Criminal proceedings as an instrument of war damage reparations

  • 14.07.2022

Markiyan Bem

The problems related to reparations of the damages caused by the Russian aggression against Ukraine have become well-established on the social agenda of Ukraine. Ways to record such crimes as well as practical mechanisms for obtaining reparations are being discussed. Most frequently the discussions focus on the prospects of applying available international law mechanisms as well as creation of new alternative reparation mechanisms. It is obvious that if no new mechanisms are established, Ukraine will not manage to get full reparations for the losses inflicted by the war, therefore all those ways have to be used.

There are, however, some reparations opportunities available nationally. One of such opportunities is awarding reparations to victims under civil lawsuits in criminal proceedings, with their further recovery within international legal aid.

1)     What is currently being done nationally for recording Russia’s crimes?

Back in 2014, after the invasion of the Ukrainian territory by the Russian troops, the Office of the Prosecutor General of Ukraine launched a pre-trial investigation based on the facts of war propaganda (Art. 436 of the Criminal Code of Ukraine), planning, preparation, launching and waging the war of aggression (Art. 437 of the Criminal Code of Ukraine), encroachment on the territorial integrity and sovereignty of Ukraine (Art. 110 of the Criminal Code of Ukraine), etc. As of September 2, 2016, according to the then Prosecutor General Yuriy Lutsenko, a lot was done within those proceedings, “with more than 1.4 thousand victims, 2 thousand witnesses “interrogated”, 1.8 thousand forensic, criminology, military, phonoscopic, linguistic, and other examinations conducted, more than 100 thousand items of physical evidence collected” [1]. Besides that, top military commandment of Russia, in particular, advisor to the President of Russia Sergei Glazyev and Minister of Defence of Russia Sergei Shoigu were served with charges on the above crimes [2]. The results of the investigation are not known since no sentences have yet been passed by courts. It is obvious, however, that the Prosecutor’s Office of Ukraine has demonstrated its readiness to record and investigate the crimes committed by the invaders, in spite of absence of access to the suspects.

As of early July 2022, the law-enforcement bodies introduced to the Unified Registry of Pre-Trial Investigations (hereinafter referred to as the URPTI) and launched pre-trial investigation [3] based on numerous facts of commission of similar crimes after the full-scale invasion of the Russian troops on February 24, 2022. It seems that the law-enforcement bodies intend to move along the same path as before, that is to carry out pre-trial investigations in the absence of suspects.

2)     Are there any national mechanisms of bringing the representatives of the aggressor state to criminal account?

Criminal procedural law contains a wide spectrum of such mechanisms. Back on January 27, 2015 the Verkhovna Rada of Ukraine recognized Russia to be the aggressor state. The Code of Criminal Procedure envisages a specific mechanism for pre-trial investigation and court hearing of cases where suspects are staying in the territory of the aggressor state, in particular:

- remote service with charges (part 8, Art. 135 of the Code of Criminal Procedure of Ukraine),

- special pre-trial investigation (in absentia) concerning people hiding in the territory of the aggressor state (Art. 297-1 – 297-5 of the Code of Criminal Procedure of Ukraine), and

- court hearing and sentence passing in the absence of such accused person (in absentia) (part 3, Art. 323 of the Code of Criminal Procedure of Ukraine).

3)     Is it worth investigating the crimes committed by Russians at the national level if the criminals will probably never be brought to account?

Criminal proceedings in absentia provide an opportunity to the prosecution to record the crimes committed by the representatives of the aggressor state in relation to Ukraine and its residents in a high-quality way. This creates a number of advantages for Ukraine.

On the one hand, it can be the case that suspects, accused or convicted in such criminal proceedings will be detained and brought to account in person one day. On the other hand, the evidence base collected within the criminal proceedings may well be used in other proceedings, in particular, in the European Court of Human Rights (hereinafter referred to as the ECtHR), International Court of Justice of the UN, International Criminal Court (hereinafter referred to as the ICC), and other international judicial institutions set up for the sake of bringing Russia to account.

The quality of evidence collected within the criminal proceedings in compliance with all the requirements of the law of criminal procedure will not be subject to any doubt, since the criminal proceedings are built in the way providing an opportunity to always check the quality of evidence through judicial procedures.

4)     How are the criminal proceedings related to the payment of reparations for the damages inflicted by Russia?

When the persecution claims this or that individual has been involved in the planning, preparation, waging, or launching of the war of aggression and other above crimes, it actually makes a statement, while court establishes the fact that this individual has something to do with the damages caused by the Russian aggression. This is particularly relevant for political and military leadership of Russia as well as related financial and oligarchic groups.

Thus, all the victims affected by the Russian aggression, – both citizens, and businesses, – may submit an application within such criminal proceedings asking to involve them as victims (parts 2 and 3, Art. 55 of the Code of Criminal Procedure of Ukraine). Within the criminal proceedings all victims will have a chance to file a civil lawsuit against people involved in the crimes (Art. 61 and 127-129 of the Code of Criminal Procedure of Ukraine). Court may consider this lawsuit simultaneously with the criminal accusation or already after the sentence is passed, within specific civil proceedings. Moreover, the prosecutor, the State Property Fund of Ukraine or the representatives of companies with a significant state-owned share, also may – in the interests of the state – file a civil lawsuit within the criminal proceedings.

