Formation of legal regulation of criminal proceedings in Ukraine under martial law

Abstract

This article explores the preconditions and stages of the development of legal regulations for conducting criminal proceedings in Ukraine during a state of war. It emphasizes that the peculiarities of legal regulation in the early stages of the antiterrorist operation and before the onset of full-scale war are linked to the objective impossibility of fulfilling certain requirements guaranteeing individual rights and freedoms during procedural actions due to ongoing combat operations in specific territories. Simultaneously, the need to ensure the inevitability of punishment for guilty parties led to the introduction of special criminal proceedings regimes with limitations on certain rights and freedoms of participants. The article identifies an increase in the proportion of investigations conducted through special criminal proceedings procedures as a distinctive feature of investigating crimes committed during a state of war. This approach allows the national law enforcement and judicial systems to accomplish the task of ensuring the inevitability of criminal responsibility for individuals hiding from pre-trial investigation or court proceedings on the territory of Russia or temporarily occupied territories of Ukraine. In addressing representatives of the occupying state committing war crimes against Ukraine, the article proposes additional guarantees, especially for foreign citizens, regarding proper notification of such suspects/ accused about the date and time of procedural actions or court hearings. This aims to minimize grounds for appeals to the European Court of Human Rights due to Ukraine’s alleged violation of Article 6 of the Convention. In summary, with the introduction of a legal regime of martial law in Ukraine, the procedure for conducting criminal proceedings is designed to respond to challenges associated with armed conflict and the inability of the state to fully or partially perform law enforcement, legal protection, and judicial functions in specific territories of Ukraine. The implemented mechanism for conducting special criminal proceedings during a state of war requires further refinement to maximally guarantee the rights and freedoms of participants in criminal proceedings.