Tell us about this case, what happened to the victim?
On Monday, together with The Reckoning Project, we filed a criminal complaint with the Argentine court on behalf of a Ukrainian survivor of torture. The complaint is based on the principle of universal jurisdiction, which allows states to try cases even if the international crime did not take place on their territory.
We filed a lawsuit for war crimes and crimes against humanity involving torture. These crimes were committed by Russian forces on occupied Ukrainian territories. The victim was illegally deprived of his liberty, tortured with electric current, strangled in order to obtain information and intimidate. We cannot reveal more details, the city or the names, in order not to allow the Russian forces to destroy the evidence and not to endanger the family members of the victim who remained in the occupation.
There are two other people who were in the same place and they confirm the information. And in addition to this, the UN Commission for the Investigation of Crimes in Ukraine also documented evidence of torture in that occupied city.
Is there only one victim in this case?
Yes. Not because we couldnʼt do it with more casualties. We wanted to take a case that would be indisputable. There is also a strategy of the Prosecutor Generalʼs Office of Ukraine that every crime should be investigated. So we didnʼt try to put together as big a case as possible, but wanted to find one strong case to start with.
There are quite a few countries in the world with universal jurisdiction. Why did you choose Argentina?
In the past, Argentina had to deal with torture after the period of dictatorship. Therefore, their judicial system has experience in such cases, including electrocution.
In addition, at the international level, Argentina is a leader in the fight for justice. And this is not their first claim for universal jurisdiction. There were many of them. For example, the crimes of the [Francisco] Franco era were investigated, and arrest warrants were even issued. Argentina was one of the leading countries in the recently adopted Ljubljana-Hague Convention, which specifically concerns mutual legal assistance in criminal cases related to international crimes.
Although our case is somewhat unique. Usually, cases of crimes are filed under universal jurisdiction in those countries where there is no will to investigate them. For example, Myanmar, China, Syria. And it is simply difficult for Ukraine to cope with the load.
Can Argentina try cases in absentia, or does the criminal have to be physically present in the dock?
Now they do not have absentee justice.
So what can we expect?
To begin with, we want to start the investigation in the coming weeks or months. And then there will be meetings to collect evidence, we hope that they will collect the testimonies of the victims. And then we can hope that arrest warrants or extradition warrants will be issued. This is the stage they are at with the crimes of the Franco era. And then, of course, everything will depend on how these orders are executed. But there cannot be a court in absentia.
Did you have your own investigation? Any names of possible culprits?
We were able to identify some of the culprits by their callsigns or chevrons. Some names and surnames will be easy to find out, because we know the place and position where the person was in that specific period of time.
The case deals with three levels of offenders: those who directly tortured, those who were responsible for a particular place of detention, and the third ones are those who facilitated or permitted the torture. Here we are talking about the responsibility of the commanders, and about aiding and abetting the crime.
In Argentina, criminal justice is structured differently than in Ukraine, because you did not turn to law enforcement agencies, but immediately to the court. What is the procedure there?
Yes, here we donʼt have to go to the prosecutor. A complaint was filed with the Federal Court. Next, a judge will be appointed and he must decide whether to open an investigation. If yes, a public prosecutor will be appointed, prosecutors will begin gathering evidence, and will talk to the victim. They should cooperate with the UN Commission on Investigating Crimes in Ukraine, at least we asked for it.
There is one important point here. In Argentina, universal jurisdiction is based on subsidiarity, meaning that there is no other jurisdiction to investigate the case. So the Ukrainian prosecutorʼs office is ready to confirm to the Argentine judicial system that it is not investigating this specific case.
How long can an investigation last if a judge opens a case?
This can take a long time. We donʼt know how much. There is no specific time frame within which they must issue a decision. We hope that since this is a simple complaint, it wonʼt take long for the judge to open an investigation. But years may pass after that. Also because it is necessary to collect a lot of evidence not on the territory of Argentina. Therefore, it will be necessary to cooperate with a number of civil and international organizations. It takes time.
Even if it comes to arrest warrants, it will still take a long time, because the issuance of a warrant does not mean that it will be executed. But even the beginning of the investigation will be a success, because it is important to create a true picture of events, especially in a judicial environment. If there are warrants for arrest or extradition, it will be even better, because we will clearly identify the people who are responsible.
If there is a warrant, will Argentina turn to Interpol? How will they look for criminals?
Everything will depend on how the Argentine judicial system decides to act. But, in my opinion, this is not the main issue now, it is too early to think about it.
Were there successful cases when Argentina extradited someone from an international criminal?
If by success you mean the moment when the criminal was apprehended, then no. There were arrest warrants for crimes committed during the Franco regime in Spain. But Spain has not fulfilled these orders and is not cooperating.
In general, I think that in the framework of universal jurisdiction, success is not necessarily the apprehension of the criminal.
And then what is success in such a case? What should be enough for a victim?
To begin with, the victimʼs story should be heard in court. It is important to create a sense of understanding and empathy for what is happening in Ukraine, because Argentina has its own experience of dictatorship. The second indicator of success is the very fact that the victim shares his pain, because it is an act of resistance. And we use all legal means to bring Russian criminals to justice.