Supreme Court Chief Justice Stanislav Kravchenko: "Before full-scale war began, I saw no need for separate military courts. However, I have drastically changed my position."
The Parliamentary Committee on Legal Policy has recommended that the Rada adopt a bill on the specialization of judges for handling military and war crimes. In the explanatory note, the author of the document emphasizes that this approach—specialization of judges, as opposed to the specialization of courts—avoids contradictions with the Constitution of Ukraine and is less costly and organizationally burdensome.
We spoke with Stanislav Kravchenko, Chief Justice of the Supreme Court, about how to implement such specialization in courts where only one or two judges remain, what steps are needed to realize this legislative initiative, why it is urgent to merge existing courts, and what the consequences might be if new specialized courts are established.
"CURRENTLY, ONLY HALF OF THE ACTUAL NEED FOR FIRST-INSTANCE JUDGES HAS BEEN PROCLAIMED"
–There is ongoing discussion about establishing a military justice system, particularly military courts. I support this initiative because, having attended court hearings involving military personnel, I have noticed that judges do not always fully understand the specifics of military cases. Commenting on this topic, you have expressed support for the specialization of judges rather than the creation of separate courts. Why do you believe that the specialization of judges within general courts is a better solution than establishing separate military courts?
– Before the open phase of aggression began, I was not a proponent of separate military courts, as I was confident that the national judicial system could handle the tasks before it. You say that judges are professional but lack understanding in certain areas. A judge cannot fail to understand that if he or she is going to hold this position. And this does not apply exclusively to military law. For instance, not every judge holds a driver's license, yet they adjudicate road traffic accident cases. What about the complex economic matters? Or tax evasion cases? Not every judge has a degree in economics or accounting, but there are expert evaluations available to help them understand such issues.
I was previously a speaker in the high-profile case of Sergeant Kolmohorov and later in another case involving a military officer, General Nazarov. In both cases, the servicemen were sentenced to lengthy prison terms. However, in the first case, we overturned the appellate court's decision and sent the case for retrial with clear instructions on what needed to be addressed differently in terms of legal qualification. The cassation court has the authority to take such actions.
In General Nazarov's case, the decision was overturned, and the proceedings were closed, which is equivalent to an acquittal.
Working on these cases and reaching decisions was relatively straightforward for the courts, as expert assessments were available in both cases. For instance, in Nazarov's case, military experts from KFRI (Kyiv Forensic Research Institute) were involved and provided their conclusions. The courts of two instances agreed with it. However, the Supreme Court panel, after thoroughly analyzing everything, issued its clear position on why we could not concur. I won’t go into the details here, as they are available in the court decision.
Therefore, I repeat: before full-scale war began, I saw no need for separate military courts. However, I have drastically changed my position.
Firstly, the size of the army has increased significantly. Unfortunately, this has also led to a rise in the number of crimes. The key point is that if the military, who protect us and allow us to sit here and talk during wartime, say they need military courts, then these courts are indeed necessary. I have emphasized this on multiple occasions.
However, the system of military justice, including separate courts, was abolished 14 years ago. Now, we must first address Article 125 of the Constitution, which stipulates that courts in Ukraine operate in accordance with the law. It also states that "the establishment of extraordinary and special courts is not allowed." I am not sure how others interpret this provision, but my interpretation is that establishing military courts would require either amending the Constitution or creating them through the system of higher specialized courts, as was done with the High Anti-Corruption Court. For instance, this is the proposed approach for establishing the High Administrative Court, which has been declared as one of the requirements for Ukraine's accession to the European Union.
– What do you think about the creation of a military court following the example of the HACC?
– Imagine this: given the number of cases currently involving military personnel, establishing one massive court in Kyiv to handle cases from all over Ukraine is technically impossible. How many judges would be needed to process all these cases?
Moreover, I would like to remind you that the Constitution enshrines the principle of territorial structure. This principle is also reflected in the Law of Ukraine "On the Judiciary and the Status of Judges," which stipulates that courts operate based on territorial jurisdiction and specialization. Therefore, I believe that the principle of territorial jurisdiction is crucial.
