Retreat from compliance with the European Convention on the Protection of Human Rights and Freedoms: necessary solutions or a broad step to the right?

In our time, human rights and freedoms have acquired a new and much deeper meaning. The level of understanding of one’s rights, and therefore the use of them, grows together with the general level of people’s lives and their education. Almost every day in the news feeds you can find reports about the violation of the rights of an individual or an entire social group.
Each country is governed by its own laws, which determine the rights and obligations of its citizens, but there are general norms for all, regulated by the Universal Declaration of Human Rights (UN) and the Convention on the Protection of Human Rights (Council of Europe). These guiding documents were created to regulate and protect the political, economic, cultural and social rights and freedoms of the citizens of the signatory countries. At the same time, the European Court of Human Rights, which is one of the regulatory bodies in the human rights system, was specially created to monitor and protect these rights. According to it, the signatory states undertake to implement and comply with the rules defined in the normative documents. They also have the right to monitor and apply to the European Court of Human Rights for violations of human rights on the territory of other members of the treaty.
Why is this interesting? Because the government of Ukraine submitted to the Secretary General of the Council of Europe a notice of withdrawal from certain obligations stipulated by the Convention for the Protection of Human Rights and Fundamental Freedoms, and therefore any signatory state can file a lawsuit in this regard to the European Court of Human Rights. However, this is only a possibility, and therefore, taking into account the Ukrainian realities, this will most likely not happen. It should be noted that on April 4, 2024, our state already submitted a similar notification about the denial of certain human rights. Then the government suspended a number of articles of the Convention on the territory of Ukraine, namely:
– Articles No. 8 (Right to respect for private and family life);
– Articles No. 10 (Freedom of speech);
– Articles No. 11 (Freedom of assembly and association);
– Articles No. 2 of Protocol 4 (Right to free movement of people)
– three articles from protocol 1 – Article No. 1 (Protection of private property), No. 2 (Right to education) and Article No. 3 (Right to freedom of election).
Both of these notices are a kind of preparation for the entry into force of the new law on mobilization, which, we remind you, will come into effect on May 18, 2024. This Law contains a number of articles that directly or indirectly violate Ukraine’s commitments to the Council of Europe, and therefore our government is announcing the termination of these articles.
The main text of the message concerns restrictions on certain human rights under martial law. What restrictions await us?
- Forced alienation of private and communal property.
Most likely, we are talking about the military transport duty, according to which cars and special equipment will be seized for the needs of the Armed Forces. Most likely, equipment will be seized from citizens who have two or more vehicles registered, from authorities, local self-government bodies, and from enterprises, institutions, and organizations. Alienation of the vehicle will be carried out on the basis of the Act of acceptance and transfer, which will include information about the owner and technical condition, as well as the residual value of the vehicle. In case of damage or destruction of the equipment, the owner can count on compensation from the government.
- Introduction of curfew.
Everything is simpler here – this restriction applies to the entire territory of Ukraine since the introduction of martial law. The main problem in this matter was that there was no actual punishment for breaking the curfew. Citizens who were on the streets without valid reasons were often scolded and then released. From now on, the situation will change – according to the draft Law No. 10195, the violator will be fined from 8,500 to 17,000 hryvnias. This should be a strong argument for maintaining order on the streets during the curfew.
- Establishment of entry and exit regimes, restrictions on the freedom of movement of citizens, foreigners and stateless persons, as well as the movement of vehicles, and a ban is introduced for persons who are on military or special registration to change their place of residence and stay without the permission of the relevant authorities.
These restrictions, as with curfews, are effectively in effect from the moment martial law is declared. The system of checkpoints regulates the movement of people and vehicles, the obligation of men to be on military registration regulates their stay on the territory of Ukraine and their entry and exit outside its borders. Restrictions on foreigners and stateless persons will apply to frontline areas.
- Establishing a ban or restriction on the choice of the place of stay or residence of persons in the territory where martial law is in force.
