Some issues of judicial practice in proceedings on violations of the laws and customs of war

Abstract

In the second year of the full-scale armed aggression of the Russian Federation against Ukraine, the question of bringing the perpetrators to criminal responsibility for committing war crimes is urgent. At the same time, the criminal law qualification of actions within the scope of the provisions of Article 438 of the Criminal Code of Ukraine stays debatable. The purpose of this study was to investigate the content of some verdicts in proceedings on violations of the laws and customs of war, which were passed after February 24, 2022 in Ukraine, to identify the problems of law enforcement and the performance of procedural requirements regarding their content, since they acquired not only social significance and resonance, but also international ones, and the requirements for their quality can be defined as increased. The study used various methods of scientific research, the most effective and active among which were as follows: systemic-structural, comparative, analysis, and terminological. According to the results of processing the verdicts of the courts of first instance in the proceedings under Article 438 of the Criminal Code of Ukraine, some issues were identified regarding the procedural order of special court proceedings. A causal connection between the violation of the laws and customs of war and the particular situation of a military conflict was established. The circumstances subject to proof for the commission of the specified criminal offence were substantiated and investigated, and the need to specify particular circumstances was argued. Emphasis was placed on the need to consider the particular war situation, the difference and the nature of the connection between these violations and the crime of aggression when proving a violation of the laws and customs of war, with the assumption of the possibility of their influence on political, legal, and other processes, even after its end. The practical significance of this study lies in the need to reflect the results of the application of legal norms related to the implementation of in absentia proceedings in verdicts, primarily regarding the procedure for informing the suspect, the accused about criminal proceedings, ensuring the right to defence and the effectiveness of its implementation