Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 76
Enero
Marzo
2023
Recibido el 12/12/22 Aceptado el 24/01/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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Vol. 41, Nº 76 (2023), 482-501
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Observance of individual rights in
criminal proceedings during martial law
DOI: https://doi.org/10.46398/cuestpol.4176.28
Nataliia Akhtyrska *
Olena Kostiuchenko **
Ivan Miroshnykov ***
Liudmyla Dunaievska ****
Abstract
The objective of the research was to identify threats to
individual rights in criminal proceedings during martial law.
The research involved system methods, descriptive analysis,
systematic sampling, doctrinal approach and forecasting. Martial
law introduced as a result of armed conict carries important
implications for criminal justice. Ensuring the observance of
individual rights in criminal proceedings during this period
applies to several crimes, the common feature of which is the
time of their commission. The classication of subjects of prevention of
infringement of such rights is presented. The prospects for improving the
protection of individual rights in criminal proceedings require international
assistance in the detection of crimes related to the armed conict. It is
concluded that ensuring the observance of individual rights in criminal
proceedings during martial law requires combining the eorts of national
and international specialists. Prospects for improving this process envisage
international assistance with increased use of its results as evidence in
national and international courts. It is appropriate to develop international
recommendations for national law enforcement agencies and judicial
bodies.
Keywords: criminal justice research; human rights protection; martial
law; rights enforcement; justice and armed conict.
* PhD in Law, Associate Professor of the Department of Criminal Process and Criminalistics, Educational
and Scientic Institute of Law of Taras Shevchenko National University of Kyiv, 01601, Kyiv, Ukraine.
ORCID ID: https://orcid.org/0000-0003-3357-7722
** PhD in Law, Associate Professor, Head of the Department of Criminal Process and Criminalistics,
Educational and Scientic Institute of Law of Taras Shevchenko National University of Kyiv, 01601,
Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-2243-1173
*** PhD in Law, Associate Professor of the Department of Criminal Procedure and Criminalistics,
Educational and Scientic Institute of Law, Taras Shevchenko National University of Kyiv, 01033, Kyiv,
Ukraine. ORCID ID: https://orcid.org/0000-0002-1851-075X
**** PhD in Law, Associate Professor of the Department of Criminal Procedure and Criminalistics,
Educational and Scientic Institute of Law of Taras Shevchenko National University of Kyiv, 01601,
Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-8093-3892
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CUESTIONES POLÍTICAS
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Observancia de los derechos individuales en los
procesos penales durante la ley marcial
Resumen
El objetivo de la investigación fue identicar las amenazas a los
derechos individuales en los procesos penales durante la ley marcial. La
investigación involucró los métodos de sistema, análisis descriptivo,
muestreo sistemático, enfoque doctrinal y pronóstico. La ley marcial
introducida como resultado de un conicto armado conlleva importantes
implicaciones para la justicia penal. La garantía de la observancia de los
derechos individuales en los procesos penales durante este período se
aplica a varios delitos, cuyo rasgo común es el momento de su comisión. Se
presenta la clasicación de los sujetos de prevención de la vulneración de
tales derechos. Las perspectivas de mejorar la protección de los derechos
individuales en los procesos penales requieren asistencia internacional
en la detección de crímenes relacionados con el conicto armado. Se
concluye que, asegurar la observancia de los derechos individuales en los
procesos penales durante la ley marcial requiere combinar los esfuerzos de
especialistas nacionales e internacionales. Las perspectivas para mejorar
este proceso prevén la asistencia internacional con un mayor uso de sus
resultados como prueba en los tribunales nacionales e internacionales. Es
apropiado desarrollar recomendaciones internacionales para las agencias
nacionales encargadas de hacer cumplir la ley y los órganos judiciales.
Palabras clave: investigación en justicia penal; protección de los
derechos humanos; ley marcial; observancia de los
derechos; justicia y conictos armados.
Introduction
Law and order maintained through legal means, is a component of
national security. In this context, ensuring observance of individual rights,
in particular, in the eld of criminal justice, is a necessary element of the
regulatory, law enforcement and institutional activities of the sovereign
state. However, state guarantees are signicantly limited in emergency
situations of threats to national security due to objective reasons.
The extreme manifestation of those threats is an armed conict.
