A conference on the ‘Protection of constitutional rights of servicemen: international and national experience
The Ministry of Defense of Ukraine and the International society for human rights on 20 – 21 June held in Kyiv the international conference ‘Protection of constitutional rights of servicemen: international and national experience. Many well-known international and foreign experts took part in this conference: the main military inspector of Switzerland Dieter Weber, the main military judge of the US appellation court Eugene Sullivan, the main military judge of the Great Britain James Rung and many other outstanding barristers.
The central apparatus of the Ministry of Defense of Ukraine was represented by the general-lieutenant of justice V. I. Kravchenko, the Supreme Rada was represented by an expert from the research directorate O. P. Petrichenko. The conference considered the questions on the legal provision of constitutional rights of servicemen, the role of military prosecutors and judges in the practical protection of these rights. International experts told how these rights are protected in Switzerland, the USA and the UK.
The participants of the conference learned that in Switzerland the military service consists of 15 weeks of training, followed by two weeks of training each year. They have the same problems as in Ukraine: dodging the service and some kind of dedovshchina. They have military prosecutors offices and courts that consider all crimes that are committed by servicemen. But disciplinary punishments is the prerogative of commanders of military units. Switzerland has a military code that considers military crimes, but essentially civil crimes (crimes against ones family, bankruptcy, etc.) are considered in civil criminal code, not in a military one. Since 1980 the unique system of military court has been introduced in the country. A case against serviceman is started by the commander of the military unit. It happens that the commander refuses to start the procedure of accusation, then the procedure may be started by the military prosecutor. Since 1991 they have a law about alternative service determined by personal beliefs. There exists a military appellation code. They have in Switzerland units of military police, which is staffed with policemen who pass their military service. A military policemen (as well as a civil one) have the right to detain a person for 12 hours. To keep a suspect longer they must have the decision of the court.
In 1999 military courts of Switzerland considered about 1450 cases. The most common (70%) accusation is dodging military service. In Switzerland they have 14 military courts of the first instance and 3 appellation courts.
The main military judge of the Great Britain James Rung said: ‘If you have an army, you will certainly have problems with the servicemens rights. A military may not have the same volume of rights as a civilian. Ten years passed since the Great Britain started to call to the army only volunteers. They have military police, military prosecutors office, military courts, field court martials. Insignificant felonies are punished by military commanders. As such a punishment a commander may use a detainment up to 28 days, and, in especially dangerous cases, up to 60 days. But a serviceman in this case has a right to complain to a court that may cancel or diminish the punishment. A commander may punish a serviceman only for his military offences. Such offences as theft, brawls, drug-taking and alike committed by servicemen must be considered by military courts. Judges of military courts are military, but the control over the military courts is done by civilians. The court sessions are open. One of the most frequently used punishments is a money fine that is paid by a serviceman from his wages. Servicemen who suffered from their variant of dedovshchina have to turn to the military court or to military police; both of them are independent of the commander of the unit. The military police have the right to arrest people and carry out investigation.
Eugene Sullivans report was also informative and interesting. He said that American servicemen are limited in their rights compared to the civilian population. By his assessment, they have about 90% of the rights. For example, what concerns the freedom of transportation, am American officer has not the right to go for his vacation to the North Korea, Iraq and Cuba. About the military legislation one can use the words of a well-known American advocate Beily: If you are not guilty, then you should go to a military court, where you will be able to prove your innocence easily. But if you have committed a crime, then go to a civil court, since there, with the aid of a good advocate you will go dry from the water. The military court procedure is like that in a civil court. The differences are few, for example, in a civil court the jury counts 12 persons, whereas in a military court only 5 – 10. Usually the reason is that in the places of dislocation, especially overseas, it is difficult to find the proper number of jurors. The speaker pointed out that the Ukrainian legislation demands an ideal person to become a prosecutor. The armed forces of the USA have military police (about 30 thousand).
V. V. Bondarev, a judge of the military collegium of the Supreme Court of Ukraine, told that Ukraine has 28 military courts with the rights of district courts and four courts with the rights of the oblast ones. These courts consider the cases of the same kind as foreign ones plus some cases that are typical for Ukraine — about pay arrears or about promised but not given living accommodation. What concerns Constitutional rights, that is the task of the Supreme Court that considers according to Article 32 of the Constitution the cases of protection of honor and dignity. So, the Supreme Court considered the case of colonel-major Kotsiuba vs. the Ministry of Defense. The former was driven from the army for a road accident in his unit, of which the colonel-major was quite innocent. The colonel-major won the case and was restored in the army. In general Bondarevs report resembled jubilee reports of the Soviet times: our legislation is without drawbacks, our judges are crystal clear and our servicemen are guilty themselves if their rights are abused. It is confirmed by an anonymous questioning of servicemen about dedovshchina. It appeared that 80% of those, who suffered from dedovshchina, never complained.
There were many other interesting materials, especially the draft of the law ‘On creating military police. We hope that soon the materials of the conference will be published and all shall be able to study them.