The Sole Authority to Restrict Rights in Ukraine
The Constitutional Court of Ukraine, in its decision No. 10-r/2020 dated August 28, 2020, stated that “the restriction of constitutional rights and freedoms of a person and citizen is possible only in cases defined by the Constitution of Ukraine. Such restriction can only be established by law – an act adopted by the Verkhovna Rada as the sole legislative authority in Ukraine. Establishing such a restriction by a subordinate legal act contradicts Articles 1, 3, 6, 8, 19, 64 of the Constitution of Ukraine” (paragraph 3.2 of the reasoning part of the Decision of the Constitutional Court of Ukraine dated August 28, 2020, No. 10-r/2020).
The Constitutional Court of Ukraine clarified that, according to paragraphs 41 and 45 of the Report “Rule of Law,” approved by the European Commission “For Democracy through Law” (25-26 March 2011), the elements of the rule of law include: legality, including a transparent, accountable, and democratic process of enacting legal provisions; legal certainty; prohibition of arbitrariness; access to justice, represented by independent and impartial courts, including those exercising judicial oversight over administrative activity; respect for human rights; prohibition of discrimination and equality before the law.
In this context, a law that grants discretionary powers to a certain state body must clearly and understandably delineate the scope of such discretion. It would not be in accordance with the rule of law if the discretion granted to the executive authority by the law amounted to unchecked power.
Therefore, the law must specify the scope of any such discretion and the manner of its exercise with sufficient clarity so that individuals can adequately protect themselves against arbitrary actions by the authorities.
Hence, according to experts, the issue of the list of individuals allowed to travel abroad during the legal regime of martial law cannot be partially addressed in the law, delegating almost unlimited powers to the Cabinet of Ministers of Ukraine to define other categories of such individuals allowed such departure.
In other words, any restrictions on the right of a Ukrainian citizen to depart from Ukraine must be governed and are currently governed solely by law, and this law is No. 3857-XII dated January 21, 1994, “On the Procedure for Departure from Ukraine and Entry into Ukraine of Ukrainian Citizens.”
Furthermore, in its decision dated April 1, 2008, No. 4-rp/2008, the Constitutional Court of Ukraine emphasized that the strict adherence to the Constitution and laws of Ukraine by legislative, executive, and judicial authorities ensures the implementation of the principle of the separation of powers and is a guarantee of their unity, an important precondition for the stability and maintenance of public peace and concord in the state.
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