Regardless of its nature or legitimacy, it threatens fundamental rights and
freedoms. Accordingly, states enjoy wide discretion in choosing the means
of national security protection (Arden, 2015). In fact, all the measures taken
to resolve the armed conict can be considered as those dictated by the
need to preserve national security (Teferra, 2016).
484
Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
Martial law introduced in response to an armed conict always entails
the introduction of restrictions on the exercise of rights and freedoms.
Article 4(1) of the International Covenant on Civil and Political Rights allows
the states to take measures derogating from their obligations during such a
state that threatens the life of the nation, which was ocially proclaimed by
the state. At the same time, such a retreat must be determined by the extent
strictly required by the exigencies of the situation (United Nations, 1966).
As regards criminal justice during martial law, there are threats of
violation of proportionality requirements and the need for restrictions in
cases where national legislation does not keep pace with regulating changes
caused by armed conict (P.H.P.H.M.C. Van Kempen, 2014). For example,
the authorities can resort to the introduction of special powers regarding
extrajudicial restriction of the right to inviolability of private life, departure
from standard course of criminal proceedings, etc.
Although the state cannot depart from the guarantees of the right to life,
the prohibition of torture, cruel or inhuman treatment (Myjer et al., 2009),
there are examples of actual violation by the state: a) torture and other forms
of cruel treatment to obtain confessions; b) kidnapping and extrajudicial
executions; c) activities of non-government groups in applying coercion
to persons suspected of criminal oences; d) leaving arbitrarily detained
persons without legal protection, etc. (Oce of the High Commissioner for
Human Rights, 2003).
Accordingly, the imperfection of the legal regulation and the possible
abuse of power by government agencies during martial law are a serious
threat to legal order and the rule of law (Christakis and Bouslimani, 2021).
So, the legality of the criminal justice depends, rst of all, on the extent
to which the criminal justice ensures compliance with the standards of
the rule of law stipulated by national, supranational and international
documents (Carrera et al., 2021). The main purpose of human rights is
protection against abuse of power, limitation of excessive coercion against
suspects, proper collection of evidence, legal prosecution and justice for the
accused (P.H.P.H.M.C. Van Kempen, 2014).
A system approach to the analysis of ensuring observance of individual
rights in criminal proceedings during martial identied a number of urgent
problems:
1. A professional discourse is mainly reduced to the most dangerous
violations of international humanitarian law, in particular, war
crimes. These actions have an obvious connection with the armed
conict, as they do not simply coincide with it in time, but are
committed under its signicant inuence. This connection denes the
fundamental dierence between ordinary criminal oences and war
crimes (Schwarz, 2018). International and national law enforcement
485
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 482-501
practice relies on the principle of individual responsibility with
regard to war crimes. This means that both servicemen and civilians
who maintained ties with one of the parties to the conict or were
related to it shall be held criminally liable for war crimes (David,
2011).
At the same time, other general criminal acts, such as acquisitive and
violent crimes, can also be committed during martial law. They are not
related to armed conict. However, the peculiarities of the martial law may
lead to the violation of the individual rights during criminal proceedings
because of the lack of qualied law enforcement ocers, the impossibility
of carrying out certain procedural actions, the physical absence of lawyers
at the place of detention of the person, etc. Therefore, disproportionate
restrictions on the individual rights and freedoms can be caused by a much
larger range of criminal oences, rather than only crimes directly related to
the armed conict.
2. Although the violation of individual rights of the suspects and the
accused in criminal proceedings is the main focus, the victims are also
important. In particular, war crimes with mass casualties cause many
victims, survivors, where everyone has the right to know the fate of
their near relations (Schmitt, 2022). The international courts focus
on “high-level” cases, so the national law enforcement and judicial
systems carry the main burden. While the state’s obligations include
investigating violations, prosecuting and punishing perpetrators,
legal remedies and redress for victims or their families must be
provided (United Nations, 2011). As a whole, inadequate attention
is paid to the victimological dimension of the problem, especially in
cases of general crimes.
