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

Advocacy
13:14 Mon 30.09.24 24 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

Advocacy

The UNBA is studying additional opportunities to support advocates

The full-scale invasion has seriously affected the mental health of all Ukrainians. There are certain vulnerable groups that have been most affected by the war in their personal and professional lives, including lawyers.

17:57 Tue 10.09.24 100

Advocacy

Everyone deserves protection, the Bar fulfills this requirement of the Constitution

The formation of the opinion in society that lawyers somehow choose their clients incorrectly because some people are not worthy of defense is a very dangerous phenomenon for the state. In the future, our enemies can use it against Ukraine.

13:44 Tue 27.08.24 171

Advocacy

The peculiarities of publishing decisions of the QDCB were explained by the BCU

According to the Law on Access to Public Information, managers of such information are obliged to publish the acts they adopt. At the same time, the decisions made by the qualification and disciplinary commissions of the bar contain both attorney-client privilege and personal data.

16:31 Tue 20.08.24 123

Advocacy

Public perception of the role of lawyers is a global problem, - V. Gvozdiy

«Statements and actions that undermine confidence in the independence of the legal profession and potentially threaten the safety of lawyers ultimately undermine confidence in the entire justice system and the rule of law. No lawyer should be attacked for doing their job».

16:27 Mon 19.08.24 126

Advocacy

UNBA comments on lawyers' «interference» in mobilization processes

Recently, after another scandal, the Volyn Regional Territorial Center for Recruitment and Social Support stated that lawyers should not interfere with the processes of mobilization and military medical examination. The statement has already been commented on by the National Bar Association of Ukraine.

17:37 Fri 16.08.24 153

Advocacy

HCJ engages Valentyn Gvozdiy to develop measures to ensure judicial independence

Valentyn Gvozdiy, Vice President of the Ukrainian National Bar Association and the Bar Council of Ukraine, was appointed to the working group on the development and implementation of measures to ensure the independence of judges and the authority of justice.

13:21 Wed 07.08.24 368

Advocacy

Use of legal remedies is not pressure – BCU

Lidiya Izovitova, the President of the UNBA, BCU appealed to the Prosecutor General's Office and the Council of Prosecutors of Ukraine regarding the inadmissibility of pressure on lawyers who use legal means of defense in the framework of providing legal aid.

14:17 Thu 01.08.24 177

Advocacy

The Council of Europe supports the development of UNBA

The Council of Europe Office in Ukraine will provide all possible support for the development of the Ukrainian National Bar Association and its initiatives for the benefit of Ukrainian society.

12:47 Wed 17.07.24 271

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

Оберіть файл