Participation of Victims of Grave International Crimes in Justice Related Processes

Status of Victims in Justice Process

Ukrainian national legislation does not contain a definition of the term “victim”. However, those who have suffered from the crimes during armed conflict can actively participate in criminal proceedings. The CPCU provides for three procedural statuses that survivors of grave international crimes may have:

1. Applicant: an individual or legal entity that has filed a complaint or report of a criminal offence with a public authority authorised to initiate a pre-trial investigation, and is not a victim[572]. The applicant's rights in the proceedings are limited, as this person has not suffered as result of the crime, but only informs the law enforcement authorities of the circumstances known to him or her for the purpose of opening a criminal investigation. Therefore, the procedural status of an applicant allows them to:

• receive a document from the relevant authority confirming the acceptance and registration of their report, in particular, an extract from the Unified Register of Pre-trial Investigations;
• provide items and documents to substantiate their report; and
• receive information about  the completion of the pre-trial investigation[573].

2. “The one who suffered” (direct translation): an individual who has suffered moral, physical or material damage as a result of a criminal offence, as well as a legal entity that has sustained material damage[574]. Their legal status provides them the most extensive possibilities to participate in the justice process. On the one hand, the investigations are aimed at discovering the circumstances of the harm caused to such an individual, and on the other hand, they provide an opportunity for redress based on the outcome of the investigation. Their procedural status provides for the following rights:

• the possibility to appoint a representative and participate in the proceedings through the representative or directly;
• the right to be informed about the progress of the proceedings, the content and substance of the suspicion/charge, and procedural decisions concerning the suspect/accused, including the possibility to get access to the contents of the case file and obtain copies of relevant documents;
• the possibility to submit evidence during the investigation and trial;
• the right to participate in investigative (search) and other procedural actions;
• the right to provide explanations or refuse to do so;
• the possibility to seek protection for themselves, close relatives or family members, property, and residence, when there are legitimate grounds for that;
• the right to appeal against procedural decisions;
• the right to compensation for damage inflicted by the criminal offence in accordance with the procedure provided for by the law; and
• the opportunity to express their opinion during sentencing[575].

The CPCU also requires from the “victim” to maintain confidentiality of the pre-trial investigation and appear in a timely manner when summoned by an investigator, prosecutor, investigating judge, or court to participate in procedural actions[576].

3. Witness: an individual who knows or may know circumstances to be proved in criminal proceedings and is summoned to testify[577]. The possibilities granted to a witness based on their procedural status are exclusively related to the information they can provide as evidence. For this role in criminal proceedings, it does not matter whether the person has suffered from the crime, but rather the information they can provide to the investigators. Thus, the status of a witness does not grant one the right to seek redress for the harm suffered. The CPCU provides for the following rights of a witness:

• to know in connection with what and in which criminal proceeding they are being interviewed;
• to receive professional legal aid from a lawyer during the proceedings;
• to refuse to testify if it may harm the person or his/her family;
• to use notes and documents when giving evidence in cases where the testimony relates to any calculations and other details which are difficult to keep in memory;
• to get access to the interview report and request it to be adjusted, amended, or supplemented with comments, as well as to make such amendments and comments by their own hand; and
• to apply for security in cases provided by the law[578].

Under Ukrainian criminal procedure law, any information deemed legally classified is excluded from the information that a witness may disclose[579]. Therefore, even if a person has such confidential information, it cannot be the subject of his/her testimony in the proceedings. At the same time, a witness in criminal proceedings is required to provide only truthful information, as there is criminal liability for providing knowingly false testimony[580]. Moreover, witnesses are cautioned about criminal responsibility for refusing to provide statements.

