PwC Podcast: Ukraine’s news ad hoc #3. My property has been shelled. What should I do?

Artem Krykun-Trush: Dmytro, hi. Glad to hear you and welcome to our podcast. How are you?

Dmytro Trut: Hello, my friend. I’m fine, as far as possible, also glad to hear you. 

Artem Krykun-Trush: I’d like to talk to you about criminal law in time of war. There have been numerous legislative developments since the beginning of the invasion. Could you summarise the key developments?

Dmytro Trut: You are right, there are indeed many developments, far to many for a single podcast, so I’ll just briefly touch upon the key ones:

• collaborator activities have been criminalised. Now it’s a separate crime under Article 111-1.
• insulting the honour and dignity of a member of the armed forces, threatening a member of the armed forces have been criminalised . You may have seen online when bloggers allowed themselves to speak unacceptably to a member of the armed forces, so now they may end up in prison for that.
• justifying, legitimising, denying Russian Federation’s hostile act against Ukraine, glorifying their participants have been criminalised. Now praising Russia’s actions in a shop queue is not merely unethical and dishonourable but also a crime.
• illegitimate use of humanitarian aid and donations has also been criminalised to keep those rear echelon warriors on their toes.
• unauthorised sharing of information about the arms, weapons and ammunition sent or transported to Ukraine, movements, transfers or deployment of Ukrainian Armed Forces and other legitimate military formations has been criminalised. Therefore I strongly recommend refraining from sharing the movement of our military on TikTok and other social media.

Artem Krykun-Trush: Look, so many things have been criminalised and it's generally the right thing to do, given that these acts are really socially dangerous, and we all know of horrible consequences, such as the shelling of Retroville. Can you tell us if there have been any legislative developments of a helping, rather than punishing, nature?

Dmytro Trut: Indeed, there are some very helpful initiatives of the legislator, e.g.:

• changes to the Criminal Procedure Code according to which a measure of restraint in the form of custody may be revoked for the purpose of military service or replacing bail with a personal commitment if one wishes to use cash for Ukraine’s defence purposes. House arrest  can be replaced with a personal commitment in an operational zone.
• in Chapter 3 Article 263 (unlawful handling of weapons...), “shall be discharged from criminal liability” has been replaced with “shall not be criminally liable”.
• Article 43-1, Fulfilment of duty to protect the Homeland, independence and territorial integrity of Ukraine, has been introduced. It is stated that this is not a crime.
• civilians have been permitted to be involved in rebuffing the aggression, in particular, by receiving and using firearms and not being liable for possession, provided that such firearms have been used within the Law.

Artem Krykun-Trush: Let's return to the shelling. There are numerous cases of civilian properties shelled by Russian troops, these include residential buildings, commercial properties, civilian ships, to name just a few.

Dmytro Trut: Yes, this is a war crime.

Artem Krykun-Trush: By the way, let’s step back and explain the difference between a ‘military offence’ and a ‘war crime’. It is quite straightforward for me as an expert and an ex-military investigator, but I see a lot of confusion, even in media. 

Dmytro Trut: Of course. The concept of a ‘war crime’ falls exclusively within international law (international humanitarian law) and hence is more global and overarching in scope, i.e. it relates to interests of the entire world rather than a specific country or groups of countries. Under international law, war crimes are actions that represent deliberate breach of rules and customs of war, i.e. the breach of the so-called ‘the laws of war’.

Artem Krykun-Trush: Where can our audience read about them?

Dmytro Trut: It is a number of international treaties, in particular, Geneva conventions and related protocols. For decades, they have governed what one would assume are simple things, no violence against civilians, no shelling of civilian facilities, etc.

I’ll continue, the general list of war crimes is formalised in the Rome Statute of the International Criminal Court (the Rome Statute). Ukrainian law does not provide a definition of a war crime. Despite the lack of a legal definition of crimes, some crimes under the CCU represent war crimes rather than military offences, in particular:

• marauding (Article 432 of the CCU);
• violence against population in an operational zone (Article 433 of the CCU);
• ill-treatment of prisoners of war (Article 434 of the CCU);
• unlawful use or misuse of the Red Cross, Red Crescent, Red Crystal symbols (Article 435 of the CCU);
• violation of rules of warfare (Article 438).

