Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
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Vol.40 N° 74
2022
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Vol. 40, Nº 74 (2022), 779-803
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 14/07/22 Aceptado el 27/09/22
Considerations on the reform of
Ukraine’s wartime criminal justice system
DOI: https://doi.org/10.46398/cuestpol.4074.43
Valentyna Drozd *
Maksym Tsutskiridze **
Vladyslav Burlaka ***
Maksym Romanov ****
Mykola Pohoretskyi *****
Abstract
The purpose of the article was to consider the main
development trends in certain elements of the criminal justice
system, which were integrated due to Russia’s large-scale attack
on the sovereign territories of Ukraine. The subject of the article
is the institution of the reform of the Ukrainian criminal justice
system. The legal bases ensuring the functioning of criminal
justice institutions (in particular, the investigative bodies) are
examined and the corresponding conceptual and categorical apparatus
is analyzed. A review of selected elements of the criminal justice system
during the war is conducted. The inuence and signicance of Ukraine’s
acquisition of EU candidate membership status on the functioning of certain
elements of the criminal justice system is claried. Finally, the content and
essence of the main requirements of the EU to Ukraine, which can be the
basis for conducting negotiations on the issue of Ukraine’s nal accession
to the organization, are characterized. In the conclusions, directions and
methods of reforming certain elements of the criminal justice system in the
conditions of large-scale invasion are described.
Keywords: criminal justice; European integration; criminal punishment;
martial law; justice in wartime conditions.
* Doctor of Law, Professor, Honored lawyer of Ukraine, Head of the 3rd Research Department of
Research laboratory of legal and organizational problems ensuring the activities of the Ministry State
Research Institute of the Ministry of Internal Aairs of Ukraine (Kyiv, Ukraine). ORCID ID: https://
orcid.org/0000-0002-7687-7138
** Doctor of Law, Assistant Professor, Honored Lawyer of Ukraine, Police general of the 3rd rank, Deputy
Chief of the National Police of Ukraine – Chief of the Main pre-trial proceedings Department (Kyiv,
Ukraine). ORCID ID: https://orcid.org/0000-0002-5880-8542
*** Ph.D in Law, Police colonel, Head of unit The Main pre-trial proceedings Department of the National
police of Ukraine (Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-0003-1824-4380
**** Police major, Research ocer of the research laboratory on problems of prevention of criminal oenses
of Faculty № 3 of the Donetsk State University of Internal Aairs (Kropyvnytskyi, Ukraine). ORCID ID:
https://orcid.org/0000-0003-2443-7744
***** PhD in Law, Senior Researcher of the Scientic Institute of Public Law (Kyiv, Ukraine). ORCID ID:
https://orcid.org/0000-0003-2888-0911
780 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
Consideraciones sobre la reforma del sistema de
justicia penal de Ucrania en tiempos de guerra
Resumen
El propósito del artículo fue considerar las principales tendencias
de desarrollo en ciertos elementos del sistema de justicia penal, que se
integraron debido al ataque a gran escala de Rusia contra los territorios
soberanos de Ucrania. El tema del artículo es la institución de la reforma
del sistema de justicia penal de Ucrania. Se examinan las bases jurídicas
que aseguran el funcionamiento de las instituciones de justicia penal (en
particular, los órganos de instrucción) y se analiza el aparato conceptual
y categorial correspondiente. Se realiza una revisión de elementos
seleccionados del sistema de justicia penal durante la guerra. Se aclara
la inuencia y la importancia de la adquisición por parte de Ucrania del
estatus de candidato a miembro de la UE en el funcionamiento de ciertos
elementos del sistema de justicia penal. Finalmente, se caracterizan el
contenido y la esencia de los principales requisitos de la UE a Ucrania,
que pueden ser la base para llevar a cabo negociaciones sobre el tema de
la adhesión denitiva de Ucrania a la organización. En las conclusiones, se
describen las direcciones y métodos para reformar ciertos elementos del
sistema de justicia penal en las condiciones de la invasión a gran escala.
Palabras clave: justicia penal; integración europea; sanción penal; ley
marcial, justicia en condiciones de guerra.
Introduction
The institutional capacity to protect the rights and freedoms of a person
and a citizen is one of the most important directions in State development in
general, and acts as an essential organizational and structural vector in the
criminal justice system, in particular. The active phase of russia’s full-scale
invasion and military aggression against Ukraine, which began as a result
of an insidious attack by enemy troops in February 2022, had a signicant
negative impact on the functioning of all State institutions, threatening the
lives and health of people, the stable functioning of economic mechanisms,
and the social existence of society (Kharytonov et al., 2021) and somewhere
stopped the law operation altogether, and to this day leads to blatant and
systematic violations of human rights, in particular in the temporarily
occupied territories. Accordingly, in wartime conditions, the activities of
law enforcement agencies must also change. First of all, it concerns their
powers and eectiveness of activities in such conditions.
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The National Police of Ukraine is at the forefront of the ght against the
occupying forces and, within the limits of its competence, systematically
participates not only in ensuring the criminal and administrative liability
of persons guilty of oenses, but also performs other functions related
to humanitarian areas, protection and security of both civil and service
infrastructure or individuals. Among others, in our opinion, one of the most
important and complex tasks is performed by the pre-trial investigation
bodies of the National Police of Ukraine – inquiry and investigative units,
the activities of which are a fragment of the criminal justice system and are
correlated with national interests.
For example, during 5 months (the end of February – June 2022),
investigators of the National Police of Ukraine investigated almost 982,000
criminal proceedings, of which almost 128,000 were directly initiated during
the specied period. The materials in almost 15,000 criminal proceedings
were sent to the court during the specied period, which is almost 12,000
less than last year, in this period (27,000). This is logically justied by the
full-scale invasion of Russian troops into the territory of Ukraine, as a result
of which the territories of the Donetsk, Luhansk, Kherson, Zaporizhzhia,
and Kharkiv regions were partially occupied (in the rst months of the war,
separate administrative and territorial units of the Kyiv, Chernihiv, and
Sumy regions were also partially occupied).
