4.1. Historical insights for Ukraine

Until 2010, military courts functioned in Ukraine as part of the national judicial system inherited from the Soviet model. Although they operated formally within the framework of general courts and heard cases involving military personnel, their compliance with international standards of independence, fair trial and procedural rights remained poorly understood and were not subject to comprehensive legal assessment. Therefore, the assessment of their activities as successful requires a cautious approach and should be based on modern international criteria of justice. According to Article 19(1) of the Law of Ukraine ‘On the Judiciary of Ukraine’ of 2002, military courts belonged to courts of general jurisdiction and administered justice in the Ukrainian Military Forces and other militarised divisions established by law.Footnote ³⁰ The system of military courts had a three-tier structure: (i) the first instance courts were the garrison courts; (ii) the appellate courts were the regional appellate courts; and (iii) the Military Judicial Panel performed in the Supreme Court of Ukraine.

Military courts considered the following categories of case:

• • criminal proceedings of all crimes committed by officers of the Ukrainian Military Forces, the Border Troops, Security Service of Ukraine and militarised divisions created by the Parliament of Ukraine and the President of Ukraine, and also conscripts during their military training;

• • all criminal cases involving espionage;

• • crimes against the statutory order of service, committed by persons in charge of correctional and labour institutions;

• • cases of crimes committed by certain categories of military personnel defined by the legislation of Ukraine;

• • cases of administrative offences committed by military officers and other service personnel;

• • cases of complaints by military service personnel against illegal actions of military officials and the military administration;

• • claims for the protection of honour and dignity, the parties to which are military personnel or military organisations;

• • other matters related to the protection of the rights and freedoms of military officers and other personnel and other citizens, when the rights and legitimate interests of military units, institutions and organisations are involved.Footnote ³¹

Ukraine abolished military courts following the Decree of the President of Ukraine in 2010.Footnote ³² This decision was based on the view that military courts were expensive, inappropriate for a peaceful state, and violated the principle of judicial independence because of their links to the military command. The Venice Commission welcomed this decision as a departure from the Soviet legal heritage.Footnote ³³ However, the absence of a long-term strategy to preserve military legal expertise or replace these courts with specialised civilian mechanisms has left Ukraine unprepared for large-scale war.

In retrospect, the liquidation seems paradoxical: it took place under President Yanukovych, who later undermined Ukraine’s sovereignty and fled to Russia during the Revolution of Dignity of 2013–14. Against the backdrop of growing Russian aggression, the annexation of Crimea in 2014 and the armed aggression in Donbas, Ukraine faced the consequences of dismantling the military justice infrastructure. Proof of this is the reduction in the number of the Armed Forces of Ukraine, which reached its peak under Yanukovych’s presidency. In 2013, the staffing of the Ukrainian Military Forces was reduced to 166,000. Following the annexation of Crimea and part of Donbas in 2014, the number of officers of the Armed Forces was increased to 250,000 and multiplied to 1,000,000 in 2022 with the outbreak of full-scale aggression.Footnote ³⁴

The liquidation of the military courts was preceded by a lengthy expert discussion, during which ‘convincing’ arguments were put forward regarding the inexpediency of this special branch of the judiciary. It was argued that military courts were too expensive for the small country of Ukraine, which is peaceful and does not intend to start a war. Military judges were perceived as dependent on their military commanders because they had been in military service, performing judicial functions.Footnote ³⁵ The unequal status of military court judges compared with other judges was explained similarly. Even though military courts were organically integrated into the judiciary of Ukraine, experts proved that they violated the principles of its construction. Finally, an important argument for the liquidation of military courts in Ukraine was the trend of their reduction in democratic countries. Opponents of military justice considered the most ‘convincing’ argument against it was its perceived belonging to specific and extraordinary justice, which was prohibited in all European countries after the end of the Second World War to effectively combat tyranny.Footnote ³⁶

Re-establishing military courts in Ukraine should be addressed following democratic principles, international legal standards and national security needs. In this context, appealing to examples of authoritarian states or systems is not admissible. The United States, the United Kingdom and Canada have military jurisdiction. However, this jurisdiction is limited to offences committed by military personnel in connection with their service (for the US, all crimes committed by service members are subject to its military jurisdiction); these systems provide due process and fair trial guarantees. In these countries, military courts do not try civilian claims or international crimes. Moreover, in many Latin American countries, military courts were limited or abolished on the grounds of concerns relating to their accountability and human rights.

