The Rights of Persons Suspected and/or Accused of Grave International Crimes

Safeguards under Criminal Procedure Law of Ukraine

The presumption of innocence determines the scope of the rights and guarantees provided by the Constitution of Ukraine and criminal legislation to someone who is being prosecuted[633]. In this context, the functions of law enforcement agencies and prosecutors are related to proving a person's guilt in committing a criminal offence. Considering that justice for the alleged conflict-related crimes in Ukraine is administered based on general criminal procedure rules, alleged perpetrators of grave international crimes have the same possibilities to protect their rights in criminal proceedings as any other individual facing criminal accountability.

Ukrainian criminal procedure law outlines fundamental rights and guarantees for all participants in the process. The legislation distinguishes two statuses for the perpetrator: a suspect (a person who has been notified of suspicion as prescribed by Articles 276–279 of the CPCU, or a person detained on suspicion of committing a criminal offence, or a person in respect of whom a notice of suspicion has been drawn up but not served due to failure to establish the whereabouts of the person, provided all measures have been used as specified by the CPCU to serve the notice of suspicion) and an accused (a person whose indictment has been submitted to the court as prescribed by Article 291 of the CPCU)[634].

Such persons in criminal proceedings have the right to:

• know of the essence of the criminal offence and the contents of the notice of suspicion or charge against them;
• receive information about their rights, possibilities to protect their rights and the available procedural mechanisms;
• be represented in the proceedings by a defence counsel and receive qualified legal aid;
• play an active role in procedural actions and protect their rights in the course of the investigation. For example: to remain silent as regards the suspicion or charges against them or refuse to answer questions at any time; to provide explanation or testimony about the suspicion or charges, or refuse to provide those at any time; to collect and submit evidence to the investigator, prosecutor, or investigating judge; during the procedural actions, to ask questions, submit comments, and raise objections to the conduct of the procedural actions that are recorded in the protocol; to file a request to undertake specific procedural actions, security measures for themselves, their family members, close relatives, property, residence, etc.;
• have access to the criminal case file and to receive copies of procedural documents; and
• appeal against procedural decisions[635].
  

In addition to this, the accused has a broader set of procedural rights since they acquire this status at the trial stage and, accordingly, should be able to defend their rights before the court. These include, for example, the right to: participate in the cross examination of the prosecution witnesses during the trial or request their examination, as well as request the summoning and examination of defence witnesses under the same conditions as prosecution witnesses; collect and submit evidence to the court; express their opinion on motions of other parties during the trial; deliver statements during court debates, etc[636].

When notified of the relevant procedural status, the suspect or accused must also receive a reminder as to their rights and responsibilities, which is mandatory according to the CPCU[637].

When foreign nationals face criminal prosecution, they have additional procedural rights to:

• use their native language, receive copies of procedural documents in their native language or any other language they are proficient in, and, if necessary, use the services of an interpreter at the expense of the state; 
• meet with a representative of their country's diplomatic or consular mission, which the administration of the detention facility is obliged to provide[638].

The right to Defence

The CPCU provides for mandatory participation of a defence counsel in criminal proceedings. Such functions may be performed only by an advocate listed in the Unified Register of Advocates of Ukraine, or in respect of whom the Unified Register of Lawyers of Ukraine does not contain information on suspension or termination of their right to practice law[639]. The right to a defence counsel in criminal proceedings is granted to:

• a suspect;
• a person in respect of whom there is sufficient evidence to notify of suspicion of committing a criminal offence, but who has not been notified of suspicion due to their death;
• accused;
• convicted;
• acquitted;
• a person in respect of whom compulsory medical or educational measures are to be applied or the issue of their application is being considered[640];

Such persons may either choose a defence counsel on their own or exercise the right to receive free legal aid in accordance with Article 14 of the Law ‘On Free Legal Aid’[641]. Considering that the majority of criminal cases related to grave international crimes are considered in the absence of the suspect/accused or involve detained Russian military personnel who are unable to use the services of lawyers in Ukraine of their choice, a defence counsel cooperating with the free legal aid system is appointed to them by the investigating judge. He or she may be engaged for the entirety of the process or in a one-off procedural action.