3. In temporal terms, threats of violation of individual rights in
criminal proceedings during martial law cannot be reduced only
to the pre-trial investigation stage. They can potentially arise from
the peculiarities of the organization of criminal justice and manifest
themselves not only during the investigation, but also during the trial
of cases. Therefore, it is advisable to consider several aspects of such
threats:
• Problems of the organization of criminal justice during
martial law. They are related to regulatory and institutional
support for proper procedures for identifying, prosecuting
and punishing criminal oenders. The states are obliged to
exercise criminal jurisdiction over crimes committed on their
territory or by their citizens. Accordingly, international courts
investigate crimes and administer justice when states fail to
do so (Mayans-Hermida and Hola, 2020). In this context, the
challenge is that the identication and collection of evidence
486
Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
of large-scale crimes related to armed conict is often beyond
the capacity and resources of local police teams, investigators
and prosecutors (Schmitt, 2022).
The state must guarantee access to judicial processes, services and
remedies (Carrera et al., 2021). This is the basis for the mandatory
requirements to be complied with in order to ensure the observance of
individual rights during martial law through the criminal justice system: a)
the national legislation denes the grounds for limiting individual rights;
b) the national law is accessible to everyone; c) the law has predictable
consequences (Council of Bars and Law Societies Of Europe, 2019).
However, it is clear that the entire criminal justice system is extremely
vulnerable to threats of violation of individual rights during martial law
(Mayans-Hermida and Hola, 2020).;
• Problems of detecting the facts of crimes committed during martial
law. They refer to acts both related and not related to armed conict.
The failure to detect the crime and the failure to prosecute the
perpetrators deprives the victims of their rights to protection and
redress. In particular, the modern conception of justice as a complex
system of information is emphasized by the understanding of the
extreme importance of documenting crimes against the civilian
population (D’Alessandra and Sutherland, 2021).
This is why non-government organizations try to set an agenda in order
to draw attention to certain crimes. This prompts the state, rst of all, the
prosecutor’s oce, to register and conduct an investigation of specic facts.
These facts could remain without a proper response if the attention of civil
society is not drawn (Jeßberger and Steinl, 2022).
The activity of mass media becomes especially important. Experience
of wars in the 21st century showed the possibilities of citizen journalism
as a way to confront human rights violations. This resulted in a signicant
amount of open-source content. In this regard, there is a task to submit
this information to the courts in order to bring the perpetrators to
justice (Freeman, 2018). Therefore, the state should create a system of
communication between law enforcement agencies and judicial bodies and
civil society institutions during martial law;
• problems of conducting pre-trial investigations. The states are
obliged to conduct careful, ecient and independent criminal
proceedings. The evidence obtained during the investigation
determines the framework of the analysis of the crime (P.H.P.H.M.C.
Van Kempen, 2014). Failure to properly organize the investigation
process may result in a violation of the right to an eective remedy.
The conceptual diculties of ensuring observance of the individual
rights in criminal proceedings are revealed during the pre-trial
487
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 482-501
investigation as regards the important limitations on how to collect
evidence and keep people in custody (McBride, 2009).
Two blocks of problematic issues can be distinguished in this context:
A) forensic support for the investigation of crimes during martial law,
which should ensure: a) the most eective collection of information
in hard-to-reach areas; b) objectivity of the received data; c) safety
of persons participating in the proceedings; d) availability of
information to all interested parties (CENSS, 2019). The widespread
use of digital evidence and articial intelligence to analyse digital
material is necessary in this context (D’Alessandra and Sutherland,
2021);
B) implementation of operational measures and procedural actions
during martial law. It is about the use of both covert methods of
investigation (eavesdropping, interception of communications,
surveillance, electronic surveillance, involvement of informants,
inltration, agents provocateurs, etc.), and overt investigative
actions (search, extraction of ngerprints, biological samples, DNA
proles, etc.) (P.H.P.H.M.C. Van Kempen, 2014). At the same time,
the state can classify the sources of obtaining information and not
grant the right to access them (European Court of Human Rights,
1978; 1987; 2010). Particular attention is paid to the legitimacy of
the detention of suspects and retaining them in custody, including
the determination of the terms of such detention (McBride, 2009).
Violations during interrogations pose a potential threat. For example,
the ECHR emphasized the inadmissibility of fairly widespread methods
used during interrogations in extreme conditions that constitute inhuman
and degrading treatment: hooding, noise exposure, sleep deprivation,
standing continually over prolonged periods, slaps, etc. Excessively long
interrogations also belong to this practice (Oce of the High Commissioner
for Human Rights, 2003; P.H.P.H.M.C. Van Kempen, 2014). Besides, the
danger of violent disappearances of persons suspected of committing crimes
is also a threat to the rights of a person in criminal proceedings (Myjer et
al., 2009);
• problems of judicial review of cases. The importance of judicial
review as a way to protect individual rights increases during martial
law. The judicial review balances: a) the interests of the state in
ensuring security and b) the interests of individuals in ensuring the
observance of their rights and freedoms (Arden, 2015; European
Court of Human Rights, 1987). Attempts to introduce remote
hearings are typical for the period of armed conict. However, digital
tools do not always meet privacy, data protection and information
security standards in the context of judicial proceedings.
