Human rights during martial law

Decree of the President of Ukraine No. 69/2022 announced the general mobilization of all citizens who are fit for military service, i.e. those who have no health restrictions. At the time this decree was signed, these were men aged 27 to 60. There were restrictions for people with disabilities, students, parents with many children, guardians, etc. We also had mobilization queues (waves):

1. The first stage of the operational reserve: former servicemen under 40 years of age with combat experience who served under contract or during previous mobilization campaigns.

2. The second stage of the operational reserve: servicemen who served in regular service until 2014 or served under contract.

3. Mobilization reserve: persons liable for military service who graduated from military departments of higher education institutions as reserve officers and were not called up during previous mobilization campaigns.

4. Civilian reserve: other citizens who can be involved in manning the Armed Forces and other military formations during a special period

On April 11, the Rada adopted draft law No. 10449 — "On Amendments to Certain Legislative Acts of Ukraine on Certain Issues of Military Service, Mobilization and Military Registration", which changed not only these legislative acts, but also the attitude of the people to the government, the attitude of the people to the military and threatened further demographic growth. 

In this article, we will look at Article 64 of the Constitution of Ukraine (let me remind you that the Constitution of Ukraine has the highest legal force and all laws and other regulatory acts are adopted on the basis of the Constitution and must comply with it), as well as find out what the Constitutional Court of Ukraine turns a blind eye to and why Ukraine is in the top five in terms of the number of applications for the protection of its rights to the ECHR (European Court of Human Rights). 

In the next article, we will analyze the verdict of the Zinkivsky District Court No. 530/337/23.

Article 64:

Text of the article: Constitutional rights and freedoms of man and citizen may not be restricted, except in cases provided for by the Constitution of Ukraine. In the conditions of martial law or a state of emergency, certain restrictions on rights and freedoms may be established, indicating the duration of these restrictions. The rights and freedoms provided for in Articles: 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, 63 of this Constitution. 

Article 24:

Text of the Article: Citizens have equal constitutional rights and freedoms and are equal before the law. There can be no privileges or restrictions based on race, skin color, political, religious and other beliefs, gender, ethnic and social origin, property status, place of residence, language or other characteristics.

Instead, Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization " defines a number of those who are higher up the hierarchy and can enjoy a carefree life or just life during the war. I agree with most of the points and most legal scholars will agree with me, but I have some questions about points 16, 17, 18, 21 and 24.

1. According to the SJA, as of August 2023, there were 7,976 judges in Ukraine's courts of first instance and appellate courts. If we are all equal, according to Article 24 of the Constitution, why not give judges the voluntary right to mobilize? Given the economic situation in the country, the absence of a few judges could help the budget and the Armed Forces. And maybe we will find out if there are those among them who would like to voluntarily defend Ukraine. The average salary of an ordinary appellate court judge is estimated to be about UAH 200,000, based on average indicators (length of service, base salary, lowest management level, academic degree (which most have), without the regional coefficient and if the judge did not have access to state secrets. If you wish, you can calculate this yourself using the Law of Ukraine "On the Judiciary and the Status of Judges". According to VisitUkraine :
   
   
   Photo: VisitUkraine
2. According to the resolution of the Cabinet of Ministers№450 of May 5, 2023, the number of employees of the National Police of Ukraine may not exceed 141,330 people. There is no exact number of police officers as of 2024, but if we trust Wikipedia, it is 191,431, including 24,756 civilians. Here is the data on the number of employees in the relevant bodies (According to the data of MOU, Sudovo-yuridichna Gazeta and the publicly available Wikipedia ) :

1) The Armed Forces of Ukraine (AFU): The total number of military personnel is about 250,000.
2) Ministry of Defense of Ukraine: The number of employees directly subordinated to the Ministry is unknown, but it includes a significant number of civilian employees and military personnel in the apparatus and units.
3) Security Service of Ukraine (SSU): The total number of employees is about 31,000.
4) The Foreign Intelligence Service of Ukraine: The number of employees is not disclosed as it is classified information.
5) National Guard of Ukraine: The total number of servicemen is about 60,000.
6) State Border Guard Service of Ukraine: Total strength — about 50,000 servicemen and employees.
7) State Protection Department of Ukraine: The exact number is not disclosed, but it is a small specialized unit.
8) Ministry of Internal Affairs of Ukraine (MIA): The total number of employees is about 200,000, including the police, the State Emergency Service, and other units.
9) State Service for Special Communications and Information Protection of Ukraine: The number of employees is not publicly disclosed.
10) State Special Transport Service: The exact number is not disclosed, but it is a specialized unit of the Armed Forces of Ukraine.

