Ruslan Kravchenko is Ukraine’s new Prosecutor General. These are conflict-related justice issues that demand attention.

Ukraine has a new Prosecutor General. Ukraine had been without one for more than 7 months. On 21 June, a presidential decree appointing Ruslan Kravchenko was issued. 

We have compiled several issues related to the prosecution of the grave international crimes and the justice system in general that require urgent attention from the Prosecutor General.

It concerns the development of criminal policy, changes to legislation, strengthening of the domestic system, interaction with pre-trial investigation bodies, international partners and civil society, and other matters that require a systemic response. 

Many of these issues are covered in more detail in ULAG's report ‘Needs Assessment of the Legal System of Ukraine’: https://ulag.org.ua/reports-and-materials/needs-assessment-ukraines-justice-system/.

Action is needed now to create an effective system of justice for conflict-related crimes. 

For our part, civil society and we in particular are ready to continue and strengthen our cooperation.

Read more in the file attached and on our website:  

Initiate a dialogue on the systemic development of a state criminal policy

We appreciate the proactiveness of the OPG in terms of legislative changes and addressing systemic challenges in the conflict-related criminal justice system.  At the same time, the prosecutor's office cannot alone shape and enforce the criminal policy of the state, given its mandate as well as functional and resource limitations. 

It is important to find a systemic approach in which the executive authorities - in particular the Cabinet of Ministers and the Ministry of Justice, which are responsible for formulating the state's legal policy, - the judiciary and law enforcement agencies and the parliament cooperate in order to find systemic responses to overcome legislative and institutional challenges. The OPG can be one of the drivers of this process. 

Ensure clear prioritisation of cases and a realistic strategy for prosecuting grave international crimes

The number of registered proceedings and the scale of the crimes being committed puts a huge strain on the system. Justice for international crimes requires a clear strategy that sets out the role of the national system in the overall justice architecture and key priorities, taking into account its real situation and needs. 

Ensure effective coordination with pre-trial investigation agencies

Echoing Mr Kravchenko's statement, we emphasise this need, especially in the context of the grave international crimes. The way the current jurisdiction is currently regulated results in the loss of time and evidence, and contributes to a lack of coordination between agencies. All of this is detrimental to the investigation and to the victims themselves. It is necessary to amend Article 216 of the CPC to provide for the jurisdiction of the NPU over crimes under Chapter XX of the Criminal Code, as well as to enhance cooperation between the investigative and prosecutorial authorities.

Communicate honestly with international partners and other justice mechanisms

With international financial support diminishing, attacks on the International Criminal Court and justice being under threat in the context of peace negotiations, it is more important than ever to be mutually honest and transparent in assessing the capacity and needs of justice and accountability mechanisms. This is a prerequisite for finding solutions to build a comprehensive justice architecture and increase the effectiveness of efforts to strengthen the capacity of the Ukrainian system.

To preserve and further strengthen the infrastructure of the prosecutorial system for crimes committed in the context of the armed conflict

The OPG’s War Crimes Department and specialised units in regional offices need further support and development. It is important to ensure institutional sustainability and retain staff. This is especially true when dealing with the grave international crimes, given their complexity and the length of justice processes. Although it is not the first year in a dynamic and unprecedented environment, Ukrainian practice and expertise in administering justice for these crimes is still being formed.

Support and expand efforts on legislative amendments to the Criminal and Criminal Procedure Codes of Ukraine

The Interagency Working Group on the Implementation of the Rome Statute is to develop respective proposals. It is important that this process prioritises the norms and standards of international law, taking into account the local context and practice.

However, it does not cover all the issues that need to be regulated in order to ensure full harmonisation of Ukrainian legislation and solve existing problems. In particular, most of the amendments currently do not concern the Criminal Procedure Code, except for in absentia proceedings.

Victim and witness protection; different types of evidence, including open sources; investigative jurisdiction over grave international crimes – these and other issues need to be addressed at the legislative level.

The Prosecutor General's support is needed to ensure that the above-mentioned drafts and other suggestions do not remain just proposals, but are adopted by the Verkhovna Rada. This includes communication with the relevant committee and emphasising the need to adopt such changes without delay.

To fix the practice of prosecuting offences against the foundations of national security, in particular under Art. 111-1 (‘Collaboration’) and Art. 111-2 (‘Aiding the aggressor state’)

The vague wording of the articles and the broad interpretation of the qualifications, the prosecutorial bias in the assessment of actions and the instrumentalisation of these articles for performance statistics are of serious concern. The practice under these articles constitutes a violation of human rights, impedes the overcoming of the consequences of the war, and takes away resources of the justice system that could be used to investigate real conflict-related crimes. 

Further promote better engagement with civil society

Civil society represents the voices of victims, documents and investigates crimes, and contributes to strengthening the justice system, having gained expertise in national and international law. Cooperation with CSOs has certainly intensified in recent years, but it is important to maintain and develop such interaction in the future on the principles of mutual respect and dialogue, preventing the instrumentalisation of CSO efforts.

It is also important to improve the regulation of how the  expertise and information from CSOs and external specialists, including international experts, becomes part of and used in the proceedings. The existing mechanisms often do not allow to fully unlock the potential of such cooperation and may also pose risks of procedural violations.