Influx of Cases Presents Huge Challenge for Ukraine’s Judges
Judicial practice needs to be formulated to meet urgent demands of unprecedented situation.
Also see
Russian Soldiers to Be Tried for Torture During Ongoing Occupation
The accused men are believed to still be stationed in the Zaporizhzhia region where the alleged abuses took place.
Tuesday, 2 May ‘23
This week’s overview of key events and links to essential reading.
Amid a surge of war crimes investigations, Ukrainian judges are mobilising to acquire the key skills that will equip them to pass watertight judgements on such highly specialised cases.
Roman Kholod, a judge of the Komunarskyi district court of Zaporizhzhia city, noted that the need for training was significant. While Ukrainian legislation did not contradict international law regarding war crimes, it was less detailed regarding each category, and the system lacked judicial practice for considering such cases.
"All criminal proceedings in this category of cases are opened under Article 438 of the criminal code of Ukraine - violation of the laws and customs of war,” Kholod explained. “It is blanket, that is, it refers to the norms of international law, which must be applied, arguing the court's decision.”
Article 438 of the Criminal Code of Ukraine defines a punishment of eight to 12 years of imprisonment for "cruel treatment of prisoners of war or the civilian population, deportation of the civilian population for forced labour, looting of national values in the occupied territory, use of means of warfare prohibited by international law, other violations of laws and customs of war provided for by international treaties… as well as issuing an order to commit such actions”.
If these actions caused people to be killed, the punishment is from ten years to life imprisonment.
Kholod was among 90 judges who took part in three months of training sessions by British experts on the specifics of considering war crimes.
Three groups of 30 judges each participated in three days of lectures and practical exercises in Warsaw organised by Advocates for International Development in partnership with the Law Office of England and Wales and the USAID Justice for All Program alongside Ukrainian judicial institutions.
The office of the prosecutor general of Ukraine, itself one of training partners, has opened almost 80,000 criminal proceedings under Article 438 since Russia’s full-scale invasion began.
However, Kholod noted that cases had only just begun to arrive in the courts, with 26 judgments so far published in the open register of court decisions. Almost all were adopted in absentia, with the defendants represented by legal aid lawyers financed from the budget of Ukraine.
Such in absentia trials were another important area in which Ukrainian courts needed to formulate practice, Kholod noted.
"The important issue at first was how many times and in what form the accused person should be notified in order to consider the case under a special procedure (in absentia),” he said, adding, “Another question is whether it is possible for a lawyer to submit a petition for the consideration of cases by a panel of judges, and not by one judge, because according to Ukrainian legislation, only the accused can exercise this right in person before the case is considered on the merits. My colleagues and I came to the conclusion: yes, lawyers can and are already doing it, and judges grant such requests.”
International humanitarian law determines that civilians who participate in hostilities – whether taking up arms or performing any actions in support of one of the parties - lose protection against attack by combatants.
Instead, they become a potentially legitimate target during hostilities and firing upon them is not considered a war crime.
The investigation and later the court must determine the status of the victim of the crime. If a person loses his or her protection as a civilian, then the perpetrator could be prosecuted for a criminal action, not a war crime.
Olena Zhuravska, judge of the Desnyanskiy district court of Kyiv, said that there had been discussions on particular court decisions, although she said that professional ethics prevented her from naming specific cases.
However, one issue she said was studied in detail was the first war crimes conviction since the beginning of the full-scale invasion. Last May, 21-year-old Russian sergeant Vadym Shishymarin was found guilty of killing a civilian resident of the Sumy region, Oleksandr Shelipov. The 62-year-old had been walking down the road and talking on his phone when he was shot dead.
Shishymarin was sentenced to life imprisonment, reduced to 15 years on appeal.
"We have identified the main questions that a judge should ask himself before passing a verdict in such cases,” Zhuravska said. “In particular, this concerns in which cases civilians are protected by the Geneva Conventions, and in which cases they lose this protection.”
“For example, there was one detail in Shishymarin's case - the man he killed was talking on the phone at the time of the shooting. Who was he talking to? This moment is very important, as it will depend on whether the murdered person was under protection, and accordingly, whether this crime can be classified as a war crime."
Although she did not go into details about the discussion, Zhuravska said that no one had any doubt Shishymarin had committed a war crime.
The accused had himself confirmed during the trial that he had the opportunity to get out of the car and take the phone from Shelipov, or fire a warning shot. Instead, Shishymarin fired three to four shots, the decision noted, clearly intended to kill the victim.
Neither the verdict nor the appeal included exact information on who the deceased was talking to before the shooting. However, the prosecutor, Yaroslav Ushchapivsky, told Ukrainian media that investigators had questioned a man with whom Shelipov spoke on the phone who reported hearing the shooting. The prosecutor did not name the man.
In war crimes cases, the court must also find whether military personnel understood that a full-scale war had begun when they fired at either people or specific objects. It also needs to determine what their role was in the particular situation; whether they followed the orders of the higher command, for example, or acted arbitrarily.
In cases concerning the shelling of a civilian object, then the judges have to check whether there were really no military personnel or weapons there, which in wartime can be recognised as making it a legitimate target.
Zhuravska noted that British colleagues drew attention to imperfections in Ukrainian criminal law norms qualifying war crimes, and suggested making changes to the wording of some specific categories.
Kholod agreed that the British judges had no criticism of the verdicts of their Ukrainian colleagues, but noted “that there could be an additional qualification of the accused's actions”.
Judges cannot change the qualification of a crime and Kholod said that the Ukrainian participants emphasised to their British counterparts that they could only “consider the indictment within the limits of the indictment".
The investigator and the prosecutor determine the qualification, and judges analyse whether there is enough evidence to charge a person with a crime according to the investigation's qualification. If not, they acquit the person.
The trainers also emphasised the importance of clearly understanding and adhering to the norms of international humanitarian law at the stage of evidence collection.
“Despite emotions, evidence must be analysed in each specific case in order not to convict an innocent person,” said Zhuravska, noting that failures in prosecutions and judgements could lead to those convicted appealing their cases to the European Court of Human Rights.
“For every Ukrainian, the war has caused a lot of personal feelings, anger,” she said, adding, “But after this training, I am confident that I can be impartial when considering such cases.”
