The Egregious Curtailment of Free Movement in Ukraine
By Resolution No. 724 of the Cabinet of Ministers of Ukraine dated August 25, 2010, amendments were introduced to paragraph 4 of point 2 of the Rules for the Crossing of the State Border by Citizens of Ukraine, previously approved by its Resolution No. 57 dated January 27, 1995.
According to the aforementioned amendments, it was established that “In cases determined by legislation, for crossing the state border, citizens must also have supporting documents in addition to passport documents.”
Thus, the government had preemptively taken certain actions by adopting Resolution No. 724 dated August 25, 2010, which limited the existing scope of rights of Ukrainian citizens to cross the state border of Ukraine, and this was later utilized in 2022.
In 2022, continuing its unlawful actions aimed at narrowing the rights of Ukrainian citizens, the government introduced additional amendments to the Rules for the Crossing of the State Border by Citizens of Ukraine, approved by Cabinet of Ministers Resolution No. 57 dated January 27, 1995, specifically by adopting point 2-6 of these Rules, which stated: “In the event of the imposition of a state of emergency or martial law within the territory of Ukraine, the right to cross the state border, besides the individuals specified in points 2-1 and 2-2 of these Rules, is also granted to other military-liable individuals not subject to conscription during mobilization. This provision does not apply to individuals specified in paragraphs two to eight of part three of Article 23 of the Law of Ukraine ‘On Mobilization Preparation and Mobilization’, as well as point 2-14 of these Rules.”, adopted by Cabinet of Ministers Resolution No. 383 dated March 29, 2022, with amendments introduced by Resolution No. 399 dated April 1, 2022, No. 69 dated January 27, 2023.
The government also took specific actions by adopting Resolutions No. 383 dated March 29, 2022, and No. 399 dated April 1, 2022, which limited the existing scope of my rights and the rights of other Ukrainian citizens to cross the state border of Ukraine, by establishing a limitation (restriction on the content and scope of the existing right and freedom) on crossing the state border in case of the imposition of a state of emergency or martial law within the territory of Ukraine, thus restricting the existing rights of Ukrainian citizens.
Furthermore, the Ukrainian government adopted Resolutions No. 1044 dated September 10, 2022, No. 264 dated March 12, 2022, No. 411 dated April 5, 2022, No. 615 dated May 20, 2022, No. 1285, No. 992 dated September 2, 2022, No. 1148 dated October 4, 2022, No. 119 dated February 10, 2023, No. 69 dated January 27, 2023, No. 661 dated June 10, 2022, which during 2022 modified points 2-1, 2-2, 2-3, 2-4, 2-5, 2-7, 2-8, 2-9, 2-10, 2-11, 2-12, 2-13, 2-14, 2-15, 2-16, 2-17 of the Rules for the Crossing of the State Border by Citizens of Ukraine, also establishing additional restrictions on the constitutional right of Ukrainian citizens to leave the territory of Ukraine (the right to freely leave the territory of Ukraine), creating discrimination and additional privileges for certain categories of citizens, and thus limiting the scope and content of the rights and freedoms of Ukrainian citizens to leave the territory of Ukraine (the right to freely leave the territory of Ukraine).
The established restrictions single out a specific category of individuals, namely military-liable individuals not subject to conscription during mobilization, in addition to individuals specified in paragraphs two to eight of part three of Article 23 of the Law of Ukraine “On Mobilization Preparation and Mobilization”, as well as individuals with disabilities and other categories of people granted privileges in exercising the constitutional right to leave the country. This constitutes clear discrimination.
Point 12 of the aforementioned Rules further narrows the previously existing rights of citizens and establishes that for the execution of border control, citizens present to the authorized officials of the state border guard service passport documents, and in cases prescribed by legislation, supporting documents as well.
During the document check at departure from Ukraine, the presence or absence of grounds for temporary restriction of the citizen’s right to leave the country is determined.
Previously, the 1995 version of Clause 12 of the Regulations stated, “Border control is conducted: upon exiting Ukraine – after completing all necessary types of control; upon entering Ukraine – before conducting other types of control,” which did not infringe upon the rights and freedoms of citizens.
The new edition of the Regulations was approved by the Resolution of the Cabinet of Ministers of Ukraine on August 25, 2010, No. 724 “On Amendments to the Rules for Crossing the State Border by Citizens of Ukraine,” which effectively narrowed the scope of existing rights and freedoms of citizens, including by granting additional powers in Clause 12 for conducting border control and imposing an obligation on citizens to present, in addition to passport documents, other “supporting documents” to authorized officials of the state border protection units.
Article 64, Part 2 of the Constitution of Ukraine notes that rights and freedoms provided by Article 24 of the Constitution cannot be restricted.
Article 24 of the Constitution of Ukraine establishes that 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.
Article 22 of the Constitution of Ukraine states that the adoption of new laws or amendments to existing laws must not diminish the content and scope of existing rights and freedoms.
Therefore, it is not possible to amend the law to impose restrictions on the freedom of citizens to leave the country beyond those in effect at the time of the Constitution of Ukraine’s adoption.
It is constitutionally infeasible to amend the Law of Ukraine “On the Procedure for Exit from Ukraine and Entry into Ukraine of Ukrainian Citizens” or to issue other normative legal acts that would narrow the existing right of a Ukrainian citizen to leave Ukraine, as any action to narrow this right directly violates the laws.
Subordinate legal acts, like laws, are obligatory and have the necessary legal force. However, their effect is limited by law: they cannot exceed the bounds of legislative regulation, and their norms are secondary to those of the law. Subordinate legal acts cannot change or repeal legal norms.
Therefore, if the law does not establish an obligation for Ukrainian citizens to have, in addition to passport documents, also supporting documents for crossing the state border, then the aforementioned resolution of the respondent should be recognized as unlawful and invalid.
According to Parts 2 and 3 of Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, guaranteeing certain rights and freedoms not included in the Convention and its First Protocol:
“2. Everyone is free to leave any country, including their own. 3. No restrictions on the exercise of these rights shall be imposed except such as are in accordance with the law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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