Consequences of the Introduction of Martial Law in Ukraine for the Restriction of Constitutional Rights and Freedoms

After the onset of the full-scale Russian invasion on February 24, 2022, the Ukrainian legislator faced a serious dilemma: how to reconcile the interests of the state's defence needs with the necessity of safeguarding the constitutional rights and freedoms of individuals and citizens guaranteed by the Constitution of Ukraine. Let us, therefore, examine the state of compliance with human and civil rights and freedoms guaranteed by Ukraine’s Fundamental Law. It should first be noted that the corresponding legal practice is, at best, debatable, making it difficult today to ascertain the scope and justification of the restrictions on constitutional rights and freedoms during the period of martial law in Ukraine.

In fact, until the Ukrainian parliament adopted the Law "On Amending Certain Legislative Acts of Ukraine on Certain Issues of Military Service, Mobilization, and Military Registration" dated April 11, 2024, which came into force on May 18, 2024, the activities of various state bodies involved in mobilization processes or crossing the state border were rather chaotic. These activities were intrinsically linked to ensuring compliance with constitutional rights and freedoms. The adoption of this law by the Verkhovna Rada of Ukraine demonstrates that in the third year of the full-scale Russo-Ukrainian war, the legislator has finally taken the initiative in addressing such a sensitive and painful issue as the restriction of the constitutional right to free movement in Ukraine during the martial law regime. However, it should be remembered that restrictions on constitutional rights and freedoms must be imposed solely on strictly defined legal grounds. Only through compliance with the Fundamental Law of the State and relevant legislative acts can it be affirmed that the provisions of Article 1 of the Constitution of Ukraine are not merely declarative. Despite the need to impose several restrictions on constitutional rights and freedoms for national security purposes, Ukraine remains a democratic state governed by the rule of law.

Keywords: human and civil rights and freedoms, restrictions on human rights, martial law, national security interests, mobilization

After the onset of the full-scale Russian invasion on February 24, 2022, the Ukrainian legislator faced an exceptionally challenging dilemma: how to ensure the state's defence needs and simultaneously to protect human and civil rights and freedoms guaranteed by the Constitution of Ukraine. Article 1 of the Law of Ukraine "On the Legal Regime of Martial Law" states that martial law is a special legal regime introduced on the territory of Ukraine or in specific localities in the event of armed aggression or threat of attack, a threat to Ukraine’s statehood, or its territorial integrity. This regime grants relevant state authorities, military command, military administration, and local government bodies the powers necessary to eliminate the threat, repel armed aggression, and ensure national security, while temporarily restricting constitutional human and civil rights and freedoms as well as the legal rights and interests of legal entities, specifying the duration of such restrictions. Simultaneously, Article 64 of Ukraine’s Fundamental Law stipulates that in the context of martial law or a state of emergency, certain rights and freedoms may be restricted, provided that the duration of such restrictions is defined. It also explicitly states that the rights and freedoms outlined in Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, and 63 of this Constitution cannot be restricted. A detailed analysis of the content of these articles reveals that even under martial law, there exists a set of human and civil rights and freedoms that cannot be violated. For instance, the legislator guarantees that a citizen of Ukraine cannot be deprived of citizenship or the right to change citizenship, cannot be expelled from Ukraine, or extradited to another state. Furthermore, the state guarantees care and protection for its citizens residing abroad (Article 25 of the Constitution). Article 27 establishes that everyone has an inherent right to life, and no one may be arbitrarily deprived of it. The state is obligated to protect human life, and everyone has the right to defend their life and health and the life and health of others against unlawful infringement.

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