Having compared Central and Eastern Europe in terms of military justice, it is possible to affirm that Ukraine’s decision was not in line with regional trends. For example, Poland maintained a separate system of military courts and military prosecutors operating under civilian judicial supervision. These courts retained jurisdiction over all criminal cases involving military personnel on active duty and can be expanded to war crimes during hostilities. Moreover, Croatia, shaped by its own military experience in the 1990s, decided to integrate military justice into the civilian judiciary, but introduced judicial specialisation and appointed judges trained in military law. Meanwhile, Estonia abolished military courts in 2010; however, it strengthened its civilian court system with specialised training for judges and prosecutors in military law, ensuring preparedness for wartime scenarios. These examples highlight the following important points for Ukraine:

• • the abolition of military courts without a reliable institutional replacement undermines legal preparedness for wartime;

• • a hybrid model either through specialised panels in civilian courts or permanent military courts with strict safeguards is typical in the region;

• • maintaining institutional memory and developing legal expertise in peacetime military matters is a key lesson learnt from the experience of neighbours in the region.

Ukraine, therefore, should choose its path based on the rule of law, human rights standards and the European democratic justice model.Footnote ³⁷

With regard to reform of Ukraine’s judicial system, restoring military courts has become especially important during the full-scale aggression of the Russian Federation. On 27 February 2025, the Verkhovna Rada of Ukraine registered Draft Law No. 13048 ‘On Amendments to Certain Legislative Acts of Ukraine on the Restoration of Military Courts’.Footnote ³⁸ According to the explanatory note to this draft law, its adoption arises from the need to conduct proper judicial review of criminal offences committed by military personnel and to ensure guarantees of justice under martial law. The draft law proposes restoring the system of military courts as specialised institutions within the structure of general jurisdiction to increase the efficiency of justice in cases related to military service.

In addition, in 2025 the Verkhovna Rada considered Draft Law No. 10301 ‘On Amendments to the Law of Ukraine “On the Judicial System and Status of Judges” to introduce Specialisation of Judges in Consideration of Military Criminal Offences, Criminal Offences Against Peace, Human Security and International Law and Order’.Footnote ³⁹ This law proposed the introduction of the specialisation of judges in cases of military criminal offences. This approach is intended to strengthen the professional competence of judges in cases involving compliance with the laws and customs of war, crimes against military service, and similar cases. At the same time, an important element of the legislative changes is the restoration of the military police, which is intended to ensure control over discipline and order in the Armed Forces of Ukraine and investigate administrative and disciplinary offences in the military environment.

The proposed legislative initiatives demonstrate the government’s desire to improve the regulation of military justice in wartime. The re-establishment of military courts, the creation of judicial specialisation, and the strengthening of institutional control over law and order in the Armed Forces of Ukraine are all responses to the need for fair, prompt and professional judicial review of cases involving military personnel.

The well-known criminal case of General Nazarov is an illustrative example of how inefficient the courts of general jurisdiction are in considering military crimes. In 2014, General Nazarov served as head of the Anti-Terrorist Operation (ATO) in the East of Ukraine, where active hostilities had already begun. In June 2021, separatists shot down a plane belonging to the Armed Forces of Ukraine over the city of Luhansk, which was not yet occupied, but battles with separatists were taking place near the city. The general was criminally accused of service negligence, which led to the downing of the plane with an anti-aircraft missile and the death of 49 members of its crew. The case was heard in three civilian courts of general jurisdiction because of the absence of specialised military courts in Ukraine from 2014 to 2021. The Supreme Court eventually declared Nazarov to be innocent after two guilty verdicts from the first instance and appellate courts.Footnote ⁴⁰