Access of Survivors to Justice

Numerous issues within the Ukrainian justice system affect the level of public trust in the relevant authorities among the population. Since the onset of the armed conflict in 2014, the survivors’ demand for justice has increased significantly, but the perception of the justice system's effectiveness has not adapted to properly respond to such a demand[581]. In particular, the results of the nationwide polls show that six months after the full-scale Russian invasion only 5% of respondents had contacted Ukrainian law enforcement agencies in relation to the armed conflict[582]. When asked about the mechanisms of justice for grave international crimes committed in Ukraine, 5% of respondents expressed confidence in the effectiveness of Ukrainian courts. Conversely, 63% of respondents mentioned special courts with the participation of national and international judges, and 23% leaned towards international institutions[583]. Meanwhile, non-governmental organisations enjoy a much higher level of public trust at 41.1%, compared to law enforcement agencies like the NPU at 27.3%, prosecutors at 11.4%, and courts at 11.3%[584].

Since 2014, a large number of non-governmental organisations have focused their work on documenting armed conflict-related violations in Ukraine. Starting with the events in the Crimean Peninsula and Donbas, and across the entire country since 2022, evidence of grave international crimes and significant human rights violations has been continuously collected in Ukraine[585]. NGOs are not restricted by the criminal procedure legislation, so many challenges faced by law enforcement agencies are not relevant for their activities. Specifically, the work of NGOs has made it possible to record the events in the occupied Crimea. In turn, NGOs have taken on the responsibility to provide support to survivors of the armed conflict, which includes assistance in tackling humanitarian and social issues, as well as legal aid, such as representing them in national and international justice related processes (victims representation).

Due to the large number of NGOs addressing related issues pertaining to documenting grave international crimes, it is important to ensure cooperation between them. Since 2014, the situation has persisted where the same survivors can be interviewed by representatives of different NGOs, which increases the risk of re-traumatisation. Moreover, with the ongoing investigation by the ICC into the situation in Ukraine, the existence of multiple versions of survivors’ testimonies may negatively affect the Court's proceedings or even render their testimony irrelevant to the Court. And although the ICC together with Eurojust published the Guidelines on documentation, they are rarely adhered to[586].  On the flip side, some of the survivors are so anxious to get justice that they are willing to tell their stories as many times and to people (NGOs, investigators, journalists) who will listen. A balance needs to be also struck between the strict requirements of formal investigation, where a victim should not be interviewed multiple times and the need to promote legislative changes through advocacy which is most effective when it is based on real stories and testimonies of the victims and survivors.

In turn, NGOs try to cooperate with national justice institutions and highlight the systemic problems faced by survivors. The authorities also facilitate this interaction by engaging civil society in discussions on issues related to the armed conflict or aspects of the authorities' activities. However, the biggest challenge for NGOs is how to make the information they collect admissible in criminal proceedings. According to the general rules of the CPC of Ukraine, such information cannot be used as evidence in the proceedings. Potentially, such data may be considered as:

• hearsay: the CPCU allows for the use of hearsay evidence. Procedurally, this means that representatives of NGOs who have collected the relevant information should testify as witnesses. However, compared to other types of evidence obtained directly, such information will have less probative value in criminal proceedings[587];
• material evidence: material evidence collected directly by NGOs at crime scenes also cannot be used in accordance with the CPC requirements. If the proper procedures for collection are not followed, there is a risk that such evidence will be declared inadmissible in court[588];
• appeals: given the challenges in the information exchange between NGOs and law enforcement agencies, the most effective method for domestic criminal proceedings is still the exchange of information. This involves providing written information as to the facts of the alleged crimes committed and the relevant contacts of the survivors with their permission. This method ensures that the data source is verified and the information about the data source can be attached to the proceedings. Therefore, the direct collection of evidence will be the responsibility of the authorities[589].

Regarding the engagement of survivors in criminal proceedings, the procedural status of “the one who suffered” offers the most opportunities to protect their rights. These range from the ability to present evidence in criminal proceedings to the right to file a civil lawsuit for compensation for damages within a criminal case. Such a person, either in person or through the lawyer can actively participate in the criminal proceedings, stir in a certain direction, and receive up-to-date information about its outcomes. However, this requires being proactive, as even to receive updates about the investigation is not automatic, it is necessary to contact and keep in regular touch with the investigator or prosecutor in the case.

