Restoration of criminal justice and introduction of transitional justice in the conditions of restoration of territorial integrity of Ukraine and reintegration of Donbas

Vitalii Komarnytskyi; Mykola Karchevskyi; Mykola Yakovenko; Artem Kovalenko; Volodymyr Kovalenko

doi:10.34069/AI/2020.27.03.38

Vitalii Komarnytskyi Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine https://orcid.org/0000-0003-1510-2395
Mykola Karchevskyi Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine https://orcid.org/0000-0002-2693-3592
Mykola Yakovenko Department of Law Enforcement Agencies and Judiciary Arrangement of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine https://orcid.org/0000-0002-6485-8095
Artem Kovalenko Department of State and Legal Disciplines of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine https://orcid.org/0000-0003-3665-0147
Volodymyr Kovalenko Academic Secretary Senior Research Fellow, Department of Coordination of Legal Studies of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine https://orcid.org/0000-0001-5310-2092

DOI: https://doi.org/10.34069/AI/2020.27.03.38

Keywords: certain areas of Donetsk and Luhansk regions, temporarily occupied territories, transitional justice, restoration of criminal justice, criminal proceedings, pre-trial investigation.

Abstract

Description. The purpose of the article is to determine the most optimal mechanisms for restoration of Ukrainian criminal justice in certain areas of Donetsk and Luhansk regions as part of the implementation of transitional justice in the mentioned territories. Methodology. The system-structural method and the method of formal and logical analysis have been applied to determine the main steps to the restoration of criminal justice in some areas of Donetsk and Luhansk regions. The comparative and legal method was used to analyze the foreign legal practice of resolving armed conflicts and adapting best practices to Ukrainian realities. As a result of the research it has been found that the main steps to the restoration of criminal justice in the reintegrated territories are: adaptation of the criminal and criminal procedural legislation of Ukraine in accordance with international agreements on the reintegration of the Donbas; renewal of criminal proceedings for crimes which, for various reasons, have not been completed and left in the temporarily occupied territories; identifying and organizing information on the offences that fall under the jurisdiction of the International Criminal Court; organization of investigation of crimes committed during the occupation; investigations into the causes of death of persons, who died in temporarily occupied territories. Practical implications. The main aspects of implementation of transitional criminal justice as one of the measures aimed at returning temporarily occupied certain areas of Donetsk and Luhansk regions to the Ukrainian legal field were examined and analyzed. Value / originality. Restoration of criminal justice in certain areas of Donetsk and Luhansk regions is the most difficult aspect of the issue of returning the reintegrated territories to the legal field of Ukraine, so the authors proposed the most effective ways to accomplish this task.

Downloads

Download data is not yet available.

Author Biographies

Vitalii Komarnytskyi, Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

Doctor of Law, Professor of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

Mykola Karchevskyi, Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

Doctor of Law, Professor, Acting Rector of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

Mykola Yakovenko, Department of Law Enforcement Agencies and Judiciary Arrangement of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

PhD in Law, Associate Professor of the Department of Law Enforcement Agencies and Judiciary Arrangement of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

Artem Kovalenko, Department of State and Legal Disciplines of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

PhD in Law, Senior Lecturer of the Department of State and Legal Disciplines of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

Volodymyr Kovalenko, Academic Secretary Senior Research Fellow, Department of Coordination of Legal Studies of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

PhD in Law, Associate Professor, Academic Secretary Senior Research Fellow, Head of Department of Coordination of Legal Studies of Luhansk State University of Internal Affairs named after E. O. Didorenko, Ukraine

References

Association Agreement between the European Union and Ukraine of March 21, 2014. Available from https://www.kmu.gov.ua/en/yevropejska-integraciya/ugoda-pro-asociacyu (accessed: 14.01.2020).

Case of Cyprus v. Turkey (Application no. 25781/94 of 10 May 2001). Available from https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59454%22]} (accessed: 14.01.2020).

Case of Mozer v. the Republic of Moldova and Russia (Application no. 11138/10 of 23 February 2016). Available from https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-161055%22]} (accessed: 14.01.2020).

Chenhych, N. (2015). Transitional justice mechanisms and human rights in conflict and post-conflict situations. Samara: Peace Academy.

Constitution of Ukraine as of February 16, 2020. Kharkiv: Pravo.

Criminal Code of Ukraine as of February 10, 2020. Kharkiv: Pravo.

Criminal Procedural Code of Ukraine as of February 03, 2020. Kharkiv: Pravo.

Information letter of the High Specialized Court of Ukraine for civil and criminal cases of April 11, 2017 № 9-697 / 0 / 4-17. Available from http://search.ligazakon.ua/l_doc2.nsf/link1/VRR00222.html (accessed: 14.01.2020).

International Commission on Missing Persons. Missing Persons Institute (2019). Available from https://www.icmp.int/press-releases/missing-persons-institute/ (accessed: 14.01.2020).

International Criminal Court (2011). Rome Statute of the International Criminal Court of 17 July 1998. Available from https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf (accessed: 14.01.2020).

Kalinin, E. V. (2017). The features of collecting evidence in criminal proceedings concerning criminal offenses committed in the area of anti-terrorist operation (pp. 41 – 50). Proceedings of the Second Round Table Conference “Peculiarities of Procedural Evidence in Criminal Proceedings in Temporarily Occupied Territories”. Kyiv.

Kritz, N. J., ed. (1995). Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Vol. 1. Washington, D. C.: US Institute of Peace.

Leebaw, B. A. (2008). The Irreconcilable Goals of Transitional Justice. Human Rights Quarterly, Vol. 30 (1), 95–118.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion ,1971 I.C.J. 16 (June 21).

Ministry of Justice of Ukraine (2019). The Government facilitates the registration of the facts of birth and death in temporary occupied territories. Available from https://www.kmu.gov.ua/ua/news/kabmin-sproshchuye-reyestraciyu-faktiv-narodzhennya-ta-smerti-na-timchasovo-okupovanih-teritoriyah (accessed: 14.01.2020).

Nesterovych, V. F. (2017). Application of the Namibian Exemptions in the jurisprudence of Ukraine. Proceedings of the Second Round Table Conference “Peculiarities of Procedural Evidence in Criminal Proceedings in Temporarily Occupied Territories”. Kyiv.

Posner, E. (2003). Transitional justice as ordinary justice. University of Chicago, Public law and legal theory working paper, 40, 1–48.

Teitel R. (2003). Transitional Justice Genealogy. Harvard Human Rights Journal, Vol. 16, 69 – 94.

The Supreme Court of Ukraine (2018). The issues, related to the cases, which were lost due to temporary occupation of the territories, require urgent settlement. Available from https://supreme.court.gov.ua/supreme/pres-centr/news/792260/ (accessed: 14.01.2020).

Unified State Register of Court Decisions. Available from http://www.reyestr.court.gov.ua/ (accessed: 14.01.2020).