This case is discussed in the expert community, but it cannot indicate the systemic inefficiency of general jurisdiction courts in military cases. Rather, it reveals certain challenges, such as the excessive length of proceedings, the complexity of legal assessment of military decisions made in combat conditions, and the need to work with classified materials. Before Russia’s full-scale invasion in 2022, Ukrainian society did not hold a consistently high level of trust in the Armed Forces, and the prestige of military service was relatively low.Footnote ⁴¹ Despite the marked increase in trust since the start of hostilities, case law may have influenced the institutional perceptions of military personnel. In jurisdictions where military legal systems are more pronounced, defendants may lack a comprehensive understanding of the particularities of their professional undertakings and the esteem demonstrated by tribunals. Court statistics prove these conclusions. During the period from 2014 to March 2023, 58 indictments were brought before the courts on charges of violating the laws and customs of war, 47 of them (81%) in 2022.Footnote ⁴² Therefore, the real trial of wartime crimes began only after the start of the full-scale aggression, even though the invasion of Eastern Ukraine took place eight years earlier.

Hence, the historical evolution of military justice in Ukraine demonstrates that the dismantling of specialised institutions without preserving capacity and continuity leads to long-term vulnerability. The proposed legislative initiatives, in particular Draft Laws 13048 and 10301, do not simply reflect the wartime response but rather indicate the government’s intention to embark on a broader, long-term structural reform of the judiciary. By aiming to re-establish the military courts as permanent specialised institutions within the general system of courts of general jurisdiction and introduce military specialisation for judges, the aim of these reforms should address the immediate needs of justice during warfare and institutionalise military legal expertise within the national judiciary.

This approach aligns with regional practice in Central and Eastern Europe, where countries such as Poland and Croatia integrated military jurisdiction into the civilian judicial systems either through parallel structures or integrated specialisation. In this context, Ukraine’s reforms should not be seen as a temporary wartime adjustment, but rather as a step towards building a sustainable military justice system capable of functioning in both wartime and peacetime. Therefore, future reforms should be based not only on Western models but also on regional experiences rooted in similar legal cultures and security concerns.

4.2. Comparative legal overview

The European Court of Human Rights (ECtHR) does not assess the general legitimacy of military courts as state institutions. Instead, it assesses on a case-by-case basis whether the activities of such courts comply with the requirements of Article 6 of the ECHR concerning the right to a fair, independent and impartial trial. In particular, in the case of Findlay v United Kingdom Footnote ⁴³ the Court found a violation of the right to a fair trial resulting from the excessive influence of the executive branch on the composition of the military court. In Cooper v United Kingdom Footnote ⁴⁴ and Grieves v United Kingdom Footnote ⁴⁵ the Court found a lack of due process guarantees with regard to the participation of commanders in disciplinary proceedings. These cases led to significant reforms in the UK military justice system. Thus, the Court’s position is not directly contradictory; however, it creates uncertainty as to the permissible limits of the jurisdiction of military courts, especially in peacetime or situations involving civilians. At the same time, the general logic of the ECtHR case law is that military courts can comply with the Convention only if they offer the same procedural guarantees as courts of general jurisdiction.

Based on its case law, the ECtHR developed a set of indicators used to assess whether a military court meets the standards of the Convention. Such criteria include (i) the procedure for appointing judges of military courts; (ii) the terms of stay of military judges in their posts; (iii) instruments to ensure the discipline of military judges; (iv) the availability of effective guarantees against external pressure on military courts; (v) the demonstrated features of the independence and impartiality of such judges.Footnote ⁴⁶

The EU Member States strive to achieve these standards and implement them in their systems.Footnote ⁴⁷ Most of the constitutions of European countries prohibit the creation of extraordinary ad hoc tribunals to consider court cases without observing the guarantees of a fair public trial enshrined in the judicial precedents of the ECtHR. In its memorandum ‘Justice in Military Courts’, the Steering Committee for Human Rights of the Council of Europe noted that, in many Member States, it has been a long-standing tradition for the function of courts that are fully or partially staffed by military personnel to deliver justice over members of the military forces. The ECtHR has clarified that a military court could, in principle, be an ‘independent and impartial court’ for the purposes of Article 6(1) of the ECHR.Footnote ⁴⁸

