Human Rights Defenders recommend the Ukrainian authorities to finilize the Draft Law No 7290

Committee of the Verkhovna Rada of Ukraine

on Law Enforcement

APPEAL

We, the representatives of Ukraine 5 AM Coalition[1], appeal to you as regards the registration and consideration of the Draft Law “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine” (No. 7290).

Although the armed conflict has been going on in Ukraine for the ninth year, discussions on amendments to the Criminal Code of Ukraine regarding the most serious international crimes are still ongoing at the legislative level. Since 2014, war crimes have been documented in Crimea and Donbas, the legal qualification of which was limited by Article 438 of the Criminal Code of Ukraine. After February 24, 2022, the scale of crimes committed only increased, and the capabilities of Ukrainian law enforcement agencies in terms of the legal qualification of acts remained unchanged.

On April 15, 2022, the Verkhovna Rada of Ukraine registered the Draft Law “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine” (No. 7290). The explanatory note highlights the international armed conflict waged in the territory of Ukraine and the mass violations of international law committed by the Russian Federation in the current conditions.

Basically, we agree with the urgency of the amendments to be made to the Criminal Code and Criminal Procedure Code of Ukraine. However, we have to state that the draft law contains significant shortcomings that, if adopted in the current version, will adversely affect the administration of justice concerning the most serious international crimes amid the ongoing aggression of the Russian Federation.

The following significant shortcomings could be singled out inter alia:

–  the draft law does not contain provisions concerning the possibility of prosecuting persons for war crimes within the framework of command responsibility. Article 422-2 of the Criminal Code of Ukraine proposed by the draft law as an alternative to command responsibility does not cover the peculiarities of prosecuting military commanders and civilian superiors for the most serious international crimes

–   the proposed wording of Article 436 of the Criminal Code of Ukraine does not cover a situation of an international armed conflict. At the same time, a rather broad category is “public appeals” which does not provide legal certainty as to which actions of a person will fall under the qualification of this article

• the wording of Article 437 of the Criminal Code of Ukraine enshrines the unlimited potential composition of the subjects of the crime of aggression, as enshrined in the current wording. This approach runs counter the international law and the provisions of the Rome Statute of the International Criminal Court
• there are no provisions on the possibility of introducing the institution of universal jurisdiction in Ukraine. This applies, in particular, to the norms on the possibility of prosecuting foreigners in Ukraine who committed the most serious international crimes outside Ukraine. In this case, Ukraine limits its opportunities for cooperation with other countries in matters of international justice, in particular in using its own experience of prosecuting the most serious international crimes concerning other events.

In the opinion of Ukraine 5 AM Coalition, the adoption of the draft law (No. 7290) in its current version may adversely affect the processes of bringing to justice those guilty of the most serious international crimes. 

We, therefore, appeal to the Verkhovna Rada Committee on Law Enforcement with a request to recommend, upon the consideration, that the Draft Law “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine (No. 7290)” should be adopted at first reading as a basis and further finalized by the Committee before second reading. 

Annex: Stance of Ukraine 5 AM Coalition organizations on Draft Law “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine” (No. 7290) (3 pages).

[1] Ukraine 5 AM Coalition has been working since the beginning of a large-scale Russian invasion to protect the victims of Russian armed aggression in Ukraine and to bring to justice the top leadership of the Russian Federation and the direct perpetrators of war crimes. The Coalition members are Human Rights Centre ZMINA, Ukrainian Helsinki Human Rights Union, Ukrainian Legal Advisory Group, Regional Center for Human Rights, Media Initiative for Human Rights, Institute for Peace and Common Ground, “Almenda” Civic Education Center, CrimeaSOS, Crimean Human Rights Group, East SOS, Social Action Centre, Advocacy Advisory Panel, Kharkiv Institute for Social Research, DEJURE Foundation, Truth Hounds, Educational Human Rights House Chernihiv, Human Rights Center “Action”, Association UMDPL, Ukraine without Torture, Human Rights Platform, Association for Development of Judicial Self-Government of Ukraine, Ukrainian Healthcare Center (UHC), Expert Center for Human Rights, NGO “Postypovyi Hurt Frankivtsiv”, Association of Relatives of the Kremlin Political Prisoners, Fund for Fundamental Research Support.