488
Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
In particular, the use of video conferencing for judicial proceedings
instead of personal presence in courts aects the relationship of the accused
with lawyers, the decisions of judges, etc. (Carrera et al., 2021). The duty of
the state to prevent, investigate, prosecute, punish and redress for violation
of the individual rights in criminal proceedings, torture or other forms of
ill-treatment is important (Oce of the High Commissioner for Human
Rights, 2003). These violations are often revealed during the trial of cases
on crimes committed during martial law.
Besides, it is necessary to emphasize the problem for the implementation
of criminal proceedings and trial of cases: the real observance of an individual
right to protection (legal aid in the broadest sense). The international
community recognizes the extraordinary complexity of the work of lawyers
in emergency situations.
However, the requirements of the investigation and the objective
diculties of the investigation of crimes should not cause limitations on
the defence (Oce of the High Commissioner for Human Rights, 2003).
Moreover, ECHR emphasizes that the observance of the right to a fair trial
is ensured through the contact between the accused and his/her defence
counsel. Otherwise, it is dicult to establish a trustful relationship between
the lawyer and the client (Carrera et al., 2021).
So, it is concluded on the basis of the foregoing that the current state
of human rights protection in criminal proceedings during martial law is
characterized by conceptual problems of ensuring observance of individual
rights.
The diversity of these problems determines the number of proposals for
solving them or, at least, reducing their severity. In particular, it is about
improving the legal regulation of: a) investigative actions, in particular,
interrogation (Myjer et al., 2009); b) remote hearings (Carrera et al., 2021);
c) procedures for interaction with civil society institutions, primarily mass
media (D’Alessandra and Sutherland, 2021), etc.
The analysis of ensuring observance of individual rights in criminal
proceedings during martial law is extremely relevant and has practical
signicance for legislators, law enforcers and human rights defenders.
The organizational and legal dimension of the problems of ensuring
the observance of the rights in this aspect focuses on the prospects of
comprehensive prevention of violations of individual rights in criminal
justice in order to achieve fairness, accountability and redress for the
victims of crimes.
Aim. Taking into account the above-mentioned, the aim of this study
is to consider the main threats to the observance of individual rights in
criminal proceedings in view of the peculiarities of the wartime, as well as
the prospects for improving human rights protection in this area. The aim
489
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 482-501
involved the following research objectives: determine the list and specics
of crimes committed during martial law; identify the main challenges to
the proper protection of individual rights in criminal proceedings with
due regard to the experience of Ukraine; identify the subjects whose
activities contribute to the reduction of threats of violation of individual
rights in criminal proceedings during martial law; determine the promising
directions for improving the protection of individual rights in the said
context.
Taking into account the above-mentioned, the aim of this study is to
consider the main threats to the observance of individual rights in criminal
proceedings in view of the peculiarities of the wartime, as well as the
prospects for improving human rights protection in this area. The aim
involved the following research objectives: determine the list and specics
of crimes committed during martial law; identify the main challenges to
the proper protection of individual rights in criminal proceedings with
due regard to the experience of Ukraine; identify the subjects whose
activities contribute to the reduction of threats of violation of individual
rights in criminal proceedings during martial law; determine the promising
directions for improving the protection of individual rights in the said
context.
2. Methodology and methods
The sources that cover the relevant aspects of ensuring observance of
individual rights in criminal proceedings during martial law were selected
in order to achieve the aim and full the objectives set in the article. Their
analysis enabled to identify the main components of the subject under
research, which reect the complexity of the problem of human rights
protection in the criminal justice system caused by the armed conict.
The article also used the generalization of the legal positions of ECHR,
international recommendations for jurists (prosecutors and lawyers), as
well as the study of Ukraine’s experience in regulating the observance of
individual rights in criminal proceedings during martial law. This resulted
in identifying the main promising directions for improving human rights
protection in the eld of criminal justice under martial law.
