In Absentia: Is Ukraine Upholding the Right to Fair Trial?
Such trials are seen as problematic in many jurisdictions and could lead to further litigation.
Experts argue that Ukraine could do more to safeguard the right to a fair trial amidst a deluge of war crimes prosecutions in absentia, warning that failing to do so could open the way for international legal challenges.
Currently, around 750 indictments have been sent to court out of more than 190,000 criminal proceedings. Due to the ongoing conflict, virtually all of these cases are heard in absentia.
Such trials are seen as problematic in many jurisdictions. According to the European Court of Human Rights (ECHR), a person's awareness of a criminal case against him or her is a prerequisite for the consideration of a case in absentia. In some countries, the process is only allowed for relatively minor offences.
Given the difficulties such trials present in ensuring the defendant their full rights, some have expressed concerns that throw doubt on the ability of national courts to judge them fairly during an armed conflict.
“Under Article 6 of the European Convention, everyone is guaranteed the right to be informed of the nature and cause of the accusation against them and to have adequate time and facilities to prepare their defence,” said Andrii Yakovliev, an international criminal law expert at the Media Initiative for Human Rights NGO. “The right to be aware of one’s own trial is a cornerstone of human rights. A trial in absentia is possible only in the case of an explicit waiver by the accused. In other words, such a trial is held when we know the individual has refused to participate and the interests of justice require the case to proceed.”
Since postal services and official communications between Russia and Ukraine ceased after the start of the full-scale war, Ukraine has implemented a mandatory formal notification process. This involves publishing summonses on the website of the prosecutor general’s office and in the Uriadovyi Kurier newspaper. Any further efforts to find the accused’s contact information are at the discretion of the court and prosecutors. The law does not require them.
Yakovliev noted the in absentia trial over the July 2014 downing of Malaysia Airlines flight MH17 over Ukraine’s Donetsk region as an example of good practice. On November 17, 2022, a Dutch court found Russian citizens Igor Girkin and Sergey Dubinsky and Ukrainian Leonid Kharchenko guilty over the deaths of 298 people in the disaster.
A Dutch court telephoned the accused, sent them emails and mailed official summonses, receiving confirmation that these individuals had received the notifications. Even so, it took an additional step to ensure the defendants’ right to a fair trial: it created a website where it published case materials and livestreamed the proceedings.
Due Process
Vladyslav Kukhta, the presiding judge of the Chernihiv district dourt in Chernihiv region, explained that cases tried in absentia involved several preliminary hearings.
“The prosecutor is required to publish a public summons three times,” he said. “If the accused fails to appear in court after the three publications, a trial in absentia is scheduled.”
Kukhta noted that defence lawyers sometimes take the initiative to inform the accused about their trial, contacting them via messaging apps, social media and email.
Anna Stakhanova, an expert at the Pravo-Justice project which monitors war crimes trials in eastern, southern and northern Ukraine, also highlighted the proactive measures taken by prosecutors and lawyers to locate the accused and obtain their contact information.
“But even when we get a response, none of them will come to court voluntarily,” she said.
However, Yakovliev put forward some reservations about lawyers taking such an active role in the notification process, pointing to the rules of the 2002-2013 Special Court for Sierra Leone (SCSL) as an example.
“I have read the code of professional conduct and rules of the SCSL,” Yakovliev explained. “A court-appointed defence lawyer in in absentia cases was not permitted to initiate, maintain or seek contact with the accused. If the accused, while a fugitive, contacted the lawyer themselves, the lawyer was required to inform the court and could withdraw from the case to avoid a conflict of interest and to protect the accused’s future rights.
“The logic is as follows. If it becomes known that the person was aware of the trial and failed to appear, they would lose the opportunity to appeal the verdict later.”
Yakovliev made a similar point regarding appeals.
“If the defence lawyer files an appeal of the initial verdict and it is denied, the accused themselves cannot later exercise their right to appeal,” he continued. “This is because, under current law, an appellate court cannot overturn its own previous ruling on a case. In this way, the lawyer’s actions could harm the client’s interests.”