All this fundamentally negatively aected the functioning of the pre-
trial investigation bodies of the National Police of Ukraine, taking into
account the fact that the relevant investigative and inquiry units continued
to perform their duties and exercise procedural rights and powers even
in conditions of semi-encirclement of territorial units, as well as in cities,
which were (and still are) lled with internally displaced persons.
Under appropriate conditions, the legislative base was also promptly
and systematically improved. So, for example, articles 185 (Theft), 186
(Robbery), 187 (Brigandism), and 189 (Extortion) were supplemented
with new special qualifying features “whether under conditions of war or
emergency”, which automatically penalized (increased criminal liability) for
their commission in wartime conditions. It should also be emphasized that
in ve months, starting from February 24, 2022, a pre-trial investigation of
more than 15,000 criminal proceedings was initiated: thefts – slightly more
than 12,000, robberies – more than 500, brigandism – more than 200.
We focus on other already introduced changes, their nature and the
need for further improvement based on the rst results of law enforcement
in one of the paragraphs of the corresponding study. While, in our opinion,
it is impossible to ignore the eect of the criminal justice system in the
conditions of war, through the prism of a new status for Ukraine – a
candidate for membership of the European Union. This fundamentally
changes the legal status of some institutions, the operation of certain
782 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
legal norms, and also, according to the recommendations provided by the
European Parliament, necessitates complex changes in the legislation of
Ukraine, which inuences law enforcement agencies and the functioning of
the pre-trial investigation system, in particular, in terms of prosecution of
persons guilty of war crimes.
That is why this issue needs a deeper study through the prism of the
Europeanization of national legislation in the light of obtaining the status
of a candidate for membership of the European Union and the correlation
of the relevant requirements with the realities of martial law and the
possibilities of Ukrainian democracy.
The article aims to analyze the scientic views of researchers and
scientists, legislative acts of Ukraine and the European Union, as well as
international legislation in general, regarding the functioning of the criminal
justice system according to the European model and ways to optimize
it in conditions of active hostilities. This aim requires solving several
research tasks, among which, in particular: to carry out a general overview
of the functioning of the criminal justice system in wartime conditions,
to determine the main tendencies of pre-trial investigation, as well as to
establish risks and dangers in the relevant process; to characterize the
inuence and signicance of the fact that Ukraine has acquired the status
of a candidate for membership of the European Union on the functioning
of the pre-trial investigation system as an element of the criminal justice
system; to make an attempt to outline directions and ways of reforming the
criminal justice system in general and pre-trial investigation in particular,
in the conditions of the large-scale invasion of Russia and the operation of
the legal regime of martial law.
1. Methodology
During the research, such general scientic and special scientic methods
were used: formal logic – for the detailed implementation of the assigned
tasks to establish ways of reforming the elements of the criminal justice
system of Ukraine in the conditions of martial law and in connection with the
acquisition of the status of the candidate for membership of the European
Union, description – for the determination of general theoretical and purely
legal categories characterizing the criminal justice institution in general, as
well as pre-trial investigation as its fragment, as well as categories related in
the context of the research subject and within its object, comparative legal
method – during the analysis of administrative and international legal, as
well as criminal procedural norms and scientic provisions relating to the
researched issues; dogmatic method – for the interpretation of the main
legal categories and clarication of the conceptual and categorical research
apparatus.
783
CUESTIONES POLÍTICAS
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The object of this study is public relations in the eld of criminal justice
in Ukraine. The subject of the study is the system of pre-trial investigation
as an element of criminal justice through the prism of the Europeanization
of legislation in wartime conditions.
2. Literature Review
Taking into account the multidisciplinary nature of the subject of
research, it should be noted that the issue of pre-trial investigation in the
conditions of the legal regime of martial law was highlighted in the works
by Hloviuk et al., (2022) and other co-authors of the scientic and practical
commentary on Section IX-1 of the Criminal Procedure Code of Ukraine
«Special regime of pre-trial investigation, trial in conditions of martial
law». Besides, one of the co-authors Teteriatnyk (2021) considered the
relevant issue within the scope of her own doctoral dissertation research on
the topic «Criminal proceedings in conditions of emergency legal regimes:
theoretical and methodological and praxeological foundations».
It should be noted that the personal contribution of Lazareva (2018)
regarding the denition of the general structure of the mechanism of
detention by an authorized ocial in the criminal process of Ukraine
(monographic level), which provided a substantial theoretical basis for
deepening the relevant aspect of the outlined topic, as well as the work by
Udalova (2005), which is directly related to the main fundamental problems
of science and the eld of criminal procedure.
International researchers also did not ignore the relevant topic in
general and the diculties in the work of the mechanisms of bringing
to criminal responsibility the persons guilty of committing the relevant
oenses, the work by Devi and Fryer (2020) regarding the organizational
and procedural aspects of bringing to criminal responsibility Brazilian
criminal organizations as transnational actors of violence, including in the
context of armed conicts, and Borch (2001) concerning the characteristics
and level of functioning of the institute for the protection of the rights and
freedoms of persons taking or participating in hostilities, in particular the
examples of Vietnam, Haiti and others.
In general, these works fragmentarily and in general characterize
the relevance of the outlined scientic publication, however, taking into
account the full-scale war started by Russia on the sovereign territory of
Ukraine, there are current and fundamental problems in law enforcement
that require scientic study.
784 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
3. Results and Discussion
3.1. An overview of pretrial investigation mechanism as part of
the criminal justice system in war
It should be stressed that Russia’s invasion of Ukraine has made the
functioning of the entire criminal justice system extremely dicult, whose
major aim is to set up a process to prosecute those who had committed
criminal acts. This process is always accompanied by a symbiote mechanism
to protect rights and freedoms of suspects or persons who have allegedly
committed an oence. This further requires the engagement of both
judicial institutions and defense lawyers, and the activities of other non-
institutional units.
Temporary occupation of certain territories of Ukraine had signicantly
and adversely impacted police responses to committed criminal oenses,
made judicial control over the activities of certain subjects of the criminal
process impossible, and posed serious threat to the human and citizen
rights and freedoms.
