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]
