Summary: – 1. Introduction. – 2. The System of Ukrainian Law in The Conditions of War. – 3. Factors Causing the Necessity for Special Normative Regulation During the Period of War. – 4. Procedure for Criminal Responsibility and Exchange of Prisoners of War. – 5. Conclusions.
Background. This article is devoted to the relevant issue of the creation of appropriate normative regulation of criminal prosecution of prisoners of war who were captured during the armed conflict in Ukraine and their exchange. Despite the positive dynamics of destabilisation processes taking place all over the world, and in some places connected with the outbreak of military conflicts of an international nature, insufficient attention is paid to the issue of legitimising the process of exchange of prisoners of war in national legal systems.
Methods: The problem is complicated by the need to coordinate national legal mechanisms with the norms of international humanitarian and human rights laws, which cannot be competitive, but instead should have an integrative effect on national legal systems. Relying on the norms of international humanitarian law, the author concludes that prisoners of war, as legal participants in an armed conflict, due to the immunity (privilege) of the combatant, do not bear individual responsibility for the initiation of an aggressive war or participation in it and must be repatriated after its end, with the exception of cases where they committed so-called ‘general criminal’ crimes or violated the laws and customs of war. Moreover, the author’s position is illustrated by a concrete practical example of the first sentence of the Ukrainian court against a combatant.
Given that until July 2022, the Ukrainian criminal procedural law lacked a proper mechanism aimed at the exchange of prisoners of war, it is quite logical to direct the legal policy of the state to the development of the relevant procedural legislation.
Results: Considering the significant dangerous challenges that Ukraine has faced, and the amendment of the legislation, the author refer to the analysis of the factors that determined the special normative regulation of the procedural order of prisoners of war; analyse the criminal procedural status of the suspect-prisoner of war; and point to the differentiation of the procedural orders of such an exchange, the key criterion for the division of which is the procedural status of the person. Using the example of the first sentence in Ukraine to a Russian prisoner of war and relying on the norms of international humanitarian and national law, the author illustrate the specifics of the criminal liability of combatants. Evaluating the procedure of exchange of prisoners of war and criminal proceedings in absentia which were positively introduced in the legislation of Ukraine, it was concluded that the exchange is not an act of forgiveness, but an opportunity to return Ukrainian citizens, which is of the utmost importance in the hierarchy of values for the state.