Articles 1173 – 1175 of the Civil Code of Ukraine envisage that it is the state that is responsible for the damages incurred by the state authority, the state authority of the AR of Crimea or local self-government bodies, their official or officer. Similar provisions are available in the civil legislation of Russia (Art. 16 of the Civil Code of the RF) and many other states. Hence, within the process of civil lawsuit consideration, reimbursement of damages not just by the people convicted, but by the Russian state as well may be considered, in case the people convicted are its officials or officers. It appears that one may thus speak about imposition of charges on the assets of the Central Bank of Russia beyond the Russian territory.

Besides that, under Art. 170 of the Code of Criminal Procedure of Ukraine, filing a civil lawsuit within criminal proceedings constitutes the grounds for imposing arrest on the suspect’s property.

5)     And still, how will crime investigation at the national level enable to recover the war-related damages?

Criminal proceedings do not only enable to convict the people accused of aggression, although in absentia, – they also enable to establish the facts of damage infliction and its amount. Foreign states – in case this is envisaged by the international treaty or stems from the principle of reciprocality – may acknowledge and enforce decisions of criminal or civil court on granting the lawsuit on reimbursement of damages caused by the actions of a specific individual, either by this individual, or by the state (if that is, for example, an official). The same refers to decisions on arresting the assets of Russia and Russians available beyond Russia.

Both the Code of Civil Procedure and the Code of Criminal Procedure contain sections regulating international legal aid in performance of procedural actions and enforcement of decisions and judgments of courts beyond Ukraine. If the criminal proceedings are conducted in good faith, on the basis of acceptable and due evidence, the materials collected may be used in other international processes, and judgments passed by courts may be enforced beyond Ukraine.

If we address other countries with a request to enforce decisions and sentences of Ukrainian courts, related to the crimes committed during the Russian aggression, Ukraine’s arguments on imposition of charges on the assets of Russia and its oligarchs will sound much more convincing. Such mechanism of knowledge of and enforcement of decisions passed by Ukrainians courts beyond Ukraine already exists, and it is going to be much easier and clearer for our partner states to use it than to create a new efficient international mechanism that will most probably require revision of some norms of international law and order. However, this international mechanism the need for the establishment of which is not subject to any doubt will also work much faster and more efficiently on the basis of materials developed within the national criminal proceedings.

It is important that Ukraine show well-done substantial national-level job to the international community and that it enter the international arena not with empty hands. In each situation it is worth bearing in mind that no one will help us better than ourselves.

6)     Is everything really that simple?

Obviously, the above algorithm has some weak points. In particular, many key individuals in Russia enjoy functional immunity against being brought to criminal account. However, within the criminal proceedings launched after the 2014 events, this did not stop the law-enforcement bodies of Ukraine from taking investigative actions in relation to them. This issue and related risks for criminal proceedings at the national level should be analyzed in greater detail.

There may arise difficulties with the implementation of this mechanism in practice. To organize such project, it is necessary to develop the relevant regulatory framework, and within one criminal proceeding (or several large ones) there will have to be united and investigated a considerable number of criminal episodes, and claims of thousands of victims have to be considered. To organize working with victims who may act as civil claimants as well, it would be expedient to establish a unified registry, and all documents, including the evidence documents, should be digitalized.

To conduct such investigation of cases on the aggression of the RF as well as to consider civil lawsuits filed within such cases, a centralized approach should be applied: units responsible for this investigation should be established both nationally and locally. That will enable to introduce high-quality control over the investigations, ensure high quality of the evidence base and substantiation of the materials prepared for court.

7)     Conclusions

In any case, there is no alternative other than scrupulous national investigation of Russia’s war crimes. Whether the Russian aggression is investigated at one judicial procedure or within several proceedings – it should anyway be investigated, those guilty should be brought to account, while victims should get a fair reimbursement. The state has the duty to provide for this to happen, hence, the sooner and the more efficiently performance of this duty is organized, the better.

The system of criminal justice of Ukraine shall quickly record and investigate the crimes committed by Russia. This must be a well-coordinated and duly organized process: the legislative framework should be improved, available institutional mechanisms of criminal justice should be supplemented, a unified registry for proceedings recording should be established. After due preparation of materials and evidence base, the cases should immediately be handed over with an act of indictment to court, which, in case grounds are available, will pass a sentence for the accused.

Victims shall be encouraged to file civil lawsuits within such proceedings for reimbursement of the damages caused by the Russian aggression. Such lawsuits must constitute the grounds for arresting the property of Russia and its citizens beyond Russia. Courts have to analyze availability of the grounds for reimbursement, establish its amount and pass decisions in this regard.

The Ukrainian state shall take measures envisaged by the national legislation for such decisions to be enforced beyond Ukraine and for their enforcement to be valid for Russian property.

 


[1] https://tsn.ua/ato/viyskova-agresiya-rf-u-cifrah-svidki-zagibli-dokumenti-739305.html та https://web.archive.org/web/20160906160711/http://www.gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=191816

[2] https://tsn.ua/politika/gpu-oprilyudnila-zapisi-rozmov-radnika-putina-pidozryuvanogo-u-zlochinah-proti-ukrayini-731900.html and https://web.archive.org/web/20160908154618/http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=191115&fp=40

[3] https://www.ukrinform.ua/rubric-ato/3504830-v-ukrainu-pribula-komisia-oon-z-rozsliduvanna-zlociniv-rosijskoi-agresii.html; https://www.ukrinform.ua/rubric-kyiv/3467792-u-kievi-rozsliduut-ponad-100-sprav-pro-rosijsku-agresiu.html ; https://ssu.gov.ua/novyny/sbu-vidkryla-ponad-23-tys-kryminalnykh-provadzhen-shchodo-viiskovoi-ahresii-rf-ivan-bakanov ;