Defender’s certificate for commanders and register for violators of military rights: what powers will military ombudsman receive and why they will not be limited to inspections in Armed Forces
The President appointed an ombudsman to protect the rights of servicemen and their families. However, the draft law defining his functions and the tools that would help him respond to complaints effectively has not been adopted.
However, the document, which has been worked on for a long time by representatives of the human rights community and experts from the Ministry of Defence, is almost finalised. Now the question is whether and when MPs will support it.
"Censor.NET" journalist found out what exactly it currently provides for.
Limited by the Constitution
The introduction of the post of military ombudsman in the Ministry of Defence has been announced on several occasions. For the first time, the head of the ministry, Rustem Umierov, announced the need for such an institution a year ago. Subsequently, the Central Department for the Protection of Servicemen's Rights was established, which was directly subordinated to him.
And in the autumn of this year, he publicly stated that candidates for the position of military ombudsman would be announced, without explaining what powers such a person would have or what model of such an institution would be chosen. Although this is important, given that during martial law, the Constitution cannot be amended, and there is no mention of a military ombudsman. And that is why the Central Department for the Protection of Servicemen's Rights was created in the Ministry of Defence. In order to respond to problematic issues in this way. In an interview with "Censor.NET", Taras Bezpalyi, the deputy head of the department, spoke in detail about what exactly this department does. To recap, the department receives complaints from the military and their families, and also cooperates with the Ukrainian Parliament Commissioner for Human Rights.
And it is this department that, together with representatives of human rights organisations, is drafting a bill to establish a military ombudsman institution, given that the country is at war.
In general, there are different models of such an ombudsman in the world. Describing them, Deputy Prosecutor General for 2019-2022 Gunduz Mamedov, who joined the Armed Forces of Ukraine with the start of the full-scale invasion, recalled that "the first attempts to formalise this mechanism were made in Scandinavia. In particular, in Sweden, the military ombudsman institution appeared in 1915 and became the first specialised body to protect the rights of servicemen. Its creation was a logical continuation of the tradition of democratic oversight established in 1809, when Sweden introduced a general ombudsman institution to monitor compliance with the law in state bodies, including the army."
According to him, there are different models of such an institution in the world: parliamentary, executive, hybrid, and independent. Two models could potentially be suitable for Ukraine. The first one is to introduce a position in the existing model of the ombudsman institution that would be on a par with, for example, the Presidential Commissioner for Children's Rights. The second option is an independent model. In his opinion, an independent model would be appropriate for our country, so that the society, which includes the military and their families, would have no doubts about the impartiality of such an institution and the people who will work there.
"This institution should have been created when it was still possible to amend the Constitution to make it a parliamentary model," says Olha Reshetylova, who we spoke to a week before she was appointed Presidential Commissioner for the Protection of the Rights of Servicemen and Their Families, when she was head of the Media Initiative for Human Rights. - We started talking about it loudly in 2017, but the then Minister of Defence Stepan Poltorak was categorically against such an institution. The entire military command assured us that they would never allow civilian control at all. And when we told them about the rights and freedoms of military personnel, they looked at us with round eyes.
Therefore, unfortunately, we have entered a major war with no instruments to protect the rights and freedoms of military personnel and their families. And this is a huge category of the population that is actually restricted in its rights and freedoms for natural reasons, because as soon as a person puts on a military uniform, he or she is immediately restricted in certain rights and freedoms. But we, as a state, do not offer such people anything in return, like any additional protection tools. And we see the consequences of this all the time when scandals arise. Besides, no matter how sad we are to admit it, the Ukrainian army has this post-Soviet legacy, when a soldier is considered an absolute slave to his commander or a junior officer to a senior officer. Yes, the hierarchy is the basis of the army, but there are also concepts such as honour and dignity, which, unfortunately, are not always respected in the Ukrainian army because it has this post-Soviet heritage.
When Rustem Umierov came to office, he created the Central Department for the Protection of Servicemen in the Ministry of Defence, which is doing everything they can within their capabilities. But their capacity is very limited, and they only work with the Armed Forces. And if we are talking about the Security and Defence Forces, it is a much broader story. We include the National Guard, border guards, the Security Service of Ukraine, and the Foreign Intelligence Service. That is, there are many structures in the country that are not covered by the Ministry of Defence. That is why the question arose that we still need a military ombudsman. Again, as a parliamentary, democratic control over the security and defence sector, we cannot create it now, as we cannot amend the Constitution, and we already have one Verkhovna Rada Commissioner for Human Rights. Therefore, a working group was set up at the Ministry of Defence to draft a bill that would regulate the activities of the military ombudsman. I joined this group in September, and we are working very intensively on drafting this law."
According to Olha Reshetylova, one of the controversial issues during the discussion of the draft law was the issue of the ombudsman's subordination. "In the end, we came to the conclusion that this institution should be under the President's authority for the period of martial law. Firstly, for the reasons I have mentioned. We cannot amend the Constitution to give the parliament such functions," she said. "Secondly, the president has disciplinary power and should exercise democratic civilian control over the Armed Forces. In this way, this institution will cover virtually the entire security and defence sector."
