Why should military be judged by military?
In addition to the military police, Ukraine may also have specialized judges who would hear cases involving the military. MPs are currently discussing a bill and, as an alternative, the idea of creating separate military courts. Moreover, such courts existed in Ukraine until 2010, when Yanukovych decided to liquidate them.
We asked a judge of the Grand Chamber of the Supreme Court, Colonel of Justice Oleh Tkachuk, who had worked as a military judge for 17 years, which of the concepts is the most viable, and how realistic it is to build a military justice system, including such courts, in the current conditions, where to get funding and look for personnel.
- Two concepts of military courts are currently being discussed. The first is the creation of specialisation for judges in general courts. The second is specialisation and the creation of either a High Specialised War Crimes Court or a separate chamber in the Supreme Court. You have worked as a military judge for many years and understand the specifics of such cases, and you have also been publicly raising the issue of the need to create military courts for many years. In your opinion, which concept is the most successful in the current circumstances?
- In general, the issue of military justice is a global one and is not limited to the establishment of military courts. In the current conditions of war, there are several fundamental things that Ukraine, as a state governed by the rule of law, must do. The first is the issue of ensuring the combat capability of the Armed Forces. Accordingly, there must be discipline and order in the army. And for this, there must be special bodies that ensure this order. On the one hand, these are military command and control bodies, commanders of various levels. On the other hand, there are law enforcement agencies that prevent offences and ensure compliance with the order using their specific methods. These are the military police, the prosecutor's office and, accordingly, the court. A general court or a military court is a separate issue.
Second. About a million people are now performing military duty in Ukraine, and a significant number of military organisations and civilian organisations are also performing functions to support the Armed Forces. These people should receive legal protection and legal assistance. First of all, these are military personnel who must have financial and material support. And those discharged from military service for health reasons should receive medical care, support and respect from the state as war veterans. There are currently 1.2 million registered war veterans. They should also have a proper way to protect the legal guarantees that the state provided them when they were on military service.
And the third, no less important issue is accountability for war crimes. Members of the Russian army, which is waging an aggressive war in Ukraine, must be held accountable for committing war crimes on the territory of our country. Ukraine should have a mechanism for bringing to justice those soldiers who, for example, have been captured and committed a war crime beforehand. They are on our territory, under our jurisdiction, and should be held accountable for their actions.
In addition, Ukraine has ratified the Rome Statute, which stipulates that commanders of Ukrainian military units, if one of their subordinates commits a war crime, will also be held accountable. Therefore, in my opinion, a system should be created in Ukraine to ensure that such persons are brought to justice. Otherwise, they will be held accountable by international judicial institutions. I think that in order to provide guarantees for our officers and sergeants, such a mechanism should be national.
All of this suggests that there should be military justice bodies. And I advocate that these bodies of military justice should be military courts. After all, it is justice that should ensure the resolution of all these cases and these problems that I have mentioned. Because Article 55 of the Constitution of Ukraine explicitly provides that human rights and freedoms are protected by the courts. In this case, it should be military courts.
What form should they take? Indeed, it is now being said that it is possible to create a specialisation of judges in courts of general jurisdiction - this is provided for in draft law No. 10301. I believe that such a system is unlikely to be effective, because the peculiarity of judges in the military sphere is that they should be formed by people who have served or are currently serving in the military. And they have experience of this service or combat experience. Only a person who has been in a military unit and knows the conditions in which this service takes place can understand the social danger of the offence committed. Especially in the current active phase of the war.
It is difficult for me to believe that a civilian who is in a remote area from the front line is able to understand all the difficulties and the moral and psychological state in which the military personnel of the active army are. That is why I believe that there should be a military court as a separate unit. That is, district military courts as courts of first instance, a military court of appeal and a military chamber or military panel of the Supreme Court.
Such a system fits perfectly into the national judicial system. It is in no way out of line with this system, and is in line with the decisions of the European Court of Human Rights and the tradition that exists in all NATO countries.
- Still, why not specialise judges? Isn't it simpler?