The legislation on free legal aid defines certain categories of survivors of armed conflict among the aid recipients, which should make legal services more accessible. These categories include:

• Internally displaced persons;
• Ukrainian citizens residing in the temporarily occupied territory on issues related to the protection of violated, unrecognised, or disputed rights, freedoms, or interests of individuals (including compensation for harm resulting from restrictions on the exercise of ownership of real estate or the destruction or damage of such property) in connection with the Russian Federation's armed aggression and the temporary occupation of Ukrainian territory;
• Victims of criminal offences against sexual freedom and sexual inviolability, torture or ill-treatment during hostilities or armed conflict – in criminal proceedings initiated upon the commission of such criminal offences;
• Persons in respect of whom, in accordance with the Law of Ukraine ‘On Social and Legal Protection of Persons Deprived of Personal Liberty as a Result of Armed Aggression Against Ukraine and Members of their Families’, the fact of deprivation of personal liberty as a result of the armed aggression against Ukraine was established - during such deprivation of liberty and after release in connection with the protection of rights and legitimate interests violated due to deprivation of personal liberty as a result of armed aggression against Ukraine[590].

However, the practice of engaging defence counsels working within the free legal aid system to represent victims' interests in proceedings is not widespread.[591] Although such counsels are more willing to take on the representation of victims of core crimes, the primary need directed at the free legal aid system remains the defence of suspects/accused.[592] At the same time, there is an ongoing demand among the defence counsels for training on the specifics of developing representation strategies for victims in proceedings and on the application of victim-Centerd approaches.[593]

More developed approaches to supporting victims of core crimes have been adopted by NGOs, which engage lawyers and defence counsels to provide case support. Certain organisations have been developing their practice of working with victims since 2014. One of the challenges facing the Ukrainian Bar as a whole, however, is whether there are sufficient defence counsels with the requisite qualifications and skills to meet the demand from victims of international crimes for representation in proceedings. In particular, investigators and prosecutors, drawing on their experience in core crimes proceedings after 2022, emphasise that a defence counsel facilitates communication with the victim, assists with explaining rights, and prepares the individual for investigative actions and trial.[594]

Standards for the Engagement and Participation of Victims' Representatives

International justice mechanisms have developed certain standards for the engagement and participation of victims in proceedings. Under the Rome Statute and ICC practice, victims may participate not only as witnesses but as independent parties to proceedings, with the right to legal assistance, to submit their views and concerns, and to seek reparations.

In the Lubanga case[595], the Court for the first time systematically defined the status of victims and admitted them as independent participants in the proceedings: their representatives could file applications for participation, express views on the legal characterisation of acts, put questions to witnesses through the Court, and participate in reparations proceedings. At the same time, the Chamber clearly delineated the scope of their interventions — prohibiting them from going beyond the charges and duplicating the function of the Prosecutor — thereby establishing practical boundaries on the powers of victims' representatives.

In the Katanga case[596], the ICC introduced a model of collective victim representation in proceedings, established criteria for admission to participation and for the allocation of roles among multiple representatives, subject strictly to the condition that their activity did not undermine the rights of the defence or procedural economy. Developing this approach further, in the Ongwen case victims were grouped into large clusters with two common legal representatives, who could submit written observations, examine witnesses within the limits set by the Chamber, and actively participate in the reparations phase. At the same time, the Court consistently emphasised that victims' participation must not transform the proceedings into a "collective truth-finding commission" and must remain compatible with the rights of the accused[597].

Certain categories of crimes require the engagement and participation of not only individual but also of collective victims. In the Al Mahdi case, which concerned the destruction of cultural heritage in Timbuktu, victims' representatives argued the link between the destruction of shrines, the moral harm to local communities, and the need for collective reparation measures (memorials, restoration of sites, reconciliation programmes), but were unable to claim reparations for harm falling outside the scope of the established incidents.[598]

ICC practice, which typically assesses the responsibility of high-level perpetrators, may also expand the categories of victims identified in a case. The reparations decision in Ntaganda[599] identified groups of direct and indirect victims of attacks on the civilian population and other crimes in the Congo who were entitled to reparations. For victims to be eligible for inclusion in any given category, their representatives had to demonstrate the existence of a specific causal link between each type of harm and the charged incidents. The Chamber recognised a very broad range of harm but rejected claims where the connection to the established facts was insufficiently substantiated. A victims' lawyer in such proceedings therefore bore an independent burden of proof, rather than being merely obliged to provide "moral representation" of a general tragedy.[600]