The issue of appointing an ombudsman was no less acute. The human rights community insisted on holding a competition, but it could not be held due to legal restrictions. "I have been defending this position for a very long time, and it would be fundamentally important for a person to be elected to this position in an open competition. But, unfortunately, the law also prohibits holding open competitions during martial law," said Olha Reshetylova.
Deputy Minister of Defence Serhii Melnyk explained to "Censor.NET" that the draft law stipulates that the military ombudsman should be directly subordinate to the Supreme Commander-in-Chief of the Armed Forces of Ukraine. According to him, this conclusion was reached by a working group.
At the same time, no official, including the Supreme Commander-in-Chief of the Armed Forces, will have any influence on his decision-making, the Ministry of Defence says. The military ombudsman and his representatives will be guaranteed institutional independence, a high level of financial support and the necessary scope of powers.
According to Olha Reshetylova, the powers of the military ombudsman should be granted for 4 or 6 years so that the president cannot unequivocally appoint his own person for the entire period of his term. In addition, civil society representatives working in the working group suggested limiting the president's ability to dismiss this person. "But the balance is also very important here, so as not to create a monster that will be uncontrollable and with great powers," says Olha Reshetylova. We are also thinking about this, and we are prescribing both the possibilities of maximum independence that the president's vertical can have and the possibilities of control over this official and the ombudsman's office as a whole. We are thinking about how he or she should be controlled, apart from the annual report."
"A unique solution in the draft law is the introduction of a defender certificate. It will be mandatory for servicemen who hold or plan to hold positions that involve the management of personnel. To do this, they will need to take a special course on the protection of servicemen's rights," said Deputy Minister Serhii Melnyk. "In addition, we are discussing the need to create a separate section in the register of servicemen for officials who have violated the rights of servicemen. If such a tool is included in the draft law, the register will contain information on measures of influence against a commander who has violated the rights of a subordinate. This commander will not be able to apply for promotion, and if he or she does not receive a defender certificate again, he or she will not be eligible to hold positions of command (supervisory) level.
They are also discussing the introduction of a mechanism to isolate the offender from the person whose rights have been violated. In other words, if the Military Ombudsman finds a significant violation of a serviceman's rights that could threaten his life and health, he will be able to move him to a safe place."
He also added that several possible options for granting powers to the military ombudsman are being discussed. The first is to bring commanders to disciplinary responsibility. The second is to draw up protocols on administrative military offences, as well as to consider cases and bring offenders to administrative responsibility with administrative sanctions by its own decision. And the third, hybrid option is disciplinary power and the right to draw up protocols on military administrative offences.
Having such rights, tools for prevention and restoration of violated rights of servicemen, according to Serhii Melnyk, the military ombudsman will be able to ensure that commanders of all levels strictly observe the rights and social guarantees of servicemen and their families.
"In fact, we are writing two draft laws in one bill. One for the period of martial law, the other for peacetime. How to combine this work? This is the difficulty that our working group has faced, and that's why the work is being delayed a little bit," says Olha Reshetylova. "We hope that by 15 January we will have presented a version for discussion. I'm sure there will be a lot of criticism, because there are no simple solutions to what this institution should be. The military ombudsman must be empowered to have a real impact on the situation. But we should not write a draft law on a punitive body. We must not forget about the spirit of human rights and freedoms. And the vocation of this institution is to bring respect for human rights and freedoms in the Security and Defence Forces. So I really want this law to be imbued with this spirit. I may be saying some pathetic things, but this is extremely important.
Any restrictions, penalties, sanctions should be a last resort. The main task is mediation. From my own experience as the head of a civil society organisation that receives complaints about violations of the rights of military personnel, I can say that about 70% of problems in the army are resolved through negotiations and mediation.
In my opinion, the Office of the Military Ombudsman should spend a large part of its work in this communication and mediation. Relatively speaking, we have a very large number of the same AWOL-servicemen who are ready to return. But they do not trust those commanders who, in their opinion, abandoned them or did not complete their work. This is the issue of a systemic solution."
As explained to us by the Ministry of Defence, at this stage, the draft law stipulates that the military ombudsman, although not subordinate to the Minister of Defence, will have broad powers of access to military units of the security and defence forces of Ukraine, and will be able to open proceedings to consider complaints from servicemen. Based on the results of the inspections, decisions will be made on disciplinary or administrative liability. If the inspection reveals facts indicating a criminal offence, the relevant law enforcement agencies must be notified immediately. Of course, all of this will happen if MPs support this draft law.
In addition, the document stipulates that the military ombudsman will be empowered to take preventive measures to minimise violations of the rights of servicemen and their families.
After the establishment of the military ombudsman institution, the Central Department for the Protection of Servicemen's Rights will actually become one of its authorised units.
