Civil trials for military personnel: balancing ethics and feasibility.

It existed. But it was abolished

“When a civil lawyer deals with military issues, it’s akin to a therapist performing a surgical operation. They are both doctors, but not of the same specialization,” says Vladlen Neklyudov, a member of the parliamentary Committee on Law Enforcement Activities. According to Ivan Mishchenko, a judge of the Supreme Court of Ukraine and former platoon commander of the 93rd Brigade, involving civilian lawyers in military matters has its advantages and disadvantages.

“The primary advantage is that civilian judges are somewhat distanced from the military hierarchy. Such a judge does not hold any reverence for a general’s rank; for them, a general is just as much an offender as anyone else.”

“However, when it comes to establishing military courts, it’s possible that a judge with the rank of lieutenant may experience psychological discomfort when addressing offenses committed by high-ranking officers. But the downside of a civilian court is the lack of specific experience in managing military units and knowledge of military specifics, especially during combat operations. This context may elude a civilian lawyer.”Ivan Mishchenko, Judge of the Supreme Court of Ukraine

But why are civilian lawyers handling military matters when independent Ukraine inherited both a military prosecutor's office and military courts from the USSR? The fact is that in September 2010, military courts in Ukraine were abolished.

“At that time, the army was being reduced, and the proportion of offenses committed specifically by military personnel was consistently decreasing. Judges primarily heard cases related to minor crimes — for example, a soldier selling a weapon or getting into a fight while drunk. It was decided that civilian courts and civilian prosecutors could adequately handle such cases,” explains Ivan Mishchenko.

Back then, the possibility of Russian aggression was not considered. However, the Military Prosecutor's Office, which was a structural unit of the General Prosecutor's Office, was abolished in September 2019 — five and a half years after the start of the Anti-Terrorist Operation (ATO).

“Russian aggression has been ongoing for almost 11 years now, and we are currently facing a full-scale war. However, it seems that no one realized the scale of the hostilities or that they would drag on for so long, nor the potential number of offenses committed by military personnel. Today, the need for a military justice system is evident,” notes Maxim Gryshchuk, deputy commander of the 11th Separate Special Purpose Battalion of the 112th Brigade of Territorial Defense, and in civilian life, the first deputy head of the Specialized Anti-Corruption Prosecutor's Office of Ukraine.

Which cases should be handed over to military lawyers?

There are two possible options. The first: military justice handles all offenses committed by military personnel — from shoplifting to poorly organized defense of a locality. The second: military lawyers will only deal with cases concerning the combat readiness of units and the direct conduct of military operations.

“Currently, military cases are being investigated by specialists from four law enforcement agencies. For example, if a general commits theft, the police will handle that offense. If he commits treason, the Security Service of Ukraine (SBU) will take an interest. If he is accused of improper performance of official duties, the State Bureau of Investigations (DBR) will be involved. If a general accepts a bribe, it falls under the jurisdiction of the National Anti-Corruption Bureau (NABU). Yet, we are talking about the same military personnel. In my opinion, crimes committed in everyday contexts could be handled by civilian courts, while the civilian prosecutor's office and police could deal with those involved.”

“Crimes that require specific military knowledge and expertise, particularly regarding the actions or inactions of military command, should definitely be referred to military lawyers for consideration.”Maxim Gryshchuk, first deputy head of the Specialized Anti-Corruption Prosecutor's Office of Ukraine

Ivan Mishchenko refers to criminal cases concerning the defense capability of the country as higher mathematics. After all, lawyers must have a deep understanding of both the Criminal Code and military statutes. Therefore, he believes that the investigation of such cases and their judicial proceedings should be assigned to military lawyers.

According to Maxim Gryshchuk, the highest number of criminal cases under the articles provided in Section 19 of the Criminal Code of Ukraine is currently being opened against military personnel who left their positions — last year the DBR registered 19,000 such cases. Gryshchuk believes that these cases should not be referred to military courts.

Ivan Mishchenko shares the same opinion — in issues related to leaving one's position, any experienced “civilian” judge can typically handle the matter. However, Mishchenko notes that the reasons for leaving must be considered. If it occurred due to deficiencies or offenses by command, such cases should be referred to military courts.

Specialized but not military

Currently, there is no discussion of military courts and military judges in Ukraine. In January 2025, the Verkhovna Rada adopted a draft law which, among other things, provides for the specialization of judges in handling military criminal offenses.

“This means that judges from local and appellate general courts will elect judges specializing in military criminal offenses during their assembly. They will be elected for a term of five years. At the same time, the elected judges will not be exempt from handling civil cases — the number of such cases will simply be proportionally reduced,” comments Vladlen Neklyudov on the draft law.

It should be noted that prior to the abolition of military courts in 2010, the Military Chamber operated within the Supreme Court of Ukraine. Currently, the draft law does not provide for the introduction of military specialization within the Supreme Court of Ukraine. Supreme Court Judge Ivan Mishchenko describes the draft law as not perfect but realistic.

“Essentially, it means that we do not have the time, money, or ability to build a military justice system from scratch. It is very complex and very expensive. Therefore, we are working with the situation, selecting judges who are ready for military specialization and willing to delve into this topic.”

“These could be individuals with military service experience. How competent they will be? It seems to me that no matter how much our judicial system is criticized, it is still capable of meeting such a challenge. So far, I have not heard any serious complaints about the quality of judicial proceedings in military cases.”Ivan Mishchenko, Judge of the Supreme Court of Ukraine

Mishchenko explains the difference between a specialized judge and a military judge as follows: “Military judges possess the relevant military and legal competencies, military ranks, and are directly integrated into the army, having military service experience. Specialized judges first familiarize themselves with the Criminal Code and then with military statutes.”

While the draft law on the military specialization of judges is only being prepared now, the creation of specialized prosecutors in the defense sector was anticipated back in the 2019 law that abolished military prosecutors. We spoke with a person who served 26 years in the military prosecutor's office and now works in a specialized one about the shortcomings in the work of specialized prosecutors.

“Employees of the specialized prosecutor's office do not have military status,” says Oleg (name changed). “This indicates their inadequate military-professional training to make the right decision regarding the classification of a crime. In combat conditions, no one will allow such a prosecutor to the front line to resolve issues related to a criminal case. This affects the timeliness of proceedings. Military offenses need to be addressed very quickly because military personnel may die or go missing before they can provide testimony.”

Thus, judges and prosecutors, even in the status of specialists, cannot operate in combat zones, particularly on the front lines, because they are not military personnel. However, even in such a safe working environment, there may be issues with staffing the appropriate personnel.

“The highest number of offenses committed by military personnel occurs in frontline areas. I know that there is currently a significant shortage of staff in specialized prosecutor's offices in frontline regions; no one wants to work in local courts, and everyone is trying to transfer to rear areas. Therefore, it is clear that under such conditions, it will be difficult to conduct a competition. Most likely, these positions will be filled by forced appointment — whether you like it or not, you must serve. The question is how effective this will be.”Maxim Gryshchuk, first deputy head of the Specialized Anti-Corruption Prosecutor's Office of Ukraine

Police to zero

However, those who will be required to constantly be in combat zones and settle in at the front lines will be military police officers. The Verkhovna Rada is currently working on a corresponding draft law. According to MP Vladlen Neklyudov, the need for military police arose because it is essential to ensure prompt