The following methods were used in this study to achieve the aim: the
system approach was applied to interpret martial law as a special legal
regime introduced to protect national security, and the functioning of
criminal justice in this period; the descriptive analysis was used to identify
and study the specics of threats to the protection of individual rights in
criminal proceedings during martial law; systematic sampling and doctrinal
methods enabled identifying and describing the signs of crimes in relation
490
Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
to criminal proceedings which have threats of violation of individual rights;
forecasting was used to determine the prospects for improving the level of
protection of individual rights in the eld of criminal justice during martial
law.
3. Results
Ensuring observance of individual rights in criminal proceedings during
martial law is part of the general humanitarian discourse in the eld of
criminal justice. The solution to this problem requires combined eorts
of the international community and national jurisdictions. At the same
time, the prerequisites for its analysis are: a) understanding the essence
of martial law; b) determining the list and specics of crimes committed
during martial law.
Martial law is supposed to mean a special legal regime that is introduced
in the country/some of its regions in the event of armed aggression or
the threat of an attack. Accordingly, martial law is a consequence of the
most signicant threats to national security in the form of an existing or
potential armed conict. Special conditions arise under martial law that led
to specic changes in the eld of criminal justice (Martial Law in Times of
Civil Disorder) (see Figure 1).
Figure 1: Consequences of martial law in the eld of criminal justice. Source:
own creation
491
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 482-501
A variety of crimes can be committed during martial law, which
are caused by the armed conict to a certain extent. It is complicated to
determine their range because of their heterogeneity. Neither national nor
international documents contain even an approximate list of those acts. It
is considered that the totality of the said crimes can be regulated according
to the following criteria: a) the grounds of criminalization and the nature
of the acts; b) subject composition. The classication groups do not exclude
each other, they describe actions in dierent aspects. Commission of the
acts during martial law can be considered their main common feature (see
Figure 2).
Figure 2: Classication of crimes committed during martial law. Source: own
creation
492
Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
The acts directly related to armed conict are the most typical type of
crimes committed during martial law. They are separated because they are
not committed at other times and outside of the conict. Besides, they can
be committed throughout the entire period of martial law. It is obvious that
crimes related to armed conict are the most socially dangerous. Therefore,
the international documents, in particular, in the statutes of international
courts and ad hoc tribunals, introduce criminalization of a signicant
number of those acts (Schwarz, 2018). Figure 3 presents the most typical
features of crimes related to armed conict developed by international
judicial practice.
Figure 3: Typical features of a crime related to an armed conict. Source: own
creation
Despite the international community’s attention to crimes with the
specied features, it should be noted that other acts committed during
martial law are also dangerous. For example, enhanced criminal liability
was introduced in the criminal legislation of Ukraine for thefts and robberies
committed during the armed conict. This applies to crimes committed
throughout the country, not only in regions of hostilities.
Human rights apply to almost all aspects of criminal procedure law,
regardless of the specics of the criminal justice system (P.H.P.H.M.C. Van
Kempen, 2014). It follows that individual rights may be violated at dierent
stages of criminal prosecution during martial law. The criminal justice
system of Ukraine, where martial law has been introduced since February
24, 2022, may illustrate the specics of the threats to ensuring observance
of human rights.
This is why a special procedure was provided for the conduct of criminal
proceedings. Generalizations of the positions of researchers, lawyers and
judges (Gvozdiy, 2022; Lisitsyna et al., 2022; Mykhailenko, 2022) enable
identifying the most important novelties in criminal procedure law:
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CUESTIONES POLÍTICAS
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• it is allowed to establish interdepartmental investigative groups to
ensure the prompt investigation of all criminal oences;
• extending the powers of prosecutors, who can grant permission
to conduct investigative actions that were previously handled by
investigative judges (search, entry into premises, seizure of property,
detention, etc.);
• detention procedure was simplied (its term was increased by 3.6
times), it is allowed to conduct investigative activities around the
clock;
• signicantly complicated appeal of investigative actions;
• it is possible to consider requests for preventive measures remotely
without the participation of the suspect or the accused; in general,
the share of the use of video conferencing during the period of
investigation and court proceedings has increased signicantly;
• attention is drawn to the inappropriately excessive discovery of
materials from parties to criminal proceedings.
In view of the foregoing, it is possible to compare the stages of criminal
prosecution and the main threats to the observance of individual rights
during martial law that may occur at those stages (see Figure 4).
