Ukraine: Justice in Absentia
Process seen as problematic in many jurisdictions, given the difficulties in allowing defendant their full rights.
Although nearly half of the war crimes convictions so far secured by Ukrainian prosecutors against Russian soldiers have been in absentia, experts argue that such trials still form an important part of the architecture of justice in Ukraine.
Out of the 26 cases so far completed, 12 have involved persons not in Ukrainian custody. Absentee trials are seen as problematic in many jurisdictions, given the difficulties they present in allowing the defendant their full rights. In some European countries, they are only allowed for relatively minor offences.
According to the European Court of Human Rights, a person's awareness of a criminal case against him or her is a prerequisite for the consideration of a case in absentia.
"It is important to observe all formalities during the investigation of such cases, as the convicted may later appeal the decisions of the Ukrainian courts to the European Court of Human Rights,” said Vadym Kovalenko, a prosecutor at the prosecutor general's office.
Another issue with in absentia trials, noted Eugene Krapyvin, an expert at the Centre for Political and Legal Reforms on Criminal Justice, was that it could also be frustrating for survivors and their families to see convictions with apparently little chance of the sentence being served.
"Of course, it is not enough for the victim, but it is better to collect evidence, hurry to apply for an arrest warrant and so on than to do nothing because there is no access to the suspect [or the] accused. It seems to me that it is necessary to clearly explain to people why this procedure is being done, and that there is no other way,” he said, noting that an in absentia conviction also opened the route for possible compensation.
In the year since the beginning of Russia’s full-scale invasion of Ukraine, prosecutors have announced suspicions to 277 people of committing war crimes. Out of these, 255 have been to persons not in Ukrainian custody.
Amendments to the Ukrainian criminal legislation, which provide for a pre-trial investigation and trial without the participation of the suspect, were adopted by parliament in October 2014. The intent was to be able to prosecute the country’s leadership, led by former president Viktor Yanukovych, who fled abroad after the revolution. There were fears that suspects wanted for crimes including corruption could hide in the country’s occupied territories or flee to Russia.
After the full-scale invasion of February 24, 2022, absentee investigations and trials were also applied to Russian soldiers accused of war crimes.
The decision to start an investigation in absentia is prompted if a potential suspect fails to appear at his or her summons. If the prosecutor's office does not know the person’s whereabouts, it publishes relevant notices in the parliamentary Voice of Ukraine newspaper as well as on the website of the prosecutor general's office.
"Prosecutors also receive operational information about the person’s crossing of borders based on telephone traffic, there's data from social networks that confirm they in the temporarily occupied territory of Ukraine or in the Russian Federation,” said Kovalenko. “With these materials, the prosecutor or investigator applies to the investigating judge to obtain permission to conduct a special pre-trial investigation in absentia.”
The judge checks whether the prosecutor has used all possible means to notify the person of the criminal case against him or her. The court also publishes notices of its summons on the Judicial Authority of Ukraine’s website and the Government Courier newspaper.
Stanislav Kravchenko, a judge with the criminal court of cassation within the Supreme Court,
said that the summons was also spread through social networks, e-mail or phone, if such information was available to investigators.
He acknowledged, though, that the means for informing a suspect needed further improvement “in particular by finding new mechanisms, including international legal cooperation, and using all available methods of informing participants of criminal proceedings conducted in absentia".
"If the judge gives permission, the absentee investigation begins,” Kovalenko continued. “First of all, the prosecutor must hand over the suspicion - he publishes it again on the website of the prosecutor general's office and in the Voice of Ukraine [newspaper].
Other aspects of the case, from conducting examinations to questioning witnesses, do not differ from normal proceedings, Kovalenko said.
When the investigation is completed, the materials are sent to the court, but before the case is considered the prosecutor has to request permission for a special trial without the participation of the accused.
At this stage, a state-appointed lawyer familiarises themselves with the case materials so as to actively defend the accused in court.
Krapyvin said that the right to appeal underpinned the process. He noted the case of the first war crimes trial in May 2022, in which Russian tank commander Vadim Shishimarin, 21, was jailed for life for shooting a 62-year-old civilian just after the war began. On appeal from his court-appointed defence lawyer, the sentence was reduced to 15 years.
“A person convicted in absentia has the right to review his case if he does not agree with the verdict,” Krapyvin concluded. “In this way, the right to a fair trial is ensured, and this is key."
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