Herewith, the Constitution of Ukraine determines that the individual,
his or her life and health, honor and dignity, inviolability and security
are recognized in Ukraine as the highest social value, human rights and
freedoms and their guarantees shape the essence and orientation of the
State’s activities. The state is responsible to the people for its activities.
Arming and ensuring human rights and freedoms is the fundamental
obligation of the State (Constitution of Ukraine, 1996), and when there is
signicant and massive violation of the rights and freedoms of Ukrainian
citizens, in particular in the temporarily occupied territories, the basic
fundamental processes to enhance human and citizen rights and freedoms
need to be updated.
One of such processes, the most eective as we believe, is criminal
prosecution for committed criminal oenses, which provides a punishment
proportional to the committed crime and a relevant social eect when it is
exercised.
The Criminal Procedure Code of Ukraine contains a number of provisions
that regulate pre-trial investigation and court proceedings and follow clear
and transparent ‘rules’, which are solid and the only for all its participants.
Herewith, Article 615 of the Code sets a special routine for criminal
proceedings during war, which makes some procedures and processes in
the pre-trial investigation much easier and as ecient as possible, taking
into account that the rights and freedoms of humans and citizens (who are
participants in criminal proceedings) may be greatly reduced (Criminal
Procedure Code of Ukraine, 2012).
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CUESTIONES POLÍTICAS
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In our opinion, the introduction into the national legislation of
mechanisms to facilitate pre-trial investigation in certain cases, in
particular related to the conduct of investigative (search) activities, respond
to committed criminal oenses etc., is needed due to the long-term nature
of activity prescribed by a certain procedure and the inability to carry out
certain actions (make a relevant decision) later.
Hloviuk, Teteriatnyk, Rohalska, Zavtur emphasize that the background
driver for the criminal proceedings during emergency legal status is
the specics of the regulatory control of this process. Together with the
regulations that are commonly used to regulate legal relations during
normal life, the regulatory component of legal regulation shall also include
emergency laws. They shall provide both specic means and mechanisms
for the legal regulation and be of special nature in terms of territorial extent,
time and scope of persons (Hloviuk et al., 2022).
We believe, such circumstances primarily include a number of factors,
where the most signicant are as follows: increase of certain types of crime;
weakened capacity of the police to respond to committed criminal oenses
(in particular, in the occupied territories); failure to actually exercise
judicial, public control and prosecutorial supervision over the activities of
the prosecuting party (investigator, prosecutor) due to active hostilities or
occupation.
Due to blatant aggression of russia, a number of new oenses were added
to the Criminal Code of Ukraine, which are enforceable only during wartime,
in particular article 201-2 (Illegal use of humanitarian aid, charitable
donations or free aid for prot) (Criminal Code of Ukraine, 2001), which
sets liability for the large-scale selling of goods (items) of humanitarian aid
or the use of charitable donations for the purpose of prot.
The Criminal Code of Ukraine has also been supplemented with some
new oenses to timely and eectively response to all ‘fascist’-related
activity by the rf, in particular articles 111-1 (Collaborative activity), 111-2
(Assistance to the aggressor state), 114-2 (Unauthorized publicity about
the movement of weapons, armaments and military supplies to Ukraine,
the movement, transfer or placement of the Armed Forces of Ukraine or
other army units formed as per Ukrainian law, committed in state of war or
emergency) (Criminal Code of Ukraine, 2001).
These changes and few others were initiated by the Committee on Law
Enforcement of the Verkhovna Rada of Ukraine from the suggestions of
the Main Investigative Department of the National Police of Ukraine, since
eective addressing unlawful actions and anti-State activities by individuals,
including support for the aggressor, in particular, through unauthorized
publication of information about the location of the Ukrainian army and its
units, is one of the most important and fundamental factors for Ukraine’s
victory.
786 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
Having statistics about the performance of the pre-trial investigation
agency of the National Police of Ukraine in wartime and comparing it with
the pre-war gures for the same period last year is an unbiased approach
to measure the performance of the relevant units, their coherent and
coordinated work. This is also supported by domestic researchers who
emphasize that the police should utilize procedures and mechanisms that
do not allow manipulations with the performance indicators of its sta and
units in general (Molchanov, 2014).
So far, investigators of the National Police of Ukraine have registered
over fourteen thousand nine hundred criminal proceedings on war crimes
and other serious crimes against Ukrainians and Ukraine committed
by russian troops on the territory of the State during the ve months of
wartime announced according to the law. When we have a more extensive
look at how the national police ranks war crimes committed by rf, it should
be emphasized that the vast majority of criminal proceedings were initiated
under Article 438 (Violation of the laws and customs of war) of the Criminal
Code of Ukraine and Article 110 (Encroachment on Ukraine’s territorial
integrity and inviolability), which is 95% of all registered war crimes (total
– 14,970, of which 10,612 cases fall under Article 438 of the Criminal Code
of Ukraine; 3,678 – under Article 110 of the Criminal Code of Ukraine).
We believe, amid the urry of introduced changes, we should draw
particular attention, for example, to the Law of Ukraine dated April 14,
2022 No. 2201-IX that has conceptually changed Article 615 of the Criminal
Code of Ukraine on how to conduct pre-trial investigation during martial
law. The main provisions of this Law of Ukraine include, in particular:
• It is now impossible to declare evidence inadmissible, which was
gain in accordance with Article 615 of the Criminal Procedure Code
of Ukraine (amendments to Article 87 (Inadmissibility of evidence
obtained as a result of a signicant violation of human rights and
freedoms).
• It is stated that the statements collected during a pre-trial
investigation in a court session in accordance with Article 225
(Interrogation of a witness, a victim during a pre-trial investigation
in a court session) of the Criminal Procedure Code of Ukraine must
be acknowledged by the court when making a decision (Article 95
(Statements).
• It shall be possible to revive a missed deadline in criminal
proceedings taking into account specics dened by Article 615 of
the Criminal Procedure Code of Ukraine, not later than 60 days
from the date of termination or cancellation of the status of war or
emergency (Article 117 (Revival of the procedural deadline).