Yakovliev said that it was “essential” to appeal verdicts.
“It’s the only way to fully protect the rights of the accused and to establish legal precedent,”he continued. “We also need to amend our legislation, following Lithuania’s example. I was personally involved in a war crime retrial there, where the court of appeals overturned its previous decision and reduced the sentence.”
Notably, there are no true in absentia proceedings in international criminal courts.
“International tribunals are based on the common law system, where the right to be present at one’s own trial and the duty to notify the accused of the proceedings are fundamental principles,” Yakovliev said
Stakhanova also highlighted the need to amend the Criminal Procedure Code (CPC). The issue is that individuals convicted in absentia currently have no right to appeal a final court ruling once it has become legally binding.
“A lawyer can appeal a first-instance verdict. But once all domestic judicial remedies have been exhausted, we have no procedure to review the final judgment,” Stakhanova says. “This means that if a Russian soldier, convicted in absentia, is detained and extradited to Ukraine in 20 years, he could argue, 'I was unaware of the verdict and wasn’t present at the trial’. He would demand a retrial, which is currently impossible. Yet, under all international conventions, a person must have that right. We know that the prosecutor general’s office and members of parliament are already working on this issue, so these changes will be adopted soon.”
Improving Notifications
Yakovliev and Stakhanova highlighted several ways the notification process could be improved. In Ukraine, the text of a verdict appears in the Register of Court Decisions. However, the documents do not contain the names of the accused, which makes it difficult for a person to find their own verdict and fails to create a deterrent.
“If verdicts included the perpetrators’ names, everyone would know who committed the crime. The accused’s fellow soldiers would understand that they could also be convicted. As a result, some of them might refuse to commit a war crime,” Yakovliev said.
Another possibility would be the creation of a dedicated website that would publish notices of suspicion, stream court hearings and provide case materials as well as verdicts.
Stakhanova suggested that a search function should be added to the website of the prosecutor general’s office, recalling one instance during a monitored court hearing where a defence lawyer complained that she had difficulty finding a court summons on the site.
She also said that all case materials should be translated into Russian. Stakhanova reported that during their monitoring, they found isolated cases where official suspicions or court summonses were issued only in Ukrainian.
Yakovliev noted that currently, only individuals with a Ukrainian digital signature can participate in video conferences, arguing that this capability should be expanded.
“By taking these steps, we will be able to say: there is an objective problem with notifications due to the war, but we have done everything possible to ensure the accused can defend themselves and are aware of the trial against them,” Yakovliev said.
Stakhanova explained that the ECHR cannot overturn a verdict from a Ukrainian court. Instead, it can find a violation of human rights guaranteed by the European Convention and issue a ruling that obligates the state to take measures to remedy the situation. This could include, for example, paying compensation or having the case reviewed by national courts in accordance with ECHR standards.
“The amounts can vary, but if there are many such rulings, it could become a burden on the state budget,” she said. “That’s not to mention the ethical component and the absurdity of the situation: Russian soldiers are committing war crimes against us and yet we could end up in a situation where we are paying them compensation.”
There is also the question of time.
“Right now, it’s unclear when the war will end. Consequently, we risk losing witnesses, victims and evidence,” Yakovliev said. “Therefore, at the very least, we must investigate these crimes, declare suspects wanted and interview witnesses.”
And Stakhanova argued that these court cases were a direct response to the public’s demand for justice.
“Sometimes, the most important thing for a survivor is simply to have a verdict against their perpetrator,” she continued. “Will justice reach every person responsible? It’s uncertain. But no one believed [former president of Serbia Slobodan] Milošević would ever be arrested, either. “When the newly formed republics first issued indictments, many argued that Serbia would never extradite him. And yet, on June 28, 2001, it happened: a helicopter flew him directly to The Hague. That’s why we must do everything we can.”