In theory, the mechanism of free legal aid enables the suspect/accused to be properly represented and protect their rights in the process. Certain actions within criminal proceedings require the mandatory presence of a defence counsel, a stipulation put in place to ensure the admissibility of evidence.

Defence lawyers with experience in cases under Article 438 of the CCU indicate the challenges they have encountered: negative public reaction to the defence of the accused/suspect; lack of established case law, consequently guidance; lack of access to the suspect/accused; the need to acquire new knowledge and skills; and overt or covert bias among the judges, which inevitably results in a guilty verdict, negating the purpose of an effective defence. The defence lawyers also highlight the negative public perception of adequate defence to persons accused of war crimes. The stereotypical association of a defence lawyer with their client is particularly evident in such cases, impacting how defence lawyers are perceived in this context[642].

The greatest threat for the defence lawyers in conflict-related cased is to their life and health[643]. This is especially true when clients choose their own defence counsels[644]. On the other hand, engagement of defence lawyers cooperating with the state’s free legal aid system may raise questions over their personal impartiality. The state, in this case, acts as a customer of services, controls the quality and limits their provision, which in turn may become a factor affecting defence counsel’s strategies and decision in the process.

The national legislation of Ukraine and international standards[645] governing the legal practice safeguards are designed to ensure the independence and impartiality of a defence counsel in the process, the conditions for effective professional activity and proper defence. In particular, they provide for protection against interference with a lawyer's legal stance or association of the lawyer with the client, the counsel’s personal safety; a prohibition on holding defence lawyers liable for their statements in a case (including those reflecting the client's position) or comments in the media, as long as they do not breach the counsel's professional duties; and the  possibility for a defence lawyer to refuse to represent a client in case of a conflict of interest[646].

Unfortunately, there were violations of the rights of lawyers working on cases related to the consequences of the war even before the full-scale invasion. For instance, the report of the Office of the United Nations High Commissioner for Human Rights titled ‘Human Rights in the Administration of Justice in Conflict-Related Criminal Cases in Ukraine’[647] cites 12 documented attacks against privately contracted lawyers between 2014 and 2020 which are believed to have been motivated by their professional activities. The report further expresses concern over the authorities' failure to prevent and investigate these incidents. Investigations into documented attacks mentioned in the report failed to lead to the identification or prosecution of perpetrators. Given the demand for justice and the general pain inflicted by the Russian aggression on Ukrainian society, the situation may potentially escalate after the full-scale invasion when thousands of cases on international crimes will be sent by investigative authorities to courts and public trials will begin.

A key role in supporting and protecting lawyers themselves is to be played by the Bar self-governing bodies.[648] However, the unchanging leadership of these bodies, as well as the overall system of the Bar organisation and its legal regulation, have long been subject to criticism in the context of the European integration process.[649] Notwithstanding active steps taken by the Ukrainian Government to develop reforms[650], establishing a dialogue with the Bar self-governing bodies remains an open question.[651]

Defence of the Accused in International Crimes Proceedings

Given the nature of core crimes proceedings, approximately 90% of such cases are heard in absentia, which poses the greatest practical challenge for the defence. The burden of participation in such proceedings falls on lawyers working within the free legal aid system.[652] Their work, beyond the challenges arising from the nature of the cases, is further complicated by internal standards that have yet to be adapted to in absentia proceedings. In particular, the Rules of the Bar Ethics and the relevant decisions of the Bar Council of Ukraine place greater emphasis on the obligation of defence counsel to respond to procedural violations, without regulating the requirements for developing a substantive defence strategy.[653] The provisions also oblige lawyers to establish contact with their client, despite this being practically impossible in in absentia cases.[654]

