Oleksiy Muravyov told when the military police will work in Ukraine and whether military courts are needed

The issue of creating a full-fledged institute of military justice in Ukraine became especially relevant during a full-scale war. The Verkhovna Rada is currently working on draft laws on military police and military specialization of judges, which should bring Ukraine closer to the formation of this system. The head of the Main Department of Military Justice of the Ministry of Defense of Ukraine Oleksiy Muravyov in detail explained, what is the essence of military justice, what challenges stand in the way of its creation and what hinders the implementation of military courts and the police.

As Oleksiy Muravyov noted, the specificity of military justice lies in legal relations related to military service, where the subject is mostly military personnel. He emphasized that when they talk about military justice now, they mean the system of bodies whose activities are aimed at ensuring law and order in the Defense Forces of Ukraine.

“The specifics of military justice are legal relations that are connected with military service; the subject is, as a rule, military personnel. When they currently talk about military justice, they usually mean the system of bodies whose activities are aimed at ensuring law and order in the Defense Forces of Ukraine. First of all, we are talking about three main links: the military police, the military prosecutor’s office, and military courts, which currently do not exist in Ukraine.

Also, in the system of military justice, we can talk about another link – advocacy, it is still often called military advocacy. Yes, according to the current Constitution, we will not be able to implement such a mechanism as, for example, in the USA, where it is about military lawyers who have special tasks. But, in my opinion, we don’t need to copy someone else’s experience.

Our bar exists as an independent self-governing body with a high level of public awareness. But I think they will be able to create a training program for lawyers in the field of military law in the National Association of Lawyers of Ukraine and other public organizations of lawyers in a very short time.

And first of all, we are talking about three main links: military police, military prosecutor’s office, military courts, which currently do not exist in Ukraine,” — noted Muravyov.

He also emphasized the high level of public awareness of the legal community in Ukraine and stated: “I think they will be able to create a training program for lawyers in the field of military law in the National Association of Lawyers of Ukraine and other public organizations of lawyers in a very short time.”

Speaking about the reasons why, in the 11th year of the war, Ukraine has not yet created a full-fledged system of military justice, Muravyov noted that in 2022, under the threat of a large-scale invasion, the process was much more active. According to him, the parliamentary working group, which involved all relevant organizations, including the Ministry of Defense of Ukraine, was actively working on the draft law on the military police. However, this process has slowed down now. Muravyov stated:

“In 2022, under the threat of a large-scale invasion, the matter moved more briskly. The parliamentary working group, which involved all organizations related to this issue, including the Ministry of Defense of Ukraine, actively worked on the draft law on the military police. Currently, the process has slowed down, because, apparently, the situation is no longer perceived so acutely.

Political motives are also likely to be included: who will lead the newly created body, who will appoint the head, whether there will be competition with other law enforcement agencies, etc.

Although we included in the draft law the idea that the military police was supposed to take away from the SBI exclusively those categories of cases that, in our opinion, should not be inherent to the SBI: war crimes, in particular, SZH, failure to comply with orders, etc. That is, those crimes that are quite systematic, of the same type, and for the investigation of which specialists of the same level as those who got into the SBI are not required. This would allow the SBI investigators to be relieved, and they could focus on more complex crimes.”

Regarding the expediency of creating military courts or the specialization of civilian courts, Muravyov noted:

“According to the mechanism that has already been implemented and considered by the parliament, specialization is closer. But in principle, according to experts, this will not solve the problem, since the easiest way is not always about efficiency. What is the problem? The creation of specialization requires that the local court of first instance must have a sufficient number of judges who hear these cases. And we are talking about courts that are close to the combat zone – and there is usually a shortage of personnel.

Secondly, the creation of specialization requires a reduction of the burden on this judge in general cases. And transferring his affairs to colleagues will not please anyone in the current conditions and, accordingly, will not lead to the desired result…

Therefore, it would be more logical to create specialized military courts. There will not be so many of them. For the second link, we roughly calculated that it would be enough to create two appeals courts for the entire territory of Ukraine to cover all these cases.

The third instance — opinions were divided as to whether it is necessary to create a separate military panel within the Supreme Court, or whether it is sufficient that the criminal chamber currently considers anti-corruption cases as a cassation instance. And it can also be the third (cassation) instance before the military courts.”

Separately, Muravyov expressed his opinion on the issue of creating a military police. He believes:

“The military police is the basic link (and the need for it is long overdue), it is aimed at direct contact with military personnel who have committed offenses or are prone to commit offenses. VSP is a specific body, it is not a law enforcement agency, it is deprived of the functions of operational investigative activity and pre-trial investigation.

