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.