- If such a system is created, then in my opinion, 100 military judges will be enough to ensure that all the cases I mentioned from the very beginning are considered. Otherwise, we will have to select judges in each of the 580 courts of first instance that currently exist to specialise in military cases and teach 580 people military law, assuming that there should be at least one such judge. This is an unjustified budget expenditure, because a person can resign at any time, and there will be no institutional capacity to consider military cases. Because there will be no body that would be engaged in training, summarising judicial practice, and developing common approaches.
In addition, you will not find an example of judges with such a specialisation in general jurisdiction courts in any other country in the world, only military courts.
- One judge is not enough. For various reasons. For example, at any time, one of the parties to the proceedings may file a motion for the judge's recusal. Who should replace him or her?
- You are right, one judge is not enough, because we have judicial control over the pre-trial investigation. And it includes the institute of investigating judges. If the investigating judge heard the case at the investigation stage and controlled the pre-trial investigation, then he cannot be a judge and hear the case on the merits. Therefore, we need at least two judges in each court. But this will not be enough. First of all, there needs to be a reserve judge, and there are cases that are considered only by a panel of three judges.
Now let's do the maths. If there are three specialised judges in 580 courts, it turns out that almost half of all judges in Ukraine should have a military specialisation. In this case, it makes no sense to talk about specialisation, because it is actually blurred.
- I guess we also need to take into account how many cases judges will have to consider. Is there any statistics that can be analysed? How many cases involving the military, for example, reach the Supreme Court?
- I can only speak about the information available in open sources. According to the State Judicial Administration, there have been more than 10,000 criminal proceedings against servicemen during the full-scale war. There are more than 100,000 cases of administrative offences. In my opinion, this is too large a number, which confirms the need to introduce a military justice system.
By law, the Supreme Court does not conduct generalisations in cases of administrative offences, as administrative offences are not brought to the Supreme Court.
This is also not done within appeals, because these cases are actually scattered across different regions. There is no single centre where this information would be received and analysed. This is another argument that specialised military courts are needed. And a separate military court of appeal that would deal with these issues in order to prevent unjustified administrative and criminal prosecution of servicemen.
As for the cases of legal and social protection of military personnel (medical, financial, pension, various payments), there are no statistics on them, but I think there are a lot of them.
- What are the main grounds for bringing the military to criminal responsibility?
- As for the most common crimes in the army, it is currently unauthorised leaving of a unit. The next category is disobedience to orders.
- One of the arguments of those who advocate the creation of military police and other military justice bodies is that the number of such cases will decrease. Because military police and prosecutors will be able to respond more effectively to such cases and go to the front line. Can military judges have any influence on this?
- There are several problems now. The first is that civilian judges cannot enter the location of a military unit at all. Secondly, civilian investigating judges cannot enter the combat zone. That is, they cannot record and control the pre-trial investigation there.
- Why is this a problem?
- This is because the offence is not properly recorded, and no permission is given to conduct investigative actions. In addition, prosecution does not take place within a short period of time after the offence has been committed, and other servicemen do not know whether the offender has been punished.
- Why do judges need to be there? Can't they do it from their offices or courtrooms?
- It is possible, but this office should be located a few kilometres away from the combat zone, but not a thousand kilometres away. Then cases will be resolved quickly, rights will be renewed immediately, and punishments will be imposed in front of other soldiers. All this will help to improve discipline and law and order in the army.
- When crimes are committed by civilians, investigating judges do not go to the crime scene, but rely on the materials brought to them by law enforcement officers in their decisions.
- This is true. But, for example, let's imagine a situation where we are talking about choosing a military preventive measure. This can be done immediately, when he is detained and brought from the military unit to the court, which is located nearby. Or it can be done later in a court somewhere on the territory of Ukraine. And if, for example, he was detained for disobeying an order in a military unit, and a preventive measure is chosen by a court located within three to four kilometres, then if the request is denied, he can continue to be in the military unit and continue to perform military duties.
And one more thing. The more time passes between committing a crime and being brought to justice, the more negative it affects the state of military discipline, because people do not see that punishment for committing a crime is inevitable.
A military court may consider a case at the location of a military unit. That is, it can actually be in a combat zone. This approach will help prevent offences, as people will see that a person has been brought to justice for a crime. And this will help to increase combat readiness.
