Shoulder straps do not fit the robe: Lidiya Izovitova analyzes models of military courts restoration

The Verkhovna Rada Committee on Legal Policy held a working meeting to discuss draft laws that provide for the establishment and operation of military courts in Ukraine on a permanent basis. The Institute of Advocacy presented its reservations regarding this initiative.

Restoration of courts

Until 2010, Ukraine already had a system of military courts that dealt with cases related to war crimes. However, during the war, the number of military criminal offenses, violations of the laws and customs of war, and disciplinary violations among military personnel increased.

Therefore, to ensure effective and efficient judicial proceedings in the military sphere and to protect the rights of servicemen, MPs have submitted draft laws to the Parliament:

No. 13048 dated 27.02.2025 «On Amendments to the Law of Ukraine «On the Judicial System and Status of Judges» regarding the functioning of military courts»;

No. 13048-1 dated 11.03.2025 «On Amendments to the Law of Ukraine «On the Judicial System and Status of Judges» regarding the establishment and organization of military courts».

They propose the establishment of military courts of garrisons (alternatively, district military courts), which will consider cases

• military criminal offenses;
• on violations of the rules and customs of warfare;
• on violations of the legislation on state secrets in the Armed Forces of Ukraine and military formations;
• administrative cases in which a military or military administration body is a party;
• on disciplinary offenses of military personnel.

Additionally, the alternative draft envisages consideration of cases on social and legal protection of military personnel and their families.

It also envisages the establishment of military courts of appeal and a separate chamber for military cases (military judicial chamber) in the Supreme Court.

Judges of military courts will be required to undergo a mandatory course of specialized training on military law, military discipline, tactics of military operations and the specifics of military structures within one year of their appointment.

These judges will be awarded military ranks of officers. The procedure will be determined by a regulation approved by the Ministry of Defense in agreement with the High Council of Justice. The procedure for awarding higher military ranks will be determined by the President. An alternative draft law provides for the appointment of military judges to the positions of persons who, in accordance with the law, have been awarded the rank of officer and have decided to serve in military courts. These judges will perform military service in accordance with the law and the Regulation on Military Service in Military Courts, which will be approved by the President upon the proposal of the HCJ.

Influence through rank

Lidiya Izovitova, the President of the Ukrainian National Bar Association and the Bar Council of Ukraine, noted that in times of war, it is not the restoration of previously liquidated military courts that is relevant, but the creation of military courts capable of hearing both cases of military offenses (war crimes) and cases of war crimes (conventional crimes). These courts should also provide legal protection for military personnel and their social guarantees.

She named three main criteria that should form the basis for evaluating legislative initiatives:

- Do the proposed models of military courts meet the requirements of independence and impartiality? After all, they are prerequisites for ensuring the right to a fair trial.

- Is there a threat of derogation from the constitutional guarantees of the right to a fair trial and international human rights standards?

- Will the creation of military judges in this way lead to significant violations of the rule of law?

In this regard, L. Izovitova pointed out that according to both drafts, the judges who will administer justice in military courts will be military personnel who are in military service and receive military ranks.

Even if the procedure for assigning and promoting military ranks is determined in agreement with the High Council of Justice, this model contradicts the basic principles of separation of powers and independence of the judiciary. The involvement of the executive body - the Ministry of Defense - in the procedure for assigning and promoting military ranks to judges creates a real threat of their dependence on the executive branch and interference in the administration of justice. Such an approach also goes beyond the powers of the President as defined in paragraph 17 of part 1 of Article 106 of the Constitution.

In addition, such a system, according to the President of the UNBA, BCU, creates additional corruption risks. After all, there is a possibility of informal influence on judges through the mechanisms of military service and career development. There is also a risk of a conflict of interest between a judge's duties and his or her duties as a military officer. Among other things, one should take into account the dependence of the amount of judicial remuneration on the assignment or promotion of a military rank. In this aspect, the warning in the alternative draft that judges, as holders of judicial power, have a special constitutional and legal status does not save them from such threats.

Subordination excludes independence

Although lawmakers understand this «peculiarity» of the judiciary, judges are still included in a strict vertical chain of command. And military service involves both the application of military regulations and mandatory compliance with the principles of military discipline, subordination and unity of command. And this, in turn, is an encroachment on the independence of judges, - L. Izovitova warned the participants of the meeting.

The principle of military subordination contradicts the very nature of the judiciary. A judge on military service is formally and actually obliged to follow the orders of the higher command. This directly contradicts the principle of independence of the judiciary and creates risks of administrative pressure through the mechanisms of disciplinary responsibility of military personnel.

At the same time, the draft laws lack guarantees of real independence of judges. The envisaged formal approval of a separate Regulation on Service does not contain clear guarantees of protection of judges either from disciplinary prosecution for failure to comply with orders of the military leadership or from interference in the consideration of cases.

European standards

Granting judges the status of military personnel and subordinating them to the military system of government directly contradicts the standards of judicial independence guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In support of this, the President of the UNBA, BCU cited the decisions of the European Court of Human Rights in the cases of Findlay v. the United Kingdom and Gürkan v. Turkey, which indicate that the military status of judges and their subordination to military authorities makes it impossible to recognize the court as independent and impartial.

Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms on the right to a fair trial provides that any case shall be tried by a court established by law and which is independent and impartial. Therefore, military courts, like all other courts in our country, must meet the requirements of independence and impartiality within the meaning of the Convention. Instead, in the proposed models, we have a court composed of officers who are in military service, embedded in the hierarchy and acting within the framework of military discipline. And such a court certainly cannot be considered independent and impartial within the meaning of the Convention.

Therefore, the creation of such judges poses a threat of derogation from constitutional guarantees of the right to a fair trial and international human rights standards, which could lead to significant violations of the rule of law.

Civilian control

How then can military courts be established to avoid these threats and risks? According to L. Izovitova, this is possible if judges in military courts are civilians rather than military personnel. And this will not be an obstacle to the administration of justice in cases related to the military sphere.

An additional argument in favor of this position is the principle of civilian control over the military. In Ukraine, as in other democracies, there is a legal requirement that the Minister of Defense must be a civilian. This rule is aimed at ensuring democratic control over the military sphere.

By analogy, the system of military courts should also incorporate the principle of civilian control: judges should be civilians because granting them the status of military personnel contradicts the very idea of separating military power from control by civil society.

Thus, the civilian status of judges will be an important guarantee of their independence, impartiality and compliance with the fair trial standards set forth in Article 6 of the Convention.

In this case, both the civilian status of the Minister of Defense and the civilian status of judges of military courts would become elements of a single principle of democratic control over the military sphere.

The article was published in Law and Business.

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