The effectiveness of the defence and the ability of lawyers to exercise their rights in proceedings is one of the factors bearing on the observance of the right to a fair trial of the suspect/accused. The formal appointment of defence counsel is a procedural prerequisite and does not automatically guarantee that the individual's rights will be fully realised in the proceedings. In their decisions in international crimes cases, judges separately note that defence counsel was an active participant in the proceedings — something that should, in itself, be the norm in such complex cases. They use all the shortcomings and gaps of criminal and criminal procedure legislation, as well as prosecution’s shortcomings during the investigation, to strengthen the defence position.[655] However, such a proactive and earnest disposition may result in tragic outcomes from public hatred and persecution to murder.[656]

Still, instances have been recorded where the passive participation of defence counsel in in absentia proceedings is a deliberate strategy, which in practice does not serve the interests of the accused[657]. For example, after 24 February 2022 there were cases where lawyers sided with the prosecution during court hearings[658] or did not draw the court's attention to the need to thoroughly investigate all circumstances of the case during the public trial of the Russian servicemen[659].

Despite the negative public sentiment towards alleged perpetrators of grave international crimes, in order to ensure a legal process in line with international standards, it is crucial to ensure their effective implementation at every stage of the proceedings: from ensuring equal guarantees for the defence to amending relevant legislation. At the same time, training of lawyers in international humanitarian law and international criminal law is an important step along with the training of other participants in the criminal process.[660]

Although national criminal proceedings practice in respect of international crimes can still not be described as standardized[661] — even after more than a decade of armed conflict on the territory of Ukraine — the approaches to the defence of suspects/accused require further development in view of the following considerations:

• the security situation in the regions affects the ability of the counsels to participate in proceedings[662] — given that the primary caseload for investigation and trial remains in the oblasts, personal security is also a challenge for lawyers, as it is for justice bodies;
• the impossibility of establishing contact with the client — notwithstanding the professional standards of the Bar, defence counsel in international crimes cases are most often unable to contact their appointed client. The practical notification procedures in in absentia proceedings identify possible communication channels that may remain ineffective[663]. At the same time, judges note that they expect greater effort from lawyers in attempting to establish such contact;
• the absence of the accused from proceedings affects the formulation of the defence strategy — the case materials provided by the prosecution effectively constitute the sole basis for developing a defence strategy. Core crimes cases heard in absentia deprive lawyers of the opportunity to coordinate their position with the client, and defence counsel in the proceedings may consequently agree with the facts as presented[664]. At the same time, the key argument for the defence remains whether the prosecutor was able to prove the guilt of the accused[665], and the defence does not generally adduce evidence of innocence independently;[666]
• the need for training in international law — lawyers receive less attention in terms of training opportunities in international criminal and humanitarian law compared to law enforcement and justice bodies[667]. Yet in criminal proceedings concerning international crimes, there remains a clear demand for an understanding of the specific features of such legal classifications and their proof[668], the examination of forms of participation in the commission of crimes, and the liability of direct perpetrators[669];
• lawyers are subject to general mobilisation — under current legislation, lawyers are not included in the categories eligible for deferment from mobilization[670]. Notwithstanding the need for their professional activity and the legislative initiatives that have been introduced[671], the situation continues to attract the attention of the legal community. In criminal proceedings practice, this may result in the sudden need to change defence counsel, which adversely affects the implementation of the defence strategy in the proceedings.[672]

An exception to the general in absentia practice is proceedings brought against detained prisoners of war accused of grave international crimes[673]. Instances of violations of their right to defence are cited in the Report of the Office of the UN High Commissioner for Human Rights (OHCHR) on the Treatment of Prisoners of War and Persons Hors De Combat in the Context of the Armed Attack by the Russian Federation Against Ukraine. For example: ‘...Although all the defendants were assigned free legal aid lawyers, in a number of cases, they could only meet them for the first time or consequently during court hearings, which often took place via teleconference. These defendants were thus deprived of the right to speak confidentially with their lawyers before the hearings and the right to prepare a defence. Moreover, some interviewees claimed their lawyers sided with the prosecutors, advising them to plead guilty for a swifter release as part of an exchange. POWs were told by prosecutors, SBU officers, and sometimes their lawyers, that if they did not plead guilty, the investigations and court proceedings in their case would last for years with little prospects of release upon exchange’.[674]

