The work of courts during the war, tools for restoring confidence and war crimes trials - an open interview with the President of the Supreme Court

Despite difficult times and continued aggression, Ukraine must continue on its chosen path of European integration and adhere to the principles of the rule of law. It is obvious that no democratic country can exist without an independent and strong judiciary. It's an axiom that doesn't need to be proven. This was stated by the President of the Supreme Court Stanislav Kravchenko at the opening of the XI International Judicial Legal Forum organised by the Yurydychna Praktyka Publishing House.

In an open interview with EQUITY partner Viacheslav Kraglevych, the SC President discussed the main challenges faced by the courts during the war and ways to overcome them.

Asked to comment on the extent to which the judiciary had managed to adapt to working under martial law, Stanislav Kravchenko asserted that Ukraine's courts had generally risen to the challenge, and that the number of cases heard in the first year of full-scale invasion (almost 3 million) was a clear indication of this.

According to the SC President, from the first Russian attacks on peaceful cities in Ukraine it became clear that the administration of justice would not be possible as before, given the huge security risks for the parties to the proceedings, court staff and judges. The response to these risks depended on the location of the court - in the temporarily occupied territory, on the front line, in the centre of the country or in western Ukraine - where the situation was somewhat safer, although it is clear that there is no safe place in Ukraine today. It was important to provide citizens with a constitutional guarantee of access to justice even under martial law.

Analysing the work of the Supreme Court during the war, the speaker said that the number of cases submitted to the Civil Cassation Court within the Supreme Court currently exceeded the pre-war figures. The Civil Cassation Court has developed a number of important legal positions on the issues of immunity of the Russian Federation and compensation for damage caused by the armed aggression of the Russian Federation, establishment of legal facts, etc. The Criminal Cassation Court within the Supreme Court faced a serious challenge in dealing with a large number of criminal proceedings related to the war. The Court is working on answers to the following questions: what is an "aggressive war", what is "unleashing and waging an aggressive war", what is "violation of the rules of warfare", etc.

The war has also changed the nature of public law relations - the Administrative Cassation Court within the Supreme Court shapes the jurisprudence in resolving certain types of disputes in administrative cases related to the rights of internally displaced persons, military personnel and other categories of persons. New categories of disputes have also emerged in the commercial jurisdiction, in particular the Commercial Cassation Court within the Supreme Court will have jurisdiction over a large number of claims for damages caused by the military aggression of the Russian Federation. "The Supreme Court is structured in such a way that each cassation court is responsible for its own part of the work. It is in this way, together with general organisational measures and the work of the Grand Chamber of the Supreme Court, that issues relating to disputed legal relations are resolved. The work of the Supreme Court is aimed at the unity of case law," assures Stanislav Kravchenko.

During the open interview, the President of the Supreme Court spoke about the restoration of administration of justice in the de-occupied territories, the situation of court premises and personnel. He dwelled in more detail on the issue of restoring confidence in the Supreme Court.

According to Stanislav Kravchenko, recent developments in the Supreme Court have dealt a blow to the entire judicial system, but most of all, of course, to the Supreme Court itself, which has been working for more than five years to establish its reputation as a fundamentally renewed institution.

The speaker noted that the Supreme Court, aware of its responsibility to the state and society, responded to the situation as quickly as possible. What should the Supreme Court do next to restore confidence? Work. Work so that the results of the work are clear to every citizen who uses the judicial services, that court decisions are legal, fair and written in clear (albeit legal) language. "This is our tool to restore confidence," said Stanislav Kravchenko.

"We often use the word 'reform' and everyone puts their own meaning on it. If we are talking about improving the efficiency of the High Council of Justice, the High Qualification Commission of Judges of Ukraine or the administration of justice, about new mechanisms for the unity of case law, then I support such reforms. In any case, any changes to the legislation should be based on the principle of 'do no harm'," says the SC President.

Stanislav Kravchenko added that after the Presidential Decree enacting the National Security and Defense Council's decision to reform the judiciary, the Supreme Court issued a statement on general issues of restoring confidence in the judiciary. The speaker believes that the mechanisms for restoring confidence in the Supreme Court, which will be implemented by the legislator, should be clear, understandable, in accordance with the laws of Ukraine and should not interfere with the independence of the judiciary.

The President of the Supreme Court also focused on the issue of preparing the judicial system of Ukraine to try war-related proceedings. In particular, the judges carefully analyse international conventions, the jurisprudence of international tribunals and the International Criminal Court on war crimes. It is important that the jurisprudence of national courts is consistent with the established approaches of international institutions. In order to ensure effective consideration of such proceedings, it is extremely important that the pre-trial investigation authorities correctly classify these crimes.

According to the speaker, there are many challenges involved in considering criminal proceedings under the in absentia special procedure. According to the practice of international criminal tribunals, a trial without the participation of the accused must be conducted in accordance with the highest standards of justice, otherwise the fairness of the sentence imposed may be called into question. Stanislav Kravchenko expressed concern that Ukrainian society often associates the defence lawyer with his client. It is important to recognise that there can be no fair justice without an effective defence for the accused.

Finally, the President of the Supreme Court expressed his unconditional support for the establishment of a special international tribunal to consider crimes of aggression against Ukraine. But this tribunal will be set up for a small number of people - high-ranking officials of the aggressor country. The lion's share of criminal proceedings related to the war falls on the shoulders of national courts, and they are ready for it.

Photographs kindly provided by Yurydychna Praktyka.