Additionally, there is the issue of transporting convicts from various regions to this single court. What about prosecutors who support the prosecution? They, too, would have to travel to Kyiv from different parts of the country.
In other words, there are many arguments against the creation of such a highly specialized court.
It is also very important that, according to Article 125 of the Constitution, drafting laws on the judicial organization is exclusively the responsibility of the President in consultation with the High Council of Justice.
So far, there has been no corresponding draft law initiated by the president. Perhaps for a number of the reasons I mentioned.
To sum up, I want to emphasize that I remain a supporter of the fact that military justice should exist. However, this requires appropriate changes to legislation, as well as time and material support. In addition, this justice should be evident not only in the courts. There should be a military public prosecution, as well as military lawyers. Those involved in defending the military must also do so professionally.
In addition, we need professional military experts. Because it is very important.
Again, what about jury trials? Can't the military in certain categories of cases have the right to be tried by such a court?
As far as I know, the military thinks something like this: how objectively are we judged by those who have not been to the front and cannot assess what a combat situation is?
For example, from the point of view of legal qualification, cases of AWOL are not complicated. However, the question of whether the situation was objectively assessed when a person made a decision under the threat of death is very important. Both for the qualification of such acts and for sentencing.
– Is that why you advocate the specialization of judges?
– To begin with, let's clarify the idea of specialization. Of course, if a person focuses on a single, narrowly defined issue, the quality of their work can improve. Who could be against that? Naturally, I am not against it either. But again, there are the realities of life.
Auto-allocation of cases follows the principle of "everything for everyone." How can one panel of judges handle only a certain category of cases under this "everything for everyone" system?
– So, does this mean there won't be auto-allocation for such cases?
– No, there will be. However, after going through the auto-allocation system, certain categories of cases will only be assigned to certain judges. Is that good or bad? Here, too, we need to choose: either higher quality or the risk that everything will be concentrated in just a few hands.
By the way, in countries where the level of trust in the judiciary is high, this "one-handed" approach is used. For example, in Germany, the Supreme Court appoints judges once a year to handle cases of a certain category. A year later, they are replaced by others. And this does not pose a problem.
Therefore, we also need to figure out whether we are improving one thing or the other.
However, this is not the most important issue. The main problem is the lack of personnel. By the end of November, three local courts were not functioning because they had no judges at all. In 28 courts, only one judge is working. What is the point of specialization in a court with only one judge?
We must not forget that if a judge has already considered an issue related to the choice of a preventive measure or granted permission for a search, they are no longer allowed to consider the case on the merits. So, we move to the neighboring district.
The situation is changing every day and, unfortunately, it is getting worse. As of today, only half of the real need for first-instance judges has been proclaimed. This figure was once artificially reduced to avoid funding empty vacancies. The decision was made to set the number of judges based on the actual number present, that is, how many there were in 2016, rather than considering the real need.
– How then can judges be recruited if there are no funds?
– The rationale was that when the situation improved, we would increase the staff. The situation has only gotten worse. And now we've duplicated the 2016 staffing list once again. But it does not meet the system's needs.
How do I justify this? Every year, over 4 million cases of all categories are pending in courts of all instances and jurisdictions. Then we look at the number of judges and the general global benchmark for how much work a person can physically handle in a day. Of course, these are rough estimates, but in my opinion, Ukraine should have around ten thousand judges.
If we achieve this, then we can talk about introducing specialization. In some cases, it is indeed appropriate because, in certain situations, specialization is indispensable.
– What do you mean by that?
– Nowadays, it is common practice for judges in the first instance, who handle civil cases, to also act as investigating judges. Why is this done? So that another judge can handle criminal proceedings later, ensuring no overlap. Because in a single criminal case at the pre-trial investigation stage, dozens of motions can be submitted for searches, seizures, arrests, and preventive measures. And if all the judges are involved, there will simply be no one left in the district to hear the case on its merits, and it will have to be transferred to another court.