The greatest concerns in such cases relate to the proof of the accused's guilt and the specific features of the legal classification of the grave international crimes. In particular, 2025 saw the delivery of an acquittal on charges under Article 438 of the Criminal Code of Ukraine on grounds of failure to prove guilt. The defence in the proceedings emphasised that "in order to meet the standard of proof beyond a reasonable doubt, it is insufficient for the prosecution's version merely to be more probable."[675]

Given that the practice of adjudicating war crimes cases committed on the territory of Ukraine is shaped primarily through in absentia proceedings, the need to reform the procedure for conducting proceedings in the absence of suspects/accused remains pressing[676]. Notwithstanding years of criticism of the current legislative provisions, which are unable to fully guarantee the individual's right to a fair trial, reform initiatives have not received the necessary support. One reason for this may be that it is not only grave international crimes cases that are heard in absentia, but also offences against the foundations of Ukraine's national security, terrorist activity, and corruption offences. Accordingly, a significantly broader range of justice sector stakeholders must be engaged in discussions on the necessary reforms.

Standards for Conducting the Defence in In Absentia Proceedings

International standards and the case law of various justice mechanisms demonstrate that the exercise of the right to a defence in criminal proceedings must be viewed in inseparable balance with the rights of victims to truth and justice. At the same time, in absentia proceedings necessitate compliance with additional guarantees to ensure that the defence of the accused can be fully exercised.

An analysis of the standards encompassed by the right to a fair trial that must be applied in in absentia proceedings, and of the practice of the UN Human Rights Committee and the ECtHR, enables the identification of the criteria whose observance demonstrates that this right is genuinely secured:

1. Equality of arms — the defence may not be placed in a substantially worse procedural position than the prosecution. The accused and their counsel must have a genuine opportunity to examine the case materials, bring forward evidence, make applications, examine prosecution witnesses, and call defence witnesses. The ECtHR consistently emphasises that an imbalance between the parties is incompatible with the requirements of Article 6 of the ECHR — for instance, where the defence does not have access to all case materials or is effectively excluded from key procedural actions[677]. At the same time, in grave international crimes cases heard in absentia, the court must ensure that the proceedings do not become a mere formal endorsement of the prosecution's version;
2. Adequate time and proper conditions for preparation of the defence — the right to a defence is violated not only when defence counsel is absent from the proceedings, but also when counsel is unable to prepare a defence strategy and exercise their rights — for example, where counsel has no access to the case materials, cannot meet confidentially with the client, or receives the case on the eve of the hearing[678]. The formal appointment of a lawyer in in absentia proceedings does not constitute a full realisation of the right to a defence where counsel is working "blindly" and is unable to effectively represent the client's interests;
3. The right to be informed of the charges in detail — the individual must be notified in a timely manner, in a language they understand, not only of the opening of criminal proceedings but also of the specific acts alleged against them and their legal classification[679]. In the context of in absentia proceedings, attention must also be paid to the methods used to effect such notification;
4. Engagement of defence counsel — the right to defend oneself in person or through counsel of one's choosing, as well as the right to free legal aid where the interests of justice so require. In cases involving the gravest crimes, international bodies effectively treat this guarantee as mandatory: the absence of professional defence counsel or their purely formal participation are incompatible with the concept of a fair trial[680];
5. Accessibility and language interpretation — the right of the accused to the free assistance of an interpreter if they do not understand or speak the language of the court[681]. In proceedings against foreign nationals, this also means that all key documents — notices of suspicion, summonses, judgments — must be brought to the attention of the accused in a language they understand or accompanied by an appropriate translation;
6. The right to review of conviction — a person against whom a judgment has been delivered must have the opportunity to appeal the conviction to a higher instance and, where necessary, to obtain a retrial. In cases heard in absentia, where a person has been convicted in their absence without a proven, knowing waiver of the right to be present at trial, they must be afforded the opportunity for a full retrial with examination of the facts and evidence in their presence[682]. A formal right to lodge an application without a genuine prospect of having the evidence reviewed does not comply with Article 6 of the ECHR.

