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The International Lawyer

The International Lawyer, Volume 55, Number 3, 2022

War and Law in Ukraine: Wheels of Justice Still Rotate

Dmitriy Kamensky


  • It is really a challenge to do any kind of legal writing when law itself, just like any other aspect of normal life that we take for granted, disappears.
  • When a group of heavily armed troops comes out of the blue to search your car and the house you have fled to escape shelling in your home city (forget about any type of due process or basic rights protection).
  • When you and your loved ones get used to distant shelling, indicative of the constant warfare nearby.
War and Law in Ukraine: Wheels of Justice Still Rotate
Artem Hvozdkov via Getty Images

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I am going to start with this: It is really a challenge to do any kind of legal writing when law itself, just like any other aspect of normal life that we take for granted, disappears. When a group of heavily armed troops comes out of the blue to search your car and the house you have fled to escape shelling in your home city (forget about any type of due process or basic rights protection). When you and your loved ones get used to distant shelling, indicative of the constant warfare nearby. When a cruise missile strikes about a mile from your house one night with a loud banging sound. When your law school disappears, and most of your colleagues, students, and friends have escaped to other parts of the country or abroad, while your academic career track, with strong, over decade-long ties to American jurisprudence and the legal community, becomes more of a personal safety threat than a hard-earned achievement. There are many more “whens” and “whys” to my story, but they are only the background to the current tragic period in the modern history of the Ukrainian legal system, primarily for the judiciary and bar communities.

I will give a short account of what serving justice in Ukraine looks like under the ongoing war circumstances. What is going on here today is, in many ways, unprecedented for the rest of the world’s legal community and should lead readers to my most important conclusion: for any nation, basic human rights and freedoms, wrapped in the golden rule of law standard, are something worth fighting for.

Since the Russian war against Ukraine (or, as Russia conveniently labels it, the “special military operation”) started early on February 24, 2022 (I was personally a witness to some of the first missile strikes), the Ukrainian legal system has been directly and seriously affected, just like many other areas of public life.

As the rest of the world is sadly aware now, Russian unprovoked military invasion has killed thousands of people, devastated many Ukrainian cities, and caused a major humanitarian and food crisis, while also triggering insecurity and economic turmoil globally. Consider just a few numbers based on expert estimates and opinions: 4,731 civilians have been killed and 5,900 injured (as verified by the Office of the United Nations High Commissioner for Human Rights as of June 27, 2022); over 20% of Ukrainian territory is currently occupied by the Russian Federation; the total amount of direct losses to Ukraine’s economy from damage and destruction of residential and non-residential buildings and infrastructure (as of June 8, 2022) is around $103.9 billion, with an additional $8 billion to $12 billion added per week; Ukraine’s economy is expected to shrink by an unprecedented 45.1% in 2022 alone (the World Bank estimate), while the monthly budget deficit is estimated at over $5 billion and the yearly inflation (as of May 2022) over 15% (compared to 8.6% in the United States as of May 2022); food insecurity is expected to drive up to $323 million in 2022 (according to World Food Programme estimates); over eight million people (one-fifth of the prewar population of Ukraine) have been displaced internally or have fled to neighboring European countries; the total U.S. commitment to supporting Ukraine during the Russian invasion has risen to almost $54 billion (which is higher than any annual amount given by the United States to any given country in the last decade).

Despite such grim statistics, and against all odds and predictions, Ukraine still endures as one nation united, demonstrating its resilience and spirit of freedom to the rest of the world. That the national legal system still functions indicates such unity and resilience. Local courts, law enforcement agencies, and the legal community at large operate in emergency and restricted modes, yet they continue to (as a dynamic and flexible “rule of law” mechanism) contribute to the goal of preserving national sovereignty and democracy in Ukraine, while safeguarding the major rights and freedoms of its citizens.

Despite the challenges and risks related to the active hostilities and imposed martial law restrictions in the country, the Ukrainian judiciary does its best to operate in its routine “justice must be served” mode by hearing cases, granting motions, appealing decisions, imposing penalties, and doing court business in many other ways, as prescribed by national law.

But challenges, risks, and losses are many. As just one sad example, on February 28, 2022, just three days into the war, the building of the Chernihiv Court of Appeals (in the northeastern Chernihiv region of the country) became one of the first seriously damaged courthouses because of artillery shelling.

As of March 30, 2022, 137 appellate and local courts (about 21% of the total) have not been functioning in Ukraine. In particular, twenty-four courts in the Kharkiv region (including the Kharkiv Court of Appeals), twenty-three courts in the Kherson region (including the Kherson Court of Appeals, business disputes court of the Kherson region, and Kherson administrative court), eighteen courts in the Zaporizhzhya region, sixteen courts in the Luhansk region (including the Luhansk Court of Appeals), twelve courts in the Donetsk region, four courts in the Sumy region, a few courts in the Kyiv region, and two courts in the Mykolaiv region (including the business disputes court of the Mykolayiv region) have been temporarily closed.

