Why Ukraine needs a fair trial for Russian war criminals

As soon as the Ukrainian Armed Forces liberate a settlement, law enforcement officers begin to record war crimes committed by Russians in that territory. According to the Prosecutor General's Office, more than 124,000 of them have been registered since the beginning of the full-scale war and until March 19, 2024.

If it is possible to identify the perpetrator and collect sufficient evidence of his or her offense, he or she is brought before a Ukrainian court. Since criminals and justice are largely separated by the front line, Ukraine widely practices trials in absentia.

"We are guided by the European Union in our legal system, but there have been no cases of external aggression in Europe since World War II, so no one has bothered to resolve such legal conflicts," explains Vladyslav Kukhta, a judge of the Chernihiv District Court, in an interview with hromadske. In 2023, he conducted trials of Russian soldiers who committed war crimes in the village of Yahidne.

"The United States, Britain, and other NATO member states have experience in trying members of their own armies who have committed war crimes in foreign territories, such as Afghanistan or Iraq.

But trials of soldiers of enemy armies are usually held after the end of hostilities. In both cases, the accused are present in the courtroom. Our situation is different."

A new procedure for investigating and trying war crimes is currently being developed in Ukraine. Given our circumstances, this procedure meets the requirements for a fair trial.Vladyslav Kukhta, judge of the Chernihiv District Court

Under what conditions does a trial in absentia become possible? What worries judges in such trials? Is there a guarantee that the decision of the court in absentia will actually work? Who is defending the suspected Russian military, and why? hromadske learned the details of the trial in absentia of war criminals from experts who have already participated in such trials.

Either in absentia or not at all?

Let's use the example of Yahidne. Russians committed war crimes against its residents in March 2022. The trial of some of the perpetrators ended in March 2024, two years later. The testimonies of the victims in the courtroom were no longer as detailed as they had been at the time of the investigation as people had forgotten many details.

"The fighting in Ukraine has been going on for two years now, and it is not known how long it will last. If we postpone the trial until the end of the war, how will the victims' memories be distorted? Besides, not all victims may live to see the end of the war. If the trial is not held in absentia in hot pursuit, it may never take place in person," Judge Kukhta said.

According to him, it is not enough to collect testimonies of victims "for history". After all, these testimonies can only become official evidence of a crime if they are given in a courtroom, where the victim is cross-examined by a prosecutor and a lawyer – these are the requirements of Article 23 of the Criminal Procedure Code of Ukraine.

"Thanks to the courts in absentia, the actions of the Russian military against civilians are qualified as war crimes," Vladyslav Kukhta said.

He formulates the purpose of the trial in absentia as follows: "to record the fact of the crime and bring the perpetrators to justice."

War crimes do not have a statute of limitations, which means that sooner or later the verdict of the court in absentia may be enforced. And the materials themselves can be used in further investigations, for example, in a special tribunal.Vladyslav Kukhta, judge of the Chernihiv District Court

Since the beginning of the Russian aggression in 2014, the Criminal Procedure Code of Ukraine has provided for the possibility of trials in absentia for war criminals. The grounds for holding a trial in absentia are also defined.

Prosecutor of the Chernihiv Oblast Prosecutor's Office Serhiy Krupko explains that in the case of crimes committed by the Russian military, it is a violation of the Geneva Convention relative to the Laws and Customs of War, Article 438 of the Criminal Code of Ukraine.

"For those accused under this article, the Criminal Procedure Code provides for the possibility of a trial in absentia. In this case, the prosecutor's office must prove to the court that, for some reason, the presence of the accused in the courtroom is impossible."

With the help of the HUR, the SBU, the SBI, the cyber police, and other units, we determine the whereabouts of the accused. If the prosecutor's office provides the court with evidence that the accused is in territories not under our control or in Russia, the court decides on the possibility of hearing the case in absentia.Serhiy Krupko, prosecutor of the Chernihiv Oblast Prosecutor's Office

What worries the judge

A trial in absentia has a number of problematic aspects.

For example, during hearings in absentia, only the victim has the floor in the courtroom. He presents his version of events to the court. The accused usually cannot refute it if he is not involved in the process.

For example, one of the victims in Yahidne stated that the Russian occupier had stolen her laptop. It was possible to trace that payments were made from the victim's account in the Russian city of Kyzyl in the Republic of Tuva. Accordingly, the victim's testimony is true. But what if the victim accuses the Russian of stealing things that were never reported? And what if it's not theft, but illegal actions? And slander should still be made impossible for justice to be fair.

"The court never takes into account the victim's testimony alone. They also take into account information from witnesses, special services, and material evidence. That is, the court evaluates the totality of evidence. However, the absence of the accused makes it difficult to collect and analyze them," Judge Kukhta said.

Another typical case is that if a Russian is not on the territory of Ukraine, it is impossible to indict him in person.

In this situation, the CPC provides for the announcement of charges through the publication of relevant documents in the national media and on the website of the Prosecutor General's Office.

Do Russian soldiers read the Ukrainian Uriadovyi Kurier or visit the website of the Prosecutor General's Office? Sometimes the prosecutor's office or investigators also send information about the indictment to the suspect's military unit or even to the suspect himself via messengers, if possible.

"In this way, we ensure that Russian servicemen are able to familiarize themselves with the procedural decisions that are made and adopted in relation to them during the process," said Prosecutor Krupko.

