Македонски Shqip English

Svitlana Yakovlieva and Mykhailo Vainagii

International experience in criminal proceedings under armed aggression in the territory of Ukraine

 

Svitlana Yakovlieva
Judge-speaker of the Cassation Criminal Court
of the Supreme Court in Ukraine

Mykhailo Vainagii
Participant of the Intensive Program
in European Law and Economics (Riga, 2018),
staff member of the Supreme Court in Ukraine

One of the basic functions of judicial proceedings in criminal justice is observance of human rights and freedoms. Herewith, a court is entrusted with responsibility to ensure the rights of the crime victim as well as the rights of the suspect, the accused, the convict.

Starting from 2014, the state Ukraine faced unprecedented challenges in legal system connected with temporary occupation of a part of the territory of Ukraine, particularly, the Autonomous Republic of Crimea and the City of Sevastopol. Therewith, it was started and it is being continued till now the occupation of separate regions in Donetsk and Luhansk oblasts by terroristic organizations. It caused the antiterrorist operation in 2014-2018 and Joint Forces Operation in these territories.

Mentioned circumstances caused adoption of special legislation, in particular the Law of Ukraine “On administration of justice and criminal proceedings in view of antiterrorist operation”, the Law of Ukraine “On ensuring the rights and freedoms of citizens and legal regime in temporarily occupied territory of Ukraine” as well as adoption of the Statement by the Verkhovna Rada of Ukraine (Parliament) in 2015 “On Departure of Ukraine from separate obligations determined by the International Covenant on Civil and Political rights and the Convention for the Protection of Human Rights and Fundamental Rights”. Due to this Statement separate rights and freedoms are restricted to prevent violation of national and civil security, to support public order, to prevent commitment of crimes and to protect human rights and freedoms of other people.

For example, in 2014 the article 176 of the Criminal Procedure Code of Ukraine was amended with the fifth paragraph. It was established that preventive measures in the form of personal recognizance, personal surety, home arrest and bail can not be used in regard to persons being suspected or accused in commitment of crimes related to terrorism (the articles 258 – 2585 of the Criminal Code of Ukraine) as well as those which trench on national security (the articles 109 – 1141 of the Criminal Code of Ukraine). If preventive measures are applied in such cases, only detention in custody should be applied as a preventive measure. It is necessary to point out that complying of this provision with the Constitution of Ukraine is now under consideration of the Constitutional Court of Ukraine.

Determination of a procedure to examine criminal proceedings which files are lost in temporarily occupied territories, to provide their recovery and adjudication of a case with ensuring the principle of legality, the right to defence and the right to a fair trial is another important issue of concern which appeared before legal system and is not finally solved at present legislatively. So, pursuant to the third paragraph of the article 1 of the Law of Ukraine “On administration of justice and criminal proceedings in view of antiterrorist operation” it was established that cases which are not adjudicated till the end and which are in proceedings in local, appeal courts located in the area of antiterrorist operation, where it is impossible to administer justice, they are transferred to other courts accordingly the established jurisdiction.

If it is impossible to transfer a case file pursuant to a jurisdiction established by the Law, necessary procedural actions are performed by a court which is entitled due to jurisdiction. It is made in accordance with documents and materials, submitted by participants of judicial process, under the condition that such documents and materials are sufficient to take corresponding judicial decision. Another Law defined a jurisdiction for adjudication of cases which during occupation were in courts of the Autonomous Republic of Crimea and the City of Sevastopol.

Absence of a possibility to transfer such cases to courts located outside of the temporarily occupied territories resulted in the existence of many criminal proceedings where, in fact, it is impossible to finish the trial and to take the final judicial decision.

It creates a necessity of additional legislative provision of the procedural order for recovery of lost criminal proceedings, adjudication of criminal cases and enforcement of judgments in such cases, taking into account a fact that it is not always possible to recover lost materials to the full extent.

There were several draft laws (#2930 and # 3343) in the Parliament of Ukraine for the period from 2015 to 2018 aimed to eliminate these issues of concern. Moreover, some of these draft laws were analysed in the judgment of the European Court of Human Rights from 25 July 2017 in the Case of Khlebik v. Ukraine as measures aimed to solve issues of concern in criminal proceedings if part of a case file remains unavailable for courts and participants of criminal proceedings (paragraphs 47, 48, 80 of the Judgement).

In view of above mentioned, the urgent legislative regulation is necessary to adjust a procedure for recovery of lost materials in criminal cases and criminal proceedings, adjudication of such cases and enforcement of judgments when materials of criminal proceedings have been lost after the sentence has entered into legal force and has been submitted to be enforced.

Separate attention should be paid to the definition of procedural mechanisms to consider issues which arise when executing the sentence regarding persons who have served sentences in penitentiary institutions in the temporarily occupied territory and are released from such institutions with further move to the territory under the control of the state authorities.

Solution of these issues of concern requires an analysis and consideration of peculiarities how to ensure human rights and freedoms in the field of criminal justice in conditions of armed conflict and occupation of the part of the territory, which involves taking into account the experience of other states that faced similar problems, for example, the experience of Croatia.

Besides, the practice of the European Court of Human Rights, formulated by results of adjudicating the cases against other states under similar circumstances, should be taken into account. It is made in order to ensure the administration of criminal proceedings under given conditions in accordance with the requirements imposed on the state as a member of the Council of Europe and the European Convention for the Protection of Human Rights and Fundamental Freedoms from 1950.

Bibliography:

  1. Constitution of Ukraine from 28 June 1996 as amended
    https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80
  2. Criminal Code of Ukraine from 5 April 2001 # 2341-III
    https://zakon.rada.gov.ua/laws/show/2341-14
  3. Criminal Procedure Code of Ukraine from 13 April 2012 # 4651-VI
    https://zakon.rada.gov.ua/laws/show/4651-17
  4. The Law of Ukraine “On ensuring the rights and freedoms of citizens and legal regime in temporarily occupied territory of Ukraine” from 15 April 2014 # 1207-VII
    https://zakon.rada.gov.ua/laws/show/1207-18
  5. The Law of Ukraine “On administration of justice and criminal proceedings in view of antiterrorist operation” from 12 August 2014 # 1632-VII
    https://zakon.rada.gov.ua/laws/show/1632-18
  6. The Statement of the Verkhovna Rada of Ukraine (Parliament) “On Departure of Ukraine from separate obligations determined by the International Covenant on Civil and Political rights and the Convention for the Protection of Human Rights and Fundamental Rights” from 21 May 2015 # 462-VIII
    https://zakon.rada.gov.ua/laws/show/462-19
  7. Judgement of the European Court of Human Rights from 25 July 2017. Case of Khlebik v. Ukraine (Application no. 2945/16)
    https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20KHLEBIK%20v.%20UKRAINE\%22%22],%22documentcollectionid2%22:[%22CHAMBER%22],%22itemid%22:[%22001-175656%22]}