Instruments of support for war crimes victims and witnesses in the criminal justice process in Ukraine

The round table “Instruments of support for war crimes victims and witnesses in the criminal justice process in Ukraine” organized by the EU Project Pravo-Justice was attended by representatives of the judiciary and law enforcement system, and international experts.

In particular, Iryna Didenko, prosecutor of the Prosecutor General’s Office, spoke. She noted that currently, Ukrainian law enforcement agencies are facing major challenges, particularly in working with victims.

“First of all, we focus on the victim. Among other things, it is important for us to take into account whether a person is ready to take part in all investigation-related procedures as for many reasons victims do not want or are afraid to remember again what they went through or to disclose it,” Didenko said.

According to her, the General Prosecutor’s Office has already developed working procedures for investigating war crimes. However, there must be serious legislative framework in place to that end.

“We already have experience and a work plan, as well as a code that we use. Now the task is to scale it across the entire vertical... To investigate war crimes, we must step up our efforts,” Iryna Didenko emphasized.

In course of the round table, Nadiia Stefaniv, justice of the Cassation Criminal Court within the Supreme Court, also spoke.

She noted that the court should also set an example of how to work with vulnerable witnesses in specific criminal proceedings the court is considering. This is necessary in order not to lose the evidence collected by the prosecution, namely the testimony of victims and vulnerable witnesses.

“This evidence and statements by victims, vulnerable witnesses should be recorded, which can be used in the future for any court instance,” Stefaniv said. In particular, she noted, interrogations can be video-recorded in compliance with the Law on Witness Protection.

Stefaniv stated that we should use the facilities provided both by national and international legislation. That is, to act pursuant to certain standards, in particular ethical, during interrogations and while recording them.

She also added that it is a good idea to draw up uniform rules (“guidelines”) on interrogating vulnerable witnesses both for pre-trial investigation and trial. For this, it is necessary to analyse the judgements that have already been rendered in the war crimes cases, as well as rulings by investigating judges who questioned these victims and witnesses.

Nadiia Stefaniv emphasized that the judiciary plays a very important role in addressing the issue of gathering evidence and questioning witnesses.

“We understand that the main evidence will be the testimony of the victims and witnesses who want some satisfaction and respective court decisions. In any case, it is necessary to ensure a balance between observing the victims’ rights and observing fair trial principles under Art. 6 of the ECHR. Observing this balance will depend on the professional training of judges, as well as the quality of evidence provided by pre-trial investigation bodies,” she said.

In turn, Oleksandr Baranov, Acting Director of the Legal Aid Coordination Centre noted that Ukrainian lawyers need to learn more and gain experience, in particular, as to communicating with victims.

“We need to focus on learning how to communicate with victims. Moreover, it is important to provide ongoing supervision to support the employees who have already been trained to improve their skills. Currently, we have various training curricula that can become operational in the near future and we are ready to cooperate with experts, in particular, international experts who are ready to share their experience with us”, Oleksandr Baranov noted.

The round table participants also discussed international experience of protecting and supporting war crimes victims and witnesses.

In particular, Anna Adamska-Gallant, Key International Expert on Judiciary, EU Project Pravo-Justice, covered defining the concept of “vulnerable witness”. In her opinion, the most feasible seems to be the one used in criminal proceedings at the International Criminal Court, namely: “those persons who face an increased risk of being harmed due to the fact of being witnesses before the Court, being involved in the proceedings or having difficulties during their testimony”. Not only the ICC uses it, but also, for example, the United Kingdom, the United States, and the Netherlands. All these countries have special laws addressing vulnerable witnesses. This experience should be used.

According to this definition, the expert emphasized, there are three groups of factors influencing the vulnerability of a witness:

• Those related to a person: age, marital status, health, etc.;
• Those related to the nature of the offence: sexual violence, child abuse, torture, etc.;
• Those related to specific circumstances: increased stress, anxiety, fear of retaliation, adaptation difficulties due to cultural or other differences, etc.

They make it possible to evaluate each situation separately and it will be helpful to decide which approach should be applied to a specific person in a specific case.

According to Anna Adamska-Gallant, Ukraine needs to include the concept of “vulnerable witness” in the national legislation. This will help at all stages of the case, namely, investigators, prosecutors, and judges – in order to better understand how to work with such witnesses. It will also help lawyers who represent vulnerable victims and witnesses in court to know what to expect from the judiciary and other authorities.

Martin Hackett, EU Project Pravo–Justice International Expert also delivered a speech in this panel. He spoke about applying best international practices in Ukrainian context regarding obtaining evidence and protecting witnesses of conflict-related sexual violence (CRSV).

In his opinion, it is quite challenging to place victims in the best conditions so that they give the best testimony. Interviewing witnesses is mostly a traumatic experience for the victims, so it is very important to manage this process effectively. After all, Hackett noted that each person reacts differently, and has a different level of expectations. In his opinion, it is necessary to be honest with the witnesses, to be able to manage their expectations and to explain the procedural peculiarities from the beginning to the very end. In addition, it is important to keep in touch with the victims, to provide them with support even after the case is over.

He also covered the problem of obtaining evidence. According to the expert, in this context, it is necessary to try to avoid re-traumatizing witnesses, and to be guided by the principle of “do no harm”.

“If we immediately establish good contact with the victims, obtain the most comprehensive testimony from them, then we will manage not to retraumatize them,” he said.

Hackett believes that when working with trauma witnesses, it is important to consider the smallest details, including who they will be in contact with before, during and even after testifying. It means that it is worth thinking through the entire process so that all its details are properly and logically organized. It is also possible to discuss these details with a psychologist. Moreover, investigators must understand when it is best to ask questions in order to reduce possible risks.

According to Hackett, Ukraine needs to develop such a mechanism to obtain the best possible evidence, but at the same time balance the victims’ needs with fair trial requirements.

Moreover, the participants of the discussion covered the prospects of setting up a unified system of supporting war crimes victims and witnesses in the criminal proceedings in Ukraine.

In particular, Veronika Kristkova, Head of Prosecution/Judiciary Unit at European Union Advisory Mission Ukraine.

“We understand how important it is to provide proper training for judiciary staff, and there is no need to wait in this regard. There are certain basic principles that can already be taught. For example, the principle of doing no harm and sensitive interrogation techniques,” she said.

She also noted that Ukrainian legislation needs to be revised and improved, in particular in investigating war crimes. According to her, protecting victims and witnesses is a challenge.

“Victims must be protected from intimidation, from psychological and physical harm. In Ukraine, victims are actually treated as a source of information during criminal proceedings. There are certain legislative physical protection means. But unfortunately, the legislative framework is drafted in such a way that it cannot be used in order to prevent emotional damage,” Veronika Kristkova emphasized.

Veronika Kristkova also informed that the EUAM Ukraine prepared a comprehensive assessment of the legal framework in Ukraine regarding the victims’ rights which are granted according to legislation and the crimes which are not covered there, and suggested respective changes.

“We are trying to work now in such a way that this issue is included in the agenda and that the Parliament draws up a comprehensive witness protection program. This is especially relevant given that the number of war crimes cases is increasing,” she said.