07.07.2022

Victims and Criminal Justice in Times of War – turbulent times in Europe

On Monday, 27th of June, Prof. Rita Haverkamp invited to an online round table treating topics of high interest regarding the war in Ukraine. Present speakers were Prof. Viacheslav Tuliakov, Vice Rector for International Relations of the National University “Odessa Law Academy”, Professor of Criminal Law and Judge ad hoc for cases directed against Ukraine at the ECtHR, as well as Dr. Dmytro Yagunov, Attorney-at-Law, Lecturer at the Vasyl´ Stus Donetsk National University and International Expert of the Council of Europe on Prison and Probation Reform.

Since both of them are staying in Ukraine, they were able to give first-hand information about what university life looks like in times of war. Tuliakov and Yagunov respectively said that universities were still working throughout online lectures. Yagunov regretted exclusions because of military services and emphasized that the extreme situation had a huge impact on students’ way of thinking and reflection processes on their personal and academic life.

Subsequently, his colleague Tuliakov gave an informative insight into victimology of Russian aggression treating the character of Russia’s invasion in Ukraine as well as different facets of victimization.

To him, the war on Ukraine – being called “special operation” by Russian authorities – combined with additional wars in Syria, Libya, Georgia and Chechnya shows the imperial character and intentions of the Russian Federation. Not only Putin and his alliances but also a large amount of the Russian population had supported the aggression based on the idea of imperialization and the concept of a bipolar world, stated the professor.

There were three different types of victimization during war, he explained. On a primary level, people were victimized directly by genocide, war crimes or crimes against humanity. Rights to compensate and redress in international criminal law had also been affected. On a secondary level, victimization took place through psychological impact. Relatives and refugees were violated in their right to redress as well as in their rights laid down in art. 2, 3, 5 and 8 ECHR (European Charter of Human Rights). On a tertiary level, there had been victimization within Ukrainian and Russian society in contradiction with art 8-13 ECHR through the use of certain dehumanizing narratives, hate seeds and sanctions.

To illustrate his presentation, Tuliakov used practical examples such as the ECtHR (European Court of Human Rights) case of Georgia vs. Russia, statistics about numbers of aggression and equipment losses as well as impressive photographs, for example depicting widows receiving 120 euros for the loss of their husbands.

In order to stop the Russian aggression, the professor suggested to focus on building a resistant economy including a gold ban to keep Russia from undermining sanctions by trading with gold. Additionally, he emphasized the importance of education and information. Tuliakov considered the decision of the European Commission to grant Ukraine the candidate status as a huge step for the Ukrainian people and government towards a common European security system.

In the following, attorney Yagunov talked in a vivid and practical way about which impact the war had on Ukraine’s criminal justice system, especially on criminal justice processes and human rights protection of suspects. Moreover, he explained how the Ukrainian prison and probation system had been seriously affected by the war.

As a first step, Ukraine had made use of article 15 ECHR allowing to derogate from certain human rights in time of emergency, among others the right to freedom and the right to private and family life. In consequence, these rights were severely restricted by police officers and prosecutors, said Yagunov. For example, since the war’s outbreak, investigative actions could be conducted not only at daytime but at any time. Witnesses of investigatory actions could be replaced by video recording. Besides, the period of detention for suspects without the decision of an investigatory judge was prolonged.

According to the attorney, the fact that security services and prosecutors received extra powers in times of war resulted in an increased number of human rights violations. In support of his theory, Yagunov presented the case of one of his clients, a former military man that had been accused of a crime. The prosecutor faked the gravity of the alleged accusation in order to maintain the client’s detention without bail for months without any grounds.

Prosecutors also tended to apply strict provisions of the Criminal Code being reserved for war times in regions not being affected by the war to undermine human rights, Yagunov continued. Prison administrations affected by the war were not ready to face military aggression. Thus, the evacuation of prisoners led to violations, torture, inhuman treating and violation of private and family life due to tensions between staff and prisoners.

In general, Yagunov fears that the war could change the focus from rehabilitation to national security interests.

In addition, he expressed concern because of the current “double trap” that prison officers face. When Russian forces captured a prison, they usually demanded Ukrainian prison forces to collaborate. In case of disobedience, the officers faced torture or death. However, if they collaborated, they were accused of treason from Ukrainian authorities. Yagunov mentioned a case where Ukrainian partisans reacted to the collaboration of an Ukrainian officer without respecting formal criminal procedures.

Another trap consisted of the unknown legal status of Ukrainian prison officers. Yagunov described that they had been suspended of all powers but – paradoxically – in the meantime were asked to continue executing their duties. No legal status meant no legal guarantees.

The attorney finally criticized that the creation of camps for prisoners of war had been dedicated to the minister of justice, a domain that should lie within the competence of the defence ministry.

Despite of his critical approach, Yagunov recognized the effort of Ukraine taking steps towards the EU which he considered to be the right direction. His colleague Tuliakov proposed to support the rule of law and to fight against corruption by the aid of e government and electronic courts for citizens.

Report: Alina Rehmann

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