Albert Yezerov: The Impact of War on Human Rights: Restrictions and Derogations

krainian statehood has existed and transformed for more than ten years in conditions of the Russian armed aggression. Although Ukraine’s institutional system has been constantly tested by political crises and corruption, and traditions of constitutionalism were not well established before the War, the State is a developing constitutional democracy.

The political and legal reality that has developed over more than ten years of War has demonstrated the ability of Ukrainian constitutional institutions to function in unprecedented security and humanitarian conditions. Even during a full-scale invasion, which included missiles and bomb strikes across the country and the advance of enemy infantry along a 1200 km front line, public authorities and civil society institutions continued to function. The judicial system, which had undergone significant reforms during the War in 2016-2017, proved to be fully prepared for such challenges and, after the full-scale invasion, coped with all the challenges of wartime without undergoing any organisational changes. Of course, Ukraine’s constitutional design has undergone significant changes aimed at adapting the constitutional system to wartime conditions.

Among these changes, the following are key.

1. Introduction of martial law and general mobilisation

This involves restricting certain rights and freedoms of citizens, such as freedom of movement, assembly and demonstration, in order to ensure the security and defence capability of the state. As a first and necessary condition, Decree of the President of Ukraine No. 64/2022 of 24 February 2022 stipulates that, in connection with the introduction of martial law in Ukraine, the constitutional rights and freedoms of individuals and citizens provided for in Articles 30-34, 38, 39, 41-44, and 53 of the Constitution of Ukraine may be restricted, and temporary restrictions on the rights and legitimate interests of legal entities may be introduced to the extent necessary to ensure the possibility of introducing and implementing the measures of the legal regime of martial law provided for in part one of Article 8 of the Law of Ukraine ‘On the Legal Regime of Martial Law.’ At the same time, the Decree obliges the Ministry of Foreign Affairs of Ukraine to ensure that the UN Secretary-General and officials of foreign states are informed in the established manner about the introduction of martial law in Ukraine, about restrictions on human and civil rights and freedoms, which constitute a derogation from the obligations under the International Covenant on Civil and Political Rights, and about the limits of these derogations and the reasons for adopting such a decision. The implementation of general mobilisation required legislative changes and the establishment of a system of relevant public bodies.

2. Changes in public administration

During wartime, there is an objective centralisation of power and an increase in the powers of public authorities, which allows for faster decision-making in critical situations. Thus, the President of Ukraine acts as the Supreme Commander-in-Chief of the Armed Forces (he has this status permanently, but during wartime it becomes titular). The functions of day-to-day governance are taken over by the Supreme Commander-in-Chief of the Armed Forces and the National Security and Defence Council. The government continues to function but the role of the Ministry of Defence is strengthened. The Armed Forces and other military formations are given expanded powers to protect national security. Local authorities form defence councils and assist the military command in introducing and implementing measures under the legal regime of martial law.

3. Financial and economic changes

Certain economic activities are being frozen, and budget expenditures are being revised in favour of defence and recovery. At the level of constitutional doctrine, enhanced social protection for military personnel has been introduced. All these and other factors have a significant impact on the legal status of individuals and, consequently, on the future functioning of Ukraine as a constitutional state, where the activities of the state are limited by human rights.

An important guarantee for the realisation of constitutional rights and freedoms of individuals and citizens is Article 64 of the Constitution of Ukraine, which stipulates that such rights and freedoms cannot be restricted, except in cases provided for by the Constitution of Ukraine. This provision allows for the establishment of certain restrictions on rights and freedoms in times of war or emergency, specifying the duration of such restrictions.

At the same time, in accordance with Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, a High Contracting Party may, in time of war, take measures derogating from its obligations under this Convention, and in the event of exercising this right, it must inform the Secretary General of the Council of Europe of the measures taken. Such notification shall be made by letter, accompanied by copies of the legal documents under which the emergency measures will be implemented.

Therefore, the Ministry of Foreign Affairs of Ukraine periodically and regularly sends to international organisations information prepared by the Ministry of Justice of Ukraine on derogations from its obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms and the Covenant, including on the extension of martial law. In accordance with the provisions of the Convention and the Covenant, Ukraine has been providing such information since 2015 in connection with the Russian Federation’s armed aggression against Ukraine. This regular practice has continued since February 2022 in connection with the start of a full-scale invasion and the introduction of martial law in Ukraine. In April 2024, Ukraine once again clarified the list of existing restrictions and reduced it. This notification was the twentieth since 2015. All notifications made by Ukraine regarding the derogation from its obligations are publicly available.

