The Ukrainian authorities and the democratic world as a whole are working hard creating a specialized tribunal that would have a mandate to prosecute the crime of aggression committed by the leadership of the Russian Federation against Ukraine. Denys Maslov, Chair of the Verkhovna Rada Committee on Legal Policy, a member of the working group on the creation of the special tribunal, in an interview to Ukrinform, was speaking about the progress achieved in this regard and about an international compensation mechanism for damages arising out of Russia’s invasion. The interview additionally touched on staffing issues in Ukraine’s judicial system, and on the parliamentary work in this area.

IT’S NECESSARY TO STRIP TOP RUSSIAN OFFICIALS OF IMMUNITY IN ORDER TO BRING CRIMINALS TO JUSTICE

- Mr. Denys, we met and talked with you a year ago when the UN General Assembly was considering a resolution regarding the creation of a special international tribunal to prosecute Russia for the crime of aggression it commited against Ukraine. What progress has Ukraine achieved this year with respect to creating a tribunal for prosecuting Russian criminals? What are the issues of priority for 2024?

- This year, we have been receiving support from the world’s leading countries, most particularly from the United States of America. As of this day we have a political declaration signed by the US representative regarding the creation of the tribunal. The whole world has understood that the tribunal will surely be created.

This year has seen discussions regarding the tribunal’s structure. The first option provides for establishing the tribunal under a UN General Assembly resolution. The second suggests establishing it through a multinational agreement involving various countries or blocs of countries along with relevant international organizations.

The third option suggests a hybrid tribunal, which would establish a specialized court within the Ukrainian judicial system, consisting of foreign-national judges to ensure impartiality in the proceedings.

"The Ukrainian side emphasizes that we are not satisfied with the option of establishing a hybrid tribunal for two reasons. The first reason is that the issue of immunity of the highest ranking officials of the aggressor country has not yet been resolved. The second is that we cannot bring criminals to justice in the name of Ukraine for the largest military aggression since World War II, because restoring justice and adherence to international law is important not only for our country but for the entire democratic world. It is important that criminals are brought to justice in the name of the international community in its entirety," Mr. Maslov explained.

The hybrid form of the tribunal is therefore not on the agenda for the time being.

The democratic world needs to resolve the issue of the immunity of three top senior officials of the Russian Federation. I think most politicians in the world already have an understanding that such immunities should be removed. We are currently working in this direction. Our Legal Policy Committee is drawing up a draft law on limiting the judicial immunity of the Russian Federation and its high-ranking officials. We hope that, after this legislative initiative becomes law, our partners, who have recognized Russia as an aggressor and sponsor of terrorism, will also make such a decision at the level of their parliaments and governments. It is necessary that the Russian Federation and its top officials be stripped of prosecutional immunity and inviolability right now in order to bring criminals and murderers to justice.

- So far, 44 countries have supported the creation of such a tribunal by signing a relevant declaration. Does Ukraine intend to continue working on the diplomatic front in order to increase the number of countries that support the establishment of the tribunal?

- It is worth emphasizing that a year ago representatives of 141 countries voted for the the UN General Assembly Resolution in support of the Peace Formula being pushed for by the President of Ukraine, Volodymyr Zelensky. Let me remind you that one of the clauses contained in the Ukrainian Peace Formula is concerning with justice. This clause provides for the prosecution of those who have committed crimes against Ukraine and its citizens, and also addresses the issue of compensation for losses and damages caused by Russia’s aggression. We can therefore say that, in general, the idea of taking to justice those who have committed crimes in Ukraine, in particular the crime of aggression, is supported by more countries than the 44 countries whose ministers of foreign affairs adopted the relevant declaration at the international conference on “Restoring Justice for Ukraine". The documents make the highest ranking officials, including Putin, responsible for all the crimes committed by the enemy on Ukrainian soil. Today, our State has the support from influential actors in the political arena - the United States of America, Great Britain, France, and Germany just to name a few.

