The High Anti-Corruption Court (HACC) arrests more often suspects in absentia, i.e. without their presence in the courtroom. In 2023, there was a case with Maksym Stepanov, the former head of the Ministry of Health of Ukraine; Andrii Dovbenko, alleged organizer of the embezzlement of Asset Recovery and Management Agency property, Oleksandr Dubilet, suspected of embezzling Privatbank funds, and others.
The arrest in absentia is applied to persons hiding from the investigation. However, the question arises as to whether this practice is effective, as the suspects may never return to Ukraine. Let’s try to figure it out.
What is arrest in absentia?
Arrest in absentia is an interim measure applied by the court to people who hide from the investigation.
There are certain requirements for such a procedure, in particular, the suspect must be put on the international wanted list or there must be a confirmation that the person is in the temporarily occupied territory of Ukraine or the territory of Russia.
At the same time, a motion for such an interim measure is considered as an ordinary one. The suspect is also sent a subpoena and provided a copy of the motion for the interim measure. Subpoenas are published on the website of the Prosecutor General's Office, and all documents are handed to the defense counsel. The court tries to notify the suspect by email, messenger, or through relatives.
Moreover, even the trial can be held in absentia. Earlier, we explained its logic and provided examples of such court cases.
How is an interim measure during arrest in absentia applied?
Any interim measure is imposed by an investigating judge, and arrest in absentia is no exception. Before imposing it, a prosecutor must present the investigating judge with evidence that the person has committed a crime and is on the international wanted list. In court, the suspect retains their legal rights to defense since they have a lawyer. For instance, the suspect's relatives may conclude an agreement with the lawyer on the provision of legal aid. If they do not do that, the state appoints a free lawyer.
A person has returned. What's next?
As soon as a person arrested in absentia crosses the state border of Ukraine, they must be immediately detained and handed over to law enforcement agencies. Next, the court must consider whether to impose the chosen interim measure such as detention in custody or change it to a more lenient one.
For example, this happened to Serhii Svichenko, one of the members in the Onyshchenko gas case, when he returned after 4 years in Russia. He was detained at the Ukrainian border, and his case is currently being heard in court.
If the suspect appears in the investigating agency or court before the arrest in absentia, they should be removed from the international wanted list. Then the investigation or trial will be carried out.
The same was in the case of Mykola Zlochevskyi, the former Minister of Ecology, who was hiding in Cyprus but eventually appeared in court to approve a plea agreement. The court offered him to start the court hearing again or to proceed directly to the consideration of the approval of the plea agreement.
Will there be justice if the defendant does not return?
Of course, the defendants may never return to Ukraine. In such a case, the court may consider the case in absentia and deliver a verdict. Even a verdict in absentia already establishes a certain degree of justice, as it proves the fact of guilt or innocence. At least partial enforcement of the sentence can be ensured by confiscating property located in Ukraine. This will help to compensate for the losses caused by the crime.
In some cases, extradition is applied to people abroad who are suspected or accused of committing a crime with a possible penalty of at least 1 year in prison, or if the person has been convicted and their unserved sentence is at least 4 months.
However, Ukraine's extradition requests are rarely granted. In particular, this is due to the systemic problems of our judicial system, which make foreign states wary of violating a person's right to a fair trial within a reasonable time and doubt the proper conditions of detention in custody. The hostilities on the territory of Ukraine, which pose a threat to life, are also an obstacle.
Is arrest in absentia effective or not?
Thus, arrest in absentia is an effective tool that helps to conduct an investigation within a reasonable time even in the absence of the suspect.
In this way, the case can be transferred to the court for consideration in absentia, i.e., without the presence of the accused. This is important because it makes it possible to restore justice: to establish the guilt or innocence of the accused, which is one of the tasks of the criminal process. This option is much better than waiting for years in the hope of a suspect or accused returning to conduct proceedings.
As of January 16, 2023, the HACC delivered 8 verdicts in absentia. Although none of the defendants has yet been extradited to Ukraine, a fair verdict is important for the victims of these crimes and will facilitate further obtaining property compensation.