Figure 4: The main threats to the observance of individual rights during martial
law at dierent stages of criminal prosecution (based on the experience of
Ukraine).
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Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
So, the introduction of martial law did not prevent the conduct of
pre-trial investigation, the activities of the prosecutor’s oce and the
administration of justice in the territories controlled by the authorities. At
the same time, martial law objectively limits the rights of the participants
in criminal proceedings, primarily the suspect and the accused (Gvozdiy,
2022).
Monitoring violations of human rights during criminal proceedings
under martial law, their detection, discontinuation, and prevention is an
important condition for the legality of the functioning of the criminal justice
system. This is why determining the actors whose activities are the most
eective and appropriate under martial law is an important component of
the discourse.
The involvement of international organizations for monitoring violations
will be limited due to the danger to the life and health of their representatives,
as well as the specics of many crimes that are investigated/tried in courts
(for example, treason, war crimes, etc.). However, it is appropriate to create
independent international ad hoc commissions. For example, the UN
Human Rights Council created the Independent International Commission
of Inquiry on Ukraine, which actively works with victims and representatives
of civil society (United Nations, 2022).
Accordingly, the said actors may be classied by distinguishing: a)
government agencies; b) representatives of civil society. At the same time,
the state is represented by the prosecutor’s oce (Myjer et al., 2009) and
courts. Professional lawyers’ associations should be singled out among
representatives of civil society (Oce of the High Commissioner for
Human Rights, 2003; Gvozdiy, 2022). Figure 5 presents the general vision
of the system of actors engaged in monitoring and supervision in the eld of
prevention of violations of individual rights in criminal proceedings during
wartime.
Figure 5: The main actors in preventing the violation of individual rights in
criminal proceedings during martial law. Source: own creation.
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CUESTIONES POLÍTICAS
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The above aspects helped to determine the main promising directions
for improving protection of individual rights in criminal proceedings
during martial law. It is seen that they are connected with increasing of
international participation in criminal proceedings on international
crimes (war, genocide, aggression). This: a) will enable to conduct criminal
proceedings in the most complex cases faster and more eectively; b) will
enable national law enforcement agencies not to leave crimes that are not
directly related to armed conict, but are committed during martial law
without response. The international participation may include a range of
issues from documenting events to working with crime victims (see Figure
6).
Figure 6: International participation in criminal proceedings in the context
of improving protection of individual rights during martial law. Source: own
creation.
In view of the foregoing, it is appropriate to consider the issue of
developing standard procedures for attracting international assistance
in conducting criminal proceedings during martial law. Appropriate
procedures may be outlined in international recommendations for national
law enforcement and judicial authorities. This will enable to actively
involve experienced experts, to implement the results of their work in
procedural documents with their subsequent use as evidence in national
and international courts.
4. Discussion
The studies on the state and prospects of ensuring observance of
individual rights in criminal proceedings during martial law can be
represented by two blocks: a) international recommendations of UN
agencies, the European Lawyers’ Association, legal positions of ECHR,
aimed at improving national legislative and law-enforcement practice; b)
expert studies that cover dierent aspects of this issue.
This research has shown that those studies are focused either on general
issues that are indirectly related to criminal proceedings during wartime,
or on the generalization of the experience of international courts on war
crimes.
496
Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
In general, one should agree with the original thesis that measures taken
with a view to national security considerations can limit the right to eective
protection and to a fair trial (Council of Bars & Law Societies of Europe,
2019). This will be most evident in the context of war crimes, because they
are directly related to armed conict (David, 2011).
Besides, individual criminal responsibility arises for their commission,
and cases are tried both in national and international courts (Schwarz,
2018). However, this research shows that the problems of limiting individual
rights in criminal proceedings on a much wider range of actions than just
war crimes should be analysed.
This study established that the vast majority of specialists pay attention
to ensuring observance of individual rights in criminal proceedings when
carrying out traditional investigative actions. We share the position
that there are signicant threats to encroachment on human dignity, a
disproportionate violation of the inviolability of private life, and the use
of torture in the course of detention and interrogations (Oce of the High
Commissioner for Human Rights, 2003; Myjer et al., 2009). During martial
law, those detained during criminal proceedings are particularly vulnerable
to abuse by the state, which is interested in quickly obtaining information
or admitting guilt (P.H.P.H.M.C. Van Kempen, 2014).