The case law of the European Court of Human Rights has additionally established requirements for the effectiveness of victim representation in criminal proceedings, for ensuring victims' access to the truth, and for a fair hearing in cases of mass and systematic human rights violations. The role of victims and their representatives in proceedings is assessed in light of the state's procedural obligations under Articles 2 and 3 of the Convention. The Court consistently emphasises that in cases involving deprivation of life or violations of the prohibition of torture, the state is obliged to conduct an effective investigation which must, among other things, "involve the next of kin to the extent necessary to safeguard their legitimate interests." This means that victims' representatives must have access to information about the progress of the investigation, the ability to examine the case materials (at least in their key parts), to put questions to witnesses, to challenge decisions to close proceedings, and to influence the conduct of the investigation.[601]

The ECtHR has further developed the standard of equality of arms — which, while primarily shaped in the context of the rights of the accused, also applies to victims' representatives when they are parties to proceedings. The Court emphasises that no consideration of speed or procedural economy can justify inequality between the parties as regards access to evidence, the opportunity to comment on submissions by the other party, or participation in key hearings. In Nideröst-Huber v. Switzerland[602], Barberà, Messegué and Jabardo v. Spain[603], and other cases, the ECtHR held that correspondence between the court and one party concealed from the other, the absence of an opportunity to respond to an opponent's arguments, or the use of evidence to which the applicant had no access, are incompatible with the requirements of a fair trial. For victims' lawyers, this means the right to demand equal opportunities to be informed of and to express views on materials that affect the outcome of the case.

Risks to Victims and Their Protection in Criminal Proceedings[604]

‍Challenges Facing Victims Arising from the Armed Conflict

Since the beginning of the international armed conflict on the territory of Ukraine in 2014, law enforcement bodies have faced difficulties in identifying victims. Access to those residing in occupied territories is particularly challenging, as is creating conditions for their safe participation in proceedings. Survey results among those affected by the consequences of the armed conflict on the territory of Ukraine show that the vast majority of respondents (83%) consider access to justice critically important.[605] However, their willingness to participate actively in proceedings is affected by factors such as:

• lack of confidence that criminal proceedings will produce results;
• the difficulty of managing complex emotions during proceedings and remaining active participants;
• participation in proceedings not feeling justified given the risks arising for victims — in particular those residing, or whose family members reside, in occupied territories;
• prior negative experiences of interaction with representatives of the justice system;
• low levels of trust in representatives of the justice system, among other factors.[606]

Furthermore, the fact that victims reside in areas outside the control of the Ukrainian government effectively precludes the taking of testimony, the conduct of investigative actions, and interaction with pre-trial investigation bodies.[607] Victims and witnesses who had returned to occupied territories or had family members there[608] regarded their active participation in criminal proceedings as a risk of potential prosecution of themselves or their relatives by the occupation authorities.[609]

In general, only pre-trial investigation and prosecutorial bodies in certain regions have developed experience of working with victims and witnesses from occupied territories — in particular those displaced from the Crimean Peninsula and those exercising their powers in relation to the occupied parts of Donetsk and Luhansk oblasts, who were effectively documenting and investigating crimes in occupied territories. Staff of these bodies note that the most common security measure requested by victims and witnesses from temporarily occupied territories is the change of their identifying data.[610]

Following the full-scale invasion, the willingness of victims to participate actively in justice processes has also been affected by the development of prosecution practice in respect of offences against the foundations of Ukraine's national security. Article 111-1 of the Criminal Code of Ukraine is drafted in broad terms, leaving room for a wide interpretation of individuals' actions within the scope of that classification[611]. In view of the practice of its application, victims in regions that have been liberated from Russian occupation or where active hostilities are ongoing are concerned that their actions may be construed as offences, which may lead them to refuse to engage with the justice system.

