Minister of Justice Denys Malyuska is recognized as the record holder who has held his post since the time of the first government under the presidency of Volodymyr Zelenskyi. The government has undergone changes, other former members, such as Mykhailo Fedorov and Dmytro Kuleba, now occupy other positions.
In August 2024, it will be five years since Malyuska heads the justice departments, which include international courts, the penitentiary system and registration services. Political experts do not attribute Malyuska to a specific political group, seeing him more as an extravagant official with a specific sense of humor.
In an interview for BBC Ukraine, Malyuska had to answer serious questions about the legality of mass mobilization, the recruitment of convicts into the army, and the legitimacy of President Zelenskyi's powers after May 21.
The BBC asked what the legal significance of Russia's wanted notice for President Zelensky is for Ukraine. Denys Malyuska noted that in addition to Zelenskyi, other high-ranking officials are also included in the search. This means that travel of any kind, be it business or personal, to countries that are not pro-Western or active allies of Ukraine, becomes more risky.
Due to the mechanisms of mutual legal assistance, problems, requests, delays - all these procedural and bureaucratic difficulties can arise. Although the current president, Volodymyr Oleksandrovych, is allowed to travel freely because he has immunity as head of state, this position is not permanent. Therefore, in theory, Russia can cause problems abroad in countries that support it. However, the probability that these requests will reach the Interpol database and receive support is very small.
Even Interpol sometimes lets our compatriots pass, because it is a large bureaucratic structure, - noted Malyuska. This can make or limit travel for those who have been declared wanted. At the same time, the investigation of Zelenskyi by the International Criminal Court is a more serious situation than what Russia has done through its domestic investigations.
The BBC often raises a topic related to the legal aspects of the current president of Ukraine, namely his legitimacy after May 21, when his five-year term ends. Denys Malyuska noted that the president will not lose his legitimacy, as his powers continue until the election of the next one.
However, according to Malyusyka, many provisions of the Constitution are formulated in such a way that they can become the subject of speculation or conspiracy theories. Often they can be used to create noise and panic. For example, some provisions on wartime are imperfectly formulated, which creates certain misunderstandings.
Regarding the issue of declaring a state of war, Malyuska noted that it does not make sense from a legal point of view. Even specialists in international humanitarian law believe that declaring or not declaring a state of war does not affect the fact that Ukraine is in a state of war. This is just a formality that has no legal significance.
The BBC is considering applying to the Constitutional Court to clarify the issue of the president's legitimacy. However, Denys Malyuska refuses such a step, noting that it would go beyond his authority. Taking into account the situation in the country, he believes that it is not appropriate to turn to the Constitutional Court now, as it may lead to negative consequences.
When asked about the legitimacy of the president's decrees and documents from May 21, Malyuska confirms that they remain valid. He notes that the rule on the term of office of the president has never been applied directly and needs interpretation.
In a dialogue with the BBC, Malyuska also expresses her attitude to the possibility of removing some norms from the Constitution. He points out the ambiguities and imperfections in the text of the Constitution that need to be corrected, but believes that it is not possible to do this now, especially in the conditions of war.
Finally, when asked about a lawsuit to the Supreme Court regarding the appointment of presidential elections, Malyuska believes that it has no legal basis, and he sees no prospects for such a decision.
In the first reading, the draft law on the mobilization of convicts was adopted, which was later adopted by the parliament as a whole. Denys Malyuska noted his support for this bill.
In response to a question about the widespread involvement of convicts in combat operations, Malyuska noted that each case requires individual consideration. He believes that it is the Armed Forces that should determine who is suitable for service and who is not.
However, regarding the inclusion of all convicts in the Armed Forces, Malyuska noted that it is necessary to avoid extreme situations. For example, persons who have committed serial murders or are sex maniacs can remain in places of punishment. However, he noted that some convicts, particularly those who committed murders at a young age and served long sentences, may have a different psychological state than at the time of the crime and may be considered for inclusion in the Armed Forces.
At the first stage, the bill on the mobilization of convicts was approved in the first reading, and then by the parliament as a whole. Denys Malyuska supported this bill.
In the conversation about the possible consequences of this step, a parallel was noted between this initiative and the practice of Russia, which uses a similar approach in mobilization, which includes forced involvement. However, Malyuska noted that the difference lies in the approaches: in Ukraine it is contract service, where a person joins the army voluntarily, while in Russia it is forced conscription.