The notification itself does not introduce emergency measures but is only a means of informing the Council of Europe of the possibility of their introduction in accordance with the national legislation of the High Contracting Party.

In accordance with Article 3 of the Decree of the President of Ukraine No. 64/2022 of 24 February 2022 ‘On the introduction of martial law in Ukraine’ in connection with the introduction of martial law in Ukraine, the constitutional rights and freedoms of individuals and citizens, provided for in Articles 30–34, 38, 39, 41–44, and 53 of the Constitution of Ukraine may be restricted, and temporary restrictions on the rights and legitimate interests of persons provided for in Article 8 of the Law of Ukraine No. 389 of 12 May 2015 ‘On the Legal Regime of Martial Law’ may be introduced.

Considering the above and in accordance with Article 15 of the Convention, the Council of Europe was informed about the introduction of martial law in Ukraine, the provisions of legislation that apply during this regime, the measures that may be applied by the authorised bodies during martial law, and a list of articles of the Convention and its Appendices was provided, from which, in connection with the possible application of the above measures, a corresponding derogation is permitted, namely: Articles 3, 8(3), 9, 12, 13, 17, 19, 20, 21, 22, 24, 25, 26, 27 of the Covenant, as well as Articles 4 (3), 8, 9, 10, 11, 13, 14, 16 of the Convention, Articles 1, 2, 3 of the Additional Protocol to the Convention, Article 2 of Protocol No. 4 to the Convention.

Considering the requirement to notify such measures without delay, the above information on the introduction of martial law and the corresponding derogation was prepared and sent to the Council of Europe as soon as possible after the introduction of martial law. It was posted on the Council of Europe website on 1 March 2022.

According to the explanation to Article 15 of the Convention, derogation from obligations does not necessarily mean that the State will be unable to guarantee the rights enshrined in the Convention. In practice, when declaring a derogation from its obligations, the Contracting State usually stated that the measures it was taking ‘may’ entail a derogation from its obligations under the Convention.

Possible derogation is also provided for in Article 4 of the Covenant, which states that in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the Covenant may take measures derogating from their obligations under the Covenant only to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not entail discrimination solely on the grounds of race, colour, sex, language, religion or social origin.

This provision shall not constitute grounds for any derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18. Any State Party to the Covenant which avails itself of the right of derogation shall immediately inform the other States Parties to the Covenant, through the Secretary-General of the United Nations, of the provisions from which it has derogated and the reasons for its decision. It shall also notify, through the same intermediary, the date on which it ceases such derogation.

Thus, key human rights instruments allow for temporary derogations by states from their obligations to ensure certain human rights, subject to certain criteria.

On 21 May 2015, the Verkhovna Rada of Ukraine adopted the Resolution ‘On Approval of the Statement of the Verkhovna Rada of Ukraine ’On Ukraine’s Derogation from Certain Obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms”.

In this resolution, the Ukrainian parliament approved the Statement on the withdrawal from certain obligations specified in paragraph 3 of Article 2, Articles 9, 12, 14 and 17 of the Covenant and Articles 5, 6, 8 and 13 of the Convention for the period until the complete cessation of the armed aggression of the Russian Federation, namely until the withdrawal of all illegal armed formations controlled, managed and financed by the Russian Federation, Russian occupation troops and their military equipment from the territory of Ukraine, the restoration of Ukraine’s full control over its state border, and the restoration of constitutional order in the occupied territory of Ukraine.

In this Statement, among other things, Ukraine noted that the Russian Federation, as a state that has effectively occupied and controls part of the Donetsk and Luhansk regions, is responsible for respecting and protecting human rights in these territories under both international humanitarian law and international human rights law.

The Statement also emphasises that the ongoing armed aggression of the Russian Federation against Ukraine, accompanied by the commission of war crimes and crimes against humanity by both the regular Armed Forces of the Russian Federation and illegal armed formations controlled and financed by the Russian Federation, constitutes a public danger that threatens the life of the nation within the meaning of Article 4(1) of the Covenant and Article 15(1) of the Convention. To ensure the vital interests of society and the State in the context of armed aggression, public authorities are forced to take decisions that constitute a derogation from Ukraine’s obligations under the Covenant and the Convention.