At the same time, victims and witnesses may experience pressure within their communities and a high level of interest in the proceedings and their outcomes. Where a victim resides in a small settlement, most people are likely to be aware of the fact of the crime, the identities of victims and witnesses, whether the individual is cooperating with law enforcement, and other details surrounding the crime and its investigation.[612] Where the settlement is located close to an active combat zone, victims are concerned for their safety and the potential risks to life and health should the territory where they reside in come again under the control of the Russian Federation's armed forces.[613]

Given victims' expectations of justice processes, their safety in proceedings directly affects the number of individuals willing to participate actively and to give evidence about core crimes. This is also influenced by the state's capacity to identify and address their needs — not only in the legal sphere, but also with regard to social, medical, and psychological support.

Victim Support in Justice Processes

To date, a dedicated unit responsible for engagement with and support of victims in criminal proceedings has been established only at the level of prosecutorial bodies. In 2023, a The Office of the Prosecutor General has now taken over the function of communicating with survivors. A separate internal document was adopted within the prosecutor's office that defines approaches to working with survivors of grave international crimes.[614] This document provides for the introduction of a support mechanism through the following components:

• The establishment of a Coordination Center for Victim and Witness Support[615].
• The introduction of coordinators for victim and witness support who will act as part of the Coordination Center.
• The work of the Interagency Working Group to improve coordination between state authorities and non-governmental organisations.
• The establishment of a referral mechanism based on institutional arrangements between the Coordination Center, law enforcement agencies, ministries and departments, and other support services to take measures to protect and comply with security mechanisms, provide counselling, and other relevant assistance to witnesses and victims.[616]

The mechanism suggests specific actions such as the establishment of a record-keeping system, assessment of the risk of retraumatisation, and provision of clarifications on the rights of victims and witnesses during proceedings[617]. Despite the proposed measures, the adopted mechanism does not cover the protection of victims and witnesses. Rather, it Centers on tackling social, psychological, and legal issues associated with their participation in criminal proceedings. 

At the same time, the regulation governing the Coordination Center specifies that in its activities it is guided, among other instruments, by the Law of Ukraine "On Ensuring the Safety of Persons Participating in Criminal Proceedings."[618]

Over two years, the operating conditions of the Center have been largely dependent on practical decisions and the general framework of approved approaches to working with victims of the consequences of the armed conflict on the territory of Ukraine.[619] The approaches approved by Ukraine for the development of the law enforcement and justice system provide that the Coordination Center is to focus not only on victims of core crimes but also on all victims of violent acts in general criminal proceedings.[620] Accordingly, the development of its work is expected to require an expansion of staffing as well as the establishment of appropriate victim support infrastructure at the level of courts and investigative bodies.

Finally, the lack of witness and victims protection programmes and legislation makes it unclear how the authorities will ensure their safety and security should they decide to actively engage with them. The Support Center is presently operating as a referral entity to other external organisations that provide the actual assistance. As of January 2025, the Center reportedly provided assistance to more than 1,100 victims, most of whom were children (873)[621]. As of early 2026, the Center was providing support to 2,199 victims (704 men, 1,186 women, and 288 children) and 112 witnesses (49 men, 49 women, and 14 children[622]). The Center's work has also expanded in regions where specialized prosecutor’s offices for crimes committed in the armed conflict operate. The opening of Center sections in Lviv, Odesa, and Chernivtsi oblasts is additionally planned.[623]

The intensification of negotiations on Ukraine's accession to the EU has raised a number of issues, including in the field of justice, which need to be reformed with effective solutions in line with European standards. One of these areas is the support for victims of violent crimes, as well as reforming the system of security measures for victims and witnesses in criminal proceedings[624]. Despite the fact that EU recommendations for Ukraine do not specifically focus on the protection of victims of international crimes, it is expected that the already established infrastructure in the form of the Center will expand its activities to a wider range of people.