The next topic of discussion was the problem of attracting military personnel with a criminal past. Malyuska noted that the Ukrainian Armed Forces can recruit approximately 10,000 to 20,000 such persons, but noted that these figures may change depending on the specific situation. He also emphasized the importance of reforming the medical examination process for the military medical commission.
According to Malyuska, the number of prisoners in correctional institutions has increased, and this is partly due to new categories of war-related crimes, such as collaboration. An increase in firearm-related crimes also led to the increase.
On the air, the BBC discussed possible legal loopholes in the new legislation on mobilization. Both ordinary citizens and lawyers, who actively share their conclusions on social networks, paid attention to such advice. Malyuska admitted that such a practice can harm the mobilization process, but this does not mean that it is illegal.
They also discussed the issue of creating a large register of conscripts. Malyuska believes that it will contain information that is already in the registers, so the danger is not so great.
Regarding the possible hundreds of thousands of lawsuits from the Territorial Collection Centers, Malyuska believes that the court system can handle it, because similar mechanisms have been used before, for example, in cases of non-payers of alimony. Such a flow of cases will require careful planning and coordination, but the likelihood of a massive burden on the court system is not very high.
A well-known BBC reporter has a question about the maintenance of Russian citizens who are in prisons in Ukraine. Denys Malyuska admits that he cannot name the exact number of prisoners of war in these institutions, but confirms the construction of a third camp for them, which indicates a significant number of people.
The interview talks about the conditions of detention. Malyuska explains that the technical support of the first camp, opened earlier, is better than the others, thanks to the significant help of international partners. He also notes that all institutions adhere to international standards, but cannot always fulfill all the norms of the Geneva Convention, in particular, regarding the financial maintenance of prisoners. He explains that some of the rules of the convention have weight in the more romantic settings of war, but in real conditions they can be difficult to enforce.
In a conversation with the BBC, the question of financial maintenance of prisoners of war in military institutions arises. Denys Malyuska declares that there are no financial possibilities to pay them the same salary as Ukrainian officers, explaining this by the circumstances that Ukraine was attacked, and expresses doubts about the practical implementation of this idea.
Next, the requirement of the Geneva Convention regarding the detention of prisoners of war by the military and the discrepancy of this norm with the reality of war are discussed. Malyuska claims that this approach can create additional risks for prisoners of war and does not take into account the specifics of the current conflict.
The conversation then turns to the importance of upholding international standards that reflect the country's civility. Malyuska calls for communication with the Russian population regarding the safety and normal conditions of Ukrainian captivity, emphasizing the importance of reducing the number of opponents in hostilities and preparing for possible prisoner exchanges.
In the conversation with the BBC, the topic of international court proceedings and confiscation of Russian assets abroad is discussed. Denys Malyuska emphasizes that the first claims to the European Court of Human Rights were submitted back in 2014-2015, and now the time for the first decisions is approaching.
He notes that international law lacks coercive executive power, which is characteristic of national law. Therefore, court decisions can be important for international communications and partnerships, but do not always lead to immediate changes in national policies.
Regarding the confiscation of Russian assets abroad, Malyuska expresses a pessimistic scenario in which Ukraine can receive income from these assets, but it will be a very limited amount. The average option involves the calculation of payments for future years, and the optimistic option - full compensation. At the moment, it seems that the second scenario is the most likely.
The BBC discussion discusses the lack of military justice in Ukraine in the 11th year of armed conflict and the third year of full-scale war with Russia, with particular attention to its necessity under these conditions. Denys Malyuska tries to explain the reasons for this situation.
First, he points out that the conflict was initially expected to last only 2-3 weeks. For this reason, the decision regarding the construction of military justice was not made. Financial and organizational issues also complicate the construction process.
The second problem is the need to recognize that the war will continue for a long time. However, military justice requires a lot of effort and money to build. Malyuska defines this as a complex and ambiguous issue.
While military justice can be useful, especially in times of war, Malyuska notes that it is difficult to assess whether Ukraine has sufficient resources and time to build such a system now. He expressed his support for the idea of introducing military justice, but noted that for its successful implementation, it had to start before 2022.
