Does Ukraine need military courts?


Does Ukraine need military courts?

In Ukraine, the discussion about the need to return military courts is increasingly active. It is already clear that only a special court with real professionals can effectively respond to the challenge of wartime. Military courts function successfully in almost 40 developed countries of the world that have their own armed forces, these are such countries as: Great Britain, USA, Belgium, Switzerland, Sweden, Canada, Spain, Israel, Poland. France at one time abolished military courts, but later this decision was recognized as erroneous, and the system of military courts was restored.

Military justice is a separate legal system that applies to military personnel and, in some cases, to civilians whose activities are closely related to the armed forces. It functions as a separate justice system with stricter rules and procedures aimed at ensuring internal discipline. The main goal of military justice is to maintain discipline and order in the armed forces and ensure their combat capability. The structures, rules and procedures applied in military justice can differ significantly from their civilian counterparts.

In view of the above, it does not seem surprising that changes in this area have currently begun with the restoration of military prosecutors' offices and the reform of the military law enforcement service. A group of People's Deputies from the "Servant of the People" faction registered in the Verkhovna Rada of Ukraine draft law No. 7576 "On Amendments to the Law of Ukraine "On the Prosecutor's Office" – on ensuring the activities of specialized military prosecutors, which were specifically proposed to restore the activity of the specified body. The draft law proposes to amend Art. 7 of the Law of Ukraine "On the Prosecutor's Office" and include the specialized military prosecutor's office in the prosecutor's office system. Analyzing the further steps of transformation, we can conclude that the next step should be the development of a theoretical concept for the restoration and further functioning of military courts. Under such conditions, military courts must meet the criteria of independence and the provisions of the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Proper courts must function on the basis of law, impartiality and independence.

There are enough grounds for the restoration of military courts, and this is an urgent need of the state.

First of all, civil judges cannot effectively and quickly consider the case, since they are not familiar with the specifics of all the circumstances that play an important role in its consideration – and, therefore, the consideration of the case is delayed.

In addition to the norms of the Criminal and Criminal Procedure Codes, when considering cases involving the military, judges must also be guided by the norms of disciplinary statutes, which they may never have encountered before. Today, the prosecutor's office is investigating many criminal proceedings on the facts of desertion and evasion of military service, with the subsequent transfer of these cases to court.

It is also important that, in addition to cases related to war crimes, other cases are heard by judges of courts of general jurisdiction. But if for civilians, and sometimes even for criminal cases, the speed of consideration, which is sometimes equal to several years, is not critical, then for military crimes, especially in a combat environment, the combat effectiveness of his military service directly depends on the period during which a military man is on trial units and fighting spirit of personnel. Therefore, the task of the judge is to consider them as soon as possible – which, unfortunately, despite everything, it is impossible to achieve in the system of courts of general jurisdiction.

Secondly, there is a war in Ukraine today, and no serviceman can be sure where he will be tomorrow. Thus, the questioning of witnesses in cases becomes a real problem. A judge of a court of general jurisdiction cannot conduct a trial outside the court premises – neither the number of cases pending before him nor the level of material and technical support allow this. The military most often cannot come to the hearing through the half-country, because in a combat situation, leaving the positions is a serious risk. Unlike judges of courts of general jurisdiction, judges of military courts mostly tried cases in the locations of military units in the presence of military personnel. This guarantees:

1. Quick and more thorough consideration of the case, because the judge can question all the witnesses at once, without waiting for their arrival from other, often distant settlements;

2. If necessary, examine physical evidence and conduct an inspection of the crime scene, not with the help of photos and video recording, but in the place where they are found.

3. Prevention and prevention of crimes, legal education of military personnel – "general prevention";

The practice of hearing cases in the locations of military units is the most effective way to implement the principles of openness and accessibility of the court process for military personnel, since the latter are unable to attend court proceedings outside the unit during their off-duty time.

Thirdly, war crimes are largely cases related to military secrecy. Documents with the seal of secrecy cannot simply be brought to the court and familiarized with them in your office, for this you need a special room, which the courts of the first instance are not equipped with.

Military courts are an integral part of the system of protection of the rights and legitimate interests of military personnel in many developed countries of the world and Europe. They will contribute to the judicial protection of human and citizen rights and freedoms under martial law, better application of guarantees of a fair trial, social stability and the rule of law in the state, which must be implemented exclusively by means of a legal nature.

Author: Oleksandr Knyaziuk

Judge of the Odesa Court of Appeal, Doctor of Law


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