Since 2022, the military personnel of our department have been involved in the work group I mentioned. There was a group of five officers from the Ministry of Defense, three of them are officers of our department. And we contacted the parliamentarians, trying to convince them that we do not need the military police as another law enforcement agency. The purpose of the law enforcement body is to detect the offense and bring the guilty person to justice. The specificity of the military police lies in the preventive maintenance of law and order. A feature of the activity of the Security Service today is that it performs many other non-law enforcement functions.

So, in the process of drafting the law, we tried to convey to the legislators the need to preserve as much as possible the functionality of the VSP (so that it is not lost during hostilities), as well as the structure and personnel of the VSP. To put it simply, we wanted to, while preserving the functions of the VSP, add operational investigative activities and pre-trial investigation to them.

There has been a lot of controversy regarding the pre-trial investigation, and currently the draft law that is being considered by the parliament does not include the powers of the military police to conduct a pre-trial investigation.

In this regard, there is a lot of criticism of the developers, but it was such a forced compromise, because the political forces did not support the transfer of the pre-trial investigation to the military police.

We understand that this is a half-step, but at least one should be done. If I’m not mistaken, this is the eighth or ninth draft of the law on the military police, which has been submitted to the parliament since independence.

And so far we have come as far as possible from all our predecessors — the draft law has passed the first reading. We hope that there won’t be a tenth project, that this one will be pressed after all. And when it works, everyone will understand that you cannot create a semi-functional organ. It will be necessary to improve it and add changes.”

Muravyov admitted that the pre-trial investigation has become the subject of heated discussions, and today the draft law does not provide for this function. According to him, there is a lot of criticism of the developers in this regard, but it was such a forced compromise because the political forces did not support the transfer of the pre-trial investigation to the military police. Muravyov emphasized that the current draft law is the eighth or ninth submitted during the time of independence, but this one went further than all the others – to the first reading.

He noted that operational search functions are provided for by the project, but this does not solve the problem yet:

“Currently, the draft law assumes that operational investigative actions will be characteristic of the military police. And this is a very risky option. Because all the same, the materials will end up under the current KPK to the same DBR, which is overloaded with cases of military offenses and, in principle, this will not solve the problem.

However, there remains a ghostly chance that during the second reading the draft law will be improved and a section on pre-trial investigation will be added to it, but so far there is no mention of this.

One of the basic functions that we are trying to implement in this draft law is precisely the preventive function of the military police, where they already have the opportunity to come directly, identify offenders, and document them. And one of the ways that we managed to consolidate in this project was developed at the same time as changes to the CPC.

There, in particular, it was provided that investigators can instruct operatives to carry out certain investigative actions in the area of ​​hostilities – so we can speed up the pre-trial investigation of cases. They will also be authorized to detain, inspect the scene, etc.”

The military complains that civilian judges (both prosecutors and investigators) are not familiar with the norms of the statutes of the Armed Forces. In addition, the issue of access to state secrets remains problematic. Regarding whether it is possible to professionally conduct an investigation of operational-tactical and operational-strategic level commanding officers, Muravyov noted:

“We have a certain number of personnel who consider such cases and have considerable experience in this. In addition, the National School of Judges of Ukraine works very powerfully in this direction. According to public information, I saw that they conducted training for more than two thousand judges on the topic of war crimes. The National School of Judges also planned to launch a separate special course, because they understand the relevance and need of this area.

By the way, if we are talking about the creation of specialized courts, then there should not be so many of these judges. Therefore, training a small number of specialists will not be a problem for our state. In particular, taking into account the experience of those lawyers who are currently serving in the Armed Forces and may also participate in the selection competition.

Therefore, the path to implementation is not so difficult: practical experience, legal knowledge, plus additional training regarding the process. It would be good if, at the same time, certain changes were made in the legislation regarding the selection process for the position of a judge and it was simplified a little. Because the current one is too complicated and lengthy.

Public perception is another problematic issue. Should the military judge and military prosecutor be in military uniform? The debate continues.

Most people who have experience in this field believe that a civilian will not be perceived by the military. On the other hand, many members of the public who were involved in reforming the judicial system claim that a judge in uniform will not be perceived as an independent judge. There are pros and cons here. In my opinion, this is not fundamental: a judge does not necessarily have to be in military service, to be in a military uniform. It is enough that he has professional knowledge.

If his level as a judge in this area of ​​legal relations is confirmed during the qualification assessment, then, accordingly, trust in him will be formed already during the hearing of the case, based on his decisions, on those issues that he will voice, etc. It is not necessary for a military judge to have berets visible from under his mantle. Was the cassock draped over the mantle. But, I repeat, this issue is debatable.”

Regarding the terms of adoption of the law, Muravyov stated:

“If we are talking about specialized courts: if the idea of ​​creating them is supported and the process starts, conditionally speaking, from tomorrow, then they can start working in a year, if you try very hard. The military police is even faster, the military prosecutor’s office is the same.”