This vision seems, however, limited. It is appropriate to share the thesis
that covert (operational) measures also pose serious challenges to the
protection of individual rights during martial law. This especially applies to
obtaining information in the form of digital evidence (Freeman, 2018) and
its processing using the latest technologies (Dupont et al., 2018).
The consideration of the actors that counteract violations of individual
rights in criminal proceedings during martial law is a separate aspect of
studies. It is possible to agree with the allocation of: a) representatives of
the state - prosecutors, who should monitor potential and actual violations
(Oce of the High Commissioner for Human Rights, 2003); b) lawyers,
whose physical presence and communication is considered the most
important way to prevent cases of unjustied coercion (Carrera et al.,
2021); c) civil society institutions, which create pressure on the authorities
in order to protect human rights (Jeßberger and Steinl, 2022). At the same
time, we support the position that an organized civil society provides greater
transparency regarding accountability (D’Alessandra and Sutherland,
2021).
However, this study draws attention to the activities of professional
lawyers’ associations, in particular, counsels. They actively identify threats
of violation of individual rights not only in law enforcement practice, but
also at the level of legal regulation.
497
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 482-501
It is appropriate to agree with the comments regarding modern
technologies, rst of all, platforms for conducting court hearings remotely.
The importance of this context is emphasized by the fact that the courts
have the discretion to determine the balance between the fundamental
values of the law in each specic case (Freeman, 2018).
The main concerns are related to the inadequate level of condential
communication between lawyers and their clients, which aects the
eective participation of the defence in the trial (Carrera et al., 2021).
We share a position on the victimological dimension of the analysis of
the problems of observing individual rights in criminal proceedings during
martial law (Lohne, 2020). Modern justice is a communicative process
that provides interaction with crime victims and the general population
(Eskauriatza, 2021). Our position is that the importance of bringing the
perpetrators to justice cannot be underestimated, as these crimes are
committed during martial law.
In general, the following positions on the directions for improving the
protection of individual rights in criminal proceedings during martial law
can be shared: a) the development of appropriate regulatory support that
complies with international standards (Schwarz, 2018); b) institutional
support for conducting criminal proceedings, in particular, the creation of
an impartial judicial and investigative organization to consider the claims
of victims of large-scale crimes (Schmitt, 2022); c) information support for
the participation of interested persons in remote measures (Carrera et al.,
2021); d) improving knowledge of the possibilities of digital technologies for
collecting evidence and their application in the areas of conicts (Freeman,
2018); e) development of rules for the media that regulate collection and
storage of materials of journalistic investigations on violations of individual
rights in criminal proceedings (D’Alessandra and Sutherland, 2021).
In general, these considerations can be the basis for the implementation
of legal, organizational and procedural mechanisms to increase the degree
of protection of individual rights in criminal proceedings during martial
law.
Conclusions
The conducted research provided grounds for drawing a number of
conclusions regarding the main threats to the observance of individual
rights in criminal proceedings during martial law.
It was established that martial law is a type of special legal regime and
a consequence of an armed conict. Martial law entails signicant changes
in the eld of criminal justice, as well as criminal procedure legislation.
498
Nataliia Akhtyrska, Olena Kostiuchenko, Ivan Miroshnykov y Liudmyla Dunaievska
Observance of individual rights in criminal proceedings during martial law
Various crimes are committed during martial law, and the time of their
commission is their common feature. A summary of the results of the
introduction of martial law in Ukraine with regard to changes in legislation
is provided.
Threats to the observance of individual rights in criminal proceedings
were identied depending on the stage of criminal prosecution. The actors
engaged in the prevention of violation of individual rights are classied. The
appropriateness of creating international ad hoc groups to work with crime
victims was noted. Prospects for improving the protection of individual
rights in criminal proceedings require the involvement of international
assistance in the detection and investigation of international crimes related
to an armed conict.
The appropriateness of developing standard procedures for attracting
international assistance for carrying out criminal proceedings during
martial law with further use of the results as evidence in national and
international courts is emphasized. It is proposed to develop international
recommendations for national law enforcement and judicial bodies on this
issue.
Prospects for further research in this area include a comprehensive
support for the regulatory and law enforcement achievements regarding the
involvement of international assistance for the detection and investigation
of crimes during martial law.
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