Can the state limit human rights at all?
Yes, it has the right to do this. The Convention on Human Rights provides that this can be done in one and only case — in case of war or other danger that threatens the life of the nation. Such a deviation is called a derogation. When a country introduces or ends such restrictions, it must notify the Secretary General of the Council of Europe.
Rights that the state cannot limit under any conditions, even during war:
the right to life, except in cases of death as a result of legitimate military actions;
prohibition of torture;
prohibition of slavery;
punishment for actions that are not recognized as a crime in this country.
And what exactly do such restrictions mean? Are the rights no longer valid on the territory of the state?
No, not everything is so terrible. The retreat does not give the state the opportunity to violate human rights at its discretion. This means that, for example, Ukraine can limit rights, but only to the extent that is strictly necessary in a specific case.
And who determines this necessity?
European Court of the Human Rights. Ukrainians still have the right to appeal to the ECHR with complaints about rights violations. The ECHR will take into account the derogation, but will not necessarily take it into account when considering cases. The court will examine whether the restriction is justified on a case-by-case basis.
According to Deputy Minister of Justice and ECHR Commissioner Ivan Lishchyna, the court has a wide practice of ruling against states despite the derogation. In particular, this applies to Turkey, which claimed to withdraw from its obligations, but the court did not take this into account.
At the same time, when Great Britain submitted derogations during counter-terrorist measures in Northern Ireland in the late 1970s, the court took them into account and ruled in favor of the state. But such cases are very rare, Lishchyna says.
Ukraine introduced this derogation for the first time?
No. For the first time, Ukraine reported such a retreat back in 2015. And the Verkhovna Rada then adopted the relevant resolution.
In 2015, Ukraine announced a departure from the right to personal integrity — it was about the possibility of detaining terrorism suspects without a court order. There was also a derogation from the right to freedom of movement, the secrecy of correspondence, the inviolability of housing, the right to a fair trial and to effective legal protection.
These restrictions were in effect in the zone of the special military operation in Donbas. In November 2015, Ukraine informed the Council of Europe about specific settlements in the Donetsk and Luhansk regions where rights were restricted. And in June 2016, it submitted an updated list.
Was the list of restricted rights expanded in 2022?
Yez. After the start of the full-scale invasion, martial law was imposed, and right in March 2022, Ukraine notified the Council of Europe of its withdrawal from a much broader list of articles of the Convention:
- the right to respect for family life, housing and correspondence (Article 8 of the Convention);
- freedom of thought and conscience, including the freedom to practice religion, perform religious services (Article 9);
- freedom of expression, including the right to receive and transmit information and ideas without interference from state authorities (Article 10);
- the right to peaceful assembly, as well as the right to establish, for example, trade unions (Article 11);
- the right to effective legal protection (Article 13);
- prohibition of discrimination on any grounds — gender, race, skin color, language, religion, political or other beliefs, national or social origin, belonging to national minorities, property status, birth, or on other grounds (Article 14);
- restriction of political activity of foreigners (Article 16);
- restriction on the right of ownership (protocol 1);
- the right to education (Protocol 1);
- freedom of movement and the right to leave any country, including oneʼs own (Article 2 of Protocol 4);
- prohibition of forced labor (clause 3 of article 4).
After that, Ukraine reported changes in the legislation several times, but did not shorten or expand the list. In total, since 2015, the Ukrainian authorities have informed the Council of Europe about various changes in the field of human rights 20 times.
What happened now?
On April 4, 2024, Ukraine announced that it was shortening the list of Convention norms from which it was withdrawing. For example, it corrected an error regarding the clause on forced labor, and also renewed its obligations regarding the right to freedom of thought and conscience, the right to effective legal protection, the prohibition of any form of discrimination, and the restriction of the political activity of foreigners.
This may be due to the fact that in November 2022, a legal analysis of Ukrainian restrictions was published on the website of the Council of Europe. The lawyers agreed that Ukraine has every reason to withdraw, but noted that the practice of the European Court of Human Rights (ECtHR) prohibits restrictions under some articles of the Convention — on the prohibition of discrimination and on the right to effective legal protection.
Okay. Then why are they talking about it now?
This question is not about the essence of restrictions, but about propