The document provides basic principles of building national policy in various areas in the de-occupied territory, in particular in the field of criminal justice. I suggest analyzing it to understand the trends and approaches that are currently being developed for the de-occupied territories in terms of criminal justice.
Provision 1. The bedrock of the national policy of de-occupation is human rights:
“The national policy of Ukraine regarding the de-occupation and reintegration of temporarily occupied territories is based on the priority of guarantees of human safety, taking all necessary measures to ensure human rights and fundamental freedoms.”
Provision 2. Punishment for simply for the fact of living in the temporarily occupied territory is not planned. For “obtaining russian passports,” neither:
“No citizen of Ukraine should be subjected to persecution or discrimination, including on the basis of residence in the temporarily occupied territory. The automatic or forced acquisition of citizenship of the russian federation by citizens of Ukraine living in the temporarily occupied territory, introduced by the aggressor state, is not recognized by Ukraine and is assessed as an act of coercion committed in violation of international humanitarian law.”
I already wrote a JustTalk article about statements by representatives of the authorities on the need to bring those who obtained a passport of the russian federation under the conditions of occupation to criminal responsibility for. Now I just note that, although no legal consequences for obtaining a russian passport have been enshrined since 2014 in the Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine” (Article 9), it is important that now it is once again mentioned as a principle of national policy.
Provision 3. Restoration of rights violated by the occupation:
“...in particular, the rights of persons who have experienced politically motivated persecution and restrictions on freedom, have become victims of other illegal actions by the aggressor state and its occupying forces.”
Let us imagine the picture of de-occupation as down-to-earth as possible. Ukraine regains control over the territory of the peninsula. The army of the russian federation and other authorities of the russian federation no longer exist there. There are people in correction facilities and pre-trial detention centers. Some of them, presumably, are there due to politically motivated prosecutions for “crimes against the russian federation,” some as a result of prosecutions for general criminal crimes: against property, against life and health, etc. It is possible that the category of people “convicted for general criminal offenses” includes individuals who were actually persecuted by the russian federation for opposing the occupation authorities. But some of those ‘detained,’ ‘convicted,’ ‘accused’ really killed, robbed, raped someone... And although Ukraine does not recognize the legitimacy of the occupation authorities and all these acts and decisions on criminal prosecution and conviction accordingly, would it be correct to simply open the doors of correction facilities and pre-trial detention centers and release all those who are detained there by the illegal decisions of the occupation authorities?
In my opinion, this approach will not meet the interests of society. It is necessary to provide for the procedure for reviewing such ‘criminal cases’ in order to ensure the fulfillment of the objectives and principles of the Criminal Procedure Code of Ukraine in the liberated territories. So that people who were politically persecuted are released, but at the same time, those who actually committed a crime according to Ukrainian legislation are held accountable.
Multiple questions arise in this regard What is the procedure for conducting a trial? How to evaluate the evidence of crimes collected by the occupation authorities? What about procedural terms? Whether to count and the actually served duration of punishment and if so, how, etc. These procedures are not currently in the Criminal Procedure Code of Ukraine, and we need to start thinking about them.
Unlike the russian federation, Ukraine can be a respondent in the European Court of Human Rights – therefore, when setting such procedures, the requirements of the Convention on Human Rights and Fundamental Freedoms should be considered, especially in terms of the right to a fair trial (Article 6), the right to freedom ( Article 5), the right not to be punished without law (Article 7).
Provision 4. Prosecution of those guilty of crimes against peace, human security and international legal order:
“All persons guilty of crimes against peace, human security and international legal order will be brought to justice. A necessary prerequisite for the restoration of peace and justice is the prosecution of persons involved in the organization and implementation of the armed aggression of the russian federation against Ukraine."
After de-occupation, new facts of crimes against peace, human security and international legal order will probably be discovered. Like other categories of crimes, such crimes will require investigation, trial, participation of prosecutors, lawyers and other specialists in the field of criminal proceedings. Is Ukraine ready to provide the necessary number of professionals to cover this request of the de-occupied territory?
Is there a specific plan of action, who will go to serve in the National Police, prosecutor’s office, courts, etc. immediately after de-occupation?
Regulation 5. Exemption from criminal liability:
“Citizens of Ukraine who participated in the activities of the occupation administrations or cooperated with the occupation entities, but did not commit serious, especially serious crimes and criminal offenses against peace, human security and the international legal order, may be exempted from criminal liability in case of voluntary reporting of the committed acts and active assistance in uncovering criminal offenses committed by occupation administrations and entities.”
I positively assess this provision, as it will contribute to the reintegration of the de‑occupied territories. At the same time, since we are talking about criminal law, the procedures for exemption from criminal liability should be clearly prescribed in the Criminal Code. It is important to do it in advance. This will comply with the principle of predictability and contribute to the effective application of this provision.
In my opinion, the first two provisions do not require any additional organizational measures. This is just another reminder of what already exists and is put in use. But provisions 3-5 will require a lot of work to implement. In my opinion, it would be a catastrophic mistake to limit ourselves to only such declarative intents of national policy and wait for the fact of deoccupation before we develop specific measures and amendments to legislation. Considering the volume of potential work and its importance, it is necessary to start active preparations now.
This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union.
Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of the USAID or the United States Government. The contents are the responsibility of the authors and UHHRU.
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