Following the example of the Center, the issue of working with victims and witnesses has also begun to be raised at the level of the judiciary. On 11 November 2024, the Council of Judges of Ukraine approved the Protocol for Courts on Working with Vulnerable Victims and Witnesses[625]. Its approach should be applied not only to work with victims and witnesses of grave international crimes. For example, the Protocol contains a list of vulnerable categories of victims, including victims of violent crimes, women, children (among others) who should be able to access protection and security measures. The Protocol also envisaged that with donor support, four courts would launch pilot projects to create comfortable conditions for victims and witnesses in the courtroom[626], but given the political processes and the withdrawal of funding, the project was never implemented.

The Application of Security Measures in Practice

Given the lack of unified approaches to working with survivors of atrocity crimes in accordance with international standards (in particular, measures to prevent victims from the risk of re-traumatisation and effective witness protection measures)[627], not all survivors feel prepared to actively engage in the process. Its length, the need to participate in a large number of procedural actions and provide testimony multiple times both at the pre-trial investigation and trial, the potential direct interaction with the accused during the trial, or even trials in absentia of the accused, which does not guarantee the execution of the court's decision and lack of quality state support —all of this negatively impacts the mental well-being of survivors and their intention to see the process through. 

The general approach to ensuring the protection and safety of victims of international crimes reflects, more broadly, the unsatisfactory state of the victim protection system within criminal justice. This situation requires consistent and comprehensive reform that will strengthen both the quality of criminal investigations overall and the effectiveness and safety of criminal justice personnel. The provisions of the current Law "On Ensuring the Safety of Persons Participating in Criminal Proceedings"[628] require attention to the following aspects: their adequacy in addressing existing challenges and the failure to account for the specific nature of international crimes; the absence of a single body responsible for coordinating and implementing security measures; the risk of secondary victimisation; ineffective communication with and support for victims, both inside and outside the scope of criminal proceedings; challenges to the safety and capacity of criminal justice personnel; and the dependence of security measure implementation on international assistance, among other issues.

Although certain approaches have been applied in practice aimed at protecting the confidentiality of victims' data and preventing their secondary victimisation, their effectiveness is directly contingent on legislative amendments. At the same time, security measures for participants in criminal proceedings are oriented more towards protecting witnesses as sources of important testimony rather than towards protecting victims. This approach — developed within the national system in the context of organised crime proceedings — is not effective in the investigation of core crimes.

The context of the armed conflict on the territory of Ukraine and the investigation of its consequences have generated additional requirements that must be addressed in developing legislative amendments on security measures for participants in criminal proceedings:

• the introduction of clear criteria enabling the selection of an appropriate security measure, taking into account the available resources of the responsible bodies and the funding sources for each component;
• the establishment of a systematic risk assessment procedure for victims, to assist in determining the relevance of particular protection mechanisms;
• the definition of clear and complementary criteria indicating the degree of danger to an individual, the importance of their information to the proceedings, and enabling the selection of appropriate security measures applicable within a comprehensive programme for a victim or witness;
• the development of a mechanism for international cooperation in response to requests from other states or justice mechanisms (such as the ICC) for the application of security measures;
• the establishment of a procedure for inter-agency coordination among bodies that hold personal data and other information within the framework of security measure implementation.[629]

In addition to developing new regulatory frameworks, reforming the existing institutional infrastructure of bodies responsible for implementing security measures presents its own challenges. Established practice shows that the key challenges facing these bodies include: insufficient funding, the need for coordination among different units and systematisation of institutional practice, high workloads and staff shortages, and security risks to the personnel involved.

The measures envisaged under the Comprehensive Strategic Plan for the Reform of Law Enforcement Bodies (2023–2027)[630] include the establishment of a national security guarantee service to improve the effectiveness of security measures for participants in proceedings concerning serious and particularly serious offences — to be completed by the fourth quarter of 2027 or within one year of the termination or lifting of martial law.[631] The draft laws currently registered[632] and the discussions surrounding them do not yet manifest a complete picture of how the updated system for ensuring the safety of victims and witnesses in criminal proceedings will be structured. At the same time, the general trends and focus of current initiatives in the context of European integration may indicate that insufficient attention to the needs of victims of core crimes will persist.