In addition to such declarations, the Statement sets out obvious measures that formally constitute a derogation from international human rights standards but appear to be objective and necessary in the circumstances. For example, it states that on 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law ‘On Amendments to the Law of Ukraine ’On Combating Terrorism‘ regarding the preventive detention of individuals involved in terrorist activities in the area of the anti-terrorist operation for a period exceeding 72 hours’.

In accordance with this Law, in the area of a long-term anti-terrorist operation, as an exception, individuals involved in terrorist activities may be preventively detained for a period exceeding 72 hours but not more than 30 days, with the consent of the prosecutor and without a court order. The application of the provisions of this Law necessitates a certain departure by Ukraine from its obligations under Article 2(3), Articles 9 and 14 of the Covenant and Articles 5, 6 and 13 of the Convention.

At the same time, the application of such provisions exclusively during anti-terrorist operations in exceptional cases with the aim of preventing serious crimes is justified by the acute danger caused by the armed aggression of the Russian Federation and the actions of terrorist groups supported by the Russian Federation.

In addition, it is noted that on 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law ‘On Amendments to the Criminal Procedure Code of Ukraine Regarding the Special Regime of Pre-trial Investigation in Conditions of Martial Law, State of Emergency or in the Area of Anti-Terrorist Operations’.

In accordance with this Law, a special regime of pre-trial investigation is introduced for the duration of the anti-terrorist operation, according to which the powers of investigating judges, as defined by the current Criminal Procedure Code of Ukraine, are temporarily transferred to the relevant prosecutors, who acquire additional procedural rights. The special regime for pre-trial investigation applies exclusively in the area of anti-terrorist operations and provided that the investigating judge is unable to exercise the powers defined by the current Criminal Procedure Code of Ukraine.

The application of the provisions of this Law necessitates a derogation from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the Covenant and Articles 5, 6, 8 and 13 of the Convention.

At the same time, the absence of functioning courts in certain areas of Donetsk and Luhansk regions, caused by the armed aggression of the Russian Federation and the actions of terrorist groups supported by the Russian Federation, is the limit that allows the powers of investigating judges to be transferred to prosecutors in conditions that threaten the existence of the nation.

Through this Statement, Ukraine also informed the international community that on 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law ‘On the Administration of Justice and Criminal Proceedings in Connection with the Conduct of Anti-Terrorist Operations’.

In accordance with this Law, for the duration of the anti-terrorist operation, the territorial jurisdiction of court cases subject to the jurisdiction of courts located in the area of the anti-terrorist operation and the jurisdiction of criminal offences committed in the area of the anti-terrorist operation were changed in cases where it was impossible to conduct a pre-trial investigation. The application of the provisions of this Law necessitates a certain departure from Ukraine’s obligations under Article 14 of the Covenant and Article 6 of the Convention. At the same time, the actual absence of functioning courts and pre-trial investigation bodies in certain areas of Donetsk and Luhansk regions, caused by the armed aggression of the Russian Federation and the actions of terrorist groups supported by the Russian Federation, is the limit that allows for a change in the territorial jurisdiction of court cases and the jurisdiction of criminal offences in conditions that threaten the existence of the nation.

Ukraine also reported that on 3 February 2015, the Verkhovna Rada of Ukraine adopted the Law ‘On Military-Civilian Administrations’.

In accordance with this Law, military-civilian administrations were established as temporary state bodies operating in the Donetsk and Luhansk regions as part of the Anti-Terrorist Centre under the Security Service of Ukraine and designed to ensure the implementation of the Constitution and laws of Ukraine, ensure the security and normalisation of the population’s life, law and order, participating in countering sabotage and terrorist acts, and preventing a humanitarian catastrophe in the area of the anti-terrorist operation.

This Law grants military-civilian administrations the authority, in particular, to establish restrictions on staying on the streets and in other public places at certain times of the day without specific documents; temporarily restrict or prohibit the movement of vehicles and pedestrians on streets, roads, and areas; organise the verification of identity documents of individuals and, if necessary, the inspection of belongings, vehicles, luggage and cargo, office premises and citizens’ homes, except for the restrictions established by the Constitution of Ukraine.

The application of the provisions of this Law necessitates a derogation from Ukraine’s obligations under Articles 9, 12 and 17 of the International Covenant, Articles 5 and 8 of the Convention and Article 2 of Protocol No. 4 to the Convention.

