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Peculiarities of observing human rights and freedoms during martial law

Russia’s insidious military aggression against Ukraine forced our country to introduce a special legal regime – martial law – to protect the country and its citizens. The introduction of martial law involves the possibility of restrictions on some rights and freedoms of citizens. However, there are rights that cannot be limited even at this time. Let’s analyze it in more detail.

First, any issues of limitation of rights must have a legal basis. Thus, martial law itself was introduced by the Decree of the President of Ukraine “On the introduction of martial law in Ukraine” No. 64/2022 dated 24.02.2022, Article 3 of which stipulates that during the period of martial law, the constitutional rights and freedoms provided for in Articles 30 may be limited – 34, 38, 39, 41 – 44, 53 of the Constitution of Ukraine, namely:

  • inviolability of housing;
  • secrecy of correspondence, telephone conversations, telegraphic and other correspondence;
  • non-interference in personal and family life, except for cases provided for by the Constitution of Ukraine;
  • freedom of movement, free choice of place of residence, the right to freely leave the territory of Ukraine, with the exception of restrictions established by law;
  • the right to freedom of thought and speech, to the free expression of one’s views and beliefs;
  • the right to participate in the management of state affairs, in all-Ukrainian and local referenda, to freely elect and be elected to state and local self-government bodies;
  • the right to assemble peacefully, without weapons, and hold meetings, rallies, marches, and demonstrations;
  • the right to own, use and dispose of one’s property, the results of one’s intellectual and creative activity;
  • the right to entrepreneurial activity, which is not prohibited by law;
  • the right to work;
  • the right to strike to protect one’s economic and social interests;
  • the right to education.

Also, Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law” dated May 12, 2015, No. 389-VIII introduces such restrictions on citizens, such as, for example:

  • introduction of a curfew (that is, a ban on being on the streets and in other public places during a certain period of the day without specially issued passes and certificates);
  • checking documents of persons, and, if necessary, conducting an inspection of things, vehicles, baggage and cargo, office premises, and citizens’ homes, with the exception of restrictions established by the Constitution of Ukraine;
  • prohibition of holding peaceful meetings, rallies, marches and demonstrations, and other mass events;
  • establishment of a special regime in the field of production and sale of medicinal products containing narcotic drugs, psychotropic substances, and precursors, and other potent substances, the list of which is determined by the Cabinet of Ministers of Ukraine;
  • establishment of a special entry and exit regime, restrictions on the freedom of movement of citizens, foreigners, and stateless persons, as well as the movement of vehicles;
  • establishment of a ban or restriction on the choice of place of stay or residence of persons in the territory where martial law is in force;
  • establishment of military housing obligation for the housing of military personnel, members of the rank and file of law enforcement agencies, personnel of the civil defense service, and the evacuated population;
  • evacuate the population if there is a threat to their life or health.

At the same time, any restrictions on rights and freedoms must be justified by actual circumstances and needs.

It should be especially noted that there are basic constitutional rights of citizens, which are provided for in Art. 24, 25, 27, 28, 29, 40, 47, 61, 52, 55, 56, 57, 58, 59. 60, 61. 62, 63 of the Constitution of Ukraine, which cannot be limited under any conditions, including during martial law.

In particular, citizens may not be deprived or restricted in any case:

  • the right to have constitutional rights and freedom equal to others and to be equal before the law;
  • there can be no restrictions based on race, skin color, political, religious, and other beliefs, gender, ethnic and social origin, property status, place of residence, language, or other characteristics;
  • citizens of Ukraine cannot be deprived of citizenship and the right to change citizenship;
  • inalienable rights to life cannot be violated; on respect for dignity, freedom, and personal integrity (including the absolute prohibition of torture);
  • the right to protect one’s life and health, the life and health of other people from illegal encroachments (necessary self-defense), the right of every person to appeal to the state to protect their life and health;
  • the right to send appeals or to personally address state authorities and local self-government bodies is not subject to restriction;
  • the right to protect rights and freedoms in court is not subject to limitation;
  • the right to apply for the protection of one’s rights to the Human Rights Commissioner of the Verkhovna Rada of Ukraine and, in accordance with the procedure established by law, to relevant international organizations, the right to protect one’s rights and freedoms in the event of violations and illegal encroachments by other means not prohibited by law;
  • the right to housing, marriage and equal rights and obligations in marriage and family cannot be limited;
  • the equality of children in their rights is not subject to limitation, regardless of origin, as well as whether they were born in or out of wedlock;
  • the right to compensation with the funds of the state or local self-government bodies for material and moral damage caused by illegal decisions of state authorities;
  • the right to know one’s rights and obligations;
  • the right to professional legal assistance;
  • the right not to comply with clearly criminal orders or orders;
  • the right not to be held twice liable for the same kind of legal responsibility for the same offense;
  • presumption of innocence (that is, the right of a person to be considered innocent of a crime and not be subject to criminal punishment until his guilt is proven in a legal manner and established by a court verdict);
  • the right not to prove one’s innocence in committing a crime;
  • the right that the accusation will not be based on evidence obtained illegally, as well as on assumptions and that all doubts about the proven guilt of a person will be interpreted in his favor;
  • the right to defense and refusal to testify or give explanations regarding oneself, family members, or close relatives;
  • compliance with such standards as the minimum wage and the minimum vacation period.