SPECIAL PRE-TRIAL INVESTIGATION (IN ABSENTIA) IN CRIMINAL PROCEEDINGS CONCERNING COLLABORATIVE ACTIVITIES: PROBLEMS OF LAW ENFORCEMENT

Abstract

This academic article is devoted to a comprehensive study of the theoretical and practical issues surrounding the application of the institution of special pre-trial investigation (in absentia) in the context of criminal proceedings under Article 111-1 of the Criminal Code of Ukraine. The relevance of the topic stems from the full-scale aggression by the Russian Federation, which has led to a surge in cases involving collaboration, where the majority of suspects are located in the temporarily occupied territories (TOT) or in the aggressor state, making it impossible for them to participate in proceedings under the standard procedure. Special pre-trial investigation is regarded as a differentiated form of proceedings which, whilst ensuring the effectiveness of prosecution, simultaneously poses risks to fundamental rights – the right to defence and the right to be present at one’s own trial. The central issue of the article is the search for a balance between society’s demand for the inevitability of punishment and compliance with the standards of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The paper analyses international standards for proceedings in absentia, as established by the practice of the European Court of Human Rights. It is emphasised that the state is obliged to demonstrate not merely the formal observance of procedures, but the individual’s actual awareness of the charges. The study focuses on systemic problems in law enforcement in Ukraine: the criteria for ‘wilful evasion’ – a ‘structural paradox’ has been identified: investigative authorities often interpret the mere fact of a person’s presence in the temporarily occupied territories as wilful evasion, without taking into account the objective impossibility of leaving due to health conditions, financial hardship or the need to care for sick relatives; notification mechanisms – the current procedure for publishing summonses on the website of the Office of the Prosecutor General is criticised as a ‘mission impossible’, as access to these resources in the temporarily occupied territories is blocked or poses a danger to the individual; distortion of the right to defence – it is noted that legal assistance in in absentia cases is often merely formal due to the inability of the lawyer to receive instructions from the defendant; inconsistency in judicial practice – an analysis of court decisions from 2022–2025 indicates a low quality of reasoning in rulings granting permission for special investigations. The scientific novelty of the study lies in the formulation of six priority areas for improving the system. The conclusions summarise that the legitimacy of post-conflict justice in Ukraine depends on its compliance with the highest standards of the rule of law