"Military police has three kinds of enemies: amateurs, Russian agents of influence, and idealists detached from reality", – Illia Kostin
Commissioner of the Ministry of Defense for Military Police Illia Kostin on difficulties with the adoption of the draft law on military police and ways to solve the problems of creating a military police.
"THERE IS VIRTUALLY NO SYSTEM OF COERCION IN OUR ARMY"
- When the draft law on the creation of the military police was considered before the first reading, it attracted a lot of criticism. And after it was finally voted for, MPs commented that it needed to be seriously revised. Is this work being done now? Is the Ministry involved in this?
- This work has already been completed. On the instructions of the Minister, a working group was set up to process all the changes in just a week. All these developments were submitted to the relevant committee of the Verkhovna Rada. The amendments proposed by the Ministry are aimed at making this draft law effective for years to come.
The main changes are as follows:
First. Ukrainian Law "On National Security of Ukraine" provides for mechanisms of democratic civilian control over the security and defence forces. That is why the draft law prepared for the second reading refers to the subordination of the military police exclusively to the Ministry of Defence. The Ministry currently manages the Military Law Enforcement Service through the General Staff. And everything depends on whether there is synergy between the Minister of Defence and the Commander-in-Chief or not. That is why the contact between the Commander-in-Chief and the Minister is so important. As it was with Reznikov and Zaluzhnyi, and it was not with Khomchak and Taran. Therefore, in order to overcome this "sovdepia" and fulfil the requirements of the law "On National Security of Ukraine", the military police should be directly subordinated to the Ministry of Defence. As is done in all countries except Italy and France. There is a dual subordination of the carabinieri and gendarmerie. For example, in Italy and France, this service is subordinated to the Ministry of the Interior and the Ministry of Defence. But in 90% of NATO countries, it is the Ministry of Defence that is subordinated.
Second. The draft law, which passed the first reading, stipulates that the military police shall be formed at the expense of the Armed Forces of Ukraine. We decided to move away from this. It will be a separate formation with its own military personnel. They will not serve in the Armed Forces, but directly in the military police. This ensures independence and is again about building democratic civilian control.
The situation is the same with the State Special Transport Service. It is also a separate law, it is also directly subordinated to the Ministry, and it has separate servicemen.
However, a mandatory requirement for military police officers is that they must have served in the Armed Forces of Ukraine. That is, it will be impossible to get into the military police "off the street". And this is right, because to get into a body that can punish from a non-military environment, without understanding the unity of command, hierarchy, statutory relations and defence tasks, is a disaster. If this is allowed, we will create an uncontrolled military formation with law enforcement functions.
Third. The Ministry's position is that the military police should have pre-trial investigation. The text of the draft law voted in the first reading deprived the military police of this. This happened because of the categorical position of the State Bureau of Investigation, which is that the jurisdiction over war crimes should remain with this law enforcement agency. However, statistics show that they cannot cope with the number of war crimes that exist now, and this cannot be allowed, because impunity breeds chaos. There are not many SBI investigators and not all of them work in this area, and we have an army of millions. Therefore, after long negotiations, we were able to convey our position to MPs, and now amendments to the Criminal Procedure Code are being prepared in parallel, which provide that military police officers in a combat situation, in the area of a combat clash, can carry out both investigative and operational actions. That is, they can conduct pre-trial investigations. Of course, on a separate order of the SBI investigator. But where a civilian cannot enter, they will be able to take statements, inspect the scene, etc. Such restrictions on the powers of the military police are institutionally wrong, but I repeat, we need the current structure right now.
These are the main changes we have proposed. The document is already in the Verkhovna Rada Committee on Law Enforcement. We have already had a meeting with the committee's leadership, and certain points have been agreed upon. We are looking forward to considering the draft law in the second reading, because the statistics on war crimes are really critical.
- What does critical statistics mean?
- I won't give you the numbers - this is restricted information. But I don't know of any other cases in history when the active front line stretches for 800 kilometres, and armies of millions are fighting on both sides. When the world's economy cannot cope with the supply of ammunition and weapons. And our army has virtually no system of coercion. A system that would require the fulfilment of military duty and compliance with military discipline. Because all the normative and practical developments that have been made up to this point are not viable. And this was already clear in practice in 2014. But politicians did not look at what was right for this country, they looked at what was best for themselves. As I was told by people who were involved in the development of the draft law on military police back in 2016, Avakov said that either such police would be in the system of the Ministry of Internal Affairs or it would not exist at all. And then the military said that it would be better if it didn't exist at all.
The liquidation of the military prosecutor's office in 2019 put an end to this whole situation with military justice. I repeat: we do not have an effective system of coercion.
