ALI article for Ukrainska Pravda
In the summer, the Verkhovna Rada passed two draft laws on military justice in the first reading. In June, the parliament voted for a draft law on the Military Police (MP), and in July, a draft law on exemption from criminal liability under certain conditions in case of unauthorised abandonment of the unit (UAU) by military personnel.
The establishment of the Military Police was also publicly supported by the Ministry of Defence of Ukraine. The Agency for Legislative Initiatives (ALI) also pointed to this need in a Green Paper we prepared for the VRU Committee on Law Enforcement.
After the commencement of the full-scale Russian invasion, the restoration of a full-fledged military justice system in Ukraine became urgent. Over the past ten years, the number of military personnel has increased from 166,000 in 2013 to 880,000 people in February 2024.
In addition, the number of offences committed in the armed forces has increased significantly over this period: from 2013 to 2023, it increased by 78 times, and the number of convicted servicepersons increased by 14 times. The legislation also introduced new types of administrative offences, and the number of penalties imposed has increased 6.5 times since 2015.
The new military realities have also increased the need for investigators, prosecutors, judges, and lawyers with the required competence.
What do we have now?
There is currently no military justice system in Ukraine. The law enforcement function in the military sector is performed by several state bodies, depending on their powers: separate units of the SBI, NPU, NABU, SSU, ESB, and others.
Each of these bodies operates separately in the military sector – different cases, depending on the offence, are handled by different law enforcement agencies and with due regard to the differences in their functions.
A special law enforcement unit, the Military Law Enforcement Service (MLES), has been operating within the AFU since 2002. Although the MLES operates within the AFU, it extends a number of its powers by law to military personnel of other units, persons liable for military service, and reservists.
The Green Paper on military justice prepared by the ALI outlines the main shortcomings of the current system:
- the existence of a special law enforcement unit within the AFU leads to the AFU being tasked with law enforcement functions which are inappropriate for them;
- The MLES is subordinate to the military command, is funded by the AFU, and MLES officials are appointed by the military command, which makes the MLES dependent on such a command, which may try to bring it under its control;
- most of MLES’s tasks and functions are not law enforcement by nature but are aimed at supporting the activities of the AFU.
Back in autumn 2021, the Presidential Decree approved the Strategic Defence Bulletin of Ukraine, which included the reform of the MLES into the Military Police, which will be responsible for maintaining law and order in the Ministry of Defence. This process was to be completed by the end of 2025.
What does the new draft law offer?
The draft law 6569-d voted in June is a revised version of draft laws 6569 and 6569-1.
The draft law’s adoption is justified by the fact that the current MLES does not have any powers to date to perform operational and investigative measures and bring perpetrators to legal liability, and it is limited in its ability to assist pre-trial investigation bodies and prosecutors.
In addition, it is necessary to bridge the existing gaps in the legislation, which, given the specific structure of the AFU and other military units in Ukraine, indicate the need for a comprehensive system of military justice in the country.
Among the arguments of the draft law are the inefficiency and slowness of the investigation into numerous military offences and the fact that SBI investigators do not fully ensure the fulfilment of their tasks due to limited powers and imperfect legislation.
In addition, the workload of the SBI has increased many times since 2022. For example, 85.5% of the registered criminal proceedings against military personnel in 2023 were concerned with violations of the rules of service, which obviously affected the quality and speed of solving crimes.
The draft law proposes to create a new military unit with law enforcement functions, namely the Military Police. Its task should be to ensure law and order and military discipline in the Ministry of Defence of Ukraine, the AFU and the State Special Transport Service.
One of the significant changes envisaged by the draft law is that Military Police officers will be empowered to carry out operational and search activities and, in some cases, even to conduct investigative (search) and covert investigative (search) actions. Previously, the MLES only assisted special agencies in performing such activities.
The newly created body will be financed by redistributing costs in the state budget spending and expenditures on those bodies whose functions will be partially taken over by the Military Police. According to the document text, the Cabinet of Ministers of Ukraine will coordinate the work of the Military Police through the Minister of Defence, while during martial law, the AFU Commander-in-Chief will provide overall leadership and coordination.
The Military Police is to be formed from active servicepersons of the AFU. According to the draft law, the total number of its members may not exceed 1.5% of the total number of the AFU.
What can be the problems?
Draft law No. 6569-d, adopted in the first reading, is an important step towards addressing the challenges faced by military justice in Ukraine.
Moreover, it is positive that parliamentarians adopted a revised draft law in the first reading rather than the documents registered shortly before the start of the full-scale invasion. Moreover, unlike previous legislative initiatives, MPs abandoned the idea of giving the Military Police financial control over the AFU and other military units this time.
Nevertheless, before introducing changes to the legislation, it is worth considering the risks that may accompany the process. Establishing a new institution always requires additional financial, material and organisational resources, which is difficult in times of war.
In terms of financing, the draft law initiators emphasise that its implementation will not require additional budgetary expenditures and can be accomplished by reforming the MLES and reducing the burden on other law enforcement agencies. However, it is difficult to agree (or disagree) with this without the calculations at hand.
There are doubts that the Military Police will start performing its tasks immediately after its establishment, given the lack of staffing and the lack of sufficient knowledge and skills of its officers in terms of operational and search activities and other tasks.
It is debatable that the independence of the Military Police in terms of its law enforcement functions is not directly defined as a principle of its activity.
The Military Police is also somewhat dependent on the decisions of the Minister of Defence or the AFU Commander-in-Chief, including in terms of financing its activities. The Central Scientific Experts Office of the Secretariat of the Verkhovna Rada of Ukraine also commented in this regard in its opinion.
Independent military justice bodies should support Ukraine and its Armed Forces’ declared goal of moving towards NATO membership and implementing NATO standards in practice.
The draft law provides for the coordination of the Military Police by the Cabinet of Ministers, which does not meet the standards of NATO member states where these bodies operate within the defence ministries.
On the other hand, the wording of the law as made public may lead to the risk of interference by the Military Police as a military unit in the activities of the executive body, which is the Ministry of Defence, as experts of the VRU Secretariat have pointed out. This, although indirectly, contradicts the provision of Article 17(4) of the Constitution of Ukraine, according to which no one can use military units to restrict the rights and freedoms of citizens or to obstruct the activities of the governmental authorities.
One of the most problematic issues that needs to be clarified in preparing the draft law for the second reading is whether and to what extent the pre-trial investigation function should be transferred to the Military Police. Also, the investigation under which articles should be transferred to it and how should it interact with other authorised bodies during such activities?