Given that 591 thousand people are booked (unofficially, because there is every chance that the official number is much higher). Is it really impossible to reduce the staff and send really trained people to fight, who will be much more useful than any civilian kidnapped by TCR employees from the street? Has it ever occurred to any of the officials that this could speed up Ukraine's victory? These questions remain unanswered.

3. In 2020, the Servant of the People party considered reducing the number of MPs from 450 to 300, since most of them do not actively participate in the work of the Verkhovna Rada. And this does not affect the quality of voting. The Servants themselves referred to the fact that at that time there were 37 million citizens in Ukraine, and that the number would be reduced to 300-320 deputies accordingly.  As of 08.06.2024, there are 401 deputies in the Verkhovna Rada, and the population continues to decrease with every drone from the moscow invaders and with every missile launched. According to Ukrinform, the state spends about 120 thousand hryvnias per MP every month. Simple math and we will find out how much the state spends per month on MPs' maintenance. Let's not forget that we also have the Cabinet of Ministers and other branches of power.

4. Paragraph #24 — who belongs to other persons liable for military service, is not explained to us. 

Article 27: 

Text of the article:  Every person has the inherent right to life. No one shall be arbitrarily deprived of life. The duty of the state is to protect human life. Everyone has the right to protect their life and health, the life and health of other people from unlawful encroachments.

This is a very controversial article. On the one hand, everything is true. And given that the people of Ukraine are the highest social value, on the other hand — Article 17 of the Constitution of Ukraine Protection of the sovereignty and territorial integrity of Ukraine, ensuring its economic and information security are the most important functions of the state, the business of the entire Ukrainian people. The defense of Ukraine, protection of its sovereignty, territorial integrity and inviolability are entrusted to the Armed Forces of Ukraine (*Armed Forces of Ukraine (abbreviated as AFU) — a military formation entrusted by the Constitution of Ukraine with the tasks of defence of Ukraine, protection of its sovereignty, territorial integrity and inviolability.

That is, given this information, we can conclude that my life should be protected by the state, but I should also protect the state, but in order for me to have the legal right to defend my state, I need to join the Armed Forces. However, this article cannot be violated under martial law because it is not on the list of articles of the CU (Constitution of Ukraine — ed.) that cannot be violated.

The Armed Forces of Ukraine and other military formations may not be used by anyone to restrict the rights and freedoms of citizens or to overthrow the constitutional order, remove the authorities or obstruct their activities.

The state provides social protection to citizens of Ukraine who serve in the Armed Forces of Ukraine and other military formations, as well as to members of their families.

The establishment and functioning of any armed formations not provided for by law is prohibited on the territory of Ukraine. The location of foreign military bases is not allowed on the territory of Ukraine.

This means that the Armed Forces can be used to restrict the rights and freedoms of citizens. But does this apply to the territorial recruitment centers and do they belong to the Armed Forces of Ukraine?

According to the Resolution of the Cabinet of Ministers of Ukraine No. 15 of 23.02.2022: Territorial recruitment and social support centers are military administration bodies that ensure the implementation of legislation on military duty and military service, mobilization training and mobilization.From this, we can understand that representatives of the TCR do not have and have not had the right to catch people on the street, take away mobile communications equipment, make "warning maneuvers with official vehicles" against cyclists, inflict bodily harm, etc. This is a gross violation of both the Constitution of Ukraine and the Criminal Code, and it is also an abuse of power, and it is a pity that no one pays attention to this, and police officers either do not respond to calls, do not take any action, or vice versa, help to commit these illegal acts.

Demonstration of "professionalism" and "decency" of TCR representatives

And this is only a small part of the entire archive, which has been operating since the beginning of the war and is being updated every day. Law enforcement agencies, which, unfortunately, do not protect people's rights at all, but even vice versa.

