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Issue 3/2022 EPUB
In this issue, we collected ten notes related to legal developments in wartime, as well as research articles.
Note from the Field
Access to Justice Amid War in Ukraine Gateway
MILITARY JUSTICE IN UKRAINE: RENAISSANCE DURING WARTIME
Oksana Kaplina, Serhii Kravtsov, Olena Leyba
In this article, the authors raise issues that are relevant for the modern legal system of Ukraine, related to the need to revive the military justice system and, in particular, military courts. The authors emphasize that during the peaceful existence of Ukraine, a dangerous illusion was formed in the society regarding the unnecessary functioning of military justice in the state, however, unforeseen realities fundamentally changed the liberal ideas of peacetime. After the beginning of the armed aggression of the Russian Federation against Ukraine, the work of many courts was completely paralyzed, the judges did not have an algorithm of actions in war conditions, they urgently left for safe cities, including outside the territory of Ukraine, leaving proceedings, documentation, unfinished cases. The study allowed the authors to come to the conclusion that in a situation of continuing armed aggression, the presence of powerful Armed Forces in the state, and when the country is forced to fight for its independence, it is the military courts that are able to ensure legality and exercise justice and judicial control in accordance with their subject jurisdiction. In order to determine the optimal model of military justice, the authors examined the genesis of approaches that existed in society and characterized its attitude to the system of military justice. They analyzed the precedent practice of the European Court of Human Rights, in the context of alleged violations of Art. 6 of the Criminal Code during the administration of justice by military courts, as well as systematized key approaches developed by the Court, which are proposed to be taken into account when restoring the system of military courts in Ukraine. In addition, the authors systematized the existing models of military justice in the world, identified correlations that, apparently, led to the rejection of military justice by some countries, provided detailed arguments about the need to restore it in Ukraine, and indicated promising directions for further scientific research in this area.
Oksana Kaluzhna and Kateryna Shunevych
Ukrainian law enforcement agencies are investigating more than 18,000 war crimes and crimes of aggression, including 18,177 violations of the laws and customs of war, more than 5,000 murders and 6,000 civilian injuries, and about 23,000 destructions of civilian infrastructure. We note these figures without considering the number of crimes committed in the occupied territories and the places of active hostilities. The number of crimes increases every day.
War crimes are a type of international crime, along with the crime of aggression, crimes against humanity, and genocide, which russia[1] is committing in Ukraine. However, in the article’s title, the term ‘war crimes’ is used in a unifying context.
The researchers outline the range of war crimes and note the lack of systematisation due to the non-ratification of the Rome Statute by Ukraine, which significantly complicates the qualification of crimes for practicing lawyers. The authors then analyse such mechanisms of bringing the military, officers, and officials of russia to justice as: а) the International Criminal Court (ICC), b) ad hoc tribunals, с) the European Court of Human Rights (ECtHR), d) national judicial systems on the principle of universal jurisdiction e) criminal proceedings of Ukraine, f) eclectic forms of cooperation of justice bodies of Ukraine with foreign and international partners, together with the chronology of the first steps for each. The rationality of the establishment of a special international ad hoc tribunal exists because of the duration of the proceedings in the IСС, the ІСС workload and lack of funding, and the non-extension of the ICC jurisdiction to the crime of aggression due to Ukraine’s non-ratification of the Rome Statute; ensuring the impartiality of the court in the eyes of the international community.
The authors draw the attention of the Ukrainian legislator to the need to improve the logistics of using foreign forensic experts’ opinions in criminal proceedings on war crimes in Ukraine by amending the Criminal Procedure Code on the procedure for its verification as sources of evidence.
Oleh Ilnytskyy
Judicial control and authorization of state coercion or other interference in the sphere of private legal interest is a universal standard for building a political and legal system based on the principles of the rule of law. To obtain reliable and substantiated conclusions, general and special research methods were used, which processed the results of theoretical research on the problems of administrative proceedings in Ukraine, materials of legal practice in the form of conclusions of international human rights institutions and Ukrainian courts. The study found that the proposed regulatory changes, which determine the dominant role of administrative courts in the application of sanctions related to the assets of individuals or the prohibition of political parties, perform a dual function - to ensure the necessary level of protection of rights, freedoms and interests of private individuals as well as administrative courts protect the national interests, national security, sovereignty and territorial integrity of Ukraine, counter terrorist activity, as well as prevent violations, restore violated rights, freedoms and legitimate interests of citizens of Ukraine, society and the state. Thus, the preconditions have been created for resolving these complex human rights issues while maintaining the necessary balance, even in exceptional martial law.
TRANSFORMATION OF BAR IN WARTIME IN UKRAINE:
ON THE WAY TO SUSTAINABLE DEVELOPMENT OF JUSTICE
(ON THE EXAMPLE OF THE ODESA REGION)
Oksana Khotynska-Nor and Nana Bakaianova
Russia's war against Ukraine, launched on 24 February 2022, had determined new conditions for the existence of Ukrainian society, the state, and all fields of activity. The Bar was no exception. As an institution of civil society that protects human rights and interests, the Bar is an integral element of fair justice, the right which is inviolable even in wartime. However, the war made its corrections and created new rules, determining the specificity of the attorneys` activity, their behaviour, and the activity of the attorneys` self-governing bodies in wartime.
The article presents the analysis of the peculiarities of functioning of the Bar of Ukraine in wartime on the example of the Odesa region. Its choice is due to the history and ancient traditions of Odesa Bar, whose representatives have already experienced periods of military aggression, and the available information about the results of its activity in wartime in the modern period. In wartime, it is impossible to obtain and systematize such data regarding the whole territory of Ukraine because part of the state is under occupation, and active hostilities are taking place on the other part.