– What about in the appellate court?
– Let me give you an example. There are four judges in the Sumy Court of Appeal: two handle civil cases, and two handle criminal cases. In Odesa, there are five criminal judges. Do I need to explain anything further? How are we supposed to introduce specialization here?
So overall, as you mentioned, I support specialization. But what type of specialization are we talking about? Let me try to explain.
At the beginning of the full-scale war, information began to emerge that military units were accumulating servicemen who were being prosecuted, and the courts were taking a long time to process the cases. At the same time, according to the law, there is only a two-month limit on the suspension of salary payments.
They are not deployed on combat missions, which is a demoralizing factor. They remain at the unit. There is a shortage of military detention facicilities.
The situation is quite alarming. After all, military units were concentrated along the front line, and the courts were there as well.
First of all, the security situation in this area is difficult. Secondly, we have an overarching problem with the courts.
When I talked about specialization, I meant the following: If we need to ensure the timely consideration of a particular category of cases that present a significant threat due to their volume, we can assign judges. And we need amendments to the law that would allow us to do this without their consent. Currently, we can only assign judges from temporarily occupied territories without their consent.
Once they have been seconded, specialization can be introduced. In other words, the judge is seconded to handle a specific category of cases.
– How long can a judge be seconded?
– One year, and it can be extended for another year.
"IF WE FINALLY UNITE THE COURTS, WE WILL PARTIALLY SOLVE THE ISSUE OF STAFFING THEM, AT LEAST MEETING MINIMUM REQUIREMENTS"
– Do judges currently have any specializations?
– The Criminal Court of Cassation within the Supreme Court has two such categories of cases. One of them is cases involving minors. When such cases are received, they are not assigned to all judges but only to designated judges. However, these judges also handle other cases.
The Law "On the Judicial Organization and the Status of Judges" states that by a decision of the judges' assembly, we can introduce specialization. And we did this when the High Anti-Corruption Court was established for both the first and second instances. At the same time, the procedure for the second selection of Supreme Court judges was just completed. We introduced anti-corruption specialization for those who were appointed. Thus, a chamber was created at that time, specializing in anti-corruption cases.
At that time, such cases accounted for 5-7% of the total number of cases. We could not allow the specialized chamber to handle only these cases. Therefore, we applied the approach currently used in the Criminal Cassation Court of the Supreme Court concerning cases involving minors. Anti-corruption cases are assigned only to the first chamber, but to reach a full workload, other cases are also allocated.
At the beginning of the open phase of Russia's armed aggression, I was the head of the Criminal Cassation Court within the Supreme Court. Even then, I had the idea to establish a specialization in war crimes.
– Why wasn’t it done?
– At its best, the Criminal Court of Cassation had 42 judges. Currently, there are 31. Five of them, along with the President of the Supreme Court, are ex officio members of the Grand Chamber. That leaves 25 judges. So, once again, we conclude that such specialization is a luxury we cannot afford for now. However, if in the future we identify issues with the formation of consistent practice, we will revisit this matter.
To summarise: military justice needs to be established. This is evident. But it must be done systematically and comprehensively, when time permits and there is political will to do so.
Specialization is acceptable, but only where the number of judges allows it, to avoid transferring cases from one court to another.
The most contentious issue is whether to pursue the creation of a higher specialised court. Here, we must carefully consider all the risks I have already outlined.
– One of the problematic issues that women often come to us with is the matter of missing soldiers. They try to conduct investigations themselves, find witnesses who confirm that their husbands were killed, but the soldiers are still officially listed as missing. Therefore, the relatives of these soldiers are forced to go to court. Do such cases also reach the Supreme Court?
– Yes. One example involves a man who served in a TDF brigade. There was a missile attack after which he was reported missing, although some fighters claim to have seen him dead. However, the procedures established by law for this category of cases are excessively lengthy. Additionally, there is another issue—what is commonly referred to as a "civil marriage." It requires establishing the fact of being in a marital relationship with the deceased.