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CUESTIONES POLÍTICAS
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• It is now impossible to manipulate the deadlines governing the
conduct of pre-trial investigation by not allowing the investigating
judge in criminal proceedings to cancel the decision on their
termination in accordance with Article 615 of the Criminal Procedure
Code of Ukraine (amendments to Article 219 (Deadlines of the pre-
trial investigation).
• Provisions of the Criminal Procedural Code of Ukraine regarding
the suspension of criminal proceedings have been legally xed and
a new ground for suspension has been added, which is availability of
objective factors that do not allow to continue pre-trial investigation
in the status of war or emergency (Article 280 (Grounds and
procedure to terminate pre-trial investigation when the suspicion
have already been reported to an individual).
• Accordingly, a new ground was added which allows to resume
pre-trial investigation when the status war or emergency was
terminated or cancelled, or it became possible to continue pre-trial
investigation during such status (Article 282 (Resumption of the
pre-trial investigation).
• It became possible to suspend court proceedings if an individual
was drafted for military service during mobilization (Article 335
(Suspension of Court Proceedings).
A new version of Article 615 of the Criminal Procedure Code of Ukraine
authorizes, in exceptional cases, to choose detention as a preventive measure,
for a period of up to 30 days, for individuals suspected of committing grave
or particularly grave oences. It is carried out by the head of the relevant
prosecutor’s oce at the request of the prosecutor or at the request of the
investigator, nalized by the prosecutor.
If there are well-grounded circumstances that suggest that an individual
suspected of committing a crime may escape to avoid criminal liability, an
authorized ocial may detain such individual without a judgement of an
investigating judge or a court, or a judgement of the head of the prosecutor’s
oce.
Herewith, this Law of Ukraine, as well as other statutory instruments
poorly regulate a number of issues related to the legal framework of
certain aspects of pre-trial investigation, which may further lead to that the
collected evidence will be recognized as inadmissible, or that the actions
of the pretrial investigation sta will be more likely recognized as illegal.
Therefore, we believe these issues of concern require strong academic
research and further improvement of regulatory and legal acts both at local
and national levels.
788 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
3.2. On the jurisdiction of war crimes made in war and ensuring
prompt, exhaustive and unbiased pre-trial investigation
When investigators conduct relevant activities, the main concern for
them is to timely forward the materials of criminal proceedings to the
pre-trial investigation agency, which, according to part two of Article 216
(Prosecution) of the Criminal Procedure Code of Ukraine, is authorized to
carry out pre-trial investigation of relevant criminal oenses, and is the
Security Service of Ukraine.
Knowing that the collection of evidence, documenting of circumstances
of the war crimes and identication of the guilty persons needs to be done
immediately and within the jurisdiction of the relevant units of the Security
Service of Ukraine, as well as that it is impossible for systemic reasons to
make a repeated visit to the scene of the incident, repeatedly or additionally
interrogate individuals, victims and suspects, as well as witnesses and other
objective circumstances that require a number of ‘urgent’ investigative
(search) actions by the National Police of Ukraine, it is necessary to
immediately apply to the prosecutor to change the jurisdiction and forward
available materials of the criminal proceedings, since the case law shows
there is a high risk that the evidence collected in criminal proceedings by
improper subjects will be recognized incompetent.
At that, the Criminal Court of Cassation as part of the Supreme Court
in its decision, cases dated 28.04.2021 No. 759/833/18 (Resolution of the
Supreme Court, 2021) and dated 24.05.2021 No. 640/5023/19 (Resolution
of the Supreme Court, 2021) wrote that evidence will be recognized
inadmissible if it was obtained by an unauthorized body and in case of
violation of the jurisdiction rules.
Under the marital law and an objective need, involvement of an
investigative-operational group of the National Police of Ukraine and
an investigator as the subject of the pre-trial investigation into the
documenting of relevant criminal oenses was regulated and optimized
by making changes to Article 39 (Head of the pre-trial investigation unit)
of the Criminal Procedure Code, by expanding the authorities of the head
of the pre-trial investigation unit with the right to form interdepartmental
investigative groups and to appoint a senior investigator within such groups.
At the same time, attention should also be paid to the criminal
oenses that were committed by rf’s servicemen or mercenaries in civilian
(unidentied) clothes, that makes the evidencing processes and the
procedure for primary ranking of relevant illegal actions more complicated
and requires certain investigative (search) actions to identify the oender,
and when the oender’s aliation to rf armed units was established, amend
the charges and transfer it to the Security Service of Ukraine in accordance
with the procedure established by Ukrainian law.
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Here we should note that the National Police of Ukraine has started a
pre-trial investigation of proven and probable criminal oenses committed
by rf soldiers, members of their sabotage and intelligence groups and
private military campaigns, on 14 assaults, 97 robberies, 65 armed attacks,
643 cases of illegal handling of weapons, ammunition or explosives.
From the perspective of the criminal procedural legislation of Ukraine,
such acts by pre-trial investigation ocials are in line with the regulations
and principles, since part ten of Article 216 of the Criminal Procedure
Code of Ukraine says that if pre-trial investigation reveals other criminal
oenses committed by an individual being the subject of the ongoing pre-
trial investigation, or by other individual, where they are related to criminal
oenses committed by an individual being the subject of the ongoing pre-
trial investigation, and such oences are not under the jurisdiction of the
agency conducting the pre-trial investigation in criminal proceedings,
the prosecutor supervising the pre-trial investigation shall, where it is
impossible to separate such materials into a separate proceeding, dene
the jurisdiction of all such criminal oenses in its resolution.
At the same time, we believe, a number of technical changes need to be
introduced to the Criminal Procedural Code of Ukraine, which, together
with the institutional and legal framework to address committed criminal
oenses (regarding the performance of investigative and operational
units of the National Police of Ukraine), will enable and expand the list
of possible investigative (search) actions and allow to make procedural
decisions without the risk of them being recognized unlawful in the future
for the purpose of eective and timely documentation of criminal activities
committed by rf’s servicemen and preventing their evasion of criminal
liability.
