerpt from the Unified Register of Pre-trial Investigations on the initiation of criminal investigation concerning their injury from ammunition and/or other documents confirming status as a victim in the investigation[287]. However, a document merely confirming the fact that the criminal proceedings were opened does not give a clear understanding of the circumstances of the case. In addition to defining various categories of victims, it is also important to define the general status of a 'victim of armed conflict' in Ukraine's national legislation. This would streamline the process of registering victims, evaluating the scale of harm they have endured, and ensuring protective measures are in place for them. Simply categorising victims is not enough, as every instance of harm must be duly examined and confirmed.

Additional safeguards for the judiciary during armed conflict 

In order to effectively carry out their functions in the investigation and prosecution of conflict-related violence, investigators and prosecutors require unimpeded access to places controlled by the Ukrainian military or affected by hostilities. Such a requirement, in turn, creates risks for those involved in the investigation, particularly after the full-scale invasion. Civilian employees who have to record the consequences of the armed conflict and collect the necessary evidence must gain access to dangerous areas and districts, thereby risking their lives and health. 

In addition, the general circumstances of the armed conflict pose additional challenges for the professional activities of the judiciary:

• first, active hostilities have covered a wider area, and massive rocket attacks have had consequences in all regions of Ukraine. This, in turn, increases the number of regions where judicial bodies are involved in dealing with the consequences of the armed conflict[288];
• second, buildings housing investigative, prosecutorial or judicial bodies are periodically targeted either by direct attacks[289] or suffer collateral damage[290] caused by massive shelling. As a result, even showing up for work can pose a risk to them;
• third, after 24 February 2022, there were cases of double-tap strikes within a short period of time. As a result, investigators or prosecutors who go to the site of a shelling to conduct an inspection risk being targeted in a second, follow-up attack[291]. 

Such working conditions for justice officials create additional challenges that must be compensated for at the level of safeguards and social security. Since the beginning of the full-scale invasion in 2022, the number of justice officials who have been injured or killed in the performance of their professional duties has increased. There are currently no separate statistics reflecting the number of victims, but reports of such cases regularly appear in the media.

National legislation provides for social guarantees and additional security measures for the judiciary  when operating in armed conflict, but only in a limited manner. In this context, the legislation pays the most attention to pre-trial investigation bodies. The peculiarities of their functions determine the scope of social protection provided to employees of these bodies. In particular, the Law of Ukraine ‘On the Security Service of Ukraine’, among other things, provides for the payment of financial assistance in the event of death, disability or partial disability of employees[292]. The Law of Ukraine ‘On the National Police’ provides additional guarantees for NPU employees in the form of, inter alia, the preservation of monetary payments in case of capture or hostage-taking, internment or disappearance under special circumstances[293]. In addition, when determining the salary of investigators, the specific conditions of their work (which may also include work in areas where military operations are conducted) are also taken into account[294]. In contrast, the social protection of SBI investigators does not provide for special guarantees related to dangerous working conditions in the context of armed conflict.

Starting in 2014, after the military prosecutor's offices were re-established, their employees were able to work in the combat zone and have unimpeded access to military units[295]. They were covered not only by the guarantees provided by the legislation on the prosecutor's office, but also by the protection provided to military personnel.  After the investigative function in the prosecutor's office was eliminated, and then the system of military prosecutors as a whole, [CE1] access to the combat zone was controlled by the military, who effectively determined whether investigators and prosecutors could access the crime scenes[296].

In contrast, the Ukrainian legislation regulating the activities of the prosecutor's office does not provide for additional safeguards for social protection of employees. The only aspect of prosecutors' social security that may be relevant to the challenges of the armed conflict is the possibility of receiving a funeral benefit for an employee who died in the line of duty[297]. On 12 June 2023, the Verkhovna Rada of Ukraine registered draft law No. 9380, which proposes to introduce an additional allowance for prosecutors working in areas of military activity, as well as financial assistance in case of death, disability, and partial disability[298]. Despite its inclusion in the parliamentary agenda in early 2024, it has not yet been considered.

In addition, there are also practical issues with the level of prosecutors' salaries, which depend on the adopted state budget for the respective year. The approved figures for 2024 made prosecutors' salaries the lowest among law enforcement and judicial agencies[299]. During the discussion of the draft state budget for 2025, an increase in prosecutors' salaries was planned, and the decision to do so received preliminary support from the Budget Committee of the Verkhovna Rada of Ukraine[300]. However, upon further consideration, after lengthy public scandals around the prosecution authorities, the planned salary increase was cancelled[301]. As a result of the vote in the Verkhovna Rada of Ukraine, the level of social security for prosecutors remained the same.

The level of social security of investigators and prosecutors involved in the investigation of the consequences of the war directly affects their motivation to perform their functions. Given that working at crime scenes poses an additional risk to their lives, it must be balanced by appropriate protection not only for the employees themselves, but also for their family members. Given that internal specialization in dealing with the consequences of the war has been introduced at the level of the NPU, SSU and prosecutors' offices, employees transfer to other units within the system, thereby reducing the risks to themselves.