Military Advocacy: Pro Et Contra

Abstract

Abstract. This article examines theoretical and practical issues surrounding the establishment of military advocacy in Ukraine in the context of russian armed aggression. Using general scientific and special scientific methods, the article analyses the legal nature of the military advocacy, the legal prerequisites and prospects for its development, and determines its role and place in the national system of military justice. It highlights the historical and legal aspects of the development of military courts, the military prosecutor's office and the military police during the period of Ukraine's independent development. The work drew attention to the internal contradictions of military justice, whose representatives, on the one hand, have a deep knowledge and understanding of the specifics of military service and are geographically closer to the places where criminal offences are committed and where participants in criminal proceedings are stationed. At the same time, their limited ability to function independently and impartially in a hierarchical military community dominated by a command-and-control culture was noted. It was argued that Ukraine currently lacks a coherent model of military justice, the structure of which is characterised by inconsistency and fragmentation, a multiplicity of actors and confusion over their powers. It was emphasised that the emergence of military advocacy in the context of the russian-ukrainian war was mainly a reflection of objective processes, in particular a significant increase in the number of domestic military formations after the full-scale invasion of the russian federation in 2022, a sharp increase in the number of military criminal offences in their ranks, as well as war crimes committed by the occupiers, the expansion of the client base and the reorientation of its legal needs, etc. It was argued that military advocates and leading representatives of military justice from the state (judges, prosecutors) should not have the status of military personnel. It was concluded that the specialisation of advocates in providing legal assistance on military issues is appropriate, but military personnel, conscripts and other potential clients of military advocates should receive additional guarantees of protection against the improper performance of their obligations by such lawyers. Based on a study of the experience of Germany, France and other countries, it was determined that it is necessary to apply a standardised approach that has been tested in countries with stable democracies, which provides for clear legal regulation of the procedure for identifying an advocate as a specialist.

Keywords: military advocacy; specialisation; indictment; military court; professional ethics; prosecutor; military police.