"We cannot send documents to the suspects either by mail or through diplomatic channels - these methods of communication are currently not working between Ukraine and Russia. We cannot say with absolute certainty that the defendants are aware of the criminal proceedings opened against them," Judge Vladyslav Kukhta explains.

We can't even say for sure that the accused is alive at the time of the trial as trials last for months, and we know how badly the Russians keep track of their dead.Vladyslav Kukhta, judge of the Chernihiv District Court

"As a judge, I worry about this. This increases the responsibility of the courts: we must ensure the fairness of the trial under such unfavorable conditions for the accused."

Behind the scenes, they are called "devil's advocates"

The victim has the right to accuse. The accused has the right to defend himself, even if he is a war criminal. While the accused can refuse to have a lawyer at in-person trials, the presence of a defense lawyer at trials in absentia is mandatory.

The situation for such a lawyer is not easy: he or she has to defend the interests of the accused without being able to agree on a defense strategy with him.

Lawyers for war criminals are appointed by the Centers for Free Legal Aid, based on the decision of investigators or prosecutors. These are lawyers whose services are paid for from the state budget of Ukraine. There is no special selection of lawyers for trials in absentia of war criminals.

Lawyer Maria Naselenko explains that defense lawyers at such regional legal aid centers work according to a schedule: "If an investigative body or the prosecutor's office sends a request to engage a public defender in a criminal case, they engage the lawyer who was on duty that day." This is how Maria Naselenko became a defense lawyer in the Irpin court for Russian military officer Aleksandr Viselkov, who is accused of cruelty to civilians during the occupation of Kyiv Oblast.

The defense of a war criminal can be waived only if there is a legal reason: for example, the lawyer is ill. Emotions in this situation indicate the lawyer's lack of professionalism.Maria Naselenko, lawyer for a Russian soldier

"You defend a war criminal like an ordinary citizen, as if he were sitting next to you in the courtroom. The defense is based on the requirements of the CPC of Ukraine and international conventions.

For example, the defense must analyze whether the prosecutor's office and investigators complied with the requirements of the CPC when collecting evidence of the crime. After all, violation of these requirements casts doubt on the prosecution's evidence base. In addition, it should be borne in mind that a war criminal is a serviceman who has sworn an oath to his country. Therefore, on the territory of Ukraine, he fulfilled his duty of military service – he was guided by the statutes, orders of his army, etc.

Does he commit a crime by following these orders? The aggressor state may not recognize international legal norms and violate them. But Ukraine adheres to them. Therefore, it is necessary to find out whether Russian military personnel violated international legal norms regarding compliance with the laws and customs of war.

If the accused has violated them, then his behavior is criminal. And the task of lawyers is to analyze such actions primarily from this perspective," the lawyer stresses.

Why do lawyers try so hard?

According to Judge Kukhta, each lawyer chooses his or her own defense tactics. Usually, they argue that the accused simply could not help but follow the commander's order. Or they say that the victim made a mistake in recognizing the Russian soldier from the photo, saying that the occupiers looked similar to each other. Others say that this particular defendant did not commit any crime, but was only close to the persons on whose conscience the crime was committed.

For example, he was standing next to the man who threw a grenade at the victim's feet.

Judge Vladyslav Kukhta states: "Regardless of the defense tactics, lawyers almost never behave passively. They actively ask questions of the victims – sometimes the victims are offended by them. But it is important for the lawyer to know whether the accused realized the criminality of his actions.

The lawyer's activity is in line with the principle of adversarial proceedings, which is a condition for a fair trial. If the lawyer is passive, the court may apply to the Free Legal Aid Center to replace the lawyer. After all, a passive lawyer does not ensure the defendant's right to defense."

A fair trial must provide both parties with equal conditions. If the court is unfair, the offender can have the decision reviewed in his or her favor. Is it really fair for victims if a criminal escapes punishment because of the court's negligence?Vladyslav Kukhta, judge of the Chernihiv District Court

According to the Prosecutor General's Office, since February 24, 2022, 98 people have been convicted under the CCU article on violation of the laws and customs of war, including in absentia. Lawyers appealed 15 verdicts in the courts of appeal. Following consideration of the appeals, another 13 verdicts were upheld, and 2 more are under consideration.

The next and last instance of review of verdicts is the Supreme Court of Ukraine, where a lawyer can file a cassation appeal.

At the request of hromadske, the PGO replied that "the court of cassation has not yet reviewed the verdicts of this category". While the Supreme Court responded to a similar request by saying that since the beginning of the full-scale war and until March 1, 2024, one cassation appeal under Article 438 of the CCU had been considered, the lower court's decision was upheld.

Prospects

Information on war criminals' sentences is published on the website of the Judiciary of Ukraine. Even if the convicted Russians never read it, it is unlikely that they will risk coming to Ukraine after the war is over. It is unclear whether Ukraine and Russia will reach any agreements on the extradition of Russian war criminals here after the war. Therefore, Kyiv has to hope that some state where the criminal will go will extradite him to Ukraine.

A person convicted in Ukraine in absentia may be detained in a third country. If this state has an extradition treaty with Ukraine, then the court there will decide whether the case was in compliance with international legal standards. And, accordingly, whether to extradite the person to Ukraine. There is no way we can influence this decision.Vladyslav Kukhta, judge of the Chernihiv District Court

We can say a hundred times that we should not coddle Russian war criminals. However, we have to take care of them – we have to keep an eye on their rights in absentia during trials in absentia so that they have no grounds to appeal the verdicts.