Deputy Chairman of the High Council of Justice Dmytro Lukianov took part in the three-day international conference “Justice in the domestic adjudication of war crimes cases”
The event was organized by the USAID Justice for All Activity together with the European Union Advisory Mission to Ukraine, the UN Human Rights Monitoring Mission in Ukraine, the EU Project Pravo-Justice, the T.M.C Asser Institute and Global Rights Compliance to discuss the role of the national justice system in bringing perpetrators of war crimes to justice, as well as identifying further steps to ensure fair, impartial and effective consideration of war crimes cases in Ukrainian courts.
Important topics were discussed by former judges and heads of international tribunals, heads of judicial governance and self-government bodies of Ukraine, judges, lawyers, prosecutors, national and international experts from the United States of America, Bosnia and Herzegovina, the Netherlands, Sweden, Germany, Great Britain, who have experience in considering cases of war crimes in international courts and tribunals, as well as in national courts considering this category of cases within the limits of general jurisdiction.
Participants analyzed the challenges that the Ukrainian judiciary faces when considering cases of international crimes, and proposed a solutions taking into account best international practices and lessons learned. They assessed the state of implementation of recommendations to improve the legal framework, increase the capacity of professional lawyers in the justice system and improve in courts administration of the cases related to international crimes.
Dmytro Lukianov noted that the main burden of restoring justice for victims of international crimes and bringing all perpetrators to responsibility will fall precisely on the national judicial system. However, our judicial system is not fully prepared to effectively consider all cases of the “international crimes” category (crime of genocide, crimes against humanity, war crimes, crime of aggression).
According to the Prosecutor General’s Office, the number of registered war crimes is more than 110,000 cases.
According to Dmytro Lukianov, the problems that we should solve along this path are very different.
There are normative problems. We are hindered by the lack of a unified Criminal Code of Ukraine with the Rome Statute of the International Criminal Court. The Code does not include such a category as crimes against humanity; no changes were made to the main articles on war crimes during the nine years of war; there are different types of crimes in the Criminal Code of Ukraine and the Rome Statute.
There are personnel problems. Currently, out of 4,966 judges, about 800 judges do not have powers. And the outflow of personnel continues – 278 judges resigned in 2023 (an average of 35 judges per month). However, recruitment of new judges will not be as fast as dismissal. There is a significant shortage of forensic scientists. The worst situation is in courts of appeal. It is necessary to introduce a separate specialization of judges for consideration of this category of cases and conduct training with all judges, in which the appropriate specialization for consideration of international crimes will be determined.
There are organizational problems. Court premises are required in which these processes can take place while ensuring the safety of all participants and having the necessary conditions for storing cases. Currently, there are 595 active courts in Ukraine. Justice is not administered in 79 courts. 96 court buildings were damaged, 12 were completely destroyed. During the war, the jurisdiction of 112 courts was changed. Only 10 courts have been restored.
It is necessary to ensure effective pre-trial investigation of cases (efficiency, independence, impartiality, thoroughness and adequacy); an effective system of legal assistance to defendants (free secondary legal assistance, which is especially important in absentee proceedings); availability of juries for trials.
There are financial problems. The practice of the Balkan countries shows that the transitional justice system is a long and expensive process, but it reflects the institutional capacity of the state to bring perpetrators to justice. The war in the Balkans ended 20 years ago, but investigations and trials of international crimes are still ongoing there. Therefore, the state, having recognized the goal as strategic, should decide on priority funding for the entire range of related issues. We will certainly not be hindered by the help of our international partners.
Dmytro Lukianov noted that over 9 years, only 31 sentences were passed under Article 438 “Violation of rules of the warfare” of which 18 were convicted in absentia, in the absence of the accused, and 9 were sentenced according to an fast-track trial, without examining evidence in accordance with Article 349 of the Criminal Procedure of Ukraine. Thus, there are only 4 verdicts handed down by the courts during a full trial involving the accused persons and examining the evidence of their guilt.
The Deputy Chairman of the High Council of Justice noted that the results of joint work can be systematized in the draft Strategy for investigation and prosecution for international crimes. A similar document was adopted in 2011 in Croatia. This will coordinate the activities of all bodies of the legislative, executive and judicial branches of government.