Significant Restriction of Human Rights and Freedoms Is Possible in the State of Emergency Only

Due to the aggravation of the epidemic situation in Ukraine as a result of the spread of respiratory disease COVID-19 caused by the coronavirus SARS-CoV-2, a number of restrictive measures have been issued.  The following legal acts set the background for restriction of human rights and freedoms provided by the Constitution of Ukraine, namely:

• Resolution of the Cabinet of Ministers of Ukraine “On Prevention of COVID-19 Coronavirus Dissemination in the Territory of Ukraine” of 13 March 2020, No. 211;
• Decree of the President of Ukraine "On the Decision of the National Security and Defense Council of 13 March 2020, "On Urgent Measures to Ensure National Security in the Context of an Outbreak of Acute Respiratory Illness COVID-19 Caused by the Coronavirus SARS-CoV-2" of 13 March 2020, No 87/2020;
• Order of the Cabinet of Ministers of Ukraine "On Temporary Closure of Certain Crossing Points and the Points of Control and Termination of Pedestrian Connections" of 13 March 2020, No. 288-p;
• Order of the Cabinet of Ministers of Ukraine "On Temporary Restriction of State Border Crossing To Prevent the Spread of Acute Respiratory Disease COVID-19 Caused by the SARS-CoV-2 Coronavirus in Ukraine" of 14 March 2020, No. 287-p and so on.

The CPLR would like to point out that measures affecting and restricting human rights and freedoms, granted by the Constitution of Ukraine shall be issued only in the event of a state of martial law or of a state of emergency with clear duration indication of such restriction measures.

Article 1 of the Law of Ukraine "On Legal Regime of a State of Emergency" of 16 March 2000 (here and after — Law on Emergency), provides the possibility of temporary introduction of a state of emergency in Ukraine on a national or local level in the event of natural disasters that have caused or can cause human and material losses, endanger life and/or the health of people. Article 4 (2) (1) of the Law on Emergency specifies that a state of emergency can be introduced in the event of a pandemic outbreak.

Introducing of a state of emergency shall vest the relevant bodies of public administration, military command and the bodies of local self-government with the authority needed to avert the threat and ensure the security and health of individuals, the proper operation of the national economy, public administration and the bodies of local self-government, as well as the protection of the constitutional system. It also enables the temporary restriction of rights and freedoms of individuals, as well as and the rights and legal interest of legal persons.

According to Article 83 (3), Article 85 (1) (31), Article 106 (1) (21) of the Constitution of Ukraine and Article 5 of the Law on Emergency, above-mentioned, a state of emergency in Ukraine on national or local level shall be introduced by a Decree of the President of Ukraine, approved by the Verkhovna Rada of Ukraine within a two-day term. The Cabinet of Ministers of Ukraine shall submit the proposals for the introduction of a state of emergency on the grounds of a pandemic or other natural emergencies.

The Decree of the President of Ukraine introducing a state of emergency shall indicate:

• the justification of the need for a state of emergency;
• area with boundaries, where a state of emergency has been introduced;
• the time of the commencement of the state of emergency, and the period, for which the state of emergency has been introduced;
• both the list and the limits of emergency measures, the exhaustive list of constitutional rights and freedoms of individual and of rights and legitimate interests of legal persons restricted on a temporary basis due to the institution of the state of emergency, with the specification of the period of validity of such restrictions;
• bodies of public administration, military command and the bodies of local self-government, which are entrusted to take the emergency measures, and limits of their additional powers;
• other miscellanies issues arising from the implementation of the Law on Emergency.

After signing the Decree on the state of emergency, the President of Ukraine shall address to the Verkhovna Rada of Ukraine for the approval thereof. This address of the President of Ukraine shall be considered by the Verkhovna Rada of Ukraine as an urgent matter. The Decree of the President of Ukraine on the state of emergency, approved by the law adopted by the Verkhovna Rada of Ukraine shall be announced immediately via mass media or otherwise.

The state of emergency can be introduced up to 30 days on a national level and up to 60 days on a local level. If necessary, the President of Ukraine may prolong the state of emergency but not more than for 30 days. The new Decree of the President of Ukraine prolonging the state of emergency shall become valid after the approval by the Verkhovna Rada of Ukraine.

What restrictive measures may be introduced by the Decree of the President of Ukraine on the state of emergency? Article 6 of the Law on Emergency enlists the following restrictions:   

• special entry and exit regime, restriction of the freedom of travel on the territory, where the state of emergency has been introduced;
• the restriction of motor vehicle traffic and the visual inspection thereof;
• the reinforcement of the protection of the public order and facilities supporting the existence of the population and the national economy;
• the prohibition of mass activities, except for those, whose prohibition is subject to court decisions;
• the prohibition of strikes;
• the forcible alienation or seizure of property from legal persons and individuals;
• additional emergency measures (for instance, according to Article 17 of Law on Emergency).

Within the state of emergency, the following actions shall be prohibited:  

• the alteration of the Constitution of Ukraine, of the Constitution of the Autonomous Republic of Crimea;
• the alteration of election laws;
• the elections of the President of Ukraine, the Verkhovna Rada of Ukraine, the Supreme Council of the Autonomous Republic of Crimea and local bodies self-government;
• the national and local referenda;
• the restriction of rights and powers of members of Parliament of Ukraine.

The state of emergency may be cancelled by a Decree of the President of Ukraine prior to its deadline, provided that the circumstances, which have caused the state of emergency, ceased to exist. The cancellation of a state of emergency shall be announced via mass media or otherwise immediately after the issue of a Decree of the President of Ukraine to that matter.

Last time in Ukraine, the state of emergency was introduced in the Autonomous Republic of Crimea (Decree of the President of Ukraine "On the Introduction of the State of Emergency in the Settlements of the Autonomous Republic of Crimea", No. 1692 of 3 December 2005, approved by the Law of Ukraine of 6 December 2005, No. 3182-IV) because of a high pathogenic poultry flu that has created a threat to the life and health of the people.

The CPLR recalls that under conditions of martial law or a state of emergency, the rights and freedoms envisaged in Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, 63 of the Constitution of Ukraine shall not be restricted.

As of 16 March 2020, because of the COVID-19 acute respiratory disease pandemic, the state of emergency has been introduced in the Czech Republic, Romania, Bulgaria, Italy, Spain, Serbia, Latvia, the USA, Kazakhstan and other countries.

The measures dealing with the prevention of the spread of acute respiratory illness COVID-19, introduced by Government of Ukraine, as well as by President of Ukraine, indicate the urgent need to introduce the state of emergency in the territory of Ukraine in accordance with the Constitution of Ukraine.