Is the peacetime practice of the ECHR not a precedent for Ukrainian courts?

Advocacy
13:14 Mon 30.09.24 595 Reviews
Print

The judicial practice that is currently being formed due to Ukraine's derogation from its obligations under international treaties (the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights) is worrying.

This opinion was expressed by Oleksandr Dulsky, Chairman of the Ukrainian National Bar Association's Committee on Integration of the Ukrainian Bar System into the EU, during a roundtable discussion on «Consequences of Ukraine's Derogation from its Obligations under International Treaties: Possibilities of Search by Interpol and Influence on Extradition Procedures».

As a reminder, Presidential Decree No. 64 of 24.02.2022 «On the Introduction of Martial Law» contains a list of articles of the Constitution (30 - 34, 38, 39, 41 - 44, 53), under which rights and freedoms may be temporarily restricted.

Later, a notification was sent to the UN Secretary-General, which declared a specific scope of restrictions with reference to the provisions of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, which Ukraine refuses to implement.

The essence of these restrictions is the possibility of compulsory alienation of privately owned property for the needs of the state in accordance with the established procedure, the introduction of curfews and, as a result, the prohibition of movement on the streets and in public places at certain times of the day, the establishment of a special regime of entry and exit, restrictions on the movement of citizens, inspection of belongings, vehicles, luggage, cargo, housing and prohibition of peaceful assemblies, rallies, marches, demonstrations, prohibition or restriction of the choice of place of residence and prohibition of citizens.

However, the practice of applying restrictions by the courts, according to O. Dulsky, is a cause for concern. As an example, he cited a decision made by a Ukrainian court in August 2024. It concerned the application of a preventive measure. The defense referred to a number of ECHR decisions, justifying the lack of reasonable suspicion, as well as the unproven existence of the risks claimed by the procedural opponents.

But the court used this position as one of its arguments. Since Ukraine is in martial law, hostilities are underway, part of the territory of Ukraine is under occupation, and mobilization measures continue in the country, the precedent-setting decisions of the ECHR concerning preventive measures, which the defense referred to in the petition and at the hearing, cannot currently be fully implemented in the practice of national courts. After all, they were adopted in peacetime. And they do not take into account the circumstances of the application of a preventive measure in wartime. At the same time, the issue was considered in Ivano-Frankivsk region, far from the front line.

During the event, the participants also outlined the key problems of extradition issues and shared methods of responding to challenges, discussed mechanisms for protecting persons facing extradition, and considered aspects of Ukraine's cooperation with the International Criminal Police Organization.

Popular news

Valentin Gvozdiy: Ukraine’s ratification of the Convention for the Protection of the Profession of Lawyer – is a matter with concrete implications

Guarantees of the practice of law

Valentin Gvozdiy: Ukraine’s ratification of the Convention for the Protection of the Profession of Lawyer – is a matter…

Exactly one year ago, on May 13, 2025, in Luxembourg, during the 134th session of the Committee of Ministers of the Council of Europe, the Convention for the Protection of the Profession of Lawyer was opened for signature. Today, the Verkhovna Rada Committee on legal policy held a working meeting to prepare for its ratification. Between these two dates lies a year, during which (on March 9) Ukraine became the 28th signatory state. We spoke about this new phase with the Vice President of the UNBA, BCU Valentin Gvozdiy, who was personally involved in the preparation of this international instrument.

19:23 Wed 13.05.26 101
Mental health, archives and cybersecurity: The UNBA and the IBA reviewed the progress of joint projects

Support

Mental health, archives and cybersecurity: The UNBA and the IBA reviewed the progress of joint projects

The Ukrainian National Bar Association and the International Bar Association (IBA) reviewed the progress of joint projects that are of practical importance in the context of the war: supporting the mental health of advocates, digitizing archives, and strengthening the cybersecurity of the legal infrastructure.

18:27 Fri 08.05.26 128
The UNBA is developing a model for reforming the legal profession

Rule of Law Roadmap

The UNBA is developing a model for reforming the legal profession

The reform of the advocacy profession is part of the negotiation process regarding Ukraine’s accession to the European Union, and the Rule of Law Roadmap explicitly identifies the Ukrainian National Bar Association as one of the key stakeholders in the process.

16:21 Fri 01.05.26 179
Missing in action: advocates explain the procedure to the families of servicemembers

Legal defence of military personnel

Missing in action: advocates explain the procedure to the families of servicemembers

As part of the «Advocate+» pilot project, advocates continue to work with military personnel in the brigades, helping to resolve practical legal issues — ranging from social benefits and payments to undergoing medical examinations and processing paperwork.

17:13 Wed 29.04.26 129
Police to investigate the NACP's attempts to reform advocacy

Guarantees of the practice of law

Police to investigate the NACP's attempts to reform advocacy

The Office of the Prosecutor General has opened a criminal investigation into alleged abuse of power by employees of the National Agency for Corruption Prevention.

13:32 Wed 29.04.26 175
Advocates and patent attorneys combine their expertise in the field of intellectual property

Interaction

Advocates and patent attorneys combine their expertise in the field of intellectual property

Joint legislative proposals, expert opinions on regulatory changes and professional discussions on key issues in the field of intellectual property will form the basis of cooperation between the Ukrainian National Bar Association and the National Association of Patent Attorneys of Ukraine.

15:57 Tue 28.04.26 152
The UNBA and the Council of Judges of Ukraine are expanding their professional dialogue

Interaction

The UNBA and the Council of Judges of Ukraine are expanding their professional dialogue

On April 24, a working meeting was held between the President of the UNBA, BCU Lidiya Izovitova and the Chairman of the Council of Judges of Ukraine Vitaliy Salikhov. Topics discussed included formats for cooperation between bar and judicial self-governing bodies, the development of joint ethical standards, and the formation of a Selection Committee for the recruitment of members of the High Council of Justice.

12:34 Mon 27.04.26 172
The model for legal assistance to veterans was discussed at the UNBA

Legal defence of military personnel

The model for legal assistance to veterans was discussed at the UNBA

A working meeting was held at the Ukrainian National Bar Association, during which representatives of the advocacy profession, the Ministry of Veterans Affairs of Ukraine and a foreign expert discussed approaches to providing legal aid to veterans, the role of the advocacy profession in this system, and the experience of other countries.

18:07 Mon 20.04.26 236

Надішліть файл із текстом публікації у форматі *.doc, фотографію за тематикою у розмірі 640х400 та Ваше фото.

Оберіть файл