3.3. On detention by an authorized ocial (in view of the
changes introduced by the Law of Ukraine dated April 14, 2022
No. 2201-IX ‘On Amendments to the Criminal Procedural Code
of Ukraine to improve procedure for criminal proceedings in
wartime’ (eective from 01.05.2022)
Today, the most controversial issue in the legal community is the one
to extend the time of detention of an individual without a judgement of
the investigating judge, a court or the order of the head of the prosecutor’s
oce during martial law and such time may not exceed two hundred and
sixteen hours (9 days) from the moment of detention, which is set by Article
209 (Moment of detention) of the Criminal Procedure Code of Ukraine.
This provision is the subject of much debate in the legal community, in
particular, that it contradicts the Constitution of Ukraine, since, as human
rights defenders say, it greatly limits human and citizen rights and freedoms
790 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
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and is not suciently justied and proportionate to the public threat of the
oender, which is hard to agree with considering the objective factors.
Surely, it is important to objectively assess all factors during the pre-
trial investigation and determine whether it is necessary or not to detent
a person without a judgement of the investigating judge for up to 9 days.
Other researchers also speak of this.
For example, Lazareva emphasizes that there is no doubt among
academics and practitioners that the procedure to detain a person
suspected of committing a crime by an authorized body shall fall under
criminal procedural regulation. Recognition of the procedural nature of
detention by an authorized ocial raises the need to dene its essence as
a criminal procedural institution (Lazareva, 2018). The importance of the
institution of detention and the need to ensure its proper legal regulation
and protection of the rights and freedoms of the detainee are also covered
by V. Rohalska and other authors of the Detention in Criminal Proceedings
study guide (Fedchenko, 2021), which, as we believe, raises the issue of
evaluating the risk when this measure is utilized by authorized subjects
illegally but within the formal legitimacy in accordance with the Criminal
Procedure Code of Ukraine.
The Constitution of Ukraine stipulates that in case of urgent need to
prevent or stop a crime, authorized agencies may use detention of a person
as a temporary preventive measure, herewith a court has to verify the
relevance of such measure within seventy-two hours. A detained person
shall be immediately released if, within seventy-two hours from the
moment of detention, he or she was not served a reasoned court decision
on detention (Constitution of Ukraine, 1996).
This provision shall be the mainline and the starting point, underlying
the entire national legislation that deals with this issue. Herewith, such
provision on the detention by an authorized ocial appeared in the
Criminal Procedure Code of Ukraine due to some objective reasons when it
is actually impossible to bring a relevant person to court and verify whether
his or her detention was reasonable.
Legal uncertainty in this issue has a bad eect, primarily, for the
evidencing process, as well as has a high risk that all evidence collected as
a result of such detention will be found inadmissible and will further not
allow to prosecute oenders, including Russian army men.
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3.4. On determining territorial jurisdiction and ensure the
judiciary’s proper serving (in view of changes introduced
by the Law of Ukraine dated March 3, 2022 No. 2112-IX ‘On
amendments to part seven of Article 147 of the Law of Ukraine
‘On the Judiciary and the Status of Judges’ regarding the
determining of territorial jurisdiction of court cases’ (eective
from 07.03.2022)
Another fundamental change is determining territorial jurisdiction
during martial law, which shall be there where the pre-trial investigation
was nished, and before that – where the crime was committed (part nine
of Article 615 of the Criminal Procedure Code of Ukraine).
One of the basic pillars of the functioning of the courts on the territory
of Ukraine, which are authorized to administer justice on behalf of Ukraine,
is the category and principle of territorial jurisdiction, which is also a
component of the check-and-balance system and a guarantee of justice,
as well as the mechanist for the access to justice for all citizens without
exception, and in the pre-trial investigation, it directly aects whether
certain investigative (search) actions, which require investigating judge’s
authorization, may be implemented.
V. Bibilo notes that the competence of the court actually represents its
legal function, i.e. the rights and liabilities to fulll it (Bibilo, 2001). Thus, it
is emphasized that the issue of territorial jurisdiction during any time, and
in particular during active hostilities, required a profound revision of how
relevant arrangements are organized, since it is impossible to objectively
administer justice in such area.
In addition, M. Smokovich stresses that ensuring the administration
of justice by courts and allowing real access to justice, especially during
the martial law, is a complex multilayer issue that involves a wide range of
measures and tools (Smokovich, 2022). Which, we think is fair, since the
stability and ne functioning of all judicial institutions, without exception,
is, primarily, the prerequisite for democracy and the rule of law in all states
of the civilized world.
Herewith, we shall stress that the actual scope of the territorial
jurisdiction of the courts, separation of duties between them are set by
the orders of the Chairman of the Supreme Court, who denes the actual
scope of the territorial jurisdiction of the judicial branch, and provides
argumentation that serves the basis to declare inability to administer
justice in a certain territory and denes how this issue shall be addressed.
Speaking about the pre-trial investigation, this issue links with the activity
of investigating judges, who, together with the court where they do public
service, shall be relocated due to inability to exercise their powers.
792 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
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In view of that, the orders of the Chairman of the Supreme Court
‘On changing the territorial jurisdiction of court cases during war’ dated
06.03.2022 No. 1/0/9-22 (regarding certain courts in Donetsk, Kyiv,
Luhansk, Kherson regions); dated 08.03.2022 No. 2/0/9-22 (regarding
certain courts in Kharkiv and Chernihiv regions); dated 10.03.2022 No.
4/0/9-22 (regarding certain courts in Zhytomyr, Zaporizhzhia and Kharkiv
regions); dated 12.03.2022 No. 5/0/9-22 (regarding certain courts in
Zaporizhzhia region); dated 14.03.2022 No. 7/0/9-22 (regarding certain
courts in Donetsk, Zaporizhzhia and Kharkiv regions); dated 15.03.2022
No. 8/0/9-22 (regarding Kramatorsk City Court in Donetsk region);
dated 16.03.2022 No. 10/0/9-22 (regarding suspension of the order dated
16.03.2022 No. 9/0/9-22, change of the territorial jurisdiction of court
cases during war in certain courts of Mykolaiv and Kharkiv regions); dated
18.03.2022 No. 11/0/9-22 (regarding certain courts in Donetsk, Kharkiv and
Kherson regions); dated 22.03.2022 No. 12/0/9-22 (regarding commercial
courts of Mykolaiv, Sumy and Chernihiv regions); dated 22.03.2022 No.
