Ukraine faces a slew of lawsuits after war

There is a war going on right now and many topics seem uncomfortable, out of time. These are the ones that seem like they could work against us and give the enemy reasons to create fakes. But I'll take my chances, because overlooking the important things is the worst of it.

Procedures exist, but they are not being applied

The idea for this article grew out of an isolated case of a military person's rights being violated. Remember when a veteran with amputations of both arms was refused by a bank to reissue his bank card? At that time, many media outlets wrote about this shocking case, and the management of the National Bank even promised to change the identity verification procedures. The NBU's decision is correct, but why only in the fourth year of the war?

Moreover, as lawyer Valeriy Aliyev told Socialportal, Ukraine has long had a procedure for legal certification of the signature of a person who cannot sign documents on his own - this procedure is used by notaries when certifying legal actions. And, after all, this procedure should have been transferred to all agreements long ago, taking into account that, unfortunately, there are more military men with amputations.

He (the military man - ed.) comes with a proxy and says that because he cannot sign, for various reasons, it is this proxy who puts his hand to the signature instead of him," the lawyer explains.

I thought at the time that this seemingly minor inattention of the state to the rights of veterans and military personnel, while there is already an existing procedure in the midst of war, does not look like something exceptional. Indeed, many decisions are made so late that one wonders whether they will make sense when it comes to the case

Military courts: destroyed for 9 years and 12 years were not enough to rebuild them

For example, this is the case with the establishment of a military court system in Ukraine - a topic that has been raised throughout Russia's full-scale invasion.

The society expects law and order both in civilian life and in the army. To ensure it, the Ukrainian Armed Forces should have military courts, a military prosecutor's office and military police. I often hear this idea from the military. However, there are no military justice bodies in Ukraine. There are no military courts and military judges in Ukraine to hear military cases. There is not a single country in the world that would not have military courts in the presence of war, military conflict and in the conditions of hostilities. There are no such countries at all in the history of the world," says judge of the Grand Chamber of the Supreme Court Oleh Tkachuk.

Moreover, Stanislav Kravchenko, chairman of the Supreme Court, admitted a year ago that even at the beginning of Russia's full-scale invasion of Ukraine, the military themselves raised the issue of the need to restore military justice - starting with investigations, a special military prosecutor, and ending with military courts and military lawyers - and they should be listened to.

Several bills on the restoration of military courts have already been registered in parliament, but even if they are passed, it will take time to establish a system of such proceedings. How long? Here we face another paradox: military courts were liquidated from 2001 to 2010, which is how long the reform, which was probably appropriate in peacetime, lasted. And there was not enough time to restore them.

Now a military man in a combat position cannot assert his rights in an ordinary court, because he cannot leave his position. Oleg Tkachuk says that military courts would instead administer justice "as close to the front line as possible, and if necessary, directly in military units".

But there is scepticism about whether they will be set up at all: 12 years of war have not been enough to create a new system of military justice.

The military ombudsman will be able to react quickly if a serviceman's life is threatened

It is worth noting positive factors in the issue of protecting the rights of the military. on 27 January, the Office of the Military Ombudsman started its work in Ukraine. This structure, which will have up to 150 employees, will be staffed by veterans with experience and understanding of the need to protect the rights of active servicemen.

The next step is the adoption of a law that will provide for administrative liability for failure to fulfil the legal requirements of the military ombudsman. We realise the responsibility entrusted to the institution and the attention to our work," said Military Ombudsman Olga Reshetilova.

In case of a threat to life, the military ombudsman will consider a complaint within three days. Previously, the military ombudsman had limited opportunities - he considered only appeals, not complaints.

And yet, let's be frank, the powers of the Ombudsman's Office are limited to reviewing complaints and inspections in military units. To put it conventionally, if a court can decide on the guilt of a person with legal consequences - acquittal or conviction, the Ombudsman cannot have such powers by definition. He or she merely reacts to the situation and appeals to the heads of government bodies, military authorities and commanders of military formations.

As for the protection of their rights, today a military man can appeal to the ombudsman, the military prosecutor's office and the court, says lawyer Alla Otrokh.

