On December 7th, 2022, the Japan Federation of Bar Associations hold a seminar. Oksana Voynarovska was a guest speaker at the event talking about the current situation of legal community in Ukraine. Here are some key issues from the speech.
How the judicial system and/or individual lawyers have been affected?
Courts
In Ukraine, martial law was introduced on February 24, 2022, as a response to the full-scale aggressive invasion of russia in Ukraine. A lot of regions were almost immediately occupied, and other regions were under missile attacks. Courts located in the territory of active hostilities (Donetsk, Zhytomyr, Zaporizhzhya, Kyiv, Luhansk, Mykolaiv, Sumy, Chernihiv, Kharkiv, and Kherson regions) were unable to function due to shelling, evacuation of staff, presence of russian soldiers, and therefore such courts suspended their activities. That lead to the necessity of territorial jurisdiction changes when cases were transferred to the courts in a more safe area. Consequently, that created a burden on the courts.
More than 50 court premises were damaged, and some of them are completely destroyed. After the de-occupation of some courts, it turned out that they were looted - computer equipment and other material values disappeared. Therefore, it is now necessary to rebuild and restore the courts’ premises in order to restore normal proceedings.
Some of the case files from the occupied courts could not be transferred, and now the parties to those disputes actually found themselves at a dead end. It is worth mentioning that in order to review criminal cases in the courts of appeal and courts of cassation (for which case materials from the occupied territories had to be requested), the Supreme Court addressed to international humanitarian organizations, so they contacted russians and helped to transfer at least part of the materials for consideration to the cassation court. But a large number of case files and archives still remain out of reach.
Judges
Some of the judges joined the Armed Forces of Ukraine and temporarily do not administer justice. Some of the judges remained in the occupied territories, and their lives and the lives of their families may be in danger, as they used to pass judgments against the occupiers, and now these judges are in their hands. There are cases when such judges are detained, placed in occupation prisons, and incriminated with false charges.
As of the controlled territory, the work of judges is complicated by russian shelling, and air raid sirens, as judges and court process’ participants have to hide in shelters, as well as by power outages (partial blackout). Without any doubt, this complicates the proceedings.
Many participants in the legal process were killed by russian soldiers and missiles, so there is a question now to find and involve their legal successors. Herewith, some of the participants in the legal process simply do not get in touch: either they were evacuated abroad or they are MIA (missed in action).
Another issue: courts lack a sufficient number of employees due to departure abroad, and evacuation to safe cities or countries. This also extends the terms of proceedings and delivering of judgments.
Procedure
First of all, the Council of Judges of Ukraine recommended that judges should postpone the consideration of some cases (except urgent court proceedings such as criminal ones) due to complicated conditions, personal reasons of the parties in the case, such as involvement in the work of critical infrastructure facilities, joining the Armed Forces of Ukraine or territorial defense, impossibility to arrive to the court due to the danger to their lives. Recently, the situation was somehow stabilized.
Although martial law did not suspend the procedural terms, it is considered to be a valid reason for renewing the procedural terms – this is determined in each individual case and with a view of other circumstances. In addition, a set of procedural terms for filing statements of appeal was extended.
Likewise, the full-scale war provided an incentive for the development of the online judiciary (so-called e-judiciary). Thus, parties began to take part in court sessions more actively with the use of video conferences, so as not to expose themselves to danger to life and health. The "Electronic Court" system allows the participants and their representatives to submit documents to the court online, receive documents, review the case files, etc. It is also possible to exchange documents via e-mail using an electronic digital signature.
Volunteering
Judges also take part in volunteering. For example, 60% of the salary of a judge of the Ukrainian Supreme Court is transferred to the needs of the Armed Forces of Ukraine.
From the first days of the full-scale invasion, the judges helped to provide the Armed Forces of Ukraine with body armor, ammunition, medicines, etc. Women judges wove nets, collected medicines, and organized the delivery of humanitarian aid from abroad to places where it was needed. In addition, the Supreme Court implemented a blood donation initiative.
Ukrainian Supreme Court organizes meetings with foreign partners, international organizations, and various international organizations in order to promote the real situation in Ukraine, issues, and needs.
Also, the State Judicial Administration of Ukraine is looking for premises for courts, judges are transferring funds to colleagues affected by the war.