At the same time, the conduct of an anti-terrorist operation with the aim of averting the threat of destruction of the nation by armed aggression by the Russian Federation is the limit that allows for the temporary restriction of freedom of movement and the right to respect for private life.

Over the following periods, Ukraine repeatedly informed the Council of Europe and other international institutions about the state of affairs regarding human rights compliance during the armed aggression. For example, the Note of the Permanent Mission of Ukraine dated 29 November 2019, registered by the General Secretariat on 3 December 2019, contained a notification and partial withdrawal of the derogation.

With this Note, Ukraine informed the international community that, given that the Russian Federation is committing a crime of aggression against Ukraine and temporarily occupying part of its territory with armed formations of the Russian Federation, on 18 January 2018, the Verkhovna Rada of Ukraine adopted the Law ‘On the Specifics of State Policy to Ensure Ukraine’s State Sovereignty over the Temporarily Occupied Territories in Donetsk and Luhansk Regions’ (hereinafter referred to as Law No. 2268), which aims to define the specifics of state policy to ensure Ukraine’s state sovereignty in the temporarily occupied territories in Donetsk and Luhansk regions. To ensure Ukraine’s state sovereignty over the temporarily occupied territories of Donetsk and Luhansk regions, state bodies and their officials, acting on the grounds, within the powers and in the manner provided for by the Constitution and laws of Ukraine, shall take measures to ensure national security and defence, repel and deter armed aggression by the Russian Federation (Article 5.3 of Law No. 2268). Measures to ensure national security and defence, repel and deter armed aggression by the Russian Federation in the territories of Donetsk and Luhansk regions include measures to restore the territorial integrity of Ukraine, which are carried out by security and defence bodies, other public bodies of Ukraine, and their officials (Article 7.1 of Law No. 2268).

The initiation and refinement of measures to ensure national security and defence, repel and deter armed aggression by the Russian Federation in the Donetsk and Luhansk regions are determined by separate decisions of the Supreme Commander-in-Chief of the Armed Forces of Ukraine (Article 8.3 of Law No. 2268). The President of Ukraine, as Supreme Commander-in-Chief of the Armed Forces of Ukraine, by his Decree No. 116 of 30 April 2018, in accordance with Article 8. 3 of Law No. 2268, enacted the Decision of the National Security and Defence Council of Ukraine (hereinafter referred to as the NSDC) on the commencement of national security and defence measures to repel and deter the armed aggression of the Russian Federation in the Donetsk and Luhansk regions (hereinafter referred to as the Joint Forces Operation (JFO)).

In accordance with Article 18 of the Law of Ukraine ‘On Combating Terrorism’ and Decree of the President of Ukraine No. 166 of 30 April 2018, a decision was made to terminate the anti-terrorist operation in connection with the launch of the JFO.

Thus, on 30 April 2018, the anti-terrorist operation was terminated and measures were initiated to ensure national security and defence, repel and deter armed aggression by the Russian Federation in the Donetsk and Luhansk regions (JFO).

The Note also states that, in accordance with Article 5 of the Law of Ukraine ‘On Military-Civilian Administrations’ (as amended by Law No. 2268), military-civilian administrations in the area of the Joint Forces Operation, with the consent of the Commander of the Joint Forces, have the right to:

1) impose restrictions on staying on the streets and other public places without documents;

2) temporarily restrict or prohibit the movement of vehicles and pedestrians on streets, roads and areas of territory;

3) organise the verification of documents certifying the identity of individuals and, if necessary, the inspection of belongings, vehicles, luggage and cargo, office premises and citizens’ homes, except for the restrictions established by the Constitution of Ukraine.

In security zones adjacent to combat zones, a special procedure is in place that grants security and defence agencies and other public bodies of Ukraine the special powers necessary to carry out this operation (Article 8.2 of Law No. 2268).