13/0/9-22 (regarding individual courts of the Sumy region), depending
on the intensity and nature of hostilities within certain administrative-
territorial entities, the rules of territorial jurisdiction are changed ad hoc,
since there is a need to ensure that the justice is implemented and human
and citizen rights and freedoms are observed on the territory of Ukraine,
and the above narratives are also supported.
We nd such changes have greatly simplied the communications
between investigating judges and investigators (prosecutors), in particular,
during pre-trial investigation of war-related criminal oenses and violations
of the rules and customs of war. Further, amendments to the content and
essence of the institution of territorial jurisdiction allowed to proceed with
pre-trial investigation in those criminal oenses where relevant procedural
deadlines were about to expire. Introduction of relevant amendments to the
Criminal Procedure Code of Ukraine has also guaranteed that all suspects,
victims and other participants in the criminal process will have the rights
to defense, a fair trial, an unbiased pre-trial investigation and other rights
prescribed by the Constitution of Ukraine.
3.5. On cooperation with the International Criminal Court
regarding the broadening of its jurisdiction to rf’s army ocials
(in view of changes introduced by the Law of Ukraine dated
May 3, 2022 No. 2236-IX ‘On Amendments to the Criminal
Procedure Code of Ukraine and other legislative acts of Ukraine
regarding cooperation with the International Criminal Court’
(eective from 20.05.2022)
We believe that another revolutionary change, along with the
territorial jurisdiction, is that the Criminal Procedure Code of Ukraine
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was complemented with a new IX2 section ‘Specics of cooperation with
the International Criminal Court’, whose provisions cover only cooperation
with the International Criminal Court with the aim to expand its jurisdiction
to rf’s military ocials, despite the fact that the Rome Statute has not yet
been ratied by the Verkhovna Rada of Ukraine.
The Constitution of Ukraine states that Ukraine may accept the
jurisdiction of the International Criminal Court under the terms set out by
the Rome Statute of the International Criminal Court, which was adopted
by the Verkhovna Rada of Ukraine on July 17, 1998, but has not yet been
ratied.
T. Sadova draws attention to the fact that Ukraine, being an independent
self-sustained country, shall have legislation that would meet international
standards with respect to grave international crimes. Implementation by
Ukraine of the legal elements of the crime as dened in the Rome Statute
is of special signicance, since the International Criminal Court does not
encroach upon the sovereignty of states when carrying out its activities,
but only complements national criminal judiciary (Sadova, 2019), which in
light of the full-scale Russia’s armed aggression dictates the need to speed
up the harmonization of Ukrainian and international legislation.
At the same time, a decision to ratify the Rome Statute may be adopted
successfully if domestic criminal law is aligned with its basic provisions and
they do not contradict each other, which guarantees eective international
criminal justice for crimes committed on the territory of Ukraine.
Ratication by the Verkhovna Rada of Ukraine of the Rome Statute of the
International Criminal Court is a political and legal act, which will bring
along some consequences in criminological security.
We believe, existing and possible (forecasted, planned) criminogenic
risks and elements of policy repelling armed aggression, anti-terrorist policy
and future reintegration of currently temporarily occupied territories, shall
be taken into account. An important factor when adopting a ratication
decision.
According to Part 3 of Article 89 of the Regulations of the Verkhovna
Rada of Ukraine, as well as Part 6 of Article 9 of the Law of Ukraine ‘On
International Treaties of Ukraine’, only the President of Ukraine and the
Cabinet of Ministers of Ukraine have the exclusive right of legislative
initiative to ratify international treaties by Ukraine.
Herewith, we note that the Constitutional Court of Ukraine in its
conclusion dated 11.07.2001 No. 3-в/2001 (Rome Statute case) (Conclusion
of the Constitutional Court of Ukraine, 2001) recognized the Rome Statute
of the International Criminal Court, signed on behalf of Ukraine on January
20, 2000, which was submitted to the Verkhovna Rada of Ukraine to accept
it as binding, inconsistent with the Constitution of Ukraine in the part that
794 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
covers the provisions of paragraph ten of the preamble and Article 1 of the
Statute which say that ‘the International Criminal Court ... complements
national criminal justice system.’
In justifying their opinion, the Constitutional Court of Ukraine stated
that, in accordance with Part 1 of Article 124 of the Constitution of Ukraine,
justice in Ukraine is administered only by the courts. These include the
Constitutional Court of Ukraine and courts of general jurisdiction (Part
3 of Article 124). The system of courts of general jurisdiction in Ukraine
includes: the Supreme Court of Ukraine, which is the highest judicial body
in the system of courts of general jurisdiction, higher specialized courts,
courts of appeal and local courts (Parts 2–4 of Article 125 of the Constitution
of Ukraine).
Article 1 of the ICC Statute, which states that the International Criminal
Court is a permanent agency authorized to exercise jurisdiction over persons
responsible for the gravest crimes that raise concern to the international
community, also says that this Court complements national criminal justice
system (The Rome Statute of the International Criminal Court, 1998).
A similar provision is also found in paragraph ten of the preamble of the
ICC Statute. It is also pinpointed in some other articles of the ICC Statute, in
particular in paragraph 2 of article 4 stating that the Court may exercise its
functions and powers on the territory of any member state, in subparagraph
‘a’ of paragraph 1, article 17, which says that the Court takes over the cases
both at the request of a member state and on its own initiative, when the
state whose jurisdiction covers a person suspected of committing a crime
envisaged in the Statute ‘is unwilling or unable to conduct an investigation
or initiate a criminal prosecution in a proper manner’, which has currently
been demonstrated by the court in the context of russia’s hostilities against
Ukraine (Krasnitsky, 2022).