It’s reasonable that Ukraine continues working intensively at the diplomatic, political, expert levels, at the level of meetings with our diasporas, with opinion leaders in various countries. The corps of deputies as well are doing their utmost, working in this direction, communicating with their counterparts from the parliaments of different countries, promoting resolutions and convincing them that the punishment for criminals must be unavoidable. We emphasize that it is not necessary to wait until victory to launch the tribunal, because we need it in place right now.

In the future, it will be important for our country that the creation of the tribunal is supported by the General Assembly member countries through a vote by one or another country in favor of its creation. Another option, if the tribunal will be created based on a multinational agreement, then for us it is important that each and every country sign and ratify such an agreement. That is, in this matter we are expecting that the vast majority of countries across the world will give us their unquestionable support.

- Let's talk about how, as stated in the declaration signed in The Hague, the tribunal for the criminals from the Russian regime will be held. Will it be like the Nuremberg or Tokyo Trials or something else?

- Indeed, the tribunal for Russian criminals cannot be a compilation of the Nuremberg and Tokyo Tribunals for several reasons. First, previous tribunals were created only after the defeat of the aggressor country and the detention of members of its leadership. In our case, we cannot wait until the war is over and the Putin regime is overthrown. The idea of our tribunal is that it should be created at the time the Russian aggression is still ongoing. Secondly, it is worth noting that the Nuremberg and Tokyo Tribunals had been created earlier than the International Criminal Court was established. Now there is the International Criminal Court that has jurisdiction to investigate various categories of crimes, including war crimes, crimes against humanity and genocide, but there is a gap in jurisdiction over the crime of aggression. We are seeking to get this gap filled through the creation of a relevant tribunal. This new tribunal will therefore be entitled to investigate the crimes falling under the jurisdiction of the International Criminal Court.

- At what stage is the implementation of the idea to create a specialized tribunal at the moment? When can we expect it to start working?

- Considering the time perspective, we wanted the tribunal to be established back in 2014. But let's be honest: not everything depends on Ukraine in this matter. We work together with our partners and the entire international community, because the protection of international law is the duty of all the countries of the world that established it, not only Ukraine. If the creation of the tribunal depended solely on our State, it would have been created in March 2022 or in 2014.

Currently, no one can name a specific date when the tribunal will be established and launched. Some of the tribunals that already existed in world history have been created during quite a long time, so we can say that we are moving much faster than our predecessors. Hearing various statements from European Union politicians and international experts that the tribunal could be established this year or next, we refrain from speculation. However, the Ukrainian people and the authorities are confident that it indeed  will be created, and criminals will be held accountable for their actions before the court. This is extremely important for the entire democratic world.

- The International Center for the Prosecution for the Crime of Aggression against Ukraine in July 2023 began its work in The Hague. What are the results this center has achieved since foundation almost a year ago?

- It is worth noting that the International Center for the Prosecution for the Crime of Aggression against Ukraine was created with a mission to collect and preserve evidence of the actions by officials, military personnel and mercenaries of the Russian Federation in committing aggression against Ukraine. This evidence is currently being collected not only on the territory of our State, but also in partner countries, in European countries, the United States of America, and even in Russia. Among them are public speeches of members of the Russian authorities, geolocation data, intercepted telephone conversations and decoded communications of military units that invaded the territory of the Ukrainian state, photographs, data from social networks and eyewitness accounts. In the future, all this evidence will be used to compile a draft indictment, which will be reviewed by a prosecutor of the tribunal appointed specifically for that case. That is, the prosecutor will consider the draft indictment, along with all the evidence collected by the international center and its international investigative team, evaluate them, make corrections as appropriate, and then defend the charges against specific individuals: Putin, Shoigu, commanders of the armed forces of the Russian Federation, specific units that issued and carried out the command to invade sovereign Ukraine, to seize our administrative buildings, to bombard cities, to torture and kill civilians. Such charges will be based on evidence and established cause-and-effect relationships between officials’ job responsibilities, their actions and the consequences that followed - the crime of aggression. It is important to note that responsibility for the crime of aggression will be borne by specific individuals, not the country as a whole.