Artem Krykun-Trush: OK, and what about the military offences , using a simple language?

Dmytro Trut: To continue with the concept of a military offence, first off, this matter is governed in each country exclusively by national criminal law because there is no international aspect to it.

By its nature, the concept of a military offence is purely intra-state, i.e. it is defined as illegitimate actions against the military service order adopted/established in the state and all other related matters in a specific country.

In Ukraine, all elements of ‘military offences’ are explicitly provided in the single source of national criminal law, the Criminal Code, namely, in Section XIX titled Criminal Offences Against the Established Procedure of Military Service (Military Offences).

E.g., absence without leave from a military unit or place of service (Article 407).

Artem Krykun-Trush: So shelling of a civilian property is a war crime. Where do we report shelled property?

Dmytro Trut: Exactly, it is Article 438, violation of rules of the warfare, namely, the no-shelling-of-civilian-properties rule. This falls under the investigative jurisdiction of the Security Service of Ukraine, however in practice, I see that this crime is so common that it is being investigated by just about everybody, from National Police of Ukraine to NABU and even local prosecutors. Having said that, I would recommend not only reporting this crime to the local agency, i.e. the district SSU office, but also duplicating the report to the Prosecutor General's Office as a co-ordinating agency with a dedicated department. Particularly as it won’t always be possible to report the crime locally. The district SSU office in Mariupol would hardly be able to investigate it.

Artem Krykun-Trush: Can an ordinary citizen/business prepare such a report unassisted?

Dmytro Trut: In principle, yes, but the challenge is that Article 438 contains referenced provisions and you should have a broad understanding of Geneva Conventions in order to be able to include references to the violated prohibitions. Therefore, if you can engage a lawyer, it would make sense to do so. All the more so as many of us provide pro bono legal services and will be happy to help.
 

Artem Krykun-Trush: How do we document the consequences of shelling?

Dmytro Trut: You should gather all available evidence:

• inspect the property and take photographs of the consequences of shelling;
• gather all available public information about the shelling (if the websites are Russian, then ideally you should also record the webpage by expert examination as it is likely to be taken down at some point);
• engage witnesses;
• obtain video footage from nearby cameras;
• obtain documents relating to the event from the State Emergency Service and other authorities.

Artem Krykun-Trush: And then what?

Dmytro Trut: Then initiate communication with the investigator and/or prosecutor. They could use a helping hand right now. Therefore I’m for working proactively in the victim’s cases. You should:

• obtain confirmation of the victim’s status and initiate the questioning;
• initiate inspection of the property and expert examination to determine property and moral damages;
• assist the investigator/prosecutor with the strategy, investigation plan and preparation of high-quality statements of case as most of them rely on personal enthusiasm, they have no available human resources and lack sufficient knowledge and experience in war crimes.

Artem Krykun-Trush: Are there any apps to record war crimes for international agencies?

Dmytro Trut: Yes, I recommend eyeWitness to Atrocities, an app for recording crimes developed at the initiative of the International Bar Association. It helps record photo and video evidence that will then be provided to Ukrainian authorities and the International Criminal Court investigating war crimes of Russia against Ukraine.

Artem Krykun-Trush: Dima, how likely it is to recover these damages?

Dmytro Trut: Oh, this question will need such a long-winded answer worthy of its own podcast with our colleagues from Litigation.

Artem Krykun-Trush: Okay, no spoilers :) Can you give a few tips to our audience?

Dmytro Trut:

1. Please, don't rely on the according to wartime laws narrative to justify atrocities against each other. You cannot just simply kill any offender during the war.
2. Focus on recording the damages. It is critical not to lose any evidence and record everything on time.
3. Do not shy away from a criminal proceeding. The criminal proceeding initiated based on your report and the official status of a victim of crime is your investment in evidence for future proceedings.

Artem Krykun-Trush: What else can I say other than follow our podcasts. Thank you, Dmytro! In our next episode, we will discuss another critically important topic, namely the Customs and the developments in this area during martial law. So stay tuned. Thank you again for your time and everything will be Ukraine!