Media coverage and the actual legal nature of detaining individuals at the border require a clear distinction between political expediency and the requirements of current legislation.

The two main regulatory documents governing the procedures for border guards when receiving instructions from government agencies and the protocol for their interaction are:

Resolution of the Cabinet of Ministers of Ukraine No. 280 dated April 17, 2013 (on the procedure for the State Border Guard Service of Ukraine to receive and execute instructions from authorized state bodies regarding persons crossing the border) and Order of the Ministry of Internal Affairs of Ukraine No. 535 dated June 23, 2017 (on the procedure for State Border Guard Service officials to follow upon detecting such individuals)

These documents establish a strict list of grounds on which authorized state bodies (the National Anti-Corruption Bureau of Ukraine [NABU], the Security Service of Ukraine [SBU], the National Police of Ukraine [NPU], etc.) may issue instructions to the State Border Guard Service of Ukraine (SBGS).

According to paragraph 5 of Resolution No. 280, such instructions may concern:

- Entry bans (for foreigners and stateless persons).

- Exit bans (only based on a decision by an investigating judge or a court).

- Search for persons (if a person has been officially declared wanted in accordance with the Code of Criminal Procedure).

- Notification of border crossings (within the scope of operational-reconnaissance activities, counterintelligence, or covert investigative actions).

- Inspection of vehicles and cargo.

- Additional review of the grounds for crossing the border.

An order prohibiting departure (paragraph 3 of section 5) must be accompanied by a certified copy of the court decision (section 8 of the Resolution). In the absence of such a decision, the State Border Guard Service of Ukraine has no legal grounds to restrict the freedom of movement of a Ukrainian citizen.

To automate operations in the “Gart-1” system, each type of order is assigned a corresponding letter code (so-called “flags”), which determines the border guard’s course of action (in accordance with paragraph 5 of Ministry of Internal Affairs Order No. 535):

- Code “H” (Travel Ban) is enforced exclusively upon the existence of a court decision imposing a temporary restriction on the right to travel. The individual is not permitted to cross the border, and a decision is issued denying border crossing.

- Index “R” (Wanted), applied to individuals who are in hiding from pretrial investigation authorities. The detention of such a person still takes place in accordance with the requirements of criminal procedural law.

- Code “I” (Notification) is applied when operational measures (including special investigative measures) are being conducted against a person, but legal grounds for their detention or restriction on leaving the country have not yet been established. The border guard records the information, returns the passport to the individual, and allows them to cross the border, after which they notify the requesting authority by phone (Section II, Paragraph 4 of Order No. 535).

- Index “O” (Inspection), which involves inspecting personal belongings and vehicles to detect prohibited items.

- Code “B” (Examination of Grounds) involves an in-depth review of documents and questioning of the individual.

If a person (in this case, Galushchenko) participated in investigative proceedings as a witness and no ruling by an investigating judge restricting their right to leave the country has been issued against them, they have full freedom of movement in accordance with the Constitution of Ukraine.

The term “attempt to flee” in a legal context can only be applied to a person who is subject to a pretrial measure (house arrest, detention) or has another pretrial measure prohibiting travel. In any other case, it constitutes the lawful exercise of the right to freedom of movement.

If law enforcement agencies use “information” orders (index “I”) or “further investigation” orders (index “B”) as a means to physically detain a person at the border until a notice of suspicion is served (without a valid court order), this constitutes a gross violation of procedure.

According to paragraph 2 of Section III of Order No. 535, it is prohibited to take any actions against individuals not provided for by these Procedures. Artificially delaying border control (“please wait, we’re verifying the information”) until NABU detectives arrive effectively constitutes an unlawful detention of a person.

I am not defending (in any sense) former Minister Galushchenko; I have tried to defend the legal system.

The rule of law is based on the priority of procedure over expediency. Using border control as a mechanism to “intercept” individuals against whom there is no court-imposed restriction undermines the foundations of justice. Justice cannot be achieved through violations of the law, as the precedent set for the manipulative use of the State Border Guard Service’s databases could eventually be used against any citizen.