- What effect does the creation of the tribunal have on the processes within the Russian Federation?

- The creation of a tribunal and the transfer of indictments not only against Putin, but also against other high-ranking state officials, military commanders, politicians and members of the Security Council of the Russian Federation will mean that the president of the Russian Federation has failed to protect his internal elites. Accordingly, this will cause a split within the Kremlin elite, as they will realize that Putin cannot protect them, and they will be held accountable by the international community.

Further to this, once new arrest warrants are issued for people involved in all those crimes and atrocities the Russian army committed in Ukraine, they will be chained to the borders of their own country and will not be able to move freely, and their future will become uncertain. As you know, the International Criminal Court has already issued warrants against four individuals, members of the Kremlin regime. I believe that this is only the beginning, and many military commanders of the Russian Federation will soon see their names on the ICC’s website. It’s not always, however, that such warrants have to be public. This may come as a surprise to some individuals who may be detained while on a "working trip”, for example.

I therefore believe that the creation of the tribunal and new arrest warrants issued by the International Criminal Court will contribute to the destructive processes both in the Russian Federation itself and within the Kremlin regime.

THE INTERNATIONAL REGISTER OF LOSSES DEFINES 41 CATEGORIES UNDER WHICH UKRAINIANS WILL BE ELIGIBLE FOR COMPENSATION

- On April 2, the International Register of Losses was officially open for submissions. It is noted that the individuals whose homes have been damaged or destroyed as a result of Russian aggression will be the first to submit an application through Diia (an application that allows Ukrainian citizens to use digital documents on their smartphones instead of physical ones for identification and other purposes, allowing access to more than 130 government services – ed.) According to the Prime Minister of Ukraine Denys Shmyhal, Ukrainians are expected to submit more than 8 million applications. Where will the money come from to refund the victims of Russian aggression? Will the money come from the frozen assets of the Central Bank of the Russian Federation, or will there be other sources?

- It’s true that the Register of Losses has become operational -- the first component of a comprehensive international mechanism of compensation for losses. The next step should be the creation of a compensation commission to review applications and determine the amount of compensation to be paid to our citizens. The third stage will include the formation of a fund that will be filled from various sources and will ensure compensation payments.

It is beyond doubt that it’s the criminal who must pay for the losses and damages incurred to Ukraine and its citizens. In this case, it’s not only about the liability of officials of the Russian Federation, but also about the liability of that country as a whole. By varying estimates up and down, Russia's frozen assets amount to approximately 300 billion euros. They are deposited in different jurisdictions, but mostly in countries of the European Union. The biggest portion of the money, amounting to approximately 180-190 billion euros is currently deposited in Belgium. We insist that all these finances be transferred to Ukraine and devoted to purposes of damage refunding. It should be appreciated, however, that the State needs this money for other important purposes, such as the purchase of weapons to fight off the aggression, or the repair of energy facilities damaged or destroyed as a result of the aggressor’s attacks. There is a possibility that part or even the whole amount of the money will go towards the defense needs. However, the losses incurred to our citizens are increasing day by day, and even with the frozen assets of the Russian Federation, that amount will not suffice to fully compensate for the cumulative losses generated by Russia’s war.

Contributions and grants from partner countries could become another source of money for the Compensation Fund. At the same time, the third source will be our economy. This is out of the question that at some time, after our victory, when the economy will be at full capacity, we will allocate funds to compensate for some of the losses that may not be covered by other sources.

My view is that, considering that the sovereign assets of the Russian Federation will not suffice to compensate for all of the losses, some amounts of money could come from companies, organizations, and individuals connected to the Russian Federation, which are under sanctions or evading them. Such an initiative will take quite a long time to implement. But why not use the assets of various commercial entities such as Gazprom to compensate citizens and to restore Ukraine?