In addition, sometimes crimes are committed because a lower-ranking soldier cannot complain about the actions of his commander. The reason for not obeying an order can sometimes be that the orders previously given by the commander are questionable. And the serviceman cannot appeal against this decision of the commander, because there is nowhere to go. If there was a military court, military prosecutors and military police, he could file a complaint against the actions of such a commander.
- Can't a civilian court appeal against the commander's actions?
- It is possible. But, unfortunately, ordinary courts are deliberately overwhelmed by the sheer volume of cases. Cases of Chernobyl victims, divorces and property division, pension cases, criminal cases and cases of traffic violations, and establishing legal facts. In short, more than four million cases for four thousand judges. How are judges to choose among the thousand or two or three thousand cases in their proceedings ten or twenty cases concerning military service or the rights of a particular soldier or sergeant... It is difficult for a civilian judge to prioritise cases. Especially since the law does not allow it. Likewise, it is difficult for a civilian, a general practice lawyer, to understand the difference between the Disciplinary Statute and the Labour Code. In order to understand how a serviceman or his commander should act, it is necessary to study more than 200,000 regulations relating to the military that are now publicly available. In addition to these documents, there are tens of thousands more that are closed to the public.
"IF PEOPLE FROM THE ARMY CAME TO MILITARY COURTS, THEY WOULD NOT LOOK FOR OUTSIDE 'WARMTH'"
- If we create military courts, where do we get the people who would work there, the premises, the funding for their maintenance?
-In 2014, there were 750 courts of general jurisdiction. Now there are about 580.
About 90 judicial institutions do not work because they are located in the area of active hostilities. Another 84 do not administer justice in the Autonomous Republic of Crimea.
In addition, there is talk of optimising the judicial system in Ukraine. And, taking into account the workload of judges, to determine the optimal number of courts.
But again. More than 170 courts are not working. And if military courts are to be created, then to begin with, we need two or three garrison district military courts, one appellate court and a chamber in the Supreme Court. No premises are needed for the chamber in the Supreme Court, because the judges who work here are provided with premises. Everything is there to administer justice. In other words, we are talking about three courts.
Given that 170 courts are inactive, and the number of courts will be reduced even further after the optimisation, I think this is a sufficient resource to accommodate and ensure the operation of only three or four military courts.
Regarding personnel. There are now more than 50 judges serving in the Armed Forces of Ukraine. Most of them are judges of administrative courts.
More than 300 judicial staff members also serve in the Armed Forces.
These figures suggest that two or three district military courts could be created using judges who are serving in the military. In addition, we should not forget about those officers who now work in courts but already have military service and combat experience. If there are 25 judges in each court, I think this will be optimal for the time being. And if these people agree to move to military courts of first instance, they will be provided with staff.
And in an appeal, the issue can also be resolved at the expense of the same people who have served or are currently serving. And at the expense of those people who have experience of military service and are either in the reserve or retired. In particular, judges who have served in military courts could be involved. There are such judges, and they could be transferred to the military court of appeal. I think there should be 15-17 judges there.
In the future, I think it is possible to provide judges with resources at the expense of lawyers, military lawyers of the Armed Forces and military formations.
Regarding the military chamber of the Supreme Court. There are now Supreme Court judges who are currently serving in the active army, as well as judges who have already retired from the Armed Forces, including the Deputy Chief Justice of the Supreme Court, who has both combat experience and state awards for this.
In other words, if we talk about the costs of staffing, they are not needed at the moment. The courts can be formed by personnel with sufficient experience of military service.
- Are there many such people?
- On average, a judge in Ukraine considers one thousand and a half cases a year. This means that the workload of these judges should be in the range of one hundred to one hundred and fifty thousand cases a year. This is the approximate number of cases now. Although this does not include cases of administrative jurisdiction relating to benefits and financial support for war veterans. But if the system is created, then, first of all, there is a mechanism of exemplary cases. And there should not be as many cases as there are now, in my opinion. Military courts will ensure the prevention of rights violations and the inevitability of punishment for offenses. Accordingly, there will be fewer cases.