The author's analysis was based on the decisions of the Odesa Regional Bar Council, the results of the activity of the Odesa Regional Qualification and Disciplinary Commission of the Bar, the results of their interaction with the Odesa Regional Military Administration, Odesa City Council, volunteer formations, volunteer organizations and foreign colleagues.
A conclusion was made about the internal consolidation, as well as the external ability of the Bar to act together with civil society institutions and public authorities in countering the armed aggression against Ukraine.
Yuriy Prytyka, Iryna Izarova, Liubov Maliarchuk, Olena Terekh
On 24 February, Russia launched a military attack on the entire territory of Ukraine, in connection with which the President of Ukraine declared martial law. According to the Law of Ukraine ‘On Martial Law’, martial law is a special legal regime introduced in the event of armed aggression, danger to the state independence of Ukraine, or its territorial integrity and arranges for the provision of appropriate state authorities, military command, military administrations, and local authorities self-governance of the powers necessary to avert the threat, repel armed aggression and ensure national security, and eliminate the threat of danger to the state independence of Ukraine, its territorial integrity, as well as the temporary restriction of the constitutional rights and freedoms of persons and citizens and the rights and legitimate interests of legal entities within the validity period of these restrictions. This study is designed to analyse the consequences of armed aggression against Ukraine and the introduction of the appropriate legal regime in such areas as the realisation of property rights, the administration of justice, the enforcement of court decisions, and labour relations.
The introduction of the martial law regime throughout the territory of Ukraine affected all spheres of life and, as a result, requires adaptation to modern realities. In particular, this consists of changes to the current legislation because the martial law regime involves the restriction of certain constitutional rights and freedoms of persons and the introduction of new mechanisms – for example, the suspension of labour relations, changes in the jurisdiction of courts for the possibility of justice, expanding the competence of private executors, and even making changes to the regulations of ICAC due to the impossibility of sending documents by mail, as well as allowing process participants to personally participate in meetings.
ADMINISTRATION OF JUSTICE DURING MILITARY AGGRESSION AGAINST UKRAINE: THE ‘JUDICIAL FRONT’
Oksana Uhrynovska, Anastasiia Vitskar
This article is devoted to the study of the peculiarities of the administration of justice in the context of the large-scale military aggression of the Russian Federation against Ukraine. Within this framework, the authors carried out a detailed analysis of the recommendations on the work of courts in martial law provided by the Council of Judges of Ukraine and the Chairman of the Supreme Court. Taking into account the recommendations adopted during the conditions of martial law and the current jurisprudence formed at that time, the peculiarities of civil proceedings in martial law were singled out and analysed in detail, focusing on a specific procedural institution.
Natalia Antonyuk
The dynamics of amendments to the Criminal Code of Ukraine after the start of the war show that the criminal law was not sufficiently ready for application during the war. First of all, a number of acts that are socially dangerous have not been singled out as criminal acts. Some existing articles needed to be amended to differentiate criminal liability.
It is possible to state that collaboration activities have a high level of public danger and should therefore be criminalised. The severity of punishment for such actions depends on the type of collaborationism. Scholars and law enforcers in countries analysing Ukraine’s experience and changes in criminal law in connection with the war should clearly delineate the criminal range of acts of treason and analyse whether there are any socially dangerous acts that are obviously harmful to national security but remain outside of the notion of treason.
Bohdan Karnaukh
The jurisdictional immunity of a state means that the state cannot be involved as a defendant in a case considered by a foreign court. In Ukraine, the rule on the jurisdictional immunity of a foreign state is enshrined in Art. 79 of the Law of Ukraine ‘On Private International Law’. Until 14 April 2022, the Ukrainian Supreme Court rigidly applied the provisions of the said article and recognised the Russian Federation’s immunity with regard to claims brought by Ukrainian citizens seeking compensation for harm caused by the armed conflict that commenced in 2014. Yet shortly after 24 February 2022, when Russia’s aggression against Ukraine entered a new phase, i.e., the phase of full-scale war, the Supreme Court changed its mind.
This note addresses the ruling of the Ukrainian Supreme Court of 14 April 2022 in case no. 308/9708/19, where the Court held that the Russian Federation could not plead immunity with regard to tort claims brought by the victims of the Russia-Ukraine war. In reaching this conclusion, the Court relied on the territorial tort exception enshrined in the European Convention on State Immunity (Basel, 16 May 1972) and the UN Convention on Jurisdictional Immunities of States and Their Property. Though neither of the two conventions has been ratified by either Ukraine or the Russian Federation, the Court found that these conventions indicate a general tendency in international customary law towards limiting the jurisdictional immunity of the states.
The reasoning of the Supreme Court is examined by scrutinising the authorities the Court adduced in support of its ruling, as well as by putting the ruling in the broader context of the jurisprudence of the International Court of Justice (ICJ) and European Court of Human Rights (ECtHR).
It is concluded that what the Supreme Court utilised is not the territorial tort exception but rather the ‘human rights/jus cogens’ exception. Further, the case before the Ukrainian Supreme Court is distinguishable from the ICJ and the ECtHR cases, where it was held that notwithstanding gross violations of human rights, the respondent state should nevertheless enjoy immunity. Unlike those cases, the Ukrainian case was tried amid the ongoing war, when no reparation agreements had been concluded, the legitimate aim of ‘promoting comity and good relations between states’ had been frustrated, and it was no longer possible to justify the restriction of the plaintiff’s right of access to a fair trial.
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Issue 3/2022