We believe that the above-mentioned legal basis contrasts the
International Criminal Court to the other international judicial agencies, in
particular, the European Court of Human Rights, with the right to appeal
to them to seek protection of rights and freedoms regularized in part four
Article 55 of the Constitution of Ukraine. These international judicial
agencies initiate proceedings only at the request of eligible applicants who
have exhausted all domestic remedies. Therefore, unlike the international
judicial agencies mentioned in part 4 of Article 55 of the Constitution of
Ukraine, which by their nature play auxiliary role in protecting human and
citizen rights and freedoms, the International Criminal Court complements
the national judicial system.
Amendments to Article 124 of the Constitution of Ukraine made in
2016 state that Ukraine may recognize the jurisdiction of the International
Criminal Court subject to the conditions laid down in the Rome Statute of
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the International Criminal Court. Thus, this drives the conclusion that the
ICC may already take over (initiate) cases of Ukraine.
Herewith, our opinion is that it is absolutely necessary to ratify the Rome
Statute of the International Criminal Court, so that aggressors from rf who
started a war of aggression against independent Ukraine were brought to
justice in a proper manner. Upon ratication, provisions of the current
Criminal Code of Ukraine need to be harmonized with the Rome Statute,
for example:
1. The Criminal Code of Ukraine will need to be supplemented with
new oenses, since it does not contain the exhaustive list of crimes
available in the Rome Statute (it has only one article 438 (Violations
of the Laws and Customs of War), which creates liability for such
crimes, and absolutely has no such category of crimes as crimes
against humanity (Article 7 of the Rome Statute), war crimes (Article
8 of the Rome Statute) and etc.
Article 437 of the Criminal Code of Ukraine, which envisages
responsibility for the aggressive war, is more narrowly construed
than Article 8 in the Rome Statute regarding the crime of aggression.
The situation with the crime of genocide is the same (Article 442 of
the Criminal Code of Ukraine; Article 6 of the Rome Statute).
Also, the Criminal Code of Ukraine does not list all types of fellowship
in crimes stated in the Rome Statute. The approach laid in the
Criminal Code of Ukraine to punishments for the acts that the Rome
Statute considers as international crimes is inconsistent and does
not meet the standards of the Rome Statute.
The International Criminal Court is complementary to the national
justice system and only complements it when the State cannot
prosecute criminals by itself. Law enforcement and judicial bodies
of Ukraine currently have no actual opportunity to classify crimes in
accordance with the Rome Statute.
2. Even with the amendments introduced by the aforementioned
Law of Ukraine, the Criminal Procedure Code of Ukraine does
not ensure proper functioning of mechanisms of cooperation
with international judicial institutions, in particular with the
International Criminal Court, in criminal prosecution of oenders
and exchange of information, except as in separate international
treaties where such cooperation is currently envisaged only between
states, which brings out the need for further academic research of
these challenging issues, including in areas where such cooperation
is already extensive (for example, documenting of crimes by russian
militants in certain communities of Kyiv, Chernihiv and Sumy
regions).
796 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
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2. Availability of statutes of limitation within which persons guilty of
international crimes may be held criminally liable in Ukraine. Due
to the long-term armed conict in Donetsk and Luhansk regions
and the occupation of Crimea, the number of international crimes
that require investigation keeps growing.
But the lack of easy access to the crime scene, evidence, witnesses and
suspects makes their investigation very dicult. When setting statutes
of limitations, the Criminal Procedural Code does not take into account
additional obstacles that occur during the investigation of crimes at wartime
and occupation. The Rome Statute does not set such statutes of limitations
given the investigating international crimes and prosecuting specic state
representatives is challenging.
Other regulations will also need improvements.
3.6. Vectors for reforms of the system of pre-trial investigation
during large-scale invasion of Russia and further integration of
Ukraine into the European Union
The issue of reforming the system of pre-trial investigation during
hostilities was and is highly urgent, since becoming a candidate for EU
membership requires from Ukraine introduction of certain amendments to
its basic legislation and the fulllment of European Parliament requirements
in certain elds (need to be urgently addressed), and signicant academic
research in the view of fragmentary changes in the system of pre-trial
investigation, in particular.
The fact that in 2020 (according to the ocial website of the
Commissioner for Human Rights of the Verkhovna Rada of Ukraine), the
Commissioner received 5,744 reports of violations of procedural rights in
criminal proceedings (Annual report of Commissioner for Human Rights
of the Verkhovna Rada of Ukraine, 2021) also reexes the need to identify
vectors to enhance pre-trial investigation performance.
The academics stress that the law enforcement system is currently
undergoing reforms, therefore external and internal factors dictate the need
for constant improvement of the policies of the National Police of Ukraine,
changes in their structure and functions, and this requires timely academic
analysis and development to further bring them into practice (Kobzar and
Daragan, 2020). War, static warfare of the Armed Forces of Ukraine in
certain directions, as well as a set of measures to resist the invasion make
this process even more dicult.
In this regard, an analyst A. Dmytriev rightly notes that Ukraine may
become a European and democratic state when it is able to ensure its
national security, which is something what the NP of Ukraine agencies and
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units shall do (Dmytriiev, 2016), and this supports the opinion that certain
human rights and freedoms cannot be protected only by some certain
units of the National Police of Ukraine. This complex process requires
intersectional engagement of all structures and units of the police system,
which is aimed at comprehensive implementation of human and citizen
rights and freedoms – od all people without exception, in particular citizens
and persons who are suspected or already accused of committing criminal
oenses.
We believe one of the most important areas of improving the system
of pre-trial investigation during large-scale invasion of russia and further
integration of Ukraine into the European Union is legislative support,
legal and informational analysis of the practical application of certain legal
norms, which gives further rise to reform the adopted regulations and draft
new ones.