I follow court statistics. In the Supreme Court's practice, for example, there is a significant number of similar cases involving complaints from the Pension Fund against decisions of the courts of appeal. The Court of Cassation refuses to open proceedings because there is a uniform practice. However, resources are spent to resolve even such cases. The mechanism of exemplary cases needs to be used more widely and effective mechanisms for enforcing court decisions need to be found. For example, the Pension Fund of Ukraine, whose debts to pensioners have reached billions of hryvnias.
And if we add to this the need to generalise judicial practice, develop common approaches and unified mechanisms for the material support of servicemen, then such cases should be many times less. They are repeated and are related to the ineffective work of some government agencies.
In my opinion, most cases of administrative offences are cases of disciplinary offences and they should end at the stage when the commander decides to bring to disciplinary responsibility in accordance with the Disciplinary Statute. For example, in one of the cases I studied, there was a decision to bring a private to justice for falling asleep during an air raid alert. This did not have any negative consequences, the unit's personnel moved to a shelter, and the soldier slept for an hour. However, he was fined 15,000 hryvnias by the court. I cannot assess all the circumstances of this case, but I believe that going to court to punish our servicemen should be balanced and explained by the impossibility or ineffectiveness of disciplinary measures taken by the commander or military superior.
- You say so confidently that judges who are currently serving or have retired from service would go to work in military courts. And if they don't want to? These are not "warm places", not courts where litigation worth millions or billions is resolved, there is no one to "bring in". I understand that this sounds somewhat cynical, but corruption in the judicial system still exists. At least we read about it from time to time in official reports from law enforcement agencies.
- I had served in military courts for 17 years. And over the years, there were cases when judges were dismissed for committing serious disciplinary offences. Including those related to the fact that they were "warm" in their positions. But in the system, there were about five such cases in all those 17 years.
In principle, there should be no "warm spots" in military courts. According to sociological studies, the level of trust in people who serve in the army is 96%. If so many people trust the army, then the formation of courts at the expense of these people would have a very positive impact on the justice system in general, and the military justice system in particular.
If people from the army came to the military courts, they would not be looking for outside "warmth", they would be warm enough from serving in hot places.
Will they want to move to these courts? Most of them had already decided their fate when they went to war. Their current service is no less difficult than administering justice in a military court.
Many people from the judicial system and outside it write and call me, saying that they are interested in creating military justice and would be happy to join this work.
We should also not forget about people who, again, have lawyerly experience, about scientists. These are the people who helped to form the Supreme Court.
Why can't people who have proved their professionalism, loyalty to the nation and proved their commitment to Ukraine and Ukrainians by their military deeds, risking their lives and health, become judges of military courts? I believe they are worthy of administering fair and qualified justice.
- They will have to go through a competitive selection process, and it is not known how many will succeed and how long it will take.
-It is true that the Constitution of Ukraine provides that judges are appointed by the President through a competition. But the Constitution also says that in cases determined by law, judges can be appointed without competition. I think that in times of war, part of the staff of military courts can be formed at the expense of other lawyers from among lawyers, prosecutors, scientists who have been fighting for more than two years and have military merits before the state and the people. They have already passed the competition, which is beyond the reach of many...
- Recently, the Verkhovna Rada Committee on Legal Policy held a discussion on the concept of establishing military courts with the participation of judges, academics, military and MPs. You also took part in it. In your opinion, how serious are the MPs this time around about actually establishing military courts? After all, there have been legislative initiatives before, but they led to nothing.
- When I talked to the MPs in the committee, I got the impression that no one doubts the need to specialise in military cases. The only question is what form this should take. And the second question is how it will function.
The Committee on Legal Policy, in my opinion, and this is confirmed by the discussion, is interested in ensuring that servicemen and servicewomen receive proper justice, that cases of military personnel, veterans, and their family members are decided by judges qualified in the military sphere.
The question is how to do it correctly and quickly.
Some MPs believe that it would be easier to create specialisation in the courts of general jurisdiction, while others agree that it is necessary to build a clear military justice system that will be independent within the general judicial system.
We'll see what the legislators come up with in the end, but I want to emphasise once again: military personnel deserve judges with special knowledge of military law and experience of military service.
Tetiana Bodnia, "Censor.NET"
