Criminal proceedings as a tool of the international campaign against Russian aggression

  • 23.08.2022

Author: Andriy Sliusar

Besides collecting the evidence of Russian war crimes and reparations of the losses caused by Russians, as discussed in the previous publications ([1] and [2]), national criminal proceedings should also be considered as one of the possible levers of counteracting Russian aggression.

In this case collection of adequate and admissible evidence and initiation of investigative and procedural actions on their basis in other jurisdictions via the mechanisms of international law cooperation also constitutes an important element.

Let us consider two examples of possible algorithms of Ukraine’s response in this context. The first one refers to the use of Western technological developments by Russian military forces, and the second one – to dissemination of Russian propaganda.

Abetting a crime, and not business as usual

In response to armed Russian aggression in 2014 and Crimean annexation, the countries of the European Union [3], the United States of America [4] and other democratic partners of Ukraine introduced sanctions aimed, among other things, at the termination of supply of devices and technologies that could be used for military purposes to the Russian Federation.

However, since the date of the beginning of full-scale invasion of the Russian army into the Ukrainian territory our military men and reporters have found foreign high-tech components in the seized samples of Russian weapons in numerous cases, and without these components the weapons either could not be operated at all, or would have a much lower degree of efficiency [5].

In some cases investigative journalists managed to establish a full chain of companies-mediators involved in the schemes of supplying goods of military designation to Russia with evasion of the introduced sanctions, just from open-sources information [6].

Such findings are, probably, already in the focus of attention of law-enforcement/investigative agencies of the Western countries [7].

But what else can Ukraine do, besides giving publicity, in the situation when European companies have violated European sanctions? At least one answer can be found in the criminal procedure. Sanctions against supply of high-tech components to Russia were imposed in response to Russia’s military aggression for the sake of preventing development of its army and weaponry, and, thus escalation of aggression against sovereign states, in particular, against Ukraine. Companies and businessmen violating the restrictions and still supplying goods of military designation to Russia, in fact, contributed to the continuation and escalation of Russian military aggression against Ukraine. In the criminal procedure where Ukrainian investigators and prosecutors are investigating into the crime envisaged by Art. 437 of the Criminal Code (planning, preparation, launching and waging a brutal war), violation of sanctions and supply of goods of military designation to Russia by the representatives of Western companies may be considered, under certain circumstances, as abetting of this crime.

Certainly, supplying of one thermal sight does not quite correlate with the accusations of planning a brutal war, but if such and other devices were supplied on a systemic basis and if thousands of Soviet armored vehicles were thus upgraded, that is already directly related to the preparation of the Russian military aggression.

Ukrainian prosecutors may start investigating this crime by making requests for international legal aid to competent authorities of other countries as well as initiate collection of information about the supply chains, money flows, companies involved through investigation, including through interrogations of the employees of the respective companies involved in such transactions.

Such measures may result – depending on their efficiency and outcomes – in the initiation of the arrest of the assets received for supplying goods of military designation to Russia in foreign banks, or in the serving the notice of suspicion to the participants of such schemes and related investigation in Ukraine in absentia, or in the transfer of the proceedings under those episodes to the law-enforcement bodies of the respective states for undertaking criminal proceedings.

Journalists or war criminals?

The Criminal Code of Ukraine contains at least two articles – Art. 436 (war propaganda) and Art. 436-2 (justification of the armed aggression of the Russian Federation against Ukraine) – that may be incriminated to some of those who are called journalists in Russia for certain actions and statements. Broadcast of such content is performed by TV networks in the occupied regions, and even mobile video relay devices are installed in the streets of the occupied cities. These are actions against Ukraine occurring directly in its territory, thus, they fall within the jurisdiction of Ukrainian law-enforcement agencies.

The algorithm of actions of Ukrainian investigators and prosecutors in such cases may even be more diverse than in the previous example. Since they can not just initiate collection of certain evidence abroad, but also collect evidence from accessible sources, sufficient for serving a notice of suspicion to some “talking heads” or managers of Russian propaganda projects. While notice of suspicion of war propaganda served to such “journalists” allows considering an opportunity of applying means of criminal law nature also in relation to the respective media as a legal entity. Petitions made by Ukrainian prosecutors asking for international legal aid in those proceedings may apply not just to evidence collection, but to arrest of the property of the respective legal entities for the sake of securing its possible seizure under the sentence made by Ukrainian courts.

Fortune helps the brave, as they used to say in Latin, Fortes fortuna adiuvat

In both above examples dynamic actions of Ukrainian law-enforcement agencies, among other things, may also promote obtaining of compensation for the damages caused by the Russian armed aggression. Since, first of all, international cooperation tools enable to initiate arrests of foreign assets and prevent their concealing, and, secondly, the sentences of Ukrainian courts made in such cases may well become the grounds for the seizure of assets that belong to Russian media, or incomes of foreign companies obtained as the result of illegal sales of goods of military designation to Russia.

Certainly, such systemic work requires qualified experts whom we don’t now have enough to document and investigate war crimes of some Russian servicemen. However, in the conditions of limited resources, prioritization of the tasks to be performed is acquiring even greater importance. Direction of the effort of a small groups of prosecutors at the investigation within one or several basic criminal proceedings related to the military aggression of Russia, and, hence, application of the mechanism of international cooperation will yield a much better result than involvement of such experts in the work that can be performed by investigators of the police or other law-enforcement agencies, if their work is coordinated adequately.

With such proactive position of Ukrainian law-enforcement officers, our diplomats, while discussing the need for introducing new or preserving already available sanctions, may refer to specific efforts taken by Ukraine for investigating the crimes committed by Russians with a view to getting reimbursement for the damages incurred.

When the management of Western companies gets official inquiries and summons upon the assignments of Ukrainian prosecutors, we may hope that this will promote their rejection of further cooperation with the Russian military and industrial complex and evasion of sanctions better than publications of reporters or video bloggers in YouTube.

Finally, supply of artillery and other heavy weapons to Ukraine has been gaining momentum after Western partners saw that our army can and is ready to use them to repel the Russian army.

The material has been prepared with the support of the International Renaissance Foundation within the project "#Compensation4UA/Reimbursement of war damages for Ukraine. Development of the models of legal and institutional reimbursement mechanism".