Human rights in the administration of justice in conflict-related criminal cases in Ukraine (April 2014 – April 2020) (A/HRC/45/CRP.9)

Human Rights Council
Forty-fifth session
14 September–2 October 2020
Agenda item 10
Technical assistance and capacity-building

I. Executive Summary

1. This report by the Office of the United Nations High Commissioner for Human Rights (OHCHR) examines human rights violations committed in the course of criminal proceedings and processes related to the armed conflicts in eastern Ukraine and in the Autonomous Republic of Crimea, and the city of Sevastopol, temporarily occupied by the Russian Federation1 (hereinafter Crimea) from 14 April 2014 to 13 April 2020. It is based on the work of the Human Rights Monitoring Mission in Ukraine (HRMMU)2, which monitored and analysed individual cases throughout Ukraine, including in Crimea and in territory controlled by the self-proclaimed ‘Donetsk people’s republic’ and the self-proclaimed ‘Luhansk people’s republic’.3

2. OHCHR recalls that the sovereignty, unity and territorial integrity of Ukraine within its internationally recognized borders was affirmed by General Assembly resolution 68/262. This report is focused on human rights issues.4

3. With unimpeded access to court hearings and places of detention in Government-controlled territory, OHCHR documented 590 individual cases and monitored 1,280 hearings. By contrast, in territory controlled by self-proclaimed ‘republics’, OHCHR had no access to places of detention and restricted access to ‘proceedings’, but nevertheless documented 305 cases and monitored 71 ‘hearings’. OHCHR has no access to Crimea, and thus was not able to directly monitor any court hearings that took place there. Nevertheless, OHCHR documented 106 cases in Crimea.

4. While armed groups and other non-State actors cannot become parties to international human rights instruments, where they exercise government-like functions and control over a territory, they must respect human rights standards when their conduct affects the human rights of individuals under their control. Therefore noting OHCHR’s mandate to promote and protect the human rights of everyone, everywhere, this report assesses how the human rights of persons living within these territories are affected when these actors exercise government-like functions. As such, it does not legitimize the processes or the structures themselves.

5. In conflict-related cases before the Ukrainian judicial system, suspects were generally charged with crimes against the national security of Ukraine or certain crimes against public security, including membership or affiliation with armed groups.5 In such criminal proceedings, OHCHR identified systematic violations of the rights to liberty and security, to legal counsel, to a fair hearing by a competent, independent and impartial tribunal, trial without undue delay, to be present during trial and effective remedy, as well as violations of the right not to be compelled to confess guilt.

6. In Government-controlled territory, OHCHR noted widespread violations of the right to liberty of individuals prosecuted for conflict-related crimes. Throughout the reporting period individuals were often arrested without a court warrant, in violation of national legislation. Pre-trial detention was often automatically imposed and extended, contrary to international human rights law.

7. The report raises concerns regarding the right to legal counsel. State-appointed lawyers handling the majority of conflict-related criminal cases often provided poor quality services, and did not act in the best interests of their clients. In addition, in 2017 and 2018, OHCHR documented eight cases where private lawyers dealing with conflict-related cases were attacked because of their professional activity.

8. OHCHR is concerned about interference with the independence of judges dealing with conflict-related cases, which were most frequent in 2017 and 2018. In some of these cases, prosecutors pressured judges by opening criminal investigations against those who issued rulings in favour of defendants, while in others, judges were harassed by members of extreme right-wing and other groups, in an attempt to coerce them to adopt certain decisions. Police present often failed to prevent or stop these acts, or afterwards, to effectively investigate them.

9. Throughout the reporting period, access to judicial remedies for human rights violations perpetrated during the prosecution of conflict-related crimes was lacking. Courts often failed to address allegations of torture, ill-treatment and unlawful arrest raised by defendants.

10. OHCHR is concerned by credible allegations depicting the widespread use of forced confessions in conflict-related cases documented between 2014 and 2020. Based on information collected, in at least 55 cases, apprehended individuals were forced to incriminate themselves on camera. OHCHR is further concerned that convictions based on plea bargains and admissions of guilt may be the result of duress stemming from the combination of the aforementioned human rights violations, almost automatic pre-trial detention during protracted trials, poor quality of legal assistance provided by the state-appointed lawyers and the failure of the authorities to remedy these violations. As a matter of practice, judges accepted plea bargains without examining their circumstances or the merits of the case, raising the risk of misuse by the prosecution to secure convictions in the absence of sufficient evidence.

11. Contrary to international human rights standards, Ukrainian legislation governing in absentia proceedings does not envisage the right of a convicted person to retrial after the verdict has been delivered, thereby depriving them of the opportunity to present a defence. In addition, host States may refer to this procedural shortcoming as grounds for refusing requests for extradition of persons convicted in absentia, thus hampering the enforcement of such verdicts and undermining accountability efforts and the right to a remedy for victims.

12. In territory controlled by self-proclaimed ‘republics’, OHCHR found that both the legal framework and practice applied did not respect the basic elements of fair trial and related human rights of individuals ‘accused’ of conflict-related ‘crimes’.6 Most notably, the use of incommunicado detention, without any independent oversight, for up to several months before an ‘investigation’ formally commences denies individuals of the protection they are entitled to in criminal proceedings. In tandem with the lack of access by independent human rights monitors, including OHCHR, to places of detention in this territory, this raises concerns regarding the use of torture and ill-treatment to secure confessions from detainees.

13. OHCHR further observed that ‘trials’ in territory controlled by self-proclaimed ‘republics’ were marked by the lack of access to a lawyer of one’s choice, closed ‘hearings’ and lack of independence and impartiality of ‘judges’. OHCHR is concerned that lawyers and lawyers’ associations in the territory lack independence and do not provide an effective defence to the ‘accused’. Finally, OHCHR is concerned by the operation of ‘military courts’ because they processed cases of civilians and held closed ‘hearings’. All of these violations raise concerns as to the overall fairness of these ‘proceedings’.

14. Human rights violations in the context of criminal proceedings have been a concern since before the armed conflict broke out in eastern Ukraine.7 The armed conflict in the east has exacerbated existing problems and brought up additional issues. Criminal prosecutions relating to the armed conflict therefore serve as a litmus test for the overall criminal justice system in Government-controlled territory. OHCHR notes that some human rights violations stem from the legal framework and therefore can equally affect individuals prosecuted for non-conflict-related crimes on both sides of the contact line. This report and its recommendations are addressed to the Government and its international partners with the objective of strengthening the independence of the judiciary, judicial safeguards and protection of human rights.

15. OHCHR is concerned that in territory controlled by self-proclaimed ‘republics’ the above human rights violations may be perpetrated in non-conflict-related ‘proceedings’ as well. This report therefore addresses interlocutors from self-proclaimed ‘republics’ with the objective of ending practices that violate human rights.

16. As the occupying Power in Crimea, the Russian Federation is bound by human rights obligations, including in the administration of justice. In conflict-related cases8 monitored by OHCHR, the justice system applied by the occupying Power often failed to uphold fair trial rights and due process guarantees. OHCHR is concerned about the intimidation of defence lawyers representing clients who opposed to the presence of the Russian Federation in Crimea, and improper interference in the discharge of their professional duties to their clients. OHCHR is also concerned by reports of ineffective representation provided by legal aid lawyers to their clients in such trials, and deficiencies in the equality of arms between the prosecution and defence. Furthermore, in some cases, judges applied Russian Federation criminal law provisions retroactively to events that preceded the occupation of Crimea.