A/HRC/45/CRP.9
E.
Right to a competent, independent and impartial tribunal
124. In territory controlled by self-proclaimed ‘republics’, OHCHR documented
systematic violations of the right to an independent and impartial tribunal, as a result of
operations of ‘courts’ of military jurisdiction. These structures temporarily processed
‘criminal cases’ of all individuals charged with grave crimes, including conflict-related
offences, in the absence of other ‘courts’ with jurisdiction over such cases. OHCHR notes
that ‘courts’ of military jurisdiction of both ‘republics’ did not afford fair trial guarantees and
did not meet requirements of independence and impartiality.
125. The ‘military tribunal’ of ‘Donetsk people’s republic’ was created in August 2014 as
a ‘specialised court’ of appeal with jurisdiction over crimes committed by military
personnel.164 Due to the absence of a general ‘court’ with relevant jurisdiction before
February 2019, this ‘military tribunal’ tried civilians for grave crimes. OHCHR documented
69 ‘criminal cases’ between 2016 and 2019 which were processed by the ‘military tribunal’.
126. In one case the ‘military tribunal’ of ‘Donetsk people’s republic’ ‘convicted’ and
‘sentenced’ a civilian to two years and eight months in prison for storing a hand grenade in
his home. The ‘judge’ told OHCHR that it had no ‘jurisdiction’ over this ‘case’ by virtue of
‘law’, however, it had taken it on due to “significant public interest”.
127. During the period of operation of the ‘military tribunal’ in territory controlled by
‘Donetsk people’s republic’, its ‘judges’ were subordinated to the ‘head’ of the ‘military
tribunal’,165 who in turn was subordinated to the ‘council of ministers’ of the ‘Donetsk
people’s republic’.166 This hierarchy calls into question the independence of the ‘military
tribunal’.
128. The ‘military court’ of ‘Luhansk people’s republic’, was established in August 2015
as a specialised ‘court of first instance’ with jurisdiction over crimes committed by military
personnel.167 Yet OHCHR documented 30 criminal ‘cases’ against civilians processed by the
‘military court’.168 This practice ceased after 25 October 2018 when the ‘supreme court’
commenced operation and took jurisdiction over conflict-related ‘criminal cases’.
129. International human rights law requires that judges are not influenced by personal bias
or prejudice, nor favour one party over another. In territory controlled by both selfproclaimed ‘republics’, in 18 cases, OHCHR documented credible allegations of bias of
‘judges’ of various ‘courts’ against individuals accused of supporting the Government of
Ukraine or tried for having pro-Ukrainian views. According to the accused, ‘judges’
unfailingly ignored or rejected their procedural motions and statements while granting all the
motions of the ‘prosecution’. Individuals interviewed also complained that ‘judges’ scolded
and verbally abused them during ‘hearings’ for having a pro-Ukrainian position or treated
them like convicts or traitors before pronouncing the ‘verdicts’. Some individuals
164
165
166
167
168
28
providing free secondary legal aid was introduced by an ‘order’ of the ‘council of ministers’ of
‘Donetsk people’s republic’. It named lawyers associations as responsible for providing free
secondary legal aid in cases where the presence of a defence lawyer is mandatory according to
‘criminal legislation’. Although the statute to develop and approve the procedure for remuneration for
secondary free legal aid was introduced by the ‘ministry of finance’, this procedure has not been
implemented. In territory controlled by ‘Luhansk people’s republic’, the legal act on remuneration for
defence lawyers providing free legal aid has not been adopted.
The ‘decree’ of the ‘council of ministers’ of ‘Donetsk people’s republic’ “on approval of the
Regulation ‘on military courts in Donetsk people’s republic’” of No.27-1 of 17 August 2014,
available at supcourt-dpr.su/zakonodatelstvo/postanovlenie-soveta-ministrov-doneckoy-narodnoyrespubliki-ob-utverzhdenii-2; article 35.2 ‘criminal procedure code of ‘DPR’’.
Item 6 of the ‘decree’ of the ‘council of ministers’ of ‘Donetsk people’s republic’ “on approval of the
Regulation ‘on military courts in Donetsk people’s republic’” of No.27-1 of 17 August 2014,
available at supcourt-dpr.su/zakonodatelstvo/postanovlenie-soveta-ministrov-doneckoy-narodnoyrespubliki-ob-utverzhdenii-2.
Ibid, para. 5.
OHCHR is not aware of any rules in ‘legislation’ of ‘Luhansk people’s republic’ granting the
‘military court’ jurisdiction over cases against civilians.
OHCHR is not aware of any legal grounds for referring the said cases to the ‘military court’ instead of
‘local courts’.
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