Ukraine must ensure the right to a defence is rigorously upheld in cases involving war crimes, as breaches of procedural safeguards could lead to complaints being lodged with the European Court of Human Rights and damage the country’s international reputation, according to Inna Linyova, Director of the Human Rights Institute of the Ukrainian Bar Association.
In an interview with the Interfax-Ukraine news agency, she noted that Ukrainian courts are hearing a large number of war crimes cases in absentia, without the accused being present. Such a practice is permissible, but requires the court, the prosecution and the defence lawyers to observe procedures with particular care.
According to Linyova, if a Russian serviceman who has been found guilty in absentia subsequently claims that he was not notified of the case or the trial, and that his lawyer failed to provide a proper defence, he may appeal to the European Court of Human Rights. In such a case, Ukraine risks a ruling that it has violated the right to a fair trial.
She emphasised that the issue of notifying defendants is one of the key concerns. Ukrainian legislation currently does not require the prosecution or the investigating authorities to take all possible steps to locate the defendant. If there is no access to the defendant’s address, it is sufficient to publish information about the trial on the website of the Office of the Prosecutor General and in the newspaper ‘Uryadovy Kurier’.
However, according to Linyova, it is clear that Russian military personnel are unlikely to read such sources. Therefore, the prosecution must additionally use other methods of notification: search for the defendants’ profiles on social media, send messages, and write official letters, including to the Russian Ministry of Defence.
In her view, such actions are necessary not because Ukraine expects a conscientious response from the Russian Federation, but to demonstrate that the Ukrainian system has done everything possible to ensure a fair hearing of the case.
“We cannot expect the Ukrainian judicial system to be fair to Ukrainian citizens and unfair towards Russians. Courts are either fair or unfair,” noted Linyova.
The expert also drew attention to the pressure faced by lawyers representing defendants in such cases. According to her, some lawyers and members of the public mistakenly equate the lawyer with their client, accusing defence lawyers of supporting Russian narratives. However, international standards and professional ethics explicitly prohibit equating a lawyer with their client.
In Linyova’s view, it is extremely important for Ukraine to explain to the public that the fact that an accused Russian serviceman has a defence is not a sign of the state’s weakness, but rather a testament to the strength of the legal system. This is particularly important in the context of future European integration, international legal proceedings and compensation mechanisms.
