Theoretical and Practical Aspects of the Application of the «in Absentia» Procedure in the Decisions of the Supreme Court Regarding Crimes Against the Foundations of Ukraine’s National Security

Abstract

This article focuses on a comprehensive analysis of the theoretical foundations and practical aspects of the application of the «in absentia» procedure in Supreme Court rulings concerning crimes against the foundations of Ukraine’s national security. The main focus is on the challenges faced by the judicial system following the start of the russian federation’s full-scale armed aggression in February 2022, and the need to ensure the inevitability of punishment for crimes against the foundations of Ukraine’s national security.

The aim of the research is to identify the specific features of the application of the «in absentia» procedure in Supreme Court rulings concerning crimes against the foundations of Ukraine’s national security Methods. The analytical method was used to examine the current judicial practice of the Supreme Court. The formal-legal method enabled an analysis of the provisions of the Criminal Procedure Code of Ukraine governing special pre-trial investigations and court proceedings. The method of systematic analysis was applied to classify the Supreme Court’s legal positions regarding the provision of procedural guarantees for defendants during proceedings in absentia.

Results. The article found that the Supreme Court’s case law on crimes against national security allows for the identification of several key sets of legal positions. Firstly, it has been established that, for individuals located in the temporarily occupied territories of Ukraine, being placed on an international wanted list is not a mandatory prerequisite for conducting a special pre-trial investigation. The Court of Cassation emphasises that the occupation does not alter the sovereign status of these territories; therefore, a person’s presence there is equated with absconding to evade responsibility, which renders the in absentia procedure lawful and non-discriminatory. Secondly, the practice of applying additional measures to inform persons located on the territory of the aggressor state has been analysed. In particular, it is recognised as proper notification to post procedural documents on the official websites of the russian federation’s authorities (for example, the State Duma website), where the accused works, in conjunction with publications in the newspaper «Uryadovy Kurier» and on the websites of Ukraine’s judicial authorities.

Conclusions. The established case law of the Supreme Court demonstrates the ability of Ukraine’s legal system to maintain a balance between national security interests and strict adherence to international human rights standards, in particular Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The legitimacy of in absentia judgments is ensured through the courts’ thorough verification of the facts of a person’s deliberate evasion of justice and the provision of effective safeguards, which is critical for the international recognition of the legality of Ukraine’s court decisions in cases against the Russian aggressor.