Ukrainian Courts and the Controversy Over Border Exit Rights
Ukrainian administrative courts are systematically denying Ukrainian citizens satisfaction in lawsuits challenging the decisions of military personnel of the State Border Guard Service of Ukraine on the temporary restriction of their rights as Ukrainian citizens to leave Ukraine; the recognition as illegal and the annulment of their decisions to deny crossing the state border of Ukraine, and the obligation for them to provide Ukrainian citizens with permissions to cross the state border of Ukraine on a permanent basis according to the law, based on the passport of a citizen of Ukraine for foreign travel.
The basis for the refusal to satisfy the claim, as stated in the court decision, is that the court considers that the Rules for Crossing the State Border by Citizens of Ukraine, approved by the resolution of the Cabinet of Ministers of Ukraine No. 57 dated 17.01.1995 (hereinafter also referred to as the Rules), establish that in cases defined by legislation, for crossing the state border, citizens must also present supporting documents in addition to passport documents. According to the court’s conclusion, my right to leave the country was limited by specific provisions of the Rules for Crossing the State Border by Citizens of Ukraine.
The courts justify their decision by the fact that at the time of the disputed legal relations, martial law was in effect in Ukraine, and a general mobilization was declared, and therefore the constitutional right of Ukrainian citizens to freely leave Ukraine was limited by legislation.
However, neither the Law of Ukraine “On the Legal Regime of Martial Law”, nor the Decree of the President of Ukraine No. 64/2022 “On the Introduction of Martial Law in Ukraine”, nor the Law of Ukraine “On Approval of the Decree of the President of Ukraine ‘On the Introduction of Martial Law in Ukraine’” dated 24.02.2022, nor the Law of Ukraine “On Approval of the Decree of the President of Ukraine ‘On the Introduction of Martial Law in Ukraine’” dated 24.02.2022, nor the resolution of the Cabinet of Ministers of Ukraine No. 57, to which the courts and officials of the border guard units refer as the legal basis for the legitimacy of the contested decision, contain requirements for restricting the right to leave Ukraine and necessary grounds for the right to cross the state border.
The aforementioned legal acts do not contain norms on the restriction of men’s departure from Ukraine during martial law; therefore, the refusal to cross the state border of Ukraine is unfounded, and the decisions of the border guards and courts cannot be considered in accordance with the current legislation of Ukraine.
According to current legislation, military personnel do not have the right to restrict the rights of Ukrainian citizens, yet they do so with verbal permission from the state leadership.
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