SC Judges Discussed the Prosecution of International Crimes Committed by Russian Troops in Ukraine

Judge of the Criminal Cassation Court within the Supreme Court Oleksandra Yanovska and Judge of the Grand Chamber of the Supreme Court Tetiana Antsupova took part in a seminar on "Prosecution of International Crimes Committed by the Regimes of Putin and Lukashenko in Ukraine". The event organized by the Department of International Law and European Union Law at Kozminski University ( Warsaw, Poland) took place on April 13, 2022 online.

“There is no such a court and such a measure of punishment that those who started this war deserve. Responsibility for the crimes committed on the territory of Ukraine should be assigned not only to the leadership of the aggressor state, but also to all other persons who contributed to the commission of these crimes and were involved in them,” said Oleksandra Yanovska.

According to the judge, international crimes, in particular, against the peace and security of mankind, one way or another are the result of state policy. The essence of the principle of inadmissibility of reference to official capacity, which is enshrined in Art. 27 of the Rome Statute of the International Criminal Court, is the inevitability of punishment of those persons who can be called the main perpetrators of crimes, even if they hold the office of a head of state.

This principle means that the provisions of international criminal law apply equally to all persons, regardless of their official capacity.

The judge also said that the Prosecutor of the International Criminal Court had made an important decision to launch a full-fledged independent investigation of crimes committed on the territory of Ukraine.

"However, we rely not only on the ICC, but also on national courts and law enforcement agencies," Oleksandra Yanovska said.

Thus, according to the Office of the Prosecutor General, as of April 13, 2022, 6,261 criminal proceedings were opened on the facts of committing crimes of aggression and war crimes, as well as 2,848 proceedings on crimes against national security. Among the suspects - 570 representatives of the military-political leadership of the Russian Federation.

At the same time, according to Oleksandra Yanovska, the OPG cannot open criminal proceedings directly against the President or the Minister of Foreign Affairs of the Russian Federation due to their functional immunity.

“A state official enjoys immunity from foreign criminal jurisdiction, while immunity from the International Criminal Court does not apply. In addition, immunity does not apply to such crimes under international criminal law as genocide, the crime of apartheid, enforced disappearance of persons, war crimes. Immunity and diplomatic privileges should be exercised in good faith, not in order to ignore laws, rules and customs," the judge remarked.

In conclusion, Oleksandra Yanovska thanked her Polish colleagues for organizing the event, fruitful discussion and steady support for Ukraine.

"Ukraine is now fighting not only for its freedom and for peace for itself. This is a civilizational war, and we have no other choice but to win," said Oleksandra Yanovska.

Tetiana Antsupova's speech was devoted to the analysis of the consequences of the termination of Russia's membership in the Council of Europe for the convention system and the practice of the European Court of Human Rights.

The judge said that on March 1, 2022, the ECtHR became the first among all international courts to respond to massive violations of the convention rights of the civilian population, having received a request from the Government of Ukraine on application No. 11055/22 in the case “Ukraine v. Russia (No. 10)”.

Thus, the Court took into account the current hostilities that began on February 24, 2022 in different parts of Ukraine, and concluded that they created a real and ongoing risk of serious violations of the Convention rights of the civilian population, in particular in accordance with Art. 2 (right to life), Art. 3 (prohibition of torture) and Art. 8 (right to respect for private and family life) of the Convention for the Protection of Human Rights and Fundamental Freedoms.  

The ECtHR later imposed interim measures on individual applications against Russia, including blocking the work of independent media outlets covering the war in Ukraine.

"This case can be called exceptional, because according to the previous case law of the ECtHR, interim measures were applied to alleged violations of Articles 2, 3, 8, but not Art. 10 of the Convention. The Russian government should have informed the Court as soon as possible about the measures taken to ensure full compliance with the Convention, but Russia ignored this requirement of the ECtHR, "said Tetiana Antsupova.

The judge also noted that according to the Resolution of the Committee of Ministers of the Council of Europe of March 16, 2022, Russia ceased to be a member of the Council of Europe, and on March 22, the ECtHR adopted a Resolution, according to which the Russian Federation would cease to be a high Contracting Party to the Convention on September 16, 2022. At the same time, the Court has jurisdiction to consider applications against the Russian Federation that may constitute a violation of the Convention, provided that they lasted until September 16, 2022.

«In the meantime, complaints about such violations can be filed much later, after all domestic remedies have been exhausted», - the judge explained.

In addition, the ECtHR Resolution states that the suspension of all applications against Russia is lifted with immediate effect. However, this Resolution does not preclude consideration of any legal question relating to the consequences of Russia's cessation of membership to the Council of Europe which may arise in the exercise of the Court's jurisdiction to review cases referred to it under the Convention.

Meanwhile, Russia continues to be a contracting party to conventions that are open to accession by non-CoE states. These include, in particular, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

“The aggressor has made its anti-civilizational choice. For 26 years of its membership in the Council of Europe, the Russian Federation has failed to ensure even the minimum standards of protection of human rights, democracy and the rule of law, constantly blocking the implementation of ECtHR decisions and violating Art. 3 of the CoE Statute, demonstrating the lack of common European values. Therefore, Russia has long deserved to be deprived of its membership in this international organization,” the judge summed up.