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

Advocacy
13:14 Mon 30.09.24 831 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

Proceedings against military personnel following AWOL require clear deadlines — UNBA

Legislation

Proceedings against military personnel following AWOL require clear deadlines — UNBA

A soldier’s return to duty after AWOL does not necessarily mean the end of criminal proceedings. To ensure that the case does not remain at the pretrial investigation stage, a clear procedure for the investigator and prosecutor is required.

19:04 Fri 16.10.26 149
The UNBA warned of the risk of customs barriers for Ukrainian paper and furniture

Legislation

The UNBA warned of the risk of customs barriers for Ukrainian paper and furniture

Ukraine’s anti-deforestation rules are intended to preserve export access to the EU market. However, without paper and furniture on the list of goods, without effective sanctions, and with enforcement beginning only in 2030, these rules could hinder that goal.

11:12 Fri 16.10.26 109
Guarantees for advocacy without protective measures: proposed changes to the codes

Guarantees of the practice of law

Guarantees for advocacy without protective measures: proposed changes to the codes

The current law sets forth the rights and guarantees of the legal profession, but lacks the tools to protect them. The future law on advocacy is intended to fill this gap through amendments to criminal, administrative and procedural legislation.

19:41 Tue 13.10.26 152
Exceptions to the state prosecutor's representation in court must be consistent with the CCU's decision

Legislation

Exceptions to the state prosecutor's representation in court must be consistent with the CCU's decision

To prevent the provisions of Article 23 of the Law «On the prosecutor’s office» from being declared unconstitutional again, the proposed amendments contained in the government’s draft law should be clarified.

14:32 Fri 09.10.26 102
How can an advocate defend a client whose data is processed by the Interpol system?

Educational events

How can an advocate defend a client whose data is processed by the Interpol system?

The absence of a last name on the Interpol website does not necessarily mean that no one is looking for that person. How can you find out exactly what information police databases in 196 countries hold about a client, and does the removal of a record mean that the problems are behind you?

16:27 Thu 08.10.26 104
A bill implementing the Convention on the Protection of the Professions of Lawyer has been introduced

Legislation

A bill implementing the Convention on the Protection of the Professions of Lawyer has been introduced

The constitutional guarantees of legal aid, defense, and the independence of advocacy cannot be realized without protecting advocates from unwarranted interference in their professional activities, including searches, the seizure of professional materials and the use of criminal procedural mechanisms to exert pressure.

14:08 Mon 05.10.26 274
War-related business losses: from documenting damage to seeking sources of compensation

Discussion

War-related business losses: from documenting damage to seeking sources of compensation

How can businesses document war-related losses without losing evidence during the recovery process? What does an insurance policy actually cover, and where can assets be found for recovery? These are the questions facing businesses for which a court ruling does not yet mean actual compensation.

15:28 Fri 02.10.26 132
The CCBE is discussing European justice and issues related to the protection of advocates

Abroad

The CCBE is discussing European justice and issues related to the protection of advocates

Today, October 2, a meeting of the Standing Committee of the Council of Bars and Law Societies of Europe (CCBE) is taking place in Brussels. On the agenda are the protection of the advocate profession, the rule of law, attorney-client privilege, and changes in the European justice system.

14:04 Fri 02.10.26 206

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

Оберіть файл