Problems of legal support for the defence of Ukraine discussed at an international conference with the participation of SC President and SC Grand Chamber Judge

The Declaration of Independence of Ukraine was crucial both for the formation of the Ukrainian state and for the creation of our country's security and defence system. Subsequently, the Basic Law stipulated that the most important functions of the state are those of defence, protection of the sovereignty and territorial integrity of Ukraine, and ensuring its economic and information security. These are matters of concern to the entire Ukrainian people. Later, a system of military justice was established, including military courts, military prosecutor's offices, legal units of military formations, military legal training units within relevant educational institutions, and active legislative work was initiated to develop the state in this area. However, this was followed by a period of reduced size of the army and the elimination of the military justice system.

The above was stated by Stanislav Kravchenko, President of the Supreme Court, at the International Scientific Practical Conference "Problems of Legal Support for the Defence of Ukraine".

‘Were there any preconditions for that? Obviously not. The actions of the neighbouring country pointed to possible events that would later take place in Ukraine - the annexation of Crimea and the armed aggression in the east of our country, which began in 2014. It was a very difficult time, for lawyers too. Indeed, it was quite difficult to work in a time of war, guided by peacetime legislation. However, even under these circumstances, we managed to adapt to the new realities quite quickly and formulate approaches to solving legal problems caused by the armed aggression of the Russian Federation,’ the President of the Supreme Court said.

Stanislav Kravchenko informed that at the initiative of the Ministry of Defence of Ukraine, the General Staff of the Armed Forces of Ukraine and the National Academy of Legal Sciences of Ukraine, since the beginning of the full-scale invasion of Ukraine by Russian troops, a number of events have been held to discuss urgent problems in the field of law enforcement and to identify possible ways of overcoming them. These professional discussions helped to resolve the situation. In addition, the Supreme Court regularly analyses in detail, within the framework of its powers, the issues arising from the consideration of cases relating to military service. In particular, we are talking about issues related to the social protection of servicemen, establishing the facts of being in combat areas, living in the same family with a serviceman, etc.

Undoubtedly, we want to create military courts, but at the same time we understand today's realities, so first of all the judicial system wants to fulfil its tasks based on the resources it currently has,' said Stanislav Kravchenko.

According to Oleh Tkachuk, a judge of the Grand Chamber of the Supreme Court, the system of military organisation itself stipulated that in the event of war, military courts would function on the basis of the general courts located in the areas where hostilities were taking place and that justice would continue to be administered. This is necessary for both civilians and military personnel, and for recording war crimes committed by enemy forces.  

However, the liquidation of military courts has resulted in only 587 of the 750 courts in Ukraine currently being operational. In particular, 87 courts are not functioning because they are located in the area of active hostilities. Since 2014, 84 courts in the Autonomous Republic of Crimea, Donetsk and Luhansk regions have been unable to administer justice. In addition, 148 courts have changed their territorial jurisdiction as a result of hostilities since 24 February 2022. 

'It is evident that the peaceful existence of a democratic state ‒ its social and political relations ‒ is not oriented towards warfare. Concurrently, the outbreak of Russia's aggressive war in Ukraine has compelled a reorientation of all state and civil activities to safeguard the sovereignty and territorial integrity of the Motherland. The peculiarities of trials under martial law undoubtedly point to the need to restore the entire system of military justice and, in particular, the military judiciary. The urgent need to increase the level of readiness and combat capability of the Armed Forces of Ukraine and other military formations, to strengthen military discipline and, at the same time, to ensure social protection for servicemen and their families, requires that these issues be dealt with by lawyers who have special military knowledge, who are familiar with the military sphere on the basis of their own experience, and who understand combat training and combat operations,' said Oleh Tkachuk.

At the same time, the judge noted that the judiciary had adapted to working in a time of war. According to him, a significant number of civilian cases submitted to the courts concern the protection of the rights of servicemen: payment of material assistance, determining family composition, the procedure for military service, etc.

The courts are generally able to resolve these disputes, but activities in the military sphere are governed by some 40,000 regulations, so in order to ensure proper protection of the rights of military personnel, a judge must understand the specificities of military service and have sufficient knowledge and relevant experience.

It was also observed that the Armed Forces of Ukraine have successfully eliminated the problematic practice of non-statutory legal relations between military personnel. While this was a widespread phenomenon in the Soviet army, even in the non-combatant army, in the more than two years of the Russian-Ukrainian war, only just over 50 servicemen were convicted of criminal responsibility under Article 406 of the Criminal Code of Ukraine. Ukrainian soldiers did not allow looting, not a single serviceman surrendered voluntarily, there were no violations of the statutory rules of internal service, voluntary surrender or leaving war materiel to the enemy.

The event was organised by the Ministry of Defence of Ukraine, the National Defence University of Ukraine, the State Scientific Institution ‘Institute of Information, Security and Law of the National Academy of Sciences of Ukraine’, the Section of National Security Law and Military Law of the National Academy of Legal Sciences of Ukraine and the National Institute for Strategic Studies.