The guys from my brigade say that lately the Russians have not been surrendering. They either shoot themselves or fight to the end. Because there is no point in being captured. Their families are left without payments, and they have problems when they return - they are prosecuted.
But they don't retreat, because there are so-called barrier detachments, and they are immediately taken to jail. And recently, there was information that the State Duma of the Russian Federation passed a law that gives commanders the right to detain anyone for war crimes. In Ukraine, not even the Military Council has this power.
The fact that such detentions take place instantly gives results. That is, the dictatorial system of coercion is working. In our country, nothing works at all. In our country, in order to detain a person, an operational officer must do so correctly and on the basis of a ruling by an investigating judge.
- What do you mean by that?
- Here is a man sitting somewhere on the frontline and saying: "I will not obey the order, detain me, I will not go anywhere." The military police come, and he tells them: "Go to hell, I'm going to stay here anyway," and the commander comes after them and hears the same thing.
Then, an operative of the State Bureau of Investigation or another law enforcement agency would have to come on behalf of the SBI investigator and detain him. To do this, a court order would be required, the person would be brought to court, and the investigator would then apply to the court directly with the prosecutor for a preventive measure.
But in practice, this is not the case. Because all law enforcement officers are civilians. Here's one example the guys talked about. It so happened that they retreated. Criminal proceedings were opened over this fact. And the investigator from the State Bureau of Investigation came to interrogate those who retreated in Kurakhove. It is about 20 kilometres from the contact line. But perhaps it would be worthwhile to inspect the scene and collect evidence. To find out why they were retreating. Perhaps because they could have been surrounded.
All these circumstances are not investigated. In such cases, the Military Law Enforcement Service conducts an internal investigation and takes statements. But this is not evidence. It's just a draft for the investigator, who must then do the same with the same people. Interrogate, analyse, and request procedurally correct documents.
Or another situation. For example, there are five people who should be prosecuted for not complying with an order. In order to register the proceedings, it is still necessary to prove that these people are fit for military service. Yes, they have joined the army, but they must really be fit for military service. Because, as prosecutors say, there are already cases when it turns out in court that a person is not fit for military service and should not have been in the army, they find that he or she is not liable for a war crime. Everything is happening in a kind of parallel upside-down world.
- You said that an operative of the State Bureau of Investigation or another law enforcement agency should go on behalf of the investigator. Why doesn't the Military Law Enforcement Service do this? How can you just ignore them and continue to do what you want?
- A pre-trial investigation is a procedural action that takes place to collect evidence of a person's guilt or innocence. And direct assistance in the pre-trial investigation, search, analysis, detention, are operational and investigative activities. The military law enforcement service cannot carry out such activities.
That is why it is so important for us to pass the draft law and empower the military police. The situation is now such that if there is no military justice, we will lose the war.
- The draft law stipulates that the military police will be on the roads and will be able to stop vehicles. In this case, how will the powers of the military police and the patrol police be differentiated? This provision is being discussed in the media, and people do not know what to expect.
- People can be understood. Even the Main Scientific and Expert Department of the Verkhovna Rada in its conclusions on the draft law wrote that "In our opinion, it is rather questionable whether there is a need to create a new body - a military formation with law enforcement functions, which will largely 'take over' the functions of the Military Law Enforcement Service of the Armed Forces of Ukraine". People who do not know what is happening outside the Verkhovna Rada, who have never been to the front, have never asked for statistics on war crimes, write such things. Of course, ordinary people will have questions. But the answer is very simple. The military police will control issues related only to the military of the Armed Forces of Ukraine and the State Special Transport Service.
- What kind of transport and in what cases will they be able to stop?
- Military vehicles if they are driven by military personnel. When the draft law was being discussed at the very beginning, MPs wanted to create a new law enforcement agency that would have powers over crimes committed by all military personnel, including officers of the Security Service of Ukraine, the State Protection Service, border guards, and the Foreign Intelligence Service. It would also cover everything related to defence. Therefore, during the working group meetings, we explained that the military police is not a purely law enforcement agency. It is a military formation with law enforcement functions. And its main task is to support defence capability. And then prosecution and investigation. First, we find out how to make sure that the soldier, for example, returns to his position. What does a law enforcement officer do in such cases? The soldier does not go on a combat mission - he immediately brings him to justice. This is a huge difference. The ideology of such a service. Not to imprison everyone, but to support defence capability.
The deputies understood this and moved away from the idea of purely law enforcement activities.
