"Martial Law: The Ukrainian Version" — Mykola Ivanovych Pashkovsky, Legal Advisor at BARRISTERS, LLC

Martial Law: The Ukrainian Version

The media are reporting that the Verkhovna Rada of Ukraine has approved the Presidential Decree on the imposition of martial law and are citing Presidential Decree  No. 390/2018 dated November 26, 2018, “On the Decision of the National Security and Defense Council of Ukraine dated November 26, 2018 ‘On Extraordinary Measures to Ensure the State Sovereignty and Independence of Ukraine and the Imposition of Martial Law in Ukraine,’ which in fact is not such a decree.

In fact, there were two Presidential Decrees of Ukraine on the imposition of martial law on a single day, November 26, 2018.

On November 26, 2018, the President of Ukraine submitted to the Verkhovna Rada of Ukraine a draft Law of Ukraine “On the Approval of the Decree of the President of Ukraine ‘On the Imposition of Martial Law in Ukraine’” (registration No. 9338 dated November 26, 2018) (http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=65008). Attached to the draft law and the explanatory note was Presidential Decree No. 391/2018 of November 26, 2018, “On the Imposition of Martial Law in Ukraine,” which provided for the imposition of martial law throughout the territory of Ukraine from 2:00 p.m. on November 26, 2018, for a period of 60 days until 2:00 p.m. on January 25, 2019.

In accordance with paragraph 31 of part one of Article 85 of the Constitution of Ukraine, Article 189 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine,” and Article 5 of the Law of Ukraine “On the Legal Regime of Martial Law,” the Verkhovna Rada of Ukraine convened an extraordinary plenary session on the evening of November 26, 2018, to consider the adoption of a draft law (registration number 9338) approving the Decree of the President of Ukraine “On the Imposition of Martial Law in Ukraine.”

During preliminary debates, it was agreed that the duration of martial law would be reduced from 60 days to 30 days, and that it would be specified that the presidential election in Ukraine would take place on March 31, 2019—that is, on the date prescribed by Ukrainian law.

In this regard, the President of Ukraine submitted to the Verkhovna Rada a revised draft Law of Ukraine “On the Approval of the Decree of the President of Ukraine ‘On the Imposition of Martial Law in Ukraine,’” which now refers to the new Decree of the President of Ukraine No. 393/2018 dated November 26, 2018, “On the Imposition of Martial Law in Ukraine,” which limits the imposition of martial law to a period of 30 days.

The revised draft law submitted by the President of Ukraine contained the following provisions:

“1. To approve Presidential Decree No. 393 of November 26, 2018, ‘On the Imposition of Martial Law in Ukraine,’ with the following proviso:

Martial law is imposed in the Vinnytsia, Luhansk, Mykolaiv, Odesa, Sumy, Kharkiv, and Chernihiv regions, as well as in the Donetsk, Zaporizhzhia, and Kherson regions and in the internal waters of Ukraine in the Azov-Kerch water area.

2. During the period of martial law imposed by the aforementioned Decree of the President of Ukraine, partial mobilization shall be declared by the President of Ukraine within the timeframes and to the extent commensurate with the threats to Ukraine’s national security and defense.”

Next, in the session hall, the President of Ukraine put forward two proposals:

1. to vote to approve this new Presidential Decree No. 393/2018 of November 26, 2018, “On the Imposition of Martial Law in Ukraine,”

2. to include the following conditions in the law approving this decree:

– “the imposition of martial law exclusively in the regions located along the Russian border, along the Transnistrian section of the Ukrainian-Moldovan border, and along the coasts of the Black and Azov Seas. Specifically, in areas where an attack may be launched… These are the Vinnytsia, Luhansk, Mykolaiv, Odesa, Sumy, and Kharkiv regions, as well as the Chernihiv and Kherson regions and the internal waters of the Azov-Kerch water area.”