Out of the 137 courts that are shut down, forty-nine have remained in the temporarily occupied territory of Ukraine (about 7% of the total), thus underlining another serious challenge for the national judiciary.

Obviously, courts located in temporarily occupied territories suffer the worst situation. Because these courts do not operate, the jurisdiction of their cases are changed, and there are serious issues with the transfer of judges, staff, and court archives, as well as open case materials. Some of the judges were able to leave the occupied territories, while others were not.

It should also be remembered that, between 2015 and 2021, the judges of the Donetsk and Luhansk regions, in particular, heard dozens of criminal cases and handed down verdicts against separatists from the so-called Luhansk People Republic (LPR) and Donetsk People Republic (DPR) against the Russian occupiers. Today, these judges fear for their lives and the lives of their loved ones because they realize the imminent danger of persecution for serving justice under Ukrainian law.

Unfortunately, there have been a few cases where judges have been detained and put in the prisons of the so-called LPR and DPR for previously handing down allegedly “illegal verdicts” against these separatists. But, at the initiative of the Supreme Court, these judges have been included in the exchange lists with the occupiers, so there is a strong hope that this exchange will, indeed, happen in the not-too-distant future.

There is some good news on the statistical front as well. As of May 4, 2022, twenty-six courts in the Chernihiv region, three courts in the Zhytomyr region, one court in the Kyiv region, and one court in the Sumy region have resumed their regular business. Buildings of some of these courthouses had been damaged during the combat phase, but now they are mostly repaired. On the other hand, while it was planned for work to resume in the north of Ukraine in the near future, the premises of some of these courts have been completely destroyed (including the building of the Borodyanka District Court of the Kyiv region), with others being looted.

In addition, as of late June 2022, 221 decisions have been made regarding the temporary transfer of judges, meaning that these judges from suspended courts will continue their work in other courts in various parts of Ukraine.

Based on the amended Article 147 of the Law of Ukraine on the Judiciary and Status of Judges, the head of the Supreme Court is authorized, in case of martial law, terrorist threats, or any other emergency, to temporarily change the territorial jurisdictions of lower-level courts. In the above-mentioned cases, such authority has been used in a timely and expedited manner.

As a marker of the national judiciary’s resilience, despite all the war-related challenges and security risks, from February 24 to May 2, 2022, Ukrainian courts issued about 770,000 procedural decisions as a whole. Nevertheless, due to the imposed martial law regime nationwide, appeals have decreased five times compared to the same period in 2021, which, in turn, has significantly reduced the proceeds from court fees. As a result, the issue of underfunding of the national judiciary system has grown into a particularly pressing one.

New case receival across Ukraine amounted to approximately 10% of the March 2021 numbers in March 2022, 15% in April 2022, 18% in May 2022, and over 20% in June 2022. These numbers also shine some bright light into the national judiciary’s performance during the ongoing war conflict.

Overall, these are positive markers of the new major trend within the Ukrainian legal community: to be able to transfer to new tracks of justice, now operating in “under fire” mode. Courts deliver justice; attorneys provide legal advice, file motions, and represent clients in courts; and common citizens and businesses become plaintiffs and defendants—the wheels of justice must not stop rotating, even more so in the face of a more-than-ever pressing need to protect constitutionally guaranteed rights and freedoms.

It is worth mentioning that Article 26 of the 2015 Law of Ukraine on the Legal Regime of Martial Law provides some details for the “justice under martial law” framework. The law prescribes, in particular, that (1) justice in the territory where martial law has been imposed is carried out by courts only; (2) shortening or acceleration of any forms of judicial proceedings is prohibited; (3) when it is impossible to administer justice by the courts operating in the territory under martial law, the laws of Ukraine can change the territorial jurisdiction of court cases considered in such courts, or the location of the courts may be changed in accordance with the procedure established by law; and (4) creation of extraordinary or special courts is prohibited.

Based on the martial law limitations enacted in Ukraine since the start of this war, the Council of Judges of Ukraine, a self-governing body that coordinates the functioning of courts nationwide, has issued a special order on the issues of delivering justice in Ukraine during the war period.

