Access to Justice and the Conflict in Ukraine [EN/RU/UK]


1. Summary

The OSCE Special Monitoring Mission to Ukraine (SMM), in accordance with its mandate, continues to “monitor and support respect for human rights and fundamental freedoms” including the ability of people to access essential justice services.1 In this regard, the SMM has monitored the implications of the relocation of all judicial, prosecution and administrative services from non-government- to government-controlled areas due to the conflict in Donetsk and Luhansk regions. This report considers constraints on access to effective and fair judicial services caused by a combination of actions taken by the “Donetsk People’s Republic” (“DPR”) and “Lugansk People’s Republic” (“LPR”), the loss of government control over certain areas and the relocation of government services. Although the SMM’s findings do not allow for a comprehensive assessment, due to access restrictions and the extent of the justice system affected by the conflict, monitoring activities have established that multiple factors have restricted individuals’ access to effective legal remedies and infringed on the right to a fair trial. These factors include the absence of legitimate and effective judicial services in non-government-controlled areas, the diminished capacity of relocated courts and prosecution offices and movement restrictions between governmentand non-government-controlled areas. The relocation of all justice services from the Autonomous Republic of Crimea and the City of Sevastopol (Crimea) have led to similar concerns for persons displaced from Crimea.

Access to justice for people living in “DPR”- and “LPR”-controlled areas remains severely limited. Courts, prosecution offices and notary services were completely removed by the Government from areas not under its control in response to the conflict and to the seizure of documents and premises by separatists. Following the withdrawal of government services, the “DPR” and “LPR” established parallel “justice systems” which operate outside of the Ukrainian legal system. These “systems” serve as the only “justice” provider in nongovernment-controlled areas, but face significant challenges including: reliance on an uncertain, ad hoc and non-transparent legal framework which is subject to constant change; shortages of professional staff; and, in certain instances, “courts” which have no operational capacity. The result of the removal of government services combined with the deficiencies in the parallel “systems” directly impacts people throughout “DPR”- and “LPR”-controlled areas.

In addition to an absence of legitimate and effective justice services in “DPR”- and “LPR”-controlled areas, people throughout Donetsk and Luhansk regions face considerable challenges in accessing courts and prosecution offices relocated to government-controlled areas. These challenges include the loss, destruction and confiscation of case files prior to and during the relocation process including the intentional destruction of case files by “DPR” and “LPR”. This loss of files has led to the suspension or complete termination of many pending legal proceedings. People in non-government-controlled territory attempting to submit claims or attend court hearings in government-controlled territory are also often forced to travel long distances through conflict-affected areas. The inability of the Ukrainian postal service to operate in “DPR”- and “LPR”-controlled areas also prevents notice of proceedings.

Courts and prosecution offices in government-controlled areas have also had their ability to administer justice negatively impacted by the relocation process. Restoration of lost case files has proven difficult, and at times impossible, and a lack of clear legislative guidelines further impedes the process. Many courts lack emergency action plans that are essential to allow case files to be effectively relocated in the event of an emergency. Furthermore, while judges, prosecutors and support staff continue to work to overcome these issues, they face serious resource constraints and the inherent challenge of being recently relocated to entirely new premises. Even where a final judgment is rendered, enforcement is often impossible where property or people of interest remain in “DPR”- and “LPR”-controlled areas.