The Ukrainian Bar Association
Firstly, it should be noted that many attorneys became part of the Armed Forces of Ukraine or territorial defense or started volunteering. Nevertheless, they even manage to participate in court sessions whether online or in person. Unfortunately, since the beginning of the full-scale russian invasion into Ukraine, 10 lawyers have already died. The Ukrainian Bar Association supported their families and provided them with financial assistance. Likewise, the Ukrainian Bar Association established the Board of Trustees in order to distribute charitable assistance to attorneys and their close relatives affected by the war in Ukraine (injured, left without homes). Such charitable assistance comes from international partners, as well as from some foreign bar associations. Thus, in October 2022, financial support was provided to the families of two military lawyers from Odesa and Kharkiv regions who died in the war. Since March 2022, more than 400 applications from affected attorneys or their families have been considered. However, the Ukrainian Bar Association helped also other applicants even with food, closing, medicines, and finances. In October 2022, the International Bar Association rewarded the Ukrainian Bar Association with the IBA Special Award – for extraordinary leadership and dedication to the protection of human rights and the rule of law in Ukraine.
The activities of the Ukrainian Bar Association are also focused on the issues of providing legal assistance to military personnel, prisoners of war, victims of war, as well as displaced persons. In addition, in May 2022, the Ukrainian Bar Association appealed to the Minister of European Integration and the Commissioner of the Parliament for Human Rights asking for an attorney’s involvement in the organization of the prisoners of war exchange.
Recently, the Ukrainian Bar Association held a meeting with colleagues in Poland to discuss the legal status of Ukrainians in Poland, terms of stay, and the consequences of staying in Poland for more than 90 days.
As a response to the initiative of the Commander-in-Chief of the Armed Forces of Ukraine, a lot of individual attorneys united in the volunteer movement #адвокатиЗСУ (literally #advocates_of_the_Armed_Forces_of_Ukraine). Their main goal and task are to provide legal support to defenders of Ukraine in the form of free qualified legal assistance to Ukrainian soldiers and their families on various legal issues.
Moreover, the Ukrainian Bar Association began to cooperate with the Ministry of Justice of Ukraine and other state bodies in specific matters of child protection. Currently, more than 10,000 Ukrainian children are abroad, and some of them are de facto separated from their legal representatives due to the difference in the legal regulation of their status in Ukraine and in their countries of temporary residence. In particular, the Ukrainian Bar Association expressed its readiness to assist in the return of such children.
What efforts are being made by Ukrainian lawyers and bar associations to pursue responsibility and criminal defense with regard to Russia's violation of international humanitarian law and human rights law in invading Ukraine?
In October 2022, during the International Bar Association Annual Conference – 2022, the President of Ukraine noted that after the military and politicians, lawyers will put an end to this war. It is lawyers who will ensure that all those guilty of terror, torture, and deaths of Ukrainians are brought to justice, and will ensure compensation for all damages caused by russia at the expense of the assets of the aggressor state.
Indeed, according to the principle of international law “Par in parem non habet imperium (Latin for "equals have no sovereignty over each other") Ukraine cannot itself persecute and punish russia for violation of international law, territorial integrity, and political independence of Ukraine and human rights and fundamental freedoms. Therefore, Ukrainian lawyers have to arrange for and even organize other methods of pursuing responsibility.
Firstly, as of the national level, recently the Ukrainian Supreme Court has adopted a ground-breaking ruling in the case of a Ukrainian citizen against russia regarding moral compensation for the death of the applicant’s husband due to russian shelling. The Supreme court stated that russia does not realizes its sovereign rights (enjoying an immunity) but violates the obligation to respect the sovereignty and the territorial integrity of another state - Ukraine, contrary to the UN Charter; likewise, the national legislation of Ukraine is guided by the fact that damage caused in Ukraine to a natural person as a result of the illegal actions of any other person (entity) can be compensated by a decision of a court of Ukraine (the SC ruling dated 14.04.2022 in case №308/9708/19). Based on this ruling Ukrainians or other affected residents of Ukraine will be able to apply to Ukrainian courts in order to recognize russia’s violations and get material or moral compensation.
Secondly, as of the international mechanisms, Ukrainian lawyers proceed with the idea of establishing a special ad hoc tribunal that will have jurisdiction to prosecute russia for the crime of aggression. Likewise, Ukrainian lawyers (especially Ukrainian prosecutors) seek to persecute and prosecute russia in the International Criminal Court for war crimes and crimes against humanity. The International Court of Justice also has jurisdiction to decide the interstate dispute regarding violations of the UN Charter. Those are the lawyers who draft the legal position of Ukraine.
Lawyers of the Free Legal Aid system of Ukraine, as well as attorneys cooperating with the FLA system, are involved in documenting war crimes in order to present such evidence in the courts and tribunals.
Thus, the role of Ukrainian lawyers is essential in this matter.
Published: Lexology, 20 December 2022
Author: Oksana Voynarovska