I also believe that partner countries should introduce a specialized duty, a tax on imported Russian or Russian-related products, oil and others, and transfer the received money to the Ukraine Compensation Fund. There was already one such precedent in history, so it’s not going to be a big deal to take over and draw upon such experience.

- Is it already known anything about the categories of damage that will be elible for compensation to Ukrainian citizens?

- Our partners sought to cover the widest possible list of losses and damages suffered by Ukrainians due to Russian aggression. The International Register of Losses currently lists 41 categories of such losses. They cover various areas, ranging from environmental damage and damage to Ukrainian businesses to losses relating to the life and health of our citizens. Damages related to human lives are of special importance to us. In this context, I would note that this category of losses is one of the largest in terms of payments. Compensation for each and every Ukrainian life taken by the Russian criminals should be no less than that for a destroyed thermal power plant or other serious crimes. The enemy who has attacked a sovereign state must be held accountable and pay for every crime, for every life taken. Once again, the Ukrainian authorities will not allow the aggressor to avoid such responsibility.

- Are there any specific criteria by which an individual may be denied a compensation?

- Currently, unfortunately, it has been defined that the Registry is only open to submissions regarding the losses and damages incurred beginning in February 24, 2022, that is, prior to the start of all-out invasion, although the destruction of the property of our citizens began alongside the Russian aggression in 2014. I think this is not correct.

At the same time, in order for an application relating to real estate, for example, to be considered, it is necessary to provide evidence that the damaged or destroyed property is owned by the person submitting the application. It is also necessary to provide evidence (photo, video evidence) that a real estate asset was damaged or destroyed as a result of enemy aggression. For this purpose, materials from law enforcement agencies that record the destruction and damage done to the assets will also be used. According to the Registry Council, they expect approximately 300,000 to 600,000 submissions from Ukrainians regarding the damage incurred to residential real estate only.

- When can victims expect compensation payments?

- Currently, we cannot give a clear answer, because there is still a lot of work ahead. I understand that the Ukrainians who are waiting for compensations would like that all the processes related to the launch of the relevant mechanism be completed as soon as possible. We hope that the Compensation Commission will begin its work by late 2024. All representatives of our government and civil society emphasize to partners the need for the Compensation Commission to start working and for the compensation fund to be filled up in the near future. We will continue working on this track.

- The leaders of partner countries explain in different terms how frozen assets of the aggressor state will be used. What is the best and most likely scenario for the Ukrainian side in this respect?

- Of course, it is good that we are receiving higher than expected revenues and taxes from the frozen assets of the Russian Federation. But the situation, however, is such that we spend significant amounts of money for combatting the aggression every year. So we want all the frozen Russian money that we need, in particular, to purchase weapons and to ensure the war ends soon and on our terms. The State needs these funds right now. We always talk about it at meetings with our foreign colleagues.

There is also a proposal, which is being intensively discussed by politicians, including in Great Britain and the United States of America, about the possibility of granting us a loan secured by the right to demand reparations from the Russian Federation. This means that several countries or entities will unite to provide Ukraine with funding, and then, when Russia is made obliged to pay reparations, our State will not return these loans, because the money will be collected from the aggressor itself. This may be one option for solving the problem, although it is a complicated process from a legal point of view. Even though the discussion and implementation of this idea may take a long time, I think we will continue exploring these avenues. But if the situation becomes critical and the State is lacking money for the purchase of weapons, there will simply be no other option but to get of all assets transfered.

UKRAINE WILL NOT FOLLOW TURKEY'S SCENARIO ON ITS PATH TO EU MEMBERSHIP

- The European Commission, in March, introduced a draft negotiating framework regarding acquiring EU membership. Ukraine has completed the implementation of all legislative measures defined by the European Commission in its 2023 Enlargement Package, which provides a basis for the negotiating framework’s adoption. Now the next step is expected from the EU member states. After all, Turkey has been a candidate for EU membership since 1999, and still remains in this staus a quarter of a century later. Is there a possibility that Ukraine will follow the same scenario with respect to EU candidate status?