The practical content of these guarantees in core crimes cases is clearly reflected in the work of international criminal courts. Article 55 of the Rome Statute enshrines fundamental guarantees during proceedings: the right not to incriminate oneself, the right to counsel, the right to an interpreter, and the prohibition of torture or any form of coercion. At the trial stage, Article 63 proceeds from the presumption that the accused must be present in the courtroom[683]. This provision gives effect to components of the right to a fair trial enshrined in Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights[684]. The ICC Appeals Chamber in Ruto and Sang[685] emphasised that the rejection of full in absentia proceedings was a deliberate decision by the States Parties, driven by concerns about the ability to fully guarantee the rights of the accused, the questionable practical utility of such decisions, and the high risk of discrediting the Court.

At the same time, the ICC Statute and Rules of Procedure and Evidence provide for certain possibilities for resolving procedural matters in absentia — including confirmation of charges hearings under Article 61, which as a general rule must be held in the presence of the person, having appeared voluntarily or having been surrendered to the ICC. However, where an arrest warrant remains in force, the Court may conduct such a hearing in the absence of the person, examine the prosecution evidence, and determine whether there are sufficient grounds to confirm the charges. This provision represents a compromise between the investigative process — which the ICC Office of the Prosecutor may continue without awaiting the arrest of the person — and the guarantee that trial will take place only when the person is physically present in The Hague. In the Court's practice, this procedure has been applied only in the case against Joseph Kony[686].

The ICC's standards for the protection of suspects/accused are built around the concept of the active role of defence counsel and equality of arms. The Court has an Office of the Public Counsel for the Defence, and the system of legal aid and funding for lawyers representing indigent suspects is designed to ensure that even in complex and politically sensitive cases, the defence has the resources and institutional support it requires. ICC practice demonstrates that the Court is prepared to suspend or adjust proceedings where the health of the accused or the quality of the defence casts doubt on the individual's genuine ability to participate.

An exceptional example in international criminal justice is the Special Tribunal for Lebanon in the case of Ayyash and Others, which was heard in absentia. The Tribunal ensured the appointment of defence counsel with access to all materials, who were able to examine witnesses, challenge evidence, engage experts, and construct a defence as if the client were physically present. The judgment separately underlined that the Court is obliged to assess the evidentiary basis no less rigorously than in ordinary proceedings, and that the standard of proof beyond a reasonable doubt remains unchanged. At the same time, the complete absence of any personal procedural position on the part of the accused and the impossibility of hearing their explanations inevitably altered the character of the proceedings themselves. The Court focused more on the position of the victims and the political context of the crime, while the individual dimension of the accused's guilt was examined indirectly through technical expert evidence, telephone metadata, and reconstructions[687].

Capacity of the Penitentiary System of Ukraine

The penitentiary system of Ukraine comprises 182 institutions, including 29 located in the area of Donetsk and Luhansk regions outside of Ukraine’s control and 5 in the Crimean Peninsula, and 7 facilities in other areas under Russian control[689]. There are no convicts held in 39 facilities (of which 22 are correctional colonies) due to the optimisation of the system. As of 1 January 2023, there were 42,726 detainees in penitentiary institutions and remand facilities, including 27,179 individuals in 61 active penitentiary institutions, out of which 20,978 people were in medium and maximum security correctional colonies[690].