For example, the Decree of the President of Ukraine dated August 7,
2019 No. 584/2019 ‘Issues of the Legal Reform Commission’ approved the
Regulations on the Legal Reform Commission and its composition, and its
priority areas included amendments to the Constitution of Ukraine and the
laws of Ukraine aimed at ensuring the implementation of constitutional
standards and principles, namely the priority to protect fundamental
human and citizen rights and freedoms, improve the legislation on criminal
liability and criminal procedural legislation of Ukraine, reform law
enforcement agencies, as well as create prerequisites for the reintegration
of temporarily occupied territories of Ukraine and its population into the
single constitutional space of Ukraine (Decree of the President of Ukraine,
2019).
Therefore, one should concentrate on the institutional approach when
identifying the vectors for the improvement of Ukrainian legislation from
the perspective of democratic values and European integration eorts, by
grouping them into: general issues to ensure human and a citizen rights and
freedoms; issues related to policing of the public agencies during shaping
of democratic values; ensuring proper compliance with criminal procedural
procedures in pre-trial investigation.
For example, the Main Investigative Department of the National Police
of Ukraine, People’s Deputies of Ukraine – members of the Committee of
the Verkhovna Rada of Ukraine on Law Enforcement, as well as academics
and experts focus on the fact that the lawmaker overlooked some property
crimes, such as fraud and illegal possession of transport vehicles, committed
in wartime on the territory of Ukraine, and the number of such crimes is
also great.
Also, taking into account the general trend of the need to arm the civilian
population, the entire academic community supported the initiative to
798 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
change part three of Article 263 of the Criminal Code of Ukraine, where
liability for committing a certain act, in cases of voluntary surrender of
weapons, ammunition, explosives or devices is cancelled.
Conclusions
Thus, the authors carried out a general review of the functioning of
the criminal justice system in wartime conditions, identied the main
tendencies of pre-trial investigation, as well as identied risks and dangers
in the relevant process, and characterized the signicance of the fact that
Ukraine acquired the status of a candidate for membership of the European
Union. Based on this, the authors oer the following directions and
methods of reforming the criminal justice system in general and pre-trial
investigation in particular, in the conditions of the large-scale invasion of
russia and the operation of the legal regime of martial law:
1. The analysis of the legislation of Ukraine and the European Union
in the light of harmonization demonstrates that the legal regulation
issue of the establishment of relations between the International
Criminal Court and law enforcement agencies (represented by
specially authorized entities) of Ukraine requires the most signicant
legislative contribution since the eectiveness of documenting
the criminal activities of the russian troops and their mercenaries
determines the nal result – bringing them to criminal liability and
starting the compensation procedure for the damage caused to the
civil infrastructure.
2. The eect and essence of Ukraine’s acquiring the status of a
candidate for membership of the European Union are that the
receipt and conrmation of this candidacy (the procedure for
resolving several problematic issues dened in the decision of the
European Parliament) have dierent legal nature and are correlated
as the fact of acquisition and some circumstances that may aect the
cancellation of the relevant decision.
Therefore, in the context of long-term European integration
ambitions to acquire the status of a full-edged member of the
European Union, we believe that other aspects related to the
harmonization of national legislation in the European context should
be implemented. In particular, the most important thing in a warring
state is to ensure the continuous functioning of the justice system,
the functioning of law enforcement agencies, the preservation of
anti-corruption traditions and tendencies, as well as the creation of a
united European security environment.
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3. Among the most signicant risks in the issue of continuous
ensuring of the functioning of state authorities in general and the
criminal justice system (in terms of pre-trial investigation) is the
impossibility of ensuring the security and protection of human and
citizen rights and freedoms in temporarily uncontrolled territories,
excessive workload of the law and order system while conducting
hostilities, since the usual scope of everyday functions also includes
the provision of humanitarian work and others directions aimed at
meeting the needs of the civilian population and law enforcement
forces.
4. The main and most eective tool for reducing these risks is the rule-
making and legislative activity aimed at optimizing the activities of
law enforcement agencies, improving procedures and mechanisms
in pre-trial investigation and law enforcement activities in the
context of the criminal justice institute in general. The clarication
of the relevant provisions will, rst of all, lead to the harmonization
of the range of duties assigned to various law enforcement agencies
and guarantee a quick, complete, impartial pre-trial investigation of
criminal oenses and unlawful infringements, as well as ensuring
the rights and freedoms of a person and a citizen in general.
5. In our opinion, the main and most priority way to improve the
legislation today, based on the analyzed and researched materials,
is the need to:
• bringing the provisions of Article 615 of the Criminal Procedure
Code of Ukraine into compliance with the Convention on the
Protection of Human Rights and Fundamental Freedoms and
the Constitution of Ukraine in terms of determining the term
of detention of a person and providing him with the right to
protection;
• normalization of the provisions of the Criminal Procedure
Code of Ukraine regarding the selection of the most severe
preventive measure of detention exclusively by an investigating
judge;
• simplication of the criminal procedural procedure of carrying
out an examination of a person based on his voluntary consent,
with observance of his guarantees of personal integrity, based
on the resolution of the inquirer, investigator, prosecutor;
• predicting the possibility of the police collecting biological
material and establishing genetic characteristics (genomic
information) using express tests already at the scene of the
incident;
800 Valentyna Drozd, Maksym Tsutskiridze, Vladyslav Burlaka, Maksym Romanov y Mykola Pohoretskyi
Considerations on the reform of Ukraine’s wartime criminal justice system
• simplication of the procedure for the extradition of human
bodies during the legal regime of martial law with mandatory
establishment of the cause of death and in the absence of signs
of violent death;
• bringing the provisions of the Criminal Code of Ukraine into
compliance with the provisions of the Rome Statute regarding
crimes against humanity and introducing the mechanisms of
the International Criminal Court regarding the collection of
evidence in accordance with the “best evidence rule” principle;
• introduction of special criminal law norms (compounds
of crimes) regarding the provision of liability for forced
renunciation of citizenship and forced passporting;
• adoption of a basic legal act (Law of Ukraine) on the regulation
of legal relations regarding the procedure for obtaining and
using rearms by the military, law enforcement agencies and
the civilian population.
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Esta revista fue editada en formato digital y publicada
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