How to Defend a War Crimes Case
Ukrainian lawyer explains the challenges – and vital importance – of an effective defence for Russian indictees.
On April 9, 2024, the Borodyanka court of the Kyiv region sentenced Russian soldier Radik Ghukasyan to 12 years in prison for murder. The 29-year-old driver-mechanic of the 331st parachute regiment of the 98th airborne division of the Russian Armed Forces was found to have violated the laws and customs of war in combination with intentional murder (Article 438 of the criminal code of Ukraine).
In March 2022, Ghukasyan fired some 20 shots at the car of 32-year-old civilian Dmytro Bondarenko as he drove along a road in the Kyiv region. He and his fellow soldiers buried the body in nearby forest. In September 2022, Ghukasyan was captured by the Ukrainian military in the Kherson region and confessed to the crime. His defence lawyer Oleksandr Chumachenko told IWPR’s Olga Golovina of the challenges of working on such a case.
Olga Golovina: How did you become a defence attorney in the Ghukasyan case?
Oleksandr Chumachenko: I cooperate with the centre for providing free secondary legal aid. I received a commission, was interested in this category of cases and I agreed. I was interested in learning more about the mechanism of proving guilt in this category of cases, what exactly a person is accused of and how guilt will be proven with the help of the collected materials.
For the murder of a Ukrainian civilian, Ghukasyan was sentenced to 12 years in prison and fined 65,210 hryvnias (1,647 US dollars) in legal costs. In court, Radik Ghukasyan said that he wanted to be exchanged. He said, "I admit my guilt. I would like to be exchanged for a Ukrainian soldier." Ghukasyan is satisfied with the verdict and does not plan to appeal. After a month from the institution of serving the sentence, the Russian may, in accordance with the law, apply for exchange.
Were there any particular legal precedents or strategies that you found particularly effective in securing your client's protection?
This case is different in that my job was purely to insist on compliance with the law, because the position of my client from the beginning was such that he gave all incriminating statements. My job was to demand that his rights be respected. Despite the fact that my client pleaded guilty, the presiding judge decided to conduct a full trial without reduction. All materials were thoroughly researched.
What challenges or obstacles did you face during the trial?
First of all, defenders must have endurance. It was important to comply with the law during the trial, both during the prosecution and the defence. If at least one party in criminal proceedings wants to save time by not conducting this or that investigative action, or not complying with the norms of the law, this can lead to negative consequences. For me, this is an inadequate defence, and for the prosecution, it is a recognition of the evidence as inadmissible in the future. Therefore, we all agreed that everyone was clearly aware of the norms of the current legislation. Especially in this category of cases, everything must be according to the law.
What role did witness testimony, expert opinion or forensic evidence play in shaping the outcome?
We had to respect the rights of all participants in the process - not only the client, but also the witnesses. The witnesses were questioned in accordance with the current legislation, despite challenges and problems, such as the lack of electricity, frequent air raids, the witness living near the front line, where rocket fire is frequent. In some cases, video conferences were organised for questioning witnesses. Someone was able to come to Borodyanka for the court. The office of the prosecutor general contributed. So the witnesses gave their testimony. I would call this process exemplary.
How did you manage the emotional aspect of defending a person accused of a war crime?
It was very difficult. I personally participated in the defence of the Kyiv region at the beginning of the full-scale invasion in February 2022. You are sitting there, and the enemy is opposite you. Especially during investigative actions and interrogations, the enemy is sitting just a metre away from you. It's hard emotionally. Imagine how difficult it is to work for the judges of the Borodyanka court, whose building was destroyed by the Russian occupiers. I understood that this was my job, that my protégé was a professional serviceman and he would be exchanged for a Ukrainian serviceman. It is on the lists for exchange.
Looking back, what lessons or insights have you gained from this experience?
In this case, all parties worked harmoniously at all levels, starting from the convoy, ending with the place of detention, the investigation and the court. All communication and the process were built competently and clearly. You know that Russian prisoners of war are kept in better conditions than Ukrainian prisoners of war. Therefore, this fact alone causes more outrage in reality.
In addition, many cases are now being investigated regarding collaborators. It happens that the investigation neglects to announce the search for persons, investigative actions, summonses. Everything must be properly designed.
As most trials are held in absentia, what difficulties - including procedural ones - do defence lawyers face?
If the case is properly investigated, then there will be no questions. If there is an attempt to shorten the time, then there may be problems. I have a case that was postponed for a year and two months. The court does not have time for this meeting, the prosecutor did not provide evidence that he sent an announcement that a case was being heard in absentia against a certain person and that it was published. And this must be done. The court agreed to grant additional time to comply with the law's requirement. As a result, the case was postponed for a long time. If everything had been done on time, there would not have been such a delay. I associate this situation exclusively with the human factor - negligence.