To these videos, we should add Article 28 of the CU, which states that everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment. No person shall be subjected to medical, scientific or other experiments without his/her free consent, which shall be immediately violated by representatives of the National Police, and the TCR representative shall in no way counteract this violation of human rights, which are FORBIDDEN to be violated even during a state of emergency or martial law.

Article 29:

Text of the Article: Everyone shall have the right to liberty and security of person. No one shall be arrested or detained except by a reasoned court decision and only on the grounds and in accordance with the procedure established by law. In the event of an urgent need to prevent or stop a crime, the authorities authorized by law may apply detention as a temporary measure of restraint, the validity of which must be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she is not served with a reasoned court decision on detention within seventy-two hours from the moment of detention. Every arrested or detained person shall be promptly informed of the reasons for his or her arrest or detention, his or her rights shall be explained and shall be given the opportunity to defend himself or herself and to have legal assistance from a defense counsel from the moment of detention. Every detainee has the right to appeal against his or her detention in court at any time. The relatives of the arrested or detained person must be immediately notified of the arrest or detention.

The most common target among the representatives of the TCR and SS. There have been enough cases of unlawful detention of men and their forced detention without informing their relatives over the past year that respected diplomats from different countries who support Ukraine and world-class politicians have finally paid attention to this. Instead, they simply turn a blind eye, because if Ukrainians refuse to fight, then citizens of the European Union, whose values are now being defended by hundreds of thousands of Ukrainian citizens, will have to do so. There is every reason to believe that this is exactly where we are heading. 

Arbitrariness in mobilization processes, violation of fundamental human rights, suppression of information (on the number of dead soldiers of the Armed Forces, on the legal status of the "Reserve+" application, etc.), as well as the incredible injustice in which Ukrainians live now push people to diverse thoughts and actions that only the current situation in the country prevents them from translating into purposeful actions. But there is a limit to everything...

"On June 11, in Odesa, the military detained an ambulance team that arrived at the territorial recruitment center of the Kyiv district, local media reported. The paramedics were held in the building for several hours. It was only through the efforts of their colleagues, who arrived with sirens and staged a protest, that they were released. One of the paramedics told the Dumskaya newspaper that he believes this incident was a reaction of the military commissariat to the medics' attempts to get a deferral from mobilization. For many months, Odesa ambulance workers have been trying to get clear explanations on this issue, but, unlike their colleagues in other cities, they hear only vague promises from the management".

"The management simply abandoned us. People feel injustice and a real threat to their future", said one of the medics.

According to him, if the situation does not improve, it could lead to layoffs and undermine the work of the city ambulance. Local telegram channels also reported on the illegal detention of an ambulance crew in the Kyiv district military commissariat.

"The doctor and paramedic are not released. A lot of teams came to protest against this lawlessness", the paramedics wrote.

The stigma of "evaders" has already grabbed hold of everyone who does not wear a uniform. There are more and more cases of violation of Article 29 of the Criminal Code, but, like previous violations, no one responds to them. 

Article 55:

Text of the article: Human and civil rights and freedoms shall be protected by the court.

Everyone shall be guaranteed the right to appeal in court against decisions, actions or inaction of state authorities, local self-government bodies, officials and officers.

Everyone has the right to apply for the protection of their rights to the Ukrainian Parliament Commissioner for Human Rights.

Everyone is guaranteed the right to file a constitutional complaint with the Constitutional Court of Ukraine on the grounds established by this Constitution and in the manner prescribed by law.

Everyone shall have the right, after exhausting all national legal remedies, to seek protection of his or her rights and freedoms in the relevant international judicial institutions or in the relevant bodies of international organizations of which Ukraine is a member or participant.

Everyone has the right to protect his or her rights and freedoms from violations and unlawful encroachments by any means not prohibited by law.

Judging by the number of applications to the ECHR, we can safely say that Ukrainian justice is not doing its job. The mood in society is such that one should go to court only in extreme cases and with a huge amount of money, otherwise, even in the easiest case, one can lose, if not guilty...

In the next article, we will consider the verdict of the Zinkivsky District Court of Poltava Region and try to understand all the decisions made by the judge, for which he received a barrage of criticism from law professors and was accused of "subversive activities" against Ukraine. However, the professor did not answer the question of why the Cabinet of Ministers of Ukraine is still registered as a foreign company. It turns out that now you cannot say anything against the government or against representatives of the TCR and SS — otherwise you are a traitor, a collaborator and are engaged in subversive activities. Let me remind you that censorship is the control of the content and dissemination of information in order to limit or prevent its dissemination. It is inherent in authoritarian and dictatorial regimes of power, not democratic ones.