Among the key points of the document, which is partially based on the provisions of the Law of Ukraine on the Legal Regime of Martial Law, are:

1. Functioning of courts in Ukraine cannot be ceased under the martial law regime.
2. In case of direct threat to life, health, and personal safety of visitors, judges, and court staff, all current proceedings by a particular court should be suspended until the circumstances that have caused the dangerous situation have been eliminated.
3. Recommendations to the courts on procedures for emergency evacuation and the proper transfer of court documents should be implemented.
4. If possible, all proceedings (except for urgent court proceedings related to detention matters) should be postponed and temporarily withdrawn from consideration by courts.
5. Locations of temporarily displaced judges and court staff personnel should be constantly tracked; if possible, the minimum number of staff who must remain in a given courthouse during working hours should be determined and functions and responsibilities should be clearly divided among them.
6. If technically possible, alternative means to ordinary court hearings should be provided, such as videoconferences or other electronic means of submitting motions and other documents.
7. Non-essential procedural deadlines should be prolonged until the end of martial law.

Thus, as a general rule, based on the official decisions of the Council of Judges of Ukraine, publications and commentaries by the State Judicial Administration of Ukraine, as well as decisions issued by the Chairman of the Supreme Court, operation of courts during the martial law period cannot be ceased. Courts are allowed to suspend their official business only in the event of direct threat to health, life, and safety of visitors, judges, and court staff, until threatening circumstances have been eliminated.

Any case-related exchange of procedural documents is possible, among other things, through the mailbox of the electronic documents exchange system on the official web portal of the Ukrainian judiciary or through any e-mail addresses specified in the relevant statements by the participants of the court proceedings.

Unfortunately, there are still tragic stories of judges and attorneys being killed or wounded during active combat when attempting to leave the occupied territory or by accidentally being too close to the site of a missile or artillery strike.

The Ukrainian legal community is not a passive bystander in such cases and makes many efforts to help war-affected colleagues. As just one example, during one of its regular online meetings held on May 12, 2022, the Board of Trustees of the Ukrainian National Bar Association (UNBA) reviewed twenty pleas (motions) from lawyers directly affected by the hostilities in Ukraine.

Based on the review of such pleas, members of the Board of Trustees have allocated financial support payments to two lawyers from Mariupol and Mykolayiv who received serious injuries during combat missions after voluntarily joining the Ukrainian Defense Forces. The members of the Board of Trustees have also provided financial support to three elderly lawyers who have been displaced from the Chernihiv and Mykolayiv regions.

Overall, in a timely and quite effective response to the ongoing military aggression by Russia and constant changes in the map of active combat sites, many Ukrainian courts have been operating with a high level of mobility on a case-by-case basis.

Prosecution of war crimes, particularly Russian war crimes and crimes against the statehood of Ukraine, petitions for compensation for destroyed or damaged property, imposition of sanctions on Russian individuals and businesses, other types of war-related civil lawsuits, and multijurisdictional cooperation on matters related to international criminal law and security are some of the legal issues that require constant attention and in-depth analyses by the Ukrainian judiciary, law enforcement, and practicing attorneys.

It is worth noting that, during his June meeting with the Ukrainian Prosecutor General, U.S. Attorney General Merrick B. Garland announced additional U.S. actions to help Ukraine identify, apprehend, and prosecute individuals involved in war crimes and other atrocities in Ukraine. In addition, since the early days of the war, the U.S. Justice Department (which Garland heads) has launched its own task force called “KleptoCapture,” which is focused on seizing yachts, private jets, expensive mansions, and many other luxury assets belonging to Russian oligarchs who are economically supporting the unprovoked invasion of Ukraine. It is good to know that the international community at large, with the United States being the leading voice and driving force, is giving Ukraine a strong hand in fighting a legal battle against a much stronger and more resourceful adversary.

Before February 24, 2022, it was almost impossible to imagine that a full-scale war would come to Ukraine. Consequently, there were no clear mechanisms in place for judges, staff members, and heads of courts to act on during such an unthinkable national emergency. Currently, certain protocols, which combine efficiency with security, have been worked out, although it must be conceded that different courts in different regions serve justice under different conditions: It depends on the state of affairs at the front, the shelling of cities and villages, the intensity of such shelling, and the humanitarian situation in any given location.

Just as the map of active warfare is changing constantly, so is the rest of the nation, including the judiciary. With the rapid development of events in Ukraine, its courts have been operating on a step-by-step basis—by all meanings of the term. But despite the different modes of operation, different security statuses, and different levels of war-related stress and pressure, one common idea stands out for all Ukrainian courts at any level: following the Constitution of Ukraine and its laws, as well as strict adherence to the rule of law principle, is unchanged.

As a “bullet point” conclusion, wheels of justice still rotate in Ukraine—the lasting war has not changed that. Justice must be served, or, as Roman jurists put it down centuries ago, “Let justice be done though the heavens fall.”