– “A state of emergency will be declared only in the event of a ground operation by regular troops of the Russian Federation outside the area of the Joint Forces Operation and outside the illegally annexed Crimea” (quoted from the transcript of the Verkhovna Rada session – http://iportal.rada.gov.ua/meeting/stenogr/show/6966.html).

The Speaker of the Verkhovna Rada of Ukraine, in a manner traditional for the Verkhovna Rada, put the draft law “...to a vote with the amendments agreed upon by the President of Ukraine as recorded in the transcript,” that is, “by voice vote,” and the law was adopted in its entirety.

As of 11:00 a.m. on November 27, 2018, the Law of Ukraine “On the Approval of the Decree of the President of Ukraine ‘On the Introduction of Martial Law in Ukraine,’” which was adopted by the Verkhovna Rada of Ukraine, has not been published; and the information sheet for the relevant bill on the Verkhovna Rada’s website lists its status as “Status: Being prepared for signature,” indicating that the final version of the law is not yet ready.

Some preliminary conclusions:

1) The Constitution of Ukraine grants the Verkhovna Rada of Ukraine the following authority under Article 31: “to approve, within two days of the President of Ukraine’s request, decrees on the imposition of martial law or a state of emergency in Ukraine or in certain regions thereof...” and does not contain any provisions regarding the right of the Verkhovna Rada of Ukraine to make any reservations during such approval (para. 31, part 1, Art. 85 of the Constitution of Ukraine). However, pursuant to Part 1 of Article 190 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine,” the Verkhovna Rada may adopt in full, in part with recommendations and/or reservations, or reject a draft law on the approval of the relevant decree of the President of Ukraine on the imposition of martial law or a state of emergency in Ukraine or in certain regions thereof…”.

2) The People’s Deputies of Ukraine once again voted on the text of the draft law as proposed “off the cuff,” which may affect the final version of the law.

Paragraph 3 of Presidential Decree No. 393 of November 26, 2018, “On the Imposition of Martial Law in Ukraine,” provides that, temporarily, for the duration of the legal regime of martial law, the constitutional rights and freedoms of individuals and citizens, as provided for in Articles 30–34, 38, 39, 41–44, and 53 of the Constitution of Ukraine, as well as temporary restrictions on the rights and legitimate interests of legal entities may be imposed to the extent necessary to ensure the possibility of introducing and implementing measures under the legal regime of martial law, as provided for in Part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law.”

Such a decision entails a restriction on the scope of constitutional human and civil rights:

– the right to work and the right to freely choose one’s place of employment (clause 2 of part 1, clause 21 of part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– the right to property (subparagraph 4 of Part 1, subparagraph 12 of Part 1, and subparagraph 15 of Part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– freedom of movement (clause 5, clause 6 of Part 1, clause 16 of Part 1, and clause 23 of Part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– freedom of peaceful assembly (subparagraph 8 of Part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– the right to form political parties and to be a member of them (para. 9, Part 1, Art. 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– freedom of speech (clause 10, part 1, and clause 12, part 1, of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– freedom of enterprise (subparagraphs 13 and 14 of Part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– the right to housing (clause 17, part 1, Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”);

– the right to an adequate standard of living (clause 20, part 1, Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law”), and others.

In accordance with Part 1 of Article 8 of the Law of Ukraine “On the Legal Regime of Martial Law,” specific restrictions (labor duties, military housing duties, compulsory requisition of property, curfews, internment, etc.) in certain areas of Ukraine where martial law has been imposed are introduced and enforced within the limits of temporary restrictions on the constitutional rights and freedoms of individuals and citizens, as well as the rights and legitimate interests of legal entities, as provided for in the decree of the President of Ukraine on the imposition of martial law, the military command, together with military administrations (if established), either independently or with the involvement of executive authorities, the Council of Ministers of the Autonomous Republic of Crimea, and local self-government bodies.

