Do no harm: how to work with war crimes victims and witnesses. Joint column by Anna Adamska-Gallant and Olha Sribniak for UP

Due to the full-scale military aggression of the Russian Federation, most residents of Ukraine suffered a complex traumatic experience, becoming witnesses or victims of violence. The legislation does not provide for any specific tools for working with such participants to court proceedings. Therefore, more and more attention is being paid today to the need to introduce services for vulnerable witnesses and victims.

The intensity of the tragedies suffered and exposure to challenging situations can have a significant impact on how willing and able people are to accurately recall facts. In addition, a person may be interrogated several times, which causes so-called “witness fatigue”.

The Criminal Procedure Code does not provide for any specific mechanisms for dealing with such participants in the trial, but rather focuses on protecting the suspect’s rights. However, in Ukraine, more and more attention is being paid to the need to introduce services for vulnerable witnesses and victims. Because of the military aggression, this need has risen significantly.

In contrast, EU has been using a victim-centred approach for 10 years. Supporting and protecting crime victims is provided for at the legislative level. The right to a fair trial must be ensured not only to the accused, but also to the victim or witness.

Therefore, EU Directive 2012/29/EU sets standards regarding the rights, support and protection of crime victims. After all, such victims need to be treated in a proper and professional manner to avoid discrimination and re-traumatisation. Moreover, the Directive provides for the right to access to support as soon as possible, in line with individual needs and regardless of the nature of the offence.

The EU-Ukraine Association Agreement does not provide for the implementation of the provisions of this Directive. However, the standards it proposes should be taken into account. First of all, in view of a significant public need, and not only because of Ukraine’s status as a candidate for membership in the EU.

How can a crime affect victims and witnesses?

Any crime can have a devastating impact on the life of a victim or witness (even a crime that seems to be a minor one at first). These people have already suffered physical or psychological harm.

According to EU standards, before starting work with victims, it is necessary to conduct an individual assessment of their needs. Such an assessment will help determine the degree of vulnerability of a person in criminal proceedings. Particular attention is paid to ensuring the victims’ confidentiality and protecting child victims.

Why is it important? We need to understand how the crime affects a person and his or her support needs. This will help to at least roughly predict their reaction to both the crime and the subsequent judicial process. After all, the extent of the impact of a violent crime is highly individual.

The consequences may include:

• Economic (costs because of property damage or loss);
• Physical (injuries resulting from violent crime);
• psychological (feelings of loss of control, helplessness, anger, guilt about what happened, fear of re-victimisation, social exclusion, self-harm, substance abuse, suicidal ideation, post-traumatic stress disorder (PTSD), etc.

All these consequences may be experienced not only by the victim, but also by their family and close friends.

If the victim does not get proper support after the crime, this can lead to secondary victimisation, when a person suffers extra trauma not because of the crime, but because of what the justice system or its representatives do.

Secondary victimisation can be triggered, in particular, by law enforcement or court officials. For example, by conducting interrogation in an insensitive manner; blaming the victim for what happened; forcing the victim to undergo complex and lengthy procedures to obtain compensation. The result can be devastating for the victim’s mental health.

Tips for working with victims and witnesses of war-related violence in Ukraine

When communicating with victims and witnesses of war-related violence, the following rules should be kept in mind:

• Victims should never be forced to “forget” about the trauma. Instead, encouraging them to express their feelings helps them cope better with the consequences. At the same time, victims’ suffering should not be seen as a pathology.
• It is important to remember that because of the traumatic experience, a person may not remember the facts of the crime or may not want to remember them. Therefore, it is necessary to devote sufficient time to listen carefully to the victim. At the same time, it is important to be understanding if victims decide not to participate in the proceedings.
• Take into account that a person may not have experience of interacting with the judiciary. Everything related to a court hearing will be unusual for them. Therefore, the person should be informed about possible further steps. At the same time, victims may want to meet the judge’s “expectations”. It is important to explain to the person that it is normal to not know the answer to a question.
• It is important to provide information on services (hotlines, state centres and NGOs) where the victim can receive legal, psychological, information and other assistance and support.
• It is necessary to take into account the age, gender of the crime victims, their social status, and possible disability.

Instead of conclusions

Thousands of Ukrainians who have become victims or witnesses of war crimes-related violence will have the strength to seek justice in court. They should be supported in order to obtain valuable information.

However, it is important to remember that one could harm them even more. To prevent this, it is necessary to enshrine a victim-centred approach in the law.

However, we can start doing a lot right now. It is not only the judiciary that needs to be able to work with armed conflict witnesses and victims. This also applies to the police, prosecutors, lawyers, NGOs collecting evidence of war crimes, support services, the free legal aid system, volunteers, etc.

Importantly, Ukraine has already started working to support victims and witnesses with the involvement of the Office of the Prosecutor General. This is an activity related to the Strategy for a Victim and Witness-Centred Approach to Conflict-Related Sexual Violence. It includes, among other things, establishing a victim and witness protection and support unit.

To date, there are already many examples of stakeholders from the judiciary, police, prosecutors, and the non-governmental sector developing victim and witness support services in their own institutions and organisations.

Their best practices and international experience should be systematised and used in working with victims of war-related violence in Ukraine. This will not only positively impact the moral and psychological well-being of survivors, but will also ultimately make justice more effective.

Anna Adamska-Gallant, Lead of the Judiciary Component, Key International Expert, EU Project Pravo-Justice

Olha Sribniak, National Key Expert, Judiciary Component, EU Pravo-Justice Project

The text was first published in Ukrainska Pravda.