The Defence Ministry's Central Department for the Protection of Servicemen's Rights considers individual and collective appeals of military personnel and their families and provides primary legal assistance, the ministry assures.

Another sign of the weakness of the legal system of defence of the military is the prosecutor's office. Here, however, there were some positive aspects. After Russia's annexation of Crimea and the outbreak of war in Donetsk and Lugansk regions in August 2014, the institution of military prosecutor's offices was restored by the relevant Law of Ukraine precisely because of Russia's military aggression. Interestingly, on the website of the military prosecutor's office, links to further developments with structural changes simply lead to a blank page. Probably by accident. Nevertheless, on 19 September 2019, the Verkhovna Rada voted to abolish the institution of the military prosecutor's office - it was a legislative initiative of President Vladimir Zelensky.

And already now the twice-restored military prosecutor's office - now called the Specialised Prosecutor's Office for Defence - acts by order of the Prosecutor General as a department of the OGPU. That is, its status is quite different (indeed, it takes a minimum of effort to cancel or change an order).

In times of war, the lack of clear procedures and real protection of both the persons liable for military duty, active military personnel, and the leadership of military formations and bodies engaged in mobilisation, makes the whole system similar to the deliberate formation of an oasis of disenfranchisement - the rights seem to exist, but there is trouble with their implementation.

After being wounded, a military man I know was assigned to the TCC. But he did not last long there, because the lack of rules - who and how to mobilise, the bad attitude of society, the lack of clearly defined procedures did not add confidence in his actions: he wrote a report and returned to the front. What does this subjective story confirm? It only looks logical in the midst of chaos.

Where to look for witnesses after the war?

There is such a disgusting stamp: "the war will write it all off". And that creates room for both abuse and appeals, at least in the future. Yes, I realise that it also creates space for fakes, but the facts remain.

Lawyer Valery Aliyev, among others, has experience in helping families of missing military personnel. Based on practice, he says, it is important with what wording to make requests to the command of military units, international organisations and state bodies in order to speed up the search. Families, along with lawyers and human rights activists, believe to the last minute that the soldier will be found alive.

There is a certificate from the military unit, a report of missing persons. How do we work? We send lawyer's requests to all instances - to the Ministry of Defence, military unit, TCC, organisations that deal with prisoners. We collect information, at that time the documents of the military unit are formed, the military unit sends all this, adds and formalises it. Sometimes there have been problems - they answer late or don't answer for a long time, but in general these issues are resolved," the lawyer says.

However, there are stories that make you think.

Valery Aliyev told how he studied documents from a military unit and saw a discrepancy: a military man was tasked to get to a position, to which he had to walk 2 kilometres, he could be sent only after sunset because of the danger of drones. And according to the certificate, he went to the position at 16:55.

To me, as a person with experience, this shows that first the man was sent to the position, and then they adjusted the situation to the fact that he was sent exactly when the sun was beginning to set - minute by minute. And the man was in the war for only the fifth day," the lawyer said.

At the same time, he specifies that these are only his suspicions, as there are no facts. Moreover, the certificate is accompanied by two testimonies of witnesses - soldiers.

I ask, can this story be continued in court?

The lawyer does not rule out that after the war the family of the soldier will want to know the truth, find these witnesses and defend the rights of their relative. At the same time, no one knows whether it will be possible to defend these rights after the war, whether then, after the war, it will be possible to collect facts and find witnesses. It would be easier to defend the rights of the military and their families now, without waiting for the end of the war.

We can assume that after the war there will be a certain number of such stories. They will be spun, twisted. I don't rule out that the relatives of that soldier will want to find those witnesses, ask them how it was, and then everything will depend on what they say. They may say: no, it was like that. Or they may say, no, it wasn't like that. That is, if the relatives seek justice, there will be many court requests," the lawyer states.

Could the request for justice and protection of the rights of the military and their families be satisfied if there was a clear system of military justice in the warring Ukraine with the possibility of testifying in court of the active military at the front?

It's hard to say. But responsibility would be increased.