Here are some comments from the Ukrainian Parliament Commissioner for Human Rights:

1. "...The draft law also states that the military command can impose temporary restrictions on the right of a Ukrainian citizen to leave the country. However, according to the requirements of Article 17 of the Constitution of Ukraine, the Armed Forces and other military formations cannot be used by anyone to restrict the rights and freedoms of citizens..."

2. "...According to him, the issue of granting the right to representatives of the TCR and SS to check military registration documents of citizens aged 18 to 60 also contradicts the Constitution, since such checks can only be carried out by officers of the National Police and personnel of the State Border Guard Service of Ukraine..."

Lubinets named a number of violations, expressed all this openly in an interview, but later called on the parliament to adopt the bill in the first reading...without comment.

However, the article allows citizens whose rights and freedoms are to be violated (even by government officials) to defend their lives and health by all means not prohibited. Thus, if the state cannot protect its citizens, if world-class politicians do not respond to the chaos in Ukraine (and this applies not only to the war), then citizens have every right to protect themselves.

According to Art. 56 of the CU, everyone has the right to compensation at the expense of the state or local self-government bodies for material and moral damage caused by unlawful decisions, actions or inaction of state authorities, local self-government bodies, their officials and employees in the exercise of their powers. In general, according to practice and information from available sources, no one has yet been compensated for moral or material damage for, for example, being beaten by TCR representatives or police officers. This is because such cases are hidden and it is customary not to talk about them in order not to be a "traitor". That is, the relatives of such people who have been abused by the authorities just have to keep quiet and wait. And the people themselves have to do what they would never do voluntarily. 

Article 61:

Text of the article: No one may be brought to legal liability of the same type twice for the same offense. The legal responsibility of a person is individual.

As you know, a kind of "punishment" for "evaders" in the form of restrictions on the disposal of funds was removed from the final version of the draft law No. 3127-IX .But the deputies decided to vote for a measure of influence in the form of "temporary restriction of the right to drive a vehicle".

Explanation: If a person has already been brought to administrative responsibility for violating the legislation on mobilization, but again fails to comply with the legal requirements of the recruitment center (for example, fails to appear upon a duly served summons), the head of the TCR first turns to the police with a request to detain such a citizen and bring him to the recruitment center.

If the police fails to find and detain such a person, the TCR sends a written request to the "violator" to the address of his residence or stay known to the TCR to fulfill his obligations. If the citizen fails to voluntarily fulfill the request within 10 days, the TCR may file a lawsuit with the court to temporarily restrict the person's right to drive vehicles. The court will consider such cases within a shortened period of 30 days from the date of commencement of the proceedings.

Courts will dismiss the claims of the TCR if the vehicle is the main source of income for the citizen. And if the vehicle is used by a person with a disability or a person who supports a person with a disability. The court decision is subject to immediate execution, and the filing of an appeal does not suspend its execution. The bailiff's decision will be sent to the police, which will apply restrictions on the right to drive.

This is where Article 61 is violated. Our legislation already provides for administrative and criminal liability for violation of the rules of military registration, legislation on defense, mobilization training and mobilization. The question arises whether the lawmakers are familiar with the legislation and the main document — the Constitution of Ukraine.

Untrained people are forced to go to war, learn to hold a weapon in their hands and die at a young age because of the interests of politicians. And qualified military and professional police officers do not fulfill their duties, violate people's rights, kidnap people and illegally detain them in order to forcibly transfer them to the hottest areas along the contact line. The laws that are being adopted not only contradict other laws, but they also contradict the Constitution of Ukraine, which no one pays attention to. Not even the Constitutional Court of Ukraine, not even international observers and politicians.

There is censorship. It is impossible to openly and freely disclose the situation in Ukraine. Because only those words that are said in favor of the government can be true, everything said against it is considered "treason", "collaboration" and "undermining state integrity". Perhaps not everything is censored, but it is already visible to the naked eye.

As a result, public confidence in the authorities is already at a low level, the economic situation is rapidly moving downward and there is a clear sense that everything will lead to chaos.