- My view is that such a scenario is not possible in the case of Ukraine. We are in a unique position, because we very quickly implemented all the recommendations of the European Commission and seriously changed our legislation. People's deputies of the ninth convocation of parliament adopted acts that previous convocations failed to adopt for some reasons. This is about the acts ranging from the declaration of the status of public servants to fundamental changes in the field of judicial reform. These fundamental changes may not be immediately visible to our citizens, but they lay the foundations for significant transformations. We are feeling these changes and see the impact they have for our country and its future. European partners also see this and admire our pace of implementation of their recommendations. We will definitely not follow the path of Turkey, because we have the opportunity, the political will within the State leadership and the willingness of the people to join the EU in the short term. At the same time, it is important for us that the European Union preserve its value and high level of democracy.

- The Verkhovna Rada has recently passed a law on lobbying, which was one of the conditions for the adoption of the negotiating framework. Society has formed the opinion that the deputies simply "legalized corruption" by calling it “lobbying”. What are your predictions about the effect of this law?

- Of course, in the minds of our people, the term "lobbyism" is often associated with negativity. It is necessary to share among the public the correct understanding of the term and of the lobbying process,  through information policy, communication and clarification of the true content.

The Law on Lobbying regulates part of the relationships between individuals and legal entities on the one hand and representatives of authorities and local self-governments who make significant political decisions or adopt regulatory legal acts on the other. In fact, lobbying can be an effective tool for protecting the interests of various groups of population and sectors of the economy. What matters most in this respect is to define the rules of the game and ensure they are transparent and open. It is furthermore important to emphasize that lobbying can and should take place within the framework of the law, in compliance with ethical standards.

I expect that this law will open the door to a new era in Ukrainian politics, where honesty, transparency and ethics will become important priorities. At the same time, the implementation of the law will help reduce corruption and implement the principles of justice at all levels of government. I believe that it will create conditions for the development of democracy and will increase public trust in government entities, and will  also as provide an effective mechanism for monitoring the activities of officials and help prevent the possibility of using public power for personal benefit.

UKRAINE IS OBSERVING A LACK OF JUDGES, AMOUNTING TO 40% OF THE STAFF NUMBER

- Currently, the selection of judges for the Constitutional Court of Ukraine (CCU) is taking place according to the new rules. We all have seen online footage of speeches by certain candidates. Why this situation with personnel has arisen? What is the future fate of these people?

- At this stage of the competition, the advisory group of experts was supposed to make a conclusion on whether a contestant meets high moral standards to occupy the position of a Constitutional Court Judge. Experts take into account not only the factor of integrity, but also professional ethics, work experience, and so on, and then conclude whether a person meets the requirements for this particular position.

In addition to the persons seen in these videos, which have gone viral on social networks, there are candidates whose professional achievements are truly impressive. I hope that they -- professional, erudite persons, persons of integrity and of high moral character -- will be selected for vacant positions of judges at the Constitutional Court of Ukraine.

Regarding the fate of the candidates who received a lot of questions from the competition commission regarding wealth, property and declarations... If law enforcement and anti-corruption bodies exposed certain corruption offenses, they will certainly start investigations, inspections and bring offenders to justice.

The publication and popularization of such videos through the Internet gives us the opportunity to draw certain conclusions about the professionalism of some individuals, and the competent authorities -- to once again conduct meticulous integrity checks. The central issue, however, is that journalists and the public have been reluctant to give coverage of the achievements of the State, its bodies, videos of the interviews of really worthy candidates for these positions. Unfortunately, the public is more interested in scandals that don't even always have a ground. Most of the public are not interested in the full picture, do not watch full videos of such interviews, and therefore demonstrate a pretty acute perception of this situation.

