On November 22, 2024, the Council of Europe, in cooperation with the Supreme Court and the Office of the Prosecutor General of Ukraine, organised an expert discussion on in absentia proceedings within the Ukrainian legal framework and practice, with due regard to the war context.
The event brought together representatives from the Supreme Court, the Prosecutor General’s Office, the National School of Judges of Ukraine, the Prosecutors’ Training Center of Ukraine, the Ministry of Justice, the Free Legal Aid Coordination Centre, as well as from international organisations and think-tank NGOs.
In her opening remarks, Ms. Lilja Gretarsdottir, Head of the Council of Europe’s Department for Implementation of Human Rights, Justice, and Legal Co-operation Standards, highlighted the complexities of in absentia proceedings:
“… legal research on this topic highlights that significant work remains to strike a balance between the general public interest in ensuring justice and, of course, the individual right to a fair trial, particularly within the complex context of war. Now, those in favor of trials in absentia believe that such proceedings could be an effective means of ensuring that justice is done, that further crimes are prevented, and that perpetrators are held accountable. Opponents or skeptics of these trials argue that they could lead to potential abuse and arbitrariness as they violate, of course, the principle of natural justice which requires a person to be present during court hearings when accusations against them are being contemplated and decided… while there are, of course, differing opinions on this issue, it appears that the challenge of ensuring the presence of accused individuals at trials should not, by default, be viewed as a barrier to ensuring accountability. It would seem, in fact, that the fairness of an absentia proceedings, if they are properly implemented, can serve as a tool to guarantee the legitimacy of criminal proceedings in the context of war…
Now, I’d like to recall in this context that just two months ago, in Vilnius, the Ministers of Justice of the Council of Europe, agreed that under certain conditions, and I quote here “and where the applicable law so permits, certain procedural steps in absentia in the prosecution of international crimes may serve the interest of justice in Ukraine”. The Ministers thereby expressed their willingness to continue discussions and explore potential avenues of mutual cooperation on this very matter …”
Council of Europe experts — Ms. Anna Adamska-Gallant (Polish senior lawyer and judge-elect to the European Court of Human Rights), Mr. Jeremy McBride (Barrister, UK), Mr. Ian Welch (Criminal justice lawyer, former prosecutor at Crown Prosecution Service, UK), and Mr. Lilian Apostol (International legal advisor, Cooperation Programmes Division, DGI) — presented findings from the comparative study of in absentia proceedings in selected Council of Europe member states and discussed procedural issues of the Ukrainian legal framework with regard to the matter concerned. Their insights enriched discussions with Ukrainian stakeholders on opportunities and challenges associated with such proceedings in Ukraine.
The round table merged international experience-sharing with a focused expert dialogue on the application of the in absentia proceedings in the war context in Ukraine. The event marked yet another step towards strengthening Ukraine’s criminal justice system to ensure accountability for international crimes committed during the Russian Federation’s war of aggression against Ukraine. As Stanislav Petrenko from the Office of the Prosecutor General noted: “We highly appreciate the significant contribution of the Council of Europe experts to this process, as this is probably an area where it is simply impossible to find better specialists and a higher level of expertise [than the Council of Europe possess].” The Council of Europe stands ready to provide continued expert advice in this regard.
- Comparative study of legislation and practices in selected member states of the Council of Europe (in Eng)
- Programme of the Event (in Eng)
The event was organised & the comparative study prepared under the project “Fostering Human Rights in the Criminal Justice System in Ukraine”, part of the Council of Europe Action Plan for Ukraine “Resilience, Recovery, and Reconstruction” for 2023–2026.