To ensure the vital interests of society and the state during the period of repelling armed aggression in security zones adjacent to combat zones, military personnel, law enforcement officers and persons specified in Article 8 of Law No. 2268 who are involved in the implementation of the JFO measures in accordance with the Constitution and legislation of Ukraine, have the right to:

1) use weapons and special means in cases of extreme necessity against persons who have committed or are committing offences or other actions that impede the fulfilment of the lawful requirements of persons involved in the implementation of the JFO measures, or actions related to unauthorised attempts to enter the zone where these measures are being implemented;

2) detain and deliver to the National Police of Ukraine the persons referred to in paragraph 1 of this part;

3) check documents certifying the identity of citizens and officials, and in the absence of documents, detain them to establish their identity;

4) conduct personal searches of citizens, searches of items in their possession, vehicles, and items they are transporting;

5) temporarily restrict or prohibit the movement of vehicles and pedestrians on streets and roads, prevent vehicles and citizens from entering certain areas and facilities, evict citizens from certain areas and facilities, and the vehicles;

6) enter residential and other premises, land plots belonging to citizens, areas, and premises of enterprises, institutions and organisations to inspect vehicles for the purposes of conducting environmental protection;

7) use for official purposes means of communication and vehicles, including special ones, belonging to citizens (with their consent), enterprises, institutions and organisations, except for vehicles of diplomatic, consular and other missions of foreign states and international organisations.

The presence of individuals not involved in such activities in the area of the Joint Forces Operation may be temporarily restricted by the commander of the Joint Forces for the duration of such activities (Article 12.4 of Law No. 2268). The implementation of these measures may entail a derogation from Ukraine’s obligations under Articles 9, 12, and 17 of the Covenant, Articles 5 and 8 of the Convention, and Article 2 of Protocol No. 4 thereto, and necessitates the continuation of such derogation.

In the context of war and in order to ensure human rights, it was necessary to implement certain organisational measures in the field of justice. Thus, in accordance with Article 2.8 of Law No. 2268, the procedure for territorial jurisdiction of cases falling within the jurisdiction of courts located in the temporarily occupied territories in Donetsk and Luhansk regions for the duration of the Joint Forces Operation is established in accordance with Law of Ukraine No. 1632-VII of 12 August 2014 ‘On the Administration of Justice and Criminal Proceedings in Connection with the Conduct of Anti-Terrorist Operations’ (hereinafter referred to as Law No. 1632).

As stated in the aforementioned Article 2.8 of Law No. 2268, Law No. 1632 defines measures for legal regulation and aims to ensure access to justice for citizens and legal entities.

In accordance with Article 1 of Law No. 1632, due to the inability of certain courts to administer justice, the territorial jurisdiction of court cases is changed, and civil cases, administrative offences, administrative cases, commercial and criminal proceedings are considered by local and appellate courts as determined by the President of the Supreme Court. Issues relating to the competence of the investigating judge in criminal proceedings at the pre-trial investigation stage and carried out in the area of the Joint Forces Operation, in the event of the impossibility of administering justice, shall be considered by investigating judges of local courts of general jurisdiction as determined by the President of the Supreme Court (Article 1.2 of Law No. 1632).

The issue of access to justice in territories not controlled by Ukraine was considered by the European Court of Human Rights (ECtHR) in the cases of Khlebik v. Ukraine and Tsezar and Others v. Ukraine, in which the ECtHR found that the applicants’ inability to come to court at their place of residence did not violate the essence of the right of access to court and ruled that there had been no violation of Article 6 of the Convention.

In paragraph 52 of the judgment in the case of Tsezar and Others v. Ukraine (applications nos. 73590/14, 73593/14, 73820/14, 4635/15, 5200/15, 5206/15 and 7289/15 of 13 February 2018), the ECtHR recognised that state authorities may sometimes face certain difficulties in ensuring the proper functioning of the courts in certain regions due to ongoing hostilities in those regions. Nevertheless, the Court noted that state authorities must take certain measures to resolve the problem, for example, by granting special permission to file lawsuits in courts in another region of the state. Thus, the ECtHR does not consider the above measures to be a violation by Ukraine of its obligations under Article 6 of the Convention.

In a communication contained in verbal note No. 31011/32-119-42777 from the Permanent Representation of Ukraine to the Council of Europe, dated 17 June 2022, Ukraine transmitted to the Secretary General, on behalf of the Government of Ukraine, further information on measures derogating from its obligations under the Convention in accordance with Law of Ukraine No. 2201 of 14 April 2022 ‘On Amendments to the Criminal Procedure Code of Ukraine on improving the procedure for conducting criminal proceedings under martial law’, which sets out a new version of Article 615 ’Special regime for criminal proceedings under martial law’ of the Criminal Procedure Code of Ukraine.

