Is the peacetime practice of the ECHR not a precedent for Ukrainian courts?
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
URAU
Access to advocate contacts in URAU has been restored
The Bar Council of Ukraine has opened up public access to data from the Unified Register of Advocates of Ukraine, which was closed at the start of the full-scale invasion in 2022. The decision was made at a meeting on December 12–13.
Self-government
Members of the QDCB are not required to submit declarations - BCU
Bar Council of Ukraine examined the legal status of members of bar self-government bodies and found that they are not required to submit declarations of persons authorized to perform functions of state or local self-government.
Self-government
BCU has identified 12 areas for implementing the Roadmap for advocacy
During its meeting on December 12, the Bar Council of Ukraine considered the Roadmap on the Rule of Law, approved by Order of the Cabinet of Ministers of Ukraine No. 475-r dated May 14, 2025. The document provides for the development and adoption of a draft law on improving the legal regulation of advocacy by the fourth quarter of 2026.
Guarantees of the practice of law
The Ombudsman acknowledged the problem of violation of the human right to legal aid in the TCC
The Verkhovna Rada Commissioner for human rights Dmytro Lubinets confirmed the existence of a problem with ensuring the constitutional right to professional legal assistance in territorial recruitment and social support centers.
Discussion
Why preventive measures have turned into preventive punishment in Ukraine: round table discussion
The European approach, enshrined in the CPC, provides for detention as an exceptional preventive measure: courts must prove the impossibility of milder alternatives and carefully assess the risks. In practice, however, it is increasingly being applied almost automatically, eroding standards of freedom.
Guarantees of the practice of law
The UNBA presented a report on violations of advocates' rights in the TCC
The Committee for the protection of advocate's rights and guarantees of legal practice of the UNBA has prepared a consolidated report on violations of advocate's professional rights and guarantees of legal practice by territorial recruitment and social support centers for the period from 2022 to the first half of 2025.
Self-government
Statement by the UNBA Committee regarding manipulative journalistic material
Statement by the UNBA Committee on information policy and interaction with the media regarding manipulative journalistic material aimed at discrediting the advocacy institution.
Guarantees of the practice of law
Dispute over fees: BCU explained the possibility of disclosing information subject to advocate-client privilege
In certain cases, an advocate may be exempt from the obligation to maintain attorney-client privilege. The Bar Council of Ukraine considered a practical situation in which an advocate needed to transfer documents prepared while working with a previous client to a colleague in order to protect his own rights in court.
Publications
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection
Sergiy Vylkov Our judicial system is so built that courts do not trust advocates
Iryna Vasylyk Advocacy in the proclamation of Independence of Ukraine
Oleksandr DULSKY When we cross the border of the Supreme Anti-Corruption Court, we get into another department of the National Anti-Corruption…
Vadym Krasnyk The UNBA will work, and all obstacles and restrictions are only temporary inconveniences