MILITARY JUSTICE IN UKRAINE: RENAISSANCE DURING WARTIME
Summary: 1. Introduction. – 2. Evolution of Views on Military Justice in Ukraine. – 3. Foreign Experience and Practice of the European Court of Human Rights in Relation to Military Courts. – 4. Determinants of the Renaissance of Military Courts in Ukraine. – 5. Conclusions.
Abstract
Note from the Field
Access to Justice Amid War in Ukraine Gateway
In the article, the authors raise issues that are relevant for the modern legal system of Ukraine, related to the need to revive the military justice system and, in particular, military courts. The authors emphasize that during the peaceful existence of Ukraine, a dangerous illusion was formed in the society regarding the unnecessary functioning of military justice in the state, however, unforeseen realities fundamentally changed the liberal ideas of peacetime. After the beginning of the armed aggression of the Russian Federation against Ukraine, the work of many courts was completely paralyzed, the judges did not have an algorithm of actions in war conditions, they urgently left for safe cities, including outside the territory of Ukraine, leaving proceedings, documentation, unfinished cases. The study allowed the authors to come to the conclusion that in a situation of continuing armed aggression, the presence of powerful Armed Forces in the state, and when the country is forced to fight for its independence, it is the military courts that are able to ensure legality and exercise justice and judicial control in accordance with their subject jurisdiction. In order to determine the optimal model of military justice, the authors examined the genesis of approaches that existed in society and characterized its attitude to the system of military justice. They analyzed the precedent practice of the European Court of Human Rights, in the context of alleged violations of Art. 6 of the Criminal Code during the administration of justice by military courts, as well as systematized key approaches developed by the Court, which are proposed to be taken into account when restoring the system of military courts in Ukraine. In addition, the authors systematized the existing models of military justice in the world, identified correlations that, apparently, led to the rejection of military justice by some countries, provided detailed arguments about the need to restore it in Ukraine, and indicated promising directions for further scientific research in this area.
About Authors
Oksana Kaplina
Dr. Sc. (Law), Professor, Head of the Department of Criminal Procedure, Yaroslav the Wise National Law University, Kharkiv, Ukraine o-kaplina@ukr.net o.v.kaplina@nlu.edu.ua
Corresponding author, responsible for research methodology, writing and supervising. Competing interests: No competing interests were announced. Disclaimer: The author declares that her opinion and views expressed in this manuscript are free of any impact of any organizations, including the Supreme Court, despite the fact that she is serving as a Member of the Consultative Board of the Supreme Court.
Translation: The content of this article was translated with the participation of third parties under the authors’ responsibility.
Funding: The authors received no financial support for the research, authorship, and/or publication of this article. Funding of this publication was provided by authors.
Managing editor – Dr. Olena Terekh. English Editor – Dr. Yuliia Baklazhenko.
Copyright: © 2022 O Kaplina, S Kravtsov, O Leyba. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
Serhii Kravtsov
Cand. of Science of Law (Equiv. Ph.D.), Associate Professor, Associate Professor of the Department of Civil Procedure, Yaroslav the Wise National Law University, Kharkiv, Ukraine kravtsov_serg@ukr.net https://orcid.org/0000-0002-8270-193X
Co-author, responsible for data collection and writing (Use Credit taxonomy).
Competing interests: Although the author serves as one of the managing editors of AJEE, which may cause a potential conflict or the perception of bias, the final decisions for the publication of this note, including the choice of peer reviewers, were handled by the other managing editors and the editorial board members. Disclaimer: The author declares that his opinion and views expressed in this manuscript are free of any impact of any organizations.
Olena Leyba
Cand. of Science of Law (Equiv. Ph.D.), , Assistant of the Department of Criminal Procedure, Yaroslav the Wise National Law University, Kharkiv, Ukraine elena008888@gmail.com https://orcid.org/0000-0001-9416-9357 Co-author, responsible for data collection and writing. Competing interests: No competing interests were announced by the author. Disclaimer: The author declares that her opinion and views expressed in this manuscript are free of any impact of any organizations.
References
- Overchuk S, ‘Military Courts Are a Necessary Component of Military Justice in Ukraine’ (2015) 1 (11) Journal of the National University of Ostroh Academy. Series ‘Law’.
- Andreu-Guzmán F, Fuero militar y derecho internacional : Los tribunales militares y las graves violaciones a los derechos humanos (Comisión Colombiana de Juristas 2003).
- Kyle BJ, Reiter AG, Military Courts, Civil-Military Relations, and the Legal Battle for Democracy: The Politics of Military Justice (Routledge 2021).
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Keywords
- military courts; military justice; judiciary; judicial control; justice; jurisdiction
How to cite it?
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O Kaplina, S Kravtsov, O Leyba ‘Military Justice in Ukraine: Renaissance During Wartime’ 2022 3(15) Access to Justice in Eastern Europe 120-136. DOI: https://doi.org/10.33327/AJEE-18-5.2-n000323