There are also other situations related to the war.
I believe that the Supreme Court will be able to address these issues through its case law, and certain positions regarding many war-related legal relationships have already been formed.
– How can the problem of staff shortages be resolved? What can be done to fill vacancies and expand the workforce where there is a real need? After all, the reform has been ongoing for many years, yet the overall situation is not improving.
– In my opinion, reforms are a very positive thing because they represent the development of society. I'm not being disingenuous here—I truly believe that. However, for reforms to be effective, they cannot drag on for ten years. Tell me, what kind of reform is it if no judges have been appointed to the courts of appeal in ten years? This has resulted in situations like in Kharkiv, where there should be 93 judges to meet real demand, but there are only 12.
– Why did this happen?
– Because during the reform process, it was decided that everyone needed to be re-certified. This involved more than 5,000 judges being sent for qualification assessment, which introduced overly complex procedures.
Moreover, we lack continuity in many processes. What do I mean by that?
After the Revolution of Dignity, the old High Qualification Commission of Judges was disbanded, and a new one was created. Legislation was changed, and even the Constitution. The qualification assessment process and the first competitions were initiated.
However, they managed to complete the competition only for the Supreme Court and to establish the High Anti-Corruption Court.
A new map of courts was also developed, and new legal entities were registered. Judges were transferred to other courts through re-certification. Such transfers did take place, but no new judges were recruited. There simply wasn’t time for that. It was necessary to conduct qualification assessments for those already in office. The judges currently being appointed by the HCJ are those who have been undergoing these procedures for 8–10 years.
But later, even this Commission was disbanded. The High Council of Justice also ceased its operations.
– Now all these bodies have been restored and are functioning again.
– Yes, but it took 4.5 years.
– If it's so complicated and time-consuming, maybe the procedures should be changed?
– I think we will have no choice but to do so. Currently, the HCJ has announced a competition for appellate courts. However, for some reason, only a small number of positions—550—are open. According to my forecasts, by the time this competition concludes in a year, the result will be a "zero" or even a "negative" balance. This is because a large number of judges are resigning.
A competition for first-instance judges was recently announced. Given the duration of the selection procedures, it will take at least one to two years to complete.
And I fear that soon a significant part of the country will be left without judicial oversight. All the cases we’ve discussed—about AWOL, establishing facts of a person’s death, and so on—will have no one to consider them.
Therefore, I think the time will come when such complex procedures will need to be revised. At least for the period of martial law and for specific categories of professionals—lawyers, prosecutors, investigators, and judicial assistants. If a person has 8-10 years of experience in these positions, believe me, they are already prepared to serve as a first-instance judge.
And another point—the new court network. It has been five years since the Verkhovna Rada adopted amendments to the legislation on the administrative and territorial structure. Essentially, districts have been consolidated. Where there used to be 4-5 districts, now there is one.
For a transitional period, courts were allowed to operate within their jurisdictions. Yet, we are still debating which court network model is better.
In my opinion, this is not a matter for debate, as the Constitution enshrines the principle of territorial organization. This principle serves as the foundation for the systems of state governance, healthcare, education, transportation infrastructure, and more.
This constitutional concept is incorporated into the Law "On the Judicial Organization and the Status of Judges" as well as procedural codes. Notably, the Criminal Procedure Code addresses issues of territorial jurisdiction and territorial competence. Why we have been debating for five years about what kind of court system to establish remains unclear to me.
If we finally consolidate the courts, we could partially address the issue of staffing them to meet at least minimal requirements. In some districts, there are no judges at all; in others, only 1-2, and in some, up to 5.
I want to stress that, despite all the challenges—including those already mentioned—the judiciary remains a cornerstone of the rule of law. It ensures reliable protection of human and civil rights and freedoms and serves as a vital guarantee of justice during these difficult times.
Tetiana Bodnia, Censor.NET