In accordance with this law, during martial law:

– if there is no objective possibility of continuing or completing a pre-trial investigation and referring the case to court with an indictment, a motion for the application of coercive measures of a medical or educational nature, a motion for exemption from criminal liability – the term of the pre-trial investigation in criminal proceedings shall be suspended on the basis of a reasoned decision of the prosecutor, setting out the relevant circumstances, and shall be resumed if the grounds for suspension cease to exist. Prior to the suspension of the pre-trial investigation, the prosecutor is obliged to decide on the extension of the period of detention (subparagraph 3 of part 1 of Article 615);

– if there is no objective possibility of performing procedural actions within the time limits specified in Article 220 ‘Consideration of motions during pre-trial investigation’, Article 221 ‘Familiarisation with the materials of the pre-trial investigation before its completion’, Article 304 ‘Time limit for filing a complaint against a decision, action or inaction of an investigator or prosecutor, his return or refusal to open proceedings in a case’, Article 306 ‘Procedure for considering complaints against decisions, actions or inaction of an investigator or prosecutor during a pre-trial investigation’, Article 308 ‘Appeals regarding failure to comply with reasonable time limits’, Article 376 ‘Announcement of a court decision’, Article 395 ‘Procedure and time limits for appeals’, Article 426 ‘Procedure and time limits for cassation appeals’ of the Criminal Procedure Code, – such procedural actions shall be carried out immediately, if possible, but no later than 15 days after the termination or cancellation of martial law (subparagraph 5 of part 1 of Article 615);

– if there are cases of detention of a person without a ruling by an investigating judge or court, as specified in Article 208 ‘Detention by an authorised official’ of the Criminal Procedure Code, or there are reasonable circumstances indicating that evasion is possible in order to avoid criminal liability of a person suspected of committing a crime – an authorised official has the right to detain such a person without a decision of an investigating judge, court or resolution of the head of the prosecution authorities. The period of detention without a decision of an investigating judge, court or resolution of the head of the prosecution authorities during martial law may not exceed 216 hours from the moment of detention, as determined in accordance with Article 209 of the Criminal Procedure Code (subparagraph 6 of part 1 of Article 615);

– testimony obtained during the interrogation of a witness or victim, including the simultaneous interrogation of two or more persons, in criminal proceedings conducted under martial law may be used as evidence in court only if the course and results of such interrogations were recorded using available technical means of video recording. Testimony obtained during the interrogation of a suspect, including the simultaneous interrogation of two or more persons who have already been interrogated, in criminal proceedings conducted under martial law, may be used as evidence in court only if the defence counsel participated in such interrogation and the course and results of the interrogation were recorded using available technical means of video recording (subparagraph 11 of paragraph 1 of Article 615);

– the investigator or prosecutor shall ensure the participation of the defence counsel in a specific procedural action, including, if the defence counsel is unable to appear, through the use of technical means (video, audio) to ensure the remote participation of the defence counsel. The investigator or prosecutor shall ensure the participation of an interpreter to translate the explanations, testimony or documents of the suspect or victim at the earliest opportunity. If circumstances prevent the participation of an interpreter in criminal proceedings, the investigator or prosecutor shall have the right to personally translate explanations, testimony or documents if he or she speaks one of the languages of the suspect or victim (subparagraph 12 of part 1 of Article 615).

The provisions of Article 87 ‘Inadmissibility of evidence obtained as a result of a substantial violation of human rights and freedoms’ and Article 95 ‘Testimony’ of the Criminal Procedure Code shall apply considering the specific features set out in Article 615 of the Criminal Procedure Code (as amended by Law No. 2201).

The provisions of Article 87, ‘Inadmissibility of evidence obtained as a result of a substantial violation of human rights and freedoms’, and Article 95, ‘Testimony’, of the Criminal Procedure Code shall apply, considering the specific features set forth in Article 615 of the Criminal Procedure Code (as amended by Law No. 2201). The application of Law No. 2201 necessitates a departure from Articles 2 (paragraph 3), 9, 14 and 17 of the Covenant and Articles 5, 6, 8 and 13 of the Convention.

On 5 April 2024, the derogation contained in Note No. 31011/32-119-46585 from the Permanent Mission of Ukraine was partially withdrawn regarding Articles 4.3, 9, 13, 14 and 16 of the Convention.

