Ukraine's Chernihiv District Court in session.
Ukraine's Chernihiv District Court in session. © Irina Domashchenko

The Challenge of In Absentia Trials

Procedures must be impeccably transparent, given international concerns about national courts’ impartiality during an armed conflict.

Tuesday, 20 February, 2024

With so many of the war crimes trials against Russian soldiers taking place in absentia in Ukraine, it is vital to ensure this process is transparent and fair, Maryna Bondarenko, Judge of the Darnytskyi district court of Kyiv, told IWPR’s Olga Golovina.

The role of the defence lawyer is even more key due to the impossibility of coordination with the person on trial, and society needed to be aware that providing such services are a professional duty, she continued.

What are the main challenges for a judge when considering war crimes cases in absentia? 

If we take into account the fact that the majority of war crimes cases In Ukraine have been considered in absentia, and it is obvious that this will continue to be the case, the observance of the rights of the accused is one of the main challenges.

It is also important to ensure a fair and effective trial that will not raise doubts about impartiality, given concerns expressed from abroad about the ability of national courts to judge fairly during an armed conflict. A national judge is aware that his or her decision will not only be reviewed by the country’s higher courts.

Another challenge is allowing a set and reasonable time for the consideration of proceedings, not only for an individual judge, but also for the entire judiciary to ensure consideration of such a [huge] number of proceedings sent to court after the completion of the pre-trial investigation. 

Maryna Bondarenko, a Judge of the Darnytskyi district court of Kyiv. Photo courtesy of M. Bondarenko

Why is the role of the defence lawyer in the process in absentia so crucial?

Under the conditions of a trial without the accused, under the in absentia procedure, each of the parties must perform their duties flawlessly, as well as the presiding judge who organises this process. 

In general, it should be taken into account that the trial in criminal proceedings takes place according to an adversarial procedure, and the powers of the judge in this process are quite limited. Submission of evidence is left to the parties and the court does not interfere in the process of their collection.
Therefore, in order to preserve this model of the process precisely as adversarial and not inquisitorial, the function of protection plays a significant role.

The evidence presented by the prosecution must be beyond reasonable doubt, which must be overcome by the prosecution. No one apart from the defence will be able to do this, because the court sees only obvious violations and inconsistencies when evaluating the entire set of evidence. It is precisely as a result of such open competition between the parties that the court can make a decision that will not raise doubts about its fairness.

How is it possible to change society's attitude to the role of defenders of those accused of war crimes?

For many years there have been discussions about how to overcome this identification between the lawyer and his client. With every new high-profile case when the accused is a public figure who may face condemnation for his or her actions even before the start of the trial, this discussion resurfaces about the inadmissibility of harassing a lawyer in the performance of their professional duty.

Lawyers defending the rights of those accused of war crimes feel this pressure. However, misunderstandings can be overcome by open and detailed communication with professional circles and the wider society.

One of the main principles of judicial proceedings is to ensure the right of defence to the accused, a provision enshrined both in the constitution of Ukraine and the criminal procedural law.The guarantee of ensuring this cannot be declarative; the ability to realise this right must be real.

It’s not only the norms of national legislation, but also Ukraine’s international obligations that contain such a requirement.

Ukraine must also demonstrate to the international community its ability to conduct trials according to international standards, and proper legal protection by professional lawyers is one of the important components.

In addition to the legal aspect, there is also another moral aspect. It is important to show that the law in our country works even during war, and that rights are guaranteed to all accused, regardless of their origin, citizenship or nationality.

Even during the Nuremberg Tribunal those accused of international crimes were not deprived of the right to a defence. The statute of the tribunal provided for the existence of rights for the accused, such as the free choice of a defence attorney, familiarisation with the indictment, giving explanations, filing motions, cross-examining a witness etc.

Therefore, these trials ongoing at the national level should be perceived not as revenge but only as an effort to restore justice. 

What changes does the judicial system of Ukraine need amid the ongoing war?

Generally speaking, change and innovation should never stop. Life goes on, society changes, nothing can exist in a static form.

Obviously, the judiciary needs new personnel, but this process should be dynamic. The procedure for appointing a judge can take up to ten years, and it would be better if fresh personnel were introduced into the judiciary more often than once a decade. 

In the absence of a gradual succession of generations, institutional memory is lost. The lack of such a connection means that the system is less consolidated and not as efficient as possible.

Regarding the implementation of justice in conditions of martial law, I believe that the most important two directions are already being implemented by the state. These are the roll out of services that can be provided through the Electronic Court [a service that allows parties direct access to case materials] and the specialisation of judges in considering cases of crimes against peace, human security and international law and order, including war crimes.

The Electronic Court is not only a technological advance, but also a tool that is currently in demand in wartime due to the impossibility of easily reaching court premises due to curfews, air raids and shelling. It also provides the opportunity to submit procedural documents in a timely manner and to participate in the court session via video conference from a safer place or without exposing oneself to danger, etc.

As for the introduction of the criminal specialisation of judges, this will certainly contribute to the improvement of court proceedings and court decisions, because it allows the judge to delve into particular issues, especially since the amount of international law that must be addressed is significant. 

At the same time, the efforts of both national bodies and international experts who provide advisory assistance will be concentrated on those judges involved in the proceedings of the relevant category of cases.

What have you learned from your experience as a judge during the almost two years of full-scale invasion?

Personally, I have learned not to complain. As for the professional aspect, all possible resources have been mobilised for the process of professional improvement, currently focused on the study of international humanitarian law, international human rights law and of court cases and materials to better understand the peculiarities of sentencing in war crimes cases. The Ukrainian courts are expecting hundreds of thousands of cases.

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