Access to justice for war victims in Ukraine

Abstract

The ongoing war in Ukraine is a test for rule and law and justice. Mass atrocities and scale of destruction during the full-scale phase of armed aggression against Ukraine inevitably bring up the issue of a real embodiment of the rule of law. The article examines the issue of access to justice as one of the necessary elements of the rule of law with particular attention to the access to justice for victims of war in Ukraine. The author emphasizes that the concept of access to justice has been developed in the English-speaking environment, where «fairness in the way people are dealt with» and «the system of laws in a country that judges and punishes people» are denoted by the same word – justice. This fact explains the attractiveness of «access to justice» as a catchphrase. The concept of access to justice is perceived primarily as an important element of the rule of law which enables individuals to protect themselves against infringements of their rights and to remedy civil wrongs and not just access to a court as an institution. Considering the role of the judiciary to apply the law in accordance with an appropriate, that is to say, sufficiently transparent and predictable, interpretative methodology, the author concludes that the absence or inconsistency of terminology used in normative acts can be considered as one of the indicative examples of regulatory obstacles to access to justice. Thus, the use and correlation of the concepts (and hence the terms) «victim» (zhertva), «injured person» (postrazhdala osoba) and «victim (in criminal proceedings)» (poterpilyi) has been analyzed – both in national legislation and in translations of international treaties valid for Ukraine, where the concept of victim is used. In addition to regulatory ones, there may also be institutional obstacles, i.e., the criminal justice system traditionally pays more attention to the rights of the accused than to the victim of a crime. Both types of obstacles (regulatory and institutional) acting cumulatively may lead, i.e., to secondary victimization in the treatment of vulnerable victims and witnesses. It is emphasized that in the conditions of full-scale armed aggression against Ukraine, the approach of national courts is undergoing changes. There is a tendency of Ukrainian judiciary to be more victim-oriented in criminal as well as civil cases. Analysis of verdicts concerning Art. 438 of the Criminal Code of Ukraine (CCU) (violation of the laws and customs of war) issued after the beginning of the full-scale invasion and available in the State registry of court decisions shows that the courts take into account the vulnerability of the victims, explicitly mentioning it in the verdicts. Considering a civil case filed by a widow of a military serviceman who died during a combat mission in 2014 in the Luhansk region (who acts in her own interests and in the interests of minor children) against the Russian Federation, the Supreme Court ruled that Ukrainian courts have the right to ignore the immunity of Russian Federation and consider civil cases of compensation for damage caused to an individual as a result of armed aggression of the Russian Federation. Key words: access to justice, rule of law, victim, war crimes, gender-based violence, vulnerable persons, victims of war, reparations.