The joint appeal of representatives of the coalition “Ukraine. Five in the Morning” and the Initiative “Tribunal for Putin”

On December 5, 2024, the Verkhovna Rada of Ukraine adopted the bills “On criminal liability for international crimes” (No. 11538 of 09/02/2024) and “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine in connection with the adoption of the Law of Ukraine “On criminal liability for international crimes” ” (No. 11539 of 09/02/2024) as a basis in the first reading.

We, representatives of human rights organizations, who have long worked to ensure accountability for international crimes committed in the context of armed aggression against Ukraine, believe that the adoption of bills No. 11538 and No. 11539 not only does not contribute to future investigations but also calls into question the prospects of existing cases.

The approach proposed in the bills to regulate the consideration of international crimes at the national level by a separate law is unjustified. The bills themselves do not take into account the position of judges, prosecutors, investigators, and civil society, and in reality, they will nullify many effective justice processes.

We call on the people’s deputies of Ukraine not to support the adoption of bills No. 11538 and No. 11539 for the following reasons.

1. The bills will undermine the investigation of serious crimes in Ukraine. Proceedings will be slowed down and contain more errors and procedural violations. This means that the already overloaded justice system will become even more overloaded, especially in view of the numerous proceedings which are growing daily.

If bills No. 11538 and No. 11539 are adopted, investigators, prosecutors, and judges will have to apply a new separate law to particulars that occurred after the adoption of No. 11538 and No. 11539, and the Criminal Code and Criminal Procedure Code (CC/CPC) to those that existed before. These two mutually exclusive approaches need to be learned and used in parallel in the absence of practice in applying such solutions. In addition, there will be a problem in investigating ongoing crimes, where it will be necessary to determine when the investigation is carried out under the CC/CPC and when it is under the new law.

The bills contain confusing terminology, which sometimes does not comply with international law, particularly the Rome Statute.

Detailing international crimes without a thorough preliminary study of their compositions does not help better understand the violation’s essence. It only creates more room for free interpretation in the process of application.

It will be necessary to overcome the consequences of procedural inconsistencies that will worsen the quality of case consideration, create new risks in practice, and increase the likelihood of procedural violations, which the defense can then use to appeal decisions and bury cases.

A detailed analysis of the draft laws is available in Ukrainian at this link.

2. If adopted, Draft laws No. 11538 and No. 11539 may be declared unconstitutional. This means that enacting the laws will not guarantee that they will be introduced into sustainable judicial practice.

The Constitution of Ukraine enshrines the principle of the rule of law and determines that laws are adopted based on the Constitution and must comply with it. Its implementation in practice also requires legal certainty, which obliges to provide for the application of legal norms and the prevention of the possibility of their arbitrary interpretation.

In accordance with the general principles of the Criminal Code of Ukraine, it is understood only as the legislation on criminal liability, and any amendments adopted to it must be included after they enter into legal force concerning this normative legal act.

Consequently, in Ukraine, there is no provision for establishing criminal liability or detailing it other than through amendments to the current Criminal Code of Ukraine. The adoption of a separate law, which, in parallel with the effect of the Criminal Code of Ukraine, will determine the principles of administration of justice for a separate category of crimes, may lead to a violation of legal certainty in practice, create a challenge for investigators, prosecutors, and judges in terms of applying the norms of legislation.

This is also noted by the scientific and expert opinion of the Verkhovna Rada Office, which, obviously, was not taken into account when considering the draft law.

Doubts about the constitutionality of the draft and its compliance with Ukrainian legislation will additionally slow down the process of improving Ukrainian legislation on the prosecution of international crimes committed in wartime and will shift the focus from improving legislation to the fight for the survival of the law itself.

The existing problems with the bills cannot be resolved by amendments between the first and second readings since they concern their very essence. The rules of procedure of the parliament do not allow such a fundamental revision of the bills between the first and second readings. In addition, the authors of No. 11538 and No. 11539 were not open to discussion before, so it is unlikely that radical changes will be agreed upon, especially in the short period left to make amendments for the second reading.

All this contradicts the goals that the state sets for itself, as well as the high expectations of Ukrainian society, the majority of which believes that fair punishment should be a priority and demands that processes be started and carried out as quickly as possible. Weakening the national system with these bills will increase doubts about its ability and demotivate victims to seek help from law enforcement agencies.

We call on the people’s deputies of Ukraine not to adopt bill No. 11538 and the related No. 11539 of 02.09.2024 and to resume detailed discussions to find the optimal way to implement the provisions of the Rome Statute in Ukrainian legislation.