Thus, following the entry into force of the Law of Ukraine “On the Approval of the Decree of the President of Ukraine ‘On the Imposition of Martial Law in Ukraine,’” we should expect corresponding decisions from the military command (primarily the General Staff of the Armed Forces of Ukraine) and military administrations (if established) to understand what specific restrictions have been imposed and in which areas of Ukraine where martial law has been declared.

It should be noted right away that certain problems will arise in criminal proceedings, where things are not entirely in order even without martial law.

Pursuant to Article 615-1 of the Criminal Procedure Code of Ukraine, which establishes a special regime for pretrial investigation under martial law, a state of emergency, or in an area where an antiterrorist operation is being conducted, in an area (administrative territory) subject to a legal regime—in particular, martial law—if an investigating judge is unable to exercise, within the time limits established by law, the powers provided for in Articles 163, 164, 234, 235, 247, and 248 of this Code, as well as the authority to impose a preventive measure in the form of detention for a period of up to 30 days on persons suspected of committing the crimes provided for in Articles 109–114-1, 258–258-5, 260–263-1, 294, 348, 349, 377–379, and 437–444 of the Criminal Code of Ukraine; these powers are exercised by the relevant prosecutor.

A number of questions arise in connection with the implementation of these provisions:

1) Who, and under what procedure, will determine that an investigating judge is unable to exercise, within the time limits established by law, the powers provided for in Articles 163, 164, 234, 235, 247, and 248 of the Criminal Procedure Code of Ukraine;

2) In what manner may the relevant decisions of the prosecutor—made in the exercise of the powers provided for in Part 1 of Article 651-1 of the Code of Criminal Procedure of Ukraine—be appealed to the court (investigating judge), since Part 1 of Article 303 of the Code of Criminal Procedure of Ukraine does not contain a reference to such decisions, and Part 2 of Article 303 of the Code of Criminal Procedure of Ukraine provides that “complaints regarding other decisions, actions, or omissions of an investigator or prosecutor shall not be considered during the pretrial investigation and may be considered during preparatory proceedings in court in accordance with the rules set forth in Articles 314–316 of this Code.”

And one final remark.

The implementation of the Law of Ukraine “On the Approval of the Decree of the President of Ukraine ‘On the Imposition of Martial Law in Ukraine’” and the corresponding Decree of the President of Ukraine “On the Imposition of Martial Law in Ukraine” will entail Ukraine’s derogation from certain international legal obligationsunder the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

Therefore, the Verkhovna Rada should address the UN Secretary-General and the Secretary-General of the Council of Europe with a corresponding statement, noting that, according to the practice of the European Court of Human Rights, a derogation (departure from obligations) must meet a number of criteria set forth in Art. 15 of the Convention (the existence of a state of war or other public emergency threatening the life of the nation; the gravity of the situation; the absence of any conflict between measures derogating from the State’s obligations under the Convention and its other obligations under international law), which may in the future become the subject of a specific application to the European Court of Human Rights.

Ukraine does have experience with derogation. For example, on May 21, 2015, the Verkhovna Rada of Ukraine adopted Resolution No. 462-VIII “On the Statement of the Verkhovna Rada of Ukraine ‘On Ukraine’s Derogation from Certain Obligationsset forth in the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms” (the resolution was challenged before the Higher Administrative Court of Ukraine; see: Higher Administrative Court of Ukraine ruling of October 18, 2016, Case No. 800/232/16(800/220/15).

• Law of Ukraine “On Martial Law”
• Draft Law on the Approval of the Decree of the President of Ukraine “On the Imposition of Martial Law in Ukraine”
• Resolution of the Cabinet of Ministers of Ukraine “On the Approval of a Model Plan for the Introduction and Implementation of Measures Under the Legal Regime of Martial Law in Ukraine or in Certain Areas Thereof”
• Resolution of the Cabinet of Ministers of Ukraine “On the Approval of the Procedure for the Mandatory Evacuation of Certain Categories of the Population in the Event of the Imposition of the Legal Regime of Martial Law”