Researchers claim that in Europe war is understood to be an exception to the norm of peace, a situation for which the normal mechanisms of law and justice are not prepared to work.Footnote ⁴⁹ Special military tribunals can be established in times of emergency, armed conflicts or martial law. In many countries, military courts are part of the judicial system, but they are not courts of law as they have limited special jurisdiction, covering only criminal offences committed by military personnel. According to Overchuk,Footnote ⁵⁰ military courts can be compatible with international standards only if their activities are limited and they meet the requirements of independence, impartiality and fair trial. The structure, composition and procedural guarantees of military courts vary considerably from jurisdiction to jurisdiction. In some countries judges are commissioned officers, while in others they are civilian lawyers temporarily assigned to a military court. This diversity results from differences in the constitutional tradition, the model of civil–military relations, and the legal culture of the states.

There are 13 states in Europe in which military courts have been operating: Great Britain, Belgium, Bulgaria, Greece, Spain, Italy, Cyprus, Luxembourg, the Netherlands, Poland, Portugal, Türkiye, Hungary. Although the French Republic abolished military tribunals in the 1980s, it soon restored their functioning (albeit in a limited form).Footnote ⁵¹ Models of military justice in European countries vary significantly as a result of historical factors and the specifics of the relevant constitutional system. In general, the following three main approaches can be distinguished:

1. Military courts that function permanently in both peacetime and wartime (such as Great Britain, Spain, Italy, Slovakia, Ukraine until 2010).Footnote ⁵²

An example can be found in the case of Morris v United Kingdom, which influenced the structure of military justice in the UK.Footnote ⁵³ This was a key decision of the ECtHR, which recognised violations of principles of fair trial in military tribunals. The plaintiff, who had fled from the army because of bullying by senior officers, was convicted by a tribunal in which most of the judges were military officers with no legal education and were dependent on the army hierarchy. The ECtHR ruled that such a court did not meet the requirements of independence and impartiality (Article 6 of the ECHR). Following this decision, the UK authorities made major changes to the military justice system to ensure that it complied with the standards of the Convention. The Armed Forces Act 2006 formed the basis of these reforms, which completely overhauled the old system of military tribunals. Cases are now heard by the Court Martial, with the participation of professional judges appointed by an independent panel of the Judge Advocate General. This eliminated the influence of the command on court decisions as previously the tribunals were composed of officers who were subordinate to the army hierarchy. Moreover, the right of appeal to the civilian Martial Appeal Court was introduced, which guarantees a re-examination of cases by independent judges. In addition, the changes emphasised the need to uphold the rule of law even in the military, including in cases of desertion or disciplinary offences. These reforms showed how international decisions could evoke reforms to protect the rights of military personnel.

2. Military courts of hybrid jurisdiction that function within the system of courts of general jurisdiction and include both military and civilian judges (such as the Netherlands, Hungary, Belgium, Croatia). Footnote ⁵⁴

This type of court consists of specialised divisions (chambers, panels) that consider and decide military cases and operate permanently in courts of general jurisdiction. The definite advantage of this model of military justice is the continuity of its functioning and the high level of professionalism of the court composition, which is achieved by involving representatives of the military forces. The functional independence of the court must be preserved. According to the legal position of the ECtHR, if outside observers and the accused have no faith in the independence of military judges, who are officers of military forces and must carry out the orders of commanders, then such a court cannot be considered impartial.Footnote ⁵⁵

Among European countries with a hybrid military justice system, where military courts operate within the general judicial system but include both civilian and military judges, the Danish model is particularly effective. In contrast to systems where military tribunals operate separately, Denmark integrates military justice into the regular judicial system, while ensuring specialised expertise and judicial independence. This system combines the professional knowledge of civilian judges with specialised military expertise while avoiding conflicts of interest. The Danish model is fully compliant with ECHR standards regarding the need for military judges to be independent of command influence. In contrast to Türkiye, where judges were effectively dependent on the army hierarchy, the Danish system ensures that military judges are not perceived as a tool of the armed forces. In addition, the transparency of the process and the existence of a full right of appeal increase the credibility of the system. Although countries such as the Netherlands and Belgium also use hybrid models, Denmark demonstrates the most balanced approach. In Belgium, for example, military courts operate under civilian courts, but their independence is sometimes questioned because of the possible influence of the military command. In Denmark, this problem is resolved by a clear separation between judicial and command functions.Footnote ⁵⁶