"PEOPLE WHO WORK IN THE SPS ARE AUTOMATICALLY TRANSFERRED TO THE MILITARY POLICE"
- Russian telegram channels pay a lot of attention to this draft law. The main emphasis in their posts is that the military police will be a kind of punitive unit to search for "evaders", which will be empowered to break into people's homes without a court order. Will the military police really be looking for "evaders" and in what cases will they be able to enter people's homes without a search warrant?
- The 'evaders' are civilians, they are simply persons liable for military service. Finding and prosecuting them is a matter for the National Police. The military police will only have the right to carry out actions provided for by law against persons who have taken the oath and are considered military personnel, as well as reservists.
In what cases will military police have the right to enter homes? In the same cases that a police officer can enter. These are direct pursuit of a criminal and situations where third parties are in danger due to the actions of the criminal.
Even the use of weapons is fully envisaged, just as it is in the law on the National Police. Although we were against it, because everyone at the front is armed and it would be logical to allow the military police to use weapons more freely. But we agreed to this rule so that no one would have any reason to disperse "treason".
- After voting for the draft law in the first reading, some MPs publicly stated that it was not necessary to create another military formation, especially if there are problems with law and order in the army. They propose to keep the Military Law Enforcement Service, but give it more powers. Is such a development possible?
- I am familiar with this opinion. I note that these MPs have never attended a meeting of the working group on military justice under the Law Enforcement Committee, which has been actively working for over a year. I'm being very careful with the words I use to describe their superficial, non-stateful approach. I'm being very careful. You cannot put politics before victory.
The ideology of this draft law is as follows: the powers of the HCJ are retained, operational and investigative activities are added, and the investigation is very limited. Additionally, the inspection mechanism is still being refined.
In addition, people who work in the military police are automatically transferred to the military police. We cannot do it any other way. This is another reason to criticise the draft law, but we cannot pause during the war. And even the certification, according to the proposals to the draft law, will be carried out two years after the creation of the military police. It is impossible to hold any competitions now.
Therefore, when MPs say that we should keep the VSP, but with greater powers, this is basically what we are doing. However, the creation of the military police is a requirement of the Strategic Defence Bulletin, which was enacted by a Presidential Decree by decision of the National Security and Defence Council in 2021. And the Presidential Decree issued in 2019 provides for the creation of a military police on the basis of the Military Law Enforcement Service. There is also a separate NATO standard that provides for the powers of a military law enforcement structure - the military police in the Armed Forces of NATO troops. And we have to comply with it if we want to become a member of the Alliance someday.
There are three types of opponents of the military police: amateurs, Russian agents of influence, and idealists who are detached from reality. We will not convince them. But I am sure that there are more people who realise how necessary its creation is for the country.
- In an interview recently, you said that the next draft law to be passed is the one on the military prosecutor's office. In your opinion, how should the updated structure differ from the current one?
- Currently, the Specialised Defence Prosecutor's Office is a structural unit of the Prosecutor General's Office. And prosecutors are ordinary civilians. But the main difference between the military prosecutor's office and the regular one is the status of prosecutors. That is, they are military personnel. They should have the right to carry out both pre-trial investigations and procedural guidance of pre-trial investigations, as well as supervision over the observance of the law during the activities of the military police. Where does this pre-trial investigation take place? In the combat zone. In addition, military prosecutors must have unrestricted access to any military facilities. Civilian prosecutors should not have this right. Neither should law enforcement agencies. Do you remember when the SBI took the klystrons off the radar? It was a disgrace! And one military unit allowed this to happen, while the other - on the direct order of the Air Force Commander - did not. And thus, it preserved the defence capability and air defence of a certain region.
Therefore, the main issue is the status of prosecutors. They should be military personnel and their powers over the military should be broader.
- We have already talked to you about the creation of specialised military courts. And you expressed the opinion that it was possible not to create something separate, but to specialise judges in existing courts. Is the issue of creating military courts not being considered now?
- We will not build the military justice system that was destroyed. We have neither the money nor the capacity. In addition, the Venice Commission has already spoken out against the existence of separate military courts, because, in their opinion, it contradicts the Constitution. But there is a way out. And it has already been discussed. In particular, in the Supreme Court.
- What is the way out?
- This is the creation of specialisation for judges in courts of general jurisdiction. And now the Constitution allows for the creation of a higher specialised court. But there are certain nuances. Both the HACC and the High Specialised Court on Intellectual Property are courts of both first and second instance. And it is impossible to have the same body hear issues related to the military. Therefore, two options are currently being discussed: specialisation and the creation of either a High Specialised Court for War Crimes or a separate chamber in the Supreme Court.
Tetiana Bodnia, Censor.NET,
Photo: Kateryna Lashchikova, for Censor.NET