In particular, it states that in connection with the introduction of martial law in Ukraine, the constitutional rights and freedoms of individuals and citizens provided for in Articles 30-34, 38, 39, 41, 44 and 53 of the Constitution of Ukraine may be temporarily restricted for the duration of martial law; temporary restrictions on the rights of individuals may also be introduced to the extent necessary to ensure the implementation of the measures of the legal regime of martial law provided for in part one of Article 8 of the Law of Ukraine ‘On the Legal Regime of Martial Law’.

The above-mentioned articles of the Constitution, which may be subject to restrictions, guarantee the inviolability of the home (Article 30); the secrecy of correspondence, telephone conversations and other communications (Article 31); non-interference in personal and family life (Article 32); freedom of movement, free choice of place of residence, the right to freely leave and return to the territory of Ukraine (Article 33); the right to freedom of thought and speech, free expression of views and beliefs, and the right to freely collect, store, use and disseminate information (Article 34); the right to participate in the management of public affairs and referendums, to freely elect and be elected to state and local authorities, and equal access to public service (Article 38); the right to hold assemblies, meetings, marches and demonstrations, as well as the right to strike (Articles 39, 44); the right to own, use and dispose of one’s property (Article 41); the right to entrepreneurship and work (Articles 42, 43); the right to education (Article 53).

In areas where martial law has been imposed, the military command may implement measures of the legal regime of martial law, in particular: compulsorily expropriate property that is privately or communally owned for the needs of the state under martial law, in accordance with the procedure established by law and issue relevant documents in this regard; introduce a curfew (a ban on being on the streets and in other public places during certain periods of time without specially issued passes and certificates) in accordance with the established procedure; establish a special regime for entry and exit in accordance with the established procedure, restrict the freedom of movement of citizens, foreigners and stateless persons, as well as the movement of vehicles; inspect belongings, vehicles, luggage and cargo, office premises and citizens’ homes in accordance with the established procedure, except restrictions established by the Constitution of Ukraine; prohibit peaceful assemblies, rallies, marches, demonstrations, and other mass events; establish, in accordance with the established procedure, a ban, or restriction on the choice of place of stay or residence of persons in the territory where martial law is in force; prohibit citizens who are on military or special registration from changing their place of residence without proper permission; establish a military housing tax for individuals and legal entities.

The possibility of applying the above measures entails a departure from the obligations provided for in Articles 12, 17, 19, 21, 25 of the Covenant and Articles 8, 10, 11 of the Convention, Articles 1, 2, 3 of the Additional Protocol to the Convention, Article 2 of Protocol No. 4 to the Convention.

Derogation from the requirements under the previously specified Articles 3, 8(3), 9, 13, 20, 22, 24, 26, 27 of the Covenant and Articles 4(3), 9, 13, 14, 16 of the Convention is repealed.

Thus, in Ukraine’s declaration of derogation from certain obligations under the Convention, submitted on 4 April 2024, the scope of the derogation was revised and reduced. This is important because, in the context of ongoing armed aggression, Ukraine is consciously renewing its obligations and increasing the scope of the rights and freedoms it can guarantee.

In Verbal Note No. 31011/32-119-9327 of the Permanent Representation of Ukraine to the Council of Europe dated 27 January 2025, updated information was provided on measures to derogate from its obligations under Article 2, paragraph 3, Articles 9, 14 and 17 of the Covenant and Articles 5, 6, 8 and 13 of the Convention. It is reported that, in accordance with Decision No. 8-r(II)/2024 of the Constitutional Court of 18 July 2024, part six of Article 615 of the Criminal Procedure Code of Ukraine ceased to have effect three months after the date of adoption of this Decision.

This part provided that in the event of martial law, if the term of a court decision on detention expired, and it was impossible for the court to consider the extension of the term of detention in accordance with the procedure established by the CPC, the preventive measure in the form of detention would be considered extended until the relevant issue was resolved by the court, but for no longer than two months.

At the same time, other provisions of this article, the possibility of applying which became the basis for the derogation, remain in force.