The Danish system avoids potential conflicts of interest by ensuring a clear institutional and functional separation between command structures and judicial proceedings. Judges are appointed and cases are assigned by an independent judiciary, rather than the Ministry of Defence. Meanwhile, cases of a military nature are subject to the same appeal procedures as civilian cases. This structure ensures that parties have access to the full right of appeal and that military justice is administered in accordance with the procedural safeguards of the general judicial system. In addition, Danish legislation emphasises transparency through public hearings, publication of decisions and ministerial oversight mechanisms, which increases accountability and public trust.

(3) Military courts that operate only in wartime and on the territory of military bases abroad (such as France, Germany, Portugal, the Czech Republic). Footnote ⁵⁷

In Finland, for instance,Footnote ⁵⁸

In France, the military tribunals function exclusively during the martial period. There are ‘two types of courts that operate once the time of war has been declared: Territorial Military Courts of Justice of the Armed Forces and the High Court of Armed Forces’.Footnote ⁵⁹ During the martial period no other courts except for the military are authorised to hear cases involving military officers or other service personnel.

In the Ukrainian context, full-scale armed aggression increases the burden on the law enforcement and judicial systems in terms of investigating and reviewing war crimes, crimes against military service, violations of discipline and other offences in the Armed Forces. At the same time, as a result of the absence of military courts since 2010, civilian courts consider cases related to military service without the appropriate professional training. The Ukrainian experience demonstrated the fallacy of the dissolution of the military courts, as evidenced by the overburdening of the conventional judicial system in 2022 with a substantial number of cases involving military affairs. Following the outbreak of the full-scale war in 2022, Ukraine’s judicial system witnessed a considerable increase in its workload, attributable largely to a substantial surge in cases involving war crimes and crimes of aggression.Footnote ⁶⁰

According to the Supreme Court of Ukraine, in 2022 the courts of first instance received about 1,300 criminal proceedings for high treason, more than 1,800 for collaboration, and 850 for justifying Russia’s armed aggression against Ukraine. According to the Office of the Prosecutor General, as at 11 December 2023, more than 115,894 such cases were registered. In addition, 6,532 servicemen were convicted in 2024 of various criminal offences, which is 22.3% more than in the previous year.Footnote ⁶¹ This data indicates a significant increase in the workload of the Ukrainian judicial system in cases related to war crimes, which emphasises the need to adapt judicial mechanisms to the new challenges of wartime.

While the ECtHR has considered several cases concerning military courts in Ukraine (such as Mikhno v Ukraine Footnote ⁶² and Atamaniuk and Others v Ukraine Footnote ⁶³) the decisions have been context-specific and have not confirmed systemic compliance or violations. However, in the case of Miroshnyk v Ukraine,Footnote ⁶⁴ the Court established clearly that the Military Court of Appeal did not meet the standards of independence and impartiality set out in Article 6 of the Convention. The case concerned a military officer who challenged the objectivity of his trial on the ground of the close institutional and hierarchical links between the judges and the military command. The Court noted that military judges had not demonstrated sufficient institutional independence and identified a structural flaw in the Ukrainian military justice system at the time. Therefore, while the ECtHR does not prohibit the existence of military courts, it has consistently held that any military justice mechanism must offer the same level of procedural guarantees as in civilian courts. These include independence from military command, impartiality and full access to appeal. Hence, future reforms in Ukraine should be carefully designed to meet these conditions, ensure compliance with international standards, and build confidence in the justice system for military personnel and wartime crimes.

4.3. Perspective for Ukraine

The armed aggression of the Russian Federation against Ukraine has created unprecedented challenges for the functioning of the national judicial system. The destruction of infrastructure, the temporary occupation of some territories, risks to the lives of judges and litigants, and the growing number of cases related to war crimes and collaboration have stipulated a review of approaches to the administration of justice in times of war. In this context, the question arises as to whether it is advisable to restore military courts as one of the possible solutions to ensure specialised, effective and fair consideration of cases arising from the armed conflict.