- What logic will the parliament follow when selecting[Z1]  judges to the CCU within its quota?

- The Verkhovna Rada has the opportunity to select, within its quota, three persons for the positions of judges at the Constitutional Court. After the work of the advisory group of experts is completed, the list of viable candidates will be submitted to the Verkhovna Rada, to our Committee on Legal Policy. During a meeting of the Committee, we will consider all the candidacies and, based on the results of the committee members voting, will select the persons who, in our opinion, are worthy to occupy such high positions. Then these candidacies will be considered in the parliament, where people's deputies will decide who exactly will become CCU judges.

During the voting, I will be guided by the biographies of the candidates, their professional experience, the results of the competitive procedures, the opinion of the advisory group of experts and by ethical behavior. For me, the Constitutional Court is not only a gathering of highly professional judges and lawyers. It is a body that has to balance between the three branches of government, stand guard over the Constitution, and understand the realities of today. CCU Judges must be persons of integrity and experience, with a solid life position and a vision of how the State should develop.

- Currently in Ukraine, many court cases are not resolved due to heavy workload on judges and a lack of personnel at various levels of the state's judicial system. What are your thoughs about how to change the situation in order to relieve the workload on judges and to ensure meaningful, effective work of the judicial branch of government?

- Earlier this year, the Higher Qualification Commission of Judges of Ukraine began its work. This body  currently performs the biggest amount of work related to filling up the judicial system with personnel. They conduct competitive procedures at the final stage. At the same time, we already have recommendations for many candidates seeking the positions of first instance judges, which have been submitted to the Supreme Council of Justice (SCJ). Along with that, the SCJ has already reviewed and made some submissions to the President of Ukraine.

The top priority for the Supreme Court of Appeals (SCA) and for me personally is to fill up now vacant positions at the appeals courts, because the situation in this respect is extremely critical. Currently, only 37% of positions in courts of appeals are filled up. For example, in the Appeal Court of Sumy Oblast, it is still difficult to form even a panel for consideration of criminal cases. The staffing situation is also quite difficult in the Kharkiv Court of Appeals and the Dnipropetrovsk Economic Appeal Court. The Higher Qualification Commission of Judges has announced a competition for vacant positions, and 2,500 candidacies have already been submitted for the competition.

Currently in Ukraine, there is a huge shortage of judges, amounting to about 40 percent of the staff size. Judges are quitting all the time, citing, in particular, inadequate wages and heavy workloads. According to the European Commission for the Efficiency of Justice, on average, in European countries there are some 22 judges per 100,000 population. In Ukraine, there are 12 judges per the same number of people, that is, almost twice fewer. However, in terms of the number of cases processed, our judges perform a much larger amount of work compared to their European counterparts.

No less critical is the issue concerning the financing of the court apparatus. Even before the beginning of this year, a secretary of a court session in a provincial capital, who had just taken office, had a salary of just 5,300 hryvnias. There is a significant problem with the recruitment of qualified personnel due to the low level of wages. However, the government took our arguments into account and increased the budget for the court apparatus, as well as for the High Council of Justice and the State Judicial Administration.

Our committee has initiated a draft law that would introduce regional coefficients for the wages and salaries of judges and other court employees, where we propose that adaptations be added to account for cost-of-living difference in different regions of the country. We are doing this in order to keep personnel in place by increasing wages and salaries, as well as to attract new personnel.

Our judges and judicial apparatus as a whole are now working in extremely difficult conditions, performing important work. By their work they are proving that access to justice must remain open even amid the martial law regime, as it is written in our Constitution. At the legislative level, we will continue doing our best to duly reward the employees of the judicial system for their hard work, as well as to improve the quality and efficiency of the administration of justice.

Interviewed by Maryna Shikarenko, Kyiv

Photo: Ruslan Kanyuka