This item partially repeats and supplements the previous one, with the difference only in the presence of a person on military or special registration. Due to the fact that specific categories of the population are not specified in the notification, it can be understood that this item applies to everyone without exception. The positive side of this part is that now the state will have the right to forcibly resettle people from the areas of hostilities, and therefore – the death rate among the civilian population in conditions of war will potentially decrease.
- Prohibition of peaceful gatherings, rallies, marches, demonstrations and other mass events.
This is one of the most ambiguous points. On the one hand, there is the prevention of destabilization of the situation in the warring country from the outside, and on the other, the possibility of suppressing any public initiatives that the authorities do not like. More than 10 years ago, Ukrainians were already banned from mass gatherings, and we remember perfectly what happened next.
- Establishing a military levy for individuals and legal entities.
Another item from the list, which has been in effect for a long time on the territory of Ukraine, and to be precise – since January 1, 2015, and is 1.5% of the income of citizens.
- Ban on conducting elections.
This controversial item from the list concerns the conduct of elections, or more precisely, the ban on their conduct. Again, the situation can be looked at from different angles. It is absolutely certain that the holding of elections will lead to social fluctuations, and therefore to the destabilization of the situation in Ukraine. In addition, more than 6 million Ukrainians are currently abroad, so it is extremely problematic to hold an election process there. On the other hand, the right to elections is one of the foundations of democracy, it is guaranteed by the Constitution, to which we will return.
- Restrictions on 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.
The most provocative and ambiguous component of the message is the restriction of freedom of speech. Purely technically, the need for this restriction can be explained by the presence of a large number of openly pro-Russian provocateurs and propagandists, but won’t this become a tool to fight against pro-Ukrainian journalists and activists, who in many cases rightfully criticize the government? It is believed to be so.
How does the authorities explain the notice of withdrawal from certain obligations provided for by the Convention?
Dmytro Lubinets, the Verkhovna Rada Commissioner for Human Rights, informed about the following in Telegram:
“Recently, information appeared in one of the media that Ukraine has submitted an application to the Council of Europe for a partial withdrawal from compliance with the European Convention on the Protection of Human Rights and Freedoms. This caused an uproar both among the mass media and in society. But the information was presented in a distorted way! It is not about the restriction of human rights, but about the partial cancellation of restrictions that were applied earlier! This is noted on the official website of the Council of Europe. That is, restrictions were applied by Ukraine even before this, but currently they are not applied.”
The Ministry of Foreign Affairs of Ukraine also responded to the public outcry on this issue, noting:
“In accordance with the provisions of the Convention and the Pact, our state has been providing relevant information since 2015 in connection with the armed aggression of the Russian Federation against Ukraine. This regular practice has continued since February 2022 in connection with the beginning of a full-scale invasion and the introduction of martial law in our country.”
In addition, Minister of Justice Denys Malyuska stated on his Facebook page:
“We actually sent a notification about the possibility of applying restrictions on certain rights almost immediately after the introduction of martial law in 2022 – this is part of our international obligations (such notifications have been sent since 2015).
This is not know-how – this is what all countries waging war do (except the Russian Federation, of course, they are always bad with human rights), and in April 2024, we once again clarified the list of existing restrictions and REDUCED it. (Periodic review of our notices and possible restrictions is also our international obligation). Once again: Ukraine did NOT suspend the protection in April, but on the contrary – revised and removed the reservation regarding the limitation of a certain set of rights.”
So, notices of departure from certain obligations provided for by the Convention can be interpreted differently, we may like them or not, but they are there, and we as individuals and society as a whole will have to put up with them and adapt to them. However, how will these restrictions be correlated with the Constitution, a number of articles of which they directly violate? What is it, necessary steps to improve national security, or a broad step to the right? We still have to deal with this. Most likely, restrictions on their rights by Ukrainians will be challenged in the European Court. That is why the state must find a tool to balance between the observance of rights and the possibility of deviating from them.
Pavlo Groholskyi.