"Conceptually, the introduction of the military ombudsman institution is not about one person. We are creating a vertically integrated end-to-end system for the protection of the rights and social guarantees of servicemen and their families. Currently, no such system exists. Some appeals, including complaints, are directed to the person who committed the violation. After the introduction of the military ombudsman institution, such an integrated system will be established, and he and his office will manage it," said Serhii Melnyk. "Other agencies will also establish structures similar to the Central Department for the Protection of Servicemen's Rights that will consider appeals and complaints from servicemen.
The Office of the Military Ombudsman will monitor and, if necessary, ensure the independence and impartiality of the consideration of appeals by the authorised units.
The draft law also proposes that the military ombudsman's powers will include the protection of the rights of servicemen of both the Armed Forces of Ukraine and servicemen of other components of the security and defence sector, including the State Transport Special Service of Ukraine, the National Guard, the State Border Guard Service, the Security Service of Ukraine, the Foreign Intelligence Service, etc.
When asked what tools the military ombudsman will have to solve systemic human rights violations, if they are revealed, the Deputy Minister said: "The military ombudsman will be able to submit to the military command a report on systemic violations and provide time for their elimination. If the violation is caused by imperfect legislation, he will propose to the President of Ukraine to submit proposals for necessary changes to the Verkhovna Rada."
He also noted that the draft law stipulates that the military ombudsman's team should have about 150 full-time employees for the period of martial law. Some of the positions will be held by military personnel.
And after the end of the special period, the staffing of the Military Ombudsman's Office will be adjusted in proportion to the number of military formations, and the amount of expenditures will be reduced accordingly.
"When preparing the text of the draft law, we took into account the best practices of implementing the institution based on the international experience of Canada, the United Kingdom, and Sweden. We also took into account the recommendations of the Committee of Ministers of the Council of Europe CM/Rec2010(4) "Human Rights in the Armed Forces". The analyses carried out by the team of experts allowed us to create a unique concept of the military ombudsman institution. We hope that its implementation will reduce the level of violations of servicemen's rights and increase the level of trust of servicemen in the command," he stressed.
Will the Ombudsman be able to work without the military justice system?
My interlocutors gave different answers to this question. On the one hand, many people understand that it is now necessary to create a military justice system in the country, which was destroyed 14 years ago. But the relevant draft laws are moving very slowly, and again, we are limited in amending the Constitution, so we cannot do everything as we needed to, especially during the war.
"In the future, this institution may become part of the military justice system, or at least a balance for military justice. But it is impossible to create military justice without the existence of the military ombudsman institution," says Olha Reshetylova, "because part of military justice is still about punishment, so to balance it, we must first protect the rights of servicemen.
As for the courts, I think that simply specialising judges may be enough. I'm sure that restoring the military prosecutor's office in the form it was, well, firstly, is no longer possible, and secondly, it is not necessary. That is, we should be talking about strengthening the system that we have now. That is, the specialised prosecutor's office that is currently operating.
There are big questions about the work of the SBI. And we need to deal with it. How well they are able to respond to the full range of challenges they face. And it seems to me that first of all, we need to deal with what we have and strengthen what we have. And then we can see in what configuration, what we lack. This is also a very difficult task. I don't know who can take it on, to be honest.
In general, it would be very good if a civil society organisation or analytical center analysed the consequences of the disbandment of the Main Military Prosecutor's Office. Pros and cons, an analysis of the SBI's work on war crimes. We only pay lip service to this, but there is no such study in reality.
I coordinate a working group in the Prosecutor General's Office. There is an international council of experts, and it is divided into thematic groups. And our thematic group deals with the protection of the rights of military personnel. And we plan to make an analysis based on the results of the adopted law on strengthening the criminal liability of servicemen. Because two years have already passed. The public was against its adoption at the time. The command, including Zaluzhnyi, was very much in favour of the bill. What were the consequences? In the end, they rolled back the AWOL. And now it is not clear what is happening to it. But did this increase the combat capability of the troops? How did the commanders use it?
We know from the stories that they used this criminal liability as a method of pressure and intimidation. Especially when servicemen refused to comply with illegal orders.
We already have such a volume of information that needs to be systematised and analysed. And develop some recommendations. Because we all say this in general, but we don't have empirical facts on which to base our decisions. If there are NGOs that have the potential to conduct such analytical studies, I think they would be very important. Just to have an understanding of the consequences of these decisions made earlier, which were very often made in a hurry.
The issue of creating a military justice system should be treated with caution, says Gunduz Mamedov, commenting on the issue of a possible renewal of the powers of the military prosecutor's office. In order not to demotivate the soldiers and not to cause any confusion. And at this stage, in his opinion, many systemic problems can be solved by the military ombudsman. On the one hand, the military will trust him. On the other hand, he will be able not only to respond to certain situations but also to solve systemic problems.
Tetiana Bodnia, "Censor.NET"
