On November 25, 2018, another act of aggression from the Russian Federation took place. Russia Coast Guard fired upon and seized three Ukrainian navy vessels in the international waters near the Kerch Strait. As a result, three Ukrainian crew members were injured, and 23 Ukrainian sailors were detained. As a response to the act of aggression, the Verkhovna Rada of Ukraine adopted the Law of Ukraine On Approval of the Decree of the President of Ukraine “On the Introduction of the Military Status in Ukraine”, regarding the introduction of 30 days (from 2 p.m. on November 26, 2018, to December 26, 2018 respectively) in 10 oblasts of the military state. The special legal regime is in place in Vinnytsia oblast, Odesa oblast, Mykolaiv oblast, Kherson oblast, Zaporizhia oblast, Donetsk oblast, Chernihiv oblast, Luhansk oblast, Kharkiv oblast, Sumy oblast, as well as the inland waters of the Azov-Kerch water area.
What is martial law?
According to the Law of Ukraine On Legal Regime of Martial Law, martial law is “a special legal regime that is introduced in Ukraine in case of an armed aggression or a threat of an attack, a threat to state sovereignty and territorial indivisibility of Ukraine. This rule involves granting the relevant State Executive, Local Self-Government organs, the Military Command and military administrations, necessary powers to prevent threats, repel armed aggression and to guarantee national security, remove the threat of danger to national security of Ukraine and its territorial integrity. It also involves temporary (threat determined) restrictions of human constitutional rights and freedoms as well as the rights and legitimate interests of all legal persons with an indication of the period of effectiveness for these restrictions”.
What does a special legal regime envisage?
The military command, together with the Ministry of Internal Affairs of Ukraine, other executive government agencies, local government agencies are expanded their current and provided with special authorities in order to introduce and implement measures that “are needed to ensure the defense of Ukraine, security of the population and interests of the state”,
- The Cabinet of Ministers of Ukraine are to develop and enact a plan to introduce and implement measures for the legal regime of martial law in Ukraine and ensure the supply to the Ukrainian Armed Forces and other military formations of material and technical resources, as well as property, and provide services in the amount necessary for the effective fulfillment of tasks imposed on them in a special period. The State Emergency Service of Ukraine, together with regional state administrations, other state bodies, institutions, enterprises, organizations of all forms of ownership, should bring into the state of readiness to perform necessary tasks.
- The regional and Kyiv city state administrations, local self-government bodies should establish defense councils and provide assistance to the military command in introducing and implementing measures of the legal regime of martial law.
- The constitutional human rights and freedoms stipulated by Articles 30-34, 38, 39, 41-44, 53 of the Constitution of Ukraine may be temporarily limited, for the period of the legal regime of martial law, as the following: inviolability of domicile, privacy of correspondence, telephone conversations, telegraph, and other communications, interference in the private life and family matters, freedom of movement and travel, free choice of place of residence, freedom of thought and speech, free expression of the views, voting rights, freedom of assembly, right to property, right to entrepreneurial activity, right to work, right to strike, and right to education. Temporary restrictions on the rights and legitimate interests of legal entities may be imposed to the extent needed to ensure the possibility of introducing and implementing measures of the legal regime of martial law provided for in Part 1 of Article 8 of the law of Ukraine On the Legal Status of Martial Law. For example, use the capacity and labour resources of enterprises and organizations of all forms of ownership for the sake of defenses, change their mode of operation and working conditions, as well as withdraw for temporary use the required property.
- The UN Secretary-General and officials of foreign states was provided with the information about the introduction of martial law in Ukraine, the restriction of human rights and freedoms, which is a deviation from the obligations under the International Covenant on Civil and Political Rights, and about the limit of these deviations and the reasons for making such a decision.
How exactly the temporary restrictions of constitutional human rights and freedoms may affect people’s lives?
The instances of the restrictions may be the introduction of a curfew, introduction of a labour duty, forcibly dispose of owned property, forced relocation and internment of citizens of a foreign state, and bans on peaceful protests, rallies and mass events. However, one should not forget that according to the international human law, restrictions must have a clear legal basis, as well as be reasonable, necessary, and proportionate.
Ganna Dudinska, lawyer of the Liaison Officer (RADNYK) Programme