Thus, Article 615 of the CPC, considering the above changes, provides that in the event of the introduction of martial law:

– if it is not possible to draw up procedural documents on the conduct of investigative (search) or other procedural actions, the recording shall be carried out by technical means, with the subsequent drawing up of a protocol no later than 72 hours after the completion of these actions;

– if it is not possible to continue the proceedings, complete the pre-trial investigation and submit an indictment, a motion for the application of coercive measures of a medical or educational nature, a motion for the release of a person from criminal liability to the court, the term of the pre-trial investigation in criminal proceedings shall be suspended because of a reasoned decision of the prosecutor stating the relevant circumstances and shall be subject to continuation if the grounds for suspension no longer exist. Prior to the suspension of the pre-trial investigation, the prosecutor is obliged to decide on the extension of the period of detention;

– if it is not possible to perform procedural actions within the time limits specified in the CPC, such actions shall be performed immediately, where possible, but no later than 15 days after the termination or cancellation of martial law;

– if it is impossible to hold a preliminary court hearing, the preventive measure in the form of detention chosen by the investigating judge or the head of the prosecution authorities during the pre-trial investigation shall be considered extended until it takes effect. The issue shall be resolved at a preliminary court hearing, but for no longer than two months;

– testimony obtained during the interrogation of a suspect in criminal proceedings may be used as evidence in court if the defence lawyer participated in the interrogation and its course and results were recorded by technical means of video recording. Video recording of the testimony of witnesses and victims obtained during the interrogation is also permitted;

– the investigator, prosecutor, and investigator are obliged to ensure: (i) the remote participation of the defence lawyer in a specific procedural action using technical means of video and audio communication if it is impossible for him to appear in person; (ii) the participation of an interpreter at the earliest opportunity in the translation of explanations, statements, or documents of the suspect or victim. If circumstances prevent the interpreter from participating, the investigator, inquiry officer or prosecutor is entitled to perform the relevant translation personally if they know one of the languages spoken by the suspect or victim.

The possibility of applying the above-mentioned provisions of Article 615 of the Code of Criminal Procedure necessitates a continued derogation from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the Covenant and Articles 5, 6, 8 and 13 of the Convention, without prejudice to the fundamental principles of fair trial and legal protection, including the principle of ne bis in idem.

Returning to the characterisation of Ukrainian constitutionalism during the war, we note that its very essence as a system of rights that limits the arbitrariness of the state is being seriously tested.

On the one hand, the state of political relations has an objective tendency towards the establishment of autocracy (at least during the war), while on the other hand, the mechanisms of the state and civil society institutions continue to perform their roles (albeit with varying degrees of effectiveness). Terms such as ‘military constitutionalism’ or ‘war constitutionalism’ are being introduced into scientific discourse as a special mechanism for the exercise of state power during wartime, which allows for derogations from the constitutional principles of the functioning of power provided for by the Constitution in peacetime.

In other words, war becomes a basis for rethinking those values whose inviolability in peacetime is obvious and beyond doubt, values that are a qualitative feature of the liberal human-centred approach to the exercise of public power.

To a certain extent, these concepts echo the doctrine of ‘militant democracy’, which was first proposed by the renowned German constitutionalist K. Löwenstein in his 1937 article ‘Militant Democracy and Fundamental Rights’. Describing the catastrophic situation with the dominance of totalitarian extremist regimes on the European continent, he called on democratic countries to defend themselves, which he briefly characterised with the words ‘fire must be fought with fire’. Its essence lies in banning political forces and movements of a fascist, communist or extremist nature (whose activities are aimed at supporting or promoting the suppression of citizens’ rights and freedoms, contributing to national, racial, class or religious hatred, etc.) and developing other instruments for the self-defence of democracy.

The War has threatened not only Ukraine’s independence, sovereignty and territorial integrity, but also the very foundations of constitutionalism. Therefore, the mechanisms of modern constitutionalism must be flexible. Derogations from commitments to ensure human rights is one way to ensure such flexibility.

However, derogation from obligations does not necessarily mean that the State is unable to guarantee the rights enshrined in the Convention. In fact, in practice, when declaring a derogation from its obligations, the State usually states that the measures it is taking “may” involve a derogation from its obligations under the Convention.

For this reason, whenever an applicant complains that his or her Convention rights have been violated during a period of derogation, the Court first examines whether the measures taken can be justified under the fundamental provisions of the Convention; and only if they cannot be justified in this way does the Court proceed to determine whether the derogation was lawful (A. and Others v. the United Kingdom [GC], § 161; Lawless v. Ireland (No. 3), § 15).

Ukraine’s experience with derogation is unique in its scope and duration, as is the war in Ukraine for the European continent. The practice of the ECtHR, which will inevitably arise in the future in connection with the derogations from the obligations under the Convention made during the war, will give impetus to the development of European constitutionalism in extraordinary circumstances.