Recently, the HACC panel of judges permitted the trial of Dmytro Vovk and Volodymyr Butovskyi, defendants in the Rotterdam+ case, to proceed in absentia. They left Ukraine back in 2019.
Vovk and Butovskyi are former officials of the National Commission for State Regulation of Energy and Public Utilities (NCREPU). They allegedly devised a mechanism to channel bribes to specific companies by increasing electricity costs, resulting in nearly UAH 19 billion in consumer losses. Now, the defendants' presence is no longer required for the court to review this potential crime.
This is not the first instance of a Ukrainian court conducting so-called in absentia justice without the presence of suspects or accused persons. Here, we will explain how this process works, the legal grounds for it, and provide details and examples.
What is the in absentia procedure?
A special pre-trial investigation and special trial are commonly referred to as in absentia (from the Latin term meaning “in absence”). This allows an investigation or court to proceed with criminal cases without the suspect or accused being present if they are fugitives from justice.
In absentia is not a uniquely Ukrainian concept, although this procedure only began functioning in the country after the events of 2014. At that time, there was significant public demand for justice, which needed to be delivered both with and without the presence of defendants. Consequently, investigations and courts had to address crimes amid war and political turbulence, even as numerous suspects and accused individuals fled to uncontrolled territories or abroad.
The first case that comes to mind is that of the fugitive president Viktor Yanukovych, who was convicted in absentia and sentenced to 13 years in prison for high treason and complicity in the preparation of the war in the East of Ukraine.
What problems does in absentia solve?
Extraordinary criminal procedures are primarily designed to ensure the inevitability of punishment for those responsible while upholding the suspects' or accused individuals' right to defense, even in their absence from the courtroom.
The in absentia procedure, in particular, facilitates the work of investigations and courts by removing critical restrictions applicable under normal circumstances. For instance, it waives the requirement to personally serve the indictment to the suspect and the prohibition on initiating court proceedings without their participation. Without this procedure, courts would be unable to address cases involving “fugitives.”
After all, in absentia proceedings do not strip people in hiding of their right to defense. A lawyer must be present in the courtroom at all stages of the criminal process, from the pre-trial investigation to the final verdict.
Under what conditions are special criminal proceedings conducted?
In absentia proceedings are possible only in limited cases. Investigating judges and courts may allow the use of in absentia proceedings under the following conditions.
Firstly, criminal proceedings may be conducted in absentia regarding exchanged prisoners of war or serious crimes (such as treason, collaboration, banditry, bribery, genocide, war and military offenses, etc.), as well as other crimes that are part of the same case as those mentioned above. Alternatively, the following conditions must be met.
1. Only adults are involved in the case.
2. A suspect/accused is hiding in the temporarily occupied territory of Ukraine, in the territory of the aggressor state (i.e., Russia), or has been put on the international wanted list by a decision of an investigator or prosecutor.
3. A person is hiding from the investigation or court because they deliberately seek to avoid criminal liability.
Sometimes, a person's absence is mistaken for hiding, but this is not always the case. For example, a person may be unaware of the proceedings opened against them, or an illness may have prevented them from appearing before the relevant authorities. Therefore, the prosecution is obligated to provide concrete evidence that the person is deliberately avoiding liability.
What guarantees do defendants in these cases have?
In absentia proceedings do not mean that the state can arbitrarily convict a person or deny them the opportunity to defend themselves against the charges.
Moreover, if a person believes their rights have been violated by the court, they can apply to the European Court of Human Rights. The ECHR could potentially rule against the state and require compensation to be paid to the convicted person.
However, the ECHR does not consider the conduct of a case in absentia to be a violation of the convention's right to a fair trial (Article 6 of the ECHR). At the same time, Ukrainian courts must adhere to fundamental European standards.
● A person cannot be convicted in absentia if it is possible to transfer the proceedings to another state or request extradition.
● A person must be informed in advance about the consideration of the case and given sufficient time to prepare their defense.
● A person should be given the opportunity to receive the court's decision and to appeal it.
● If a person was absent for valid and objective reasons, they should have the right to have the same case re-examined.
What are the weaknesses of in absentia criminal proceedings?
In absentia is not a panacea, and the main problem that special criminal proceedings do not address is the enforcement of guilty verdicts.
When a person involved is in hiding, most punishments cannot be enforced against them. For example, it is impossible to imprison a person convicted in absentia who has fled to Russia.
Although Ukraine is actively working in the global arena, this does not guarantee an easy search for suspects or defendants. For other countries to extradite offenders to Ukraine, it is necessary to establish and develop specific international treaties. Currently, Ukraine has mutually agreed on extradition with Azerbaijan, Estonia, Latvia, Lithuania, Moldova, Poland, and many other countries. However, some international treaties prohibit the extradition of convicts, for example, for political reasons or due to security risks.
A vivid example is the case of Yaroslav Kurhun, which is being considered in absentia. Kurhun organized a scheme in which several real estate properties of the Ukrtelefilm state enterprise were sold at an abnormally low price, causing the state to suffer damage of UAH 67 million. Kurhun fled to Italy in 2018, and Ukraine filed a request for his extradition. However, the Florence Court rejected it, citing the war in Ukraine as a danger to Kurhun's life and health.
Extradition is also impossible from countries that are clearly unfriendly to us (such as Russia, Belarus, North Korea, or Iran) or are not recognized by us (such as Kosovo, Transnistria, etc.). For example, the court in absentia is considering the case of Serhii Kurchenko, who fled to Moscow during the Revolution of Dignity. The investigation believes he was an accomplice in Yanukovych's crimes, specifically the embezzlement of property from state-owned companies worth UAH 15 billion.
The inability to physically arrest, restrict, or deprive convicts of their liberty does not prevent the Ukrainian court from applying other types of punishment. For example, it can confiscate all or part of the property belonging to the convicted person. This is what happened to Ruslan Yukhymuk, a fugitive ex-judge from the Severodonetsk City Court in the Luhansk region. He was caught taking a bribe of $4,000, and the HACC, in absentia, sentenced Yukhymuk to 10 years in prison and confiscated all his property.
In absentia criminal proceedings are a mechanism that significantly simplifies the work of the investigation and the court in cases involving individuals who evade criminal liability. At the same time, these individuals have broad rights and can defend themselves through lawyers even while outside Ukraine.
Yes, it is very difficult to enforce sentences against such individuals. Nevertheless, the state must publicly condemn any criminal actions, regardless of the obstacles created. It is encouraging that our investigative and judicial bodies can protect society from criminal offenses and establish a legal framework. After all, as soon as a convicted or accused person crosses the border or is extradited to Ukraine, real punishment can be applied to them.