Discussions have been ongoing for years about the limited capacity of the detention facilities. The length of court proceedings, repeated application of preventive measures in the form of detention, and the lack of resources needed to renovate the penal system's facilities lead to overcrowding in both temporary detention facilities (remand centres) and prisons[691]. Since 2017, the system has been trying to optimise existing penal institutions by inactivating certain places of detention and relocating convicts to facilities with better conditions[692]. At the same time, the general conditions of detention in such places remain the subject of individual applications to the European Court of Human Rights, and its decisions allege systemic violations of human rights guarantees[693].

Following the full-scale invasion of Ukraine by the Russian Federation, the available penitentiary facilities were reassessed. These institutions were supposed to be used to ensure the detention of Russian military personnel, both those who were detained as prisoners of war and those who were later convicted by the Ukrainian courts. Thus, 51 detention facilities and 1 camp for the detention of prisoners of war were created from the available resources of the penitentiary system at the expense of existing places of detention[694]. The detained prisoners are isolated in these areas, and their regime of detention includes compulsory labour. According to the Ukrainian Minister of Justice, these facilities comply with the requirements of international humanitarian laws, which define guarantees for prisoners of war[695]. 

The greatest challenges in practice began to arise when captured Russian servicemen started to be prosecuted by national authorities. At the stage of investigation, they are not subject to preventive measures in accordance with the requirements of the CPCU. This approach is based on the idea that there is no risk of their absconding from justice, as they are already in places of deprivation of liberty within the meaning of IHL.

Some of the POW detention facilities continue to operate as remand centres, where Russian military personnel are held separately from other detainees, but within the same facility. This approach further complicates the normal routine of the facility: prisoners have to be additionally guarded, as other detainees may pose a threat to their lives and health. In addition, Russian prisoners of war have limited access to communication with the outside world. Any contact with the detainees is carried out only with the permission of the investigator in the criminal proceedings against them. And given the context of the armed conflict and their Russian citizenship, such persons are ultimately able to communicate only with their defence counsel from the free legal aid system which could potentially be classified as a violation of the Geneva Conventions (III).

A distinct legal status in criminal proceedings is provided for convicted persons - an accused whose court verdict of guilty has entered into force[696]. The type of institution where an individual is placed is determined by the sentence. Considering that the penalty for grave international crimes under the CCU is either a fixed-term imprisonment or life imprisonment, the relevant facilities for the execution of such sentences are general correctional colonies[697].

Official statistics do not specify how many inmates in penitentiary institutions were convicted of grave international crimes among the total number of prisoners. It is also impossible to establish how many Russian prisoners of war have actually been transferred to serve their sentences after their conviction (as of 01 January 2024, a total of 73 sentences were passed under Article 438 of the Criminal Code of Ukraine)[698]. Given the processes of exchanging such persons for captured Ukrainian military personnel, it remains an open question how long they are held in detention facilities or how quickly they are repatriated to the RF as part of prisoner swap[699]. Such information is difficult to verify in practice as access to court decisions under Article 438 of the CCU in the register of court decisions is limited, and information on decisions on the release of persons from serving their sentences and pardons is classified.

Based on the statistics of the registered grave international crimes in Ukraine, the number of potential convicted persons who could be placed to serve their sentences in the relevant facilities may exceed the number of persons currently held in penal penitentiary institutions. That is assuming that these individuals will be prosecuted and serve their sentences in Ukraine in all proceedings initiated at the national level. These demands do not correspond to the existing infrastructure of the system, particularly regarding the number of correctional colonies, and are not factored into the calculation of budget allocations needed for the development of the penal system[700].

Claims that the national justice system is able to handle all registered proceedings for grave international crimes overlook among other things the factor of execution of the sentences. There may not be enough space in the penitentiary system for the anticipated number of convicts. On the one hand, most trials are currently held in absentia, which so far removes the problem of how to execute a court sentence in practice. On the other hand, in anticipation of the enforcement of such verdicts in the future and potential extradition of convicts from other states, the penitentiary system must be prepared to accommodate these individuals, ensuring that the conditions will not violate prisoners’ human rights.