ON COURTS MARTIAL OF THE RUSSIAN FEDERATION
Shackley F. Raffetto
A.
Basic Jurisdiction: The statutory scheme set forth in the law for courts martial in
the RF is quite different and much broader than in the US. In the US, the jurisdiction of
courts martial extends only to criminal cases. The law states that in the RF, jurisdiction
includes civil, administrative and criminal types of cases. In the US, civil and
administrative issues of service members would be addressed first by various
administrative bodies and agencies, with final recourse to the Federal Courts (civilian).
Military courts would not have jurisdiction at any level.
B.
Legal Status of Military Judges: There appears to be a lack of clarity as to the
legal status of military judges in the RF. There is no mention of military courts, the
Military Chamber of the Supreme Court, or military judges in the RF Constitution. The
law declares that military courts are in fact Federal courts of the RF. Article 11 of the law
provides that the Chairman of the Military Chamber of the Supreme Court is the Deputy
Chairman of the Supreme Court. The Chairman of the Military Chamber is a serving
member of the armed forces and holds the rank of Colonel General of Justice. In the
absence of the Chairman of the Supreme Court, it is assumed the Deputy Chairman
would take his place and that would result in a serving military officer presiding over the
Supreme Court of the RF. It is suggested that this would be inconsistent with
fundamental democratic concepts of civilian control of the military.
C.
Appointment and Tenure of Military Judges: Article 128 of the Constitution
provides that the President shall appoint all Federal judges, except those of the
Constitutional Court, Supreme Court and Higher Arbitration Court. The number of Court
Martial Judges is to be determined by the Supreme Court (in an unspecified manner),
according to Article 1 of the law, declares that Courts Martial are Federal Courts of
common jurisdiction. Article 121 of the Constitution provides that ‘judges shall be
irremovable’. This would seem to apply to military judges if they are Federal Judges and
that their tenure is life long. Yet, Article 26 of the law provides that Military Judges shall
be serving military officers (Article 27) who may only serve in the military until age 65,
and then only if their tenure is extended to that age by the Chairman of the Supreme
Court. This seems inconsistent with the Constitutional provisions for judges of Federal
Courts and the power of the President to appoint judges.
D.
Constitutional Court. There is no mention in the law of the right of a military
member to recourse to the Constitutional Court of the RF.
E.
Individual Rights of Accused Service Members: While there is mention, in several
places in the law of jury trials or people’s assessors, judge panels or various chambers
for the determination of cases, none of the laws included in this collection of laws makes
provision for when and under what circumstances these various modes of determining
cases shall be utilized. Also, none of these laws provide for the rights of military
members (e.g., right to demand trial by jury, manner in which jurors are selected,
allocation of burden of proof, right to speedy trial, etc.) who are accused of committing a
crime or other misconduct. There are many individual rights set forth and guaranteed in
Chapter Two of the RF Constitution for citizens of the RF, however, since the criminal
procedural and other rights of military members may be curtailed or differentiated
somewhat it would seem helpful that they be separately stated in the laws governing
military members. In the US, the individual rights of military members are separately
stated in the laws concerning military service, separately from the Constitution. In the
US, there is a Manual for Courts Martial that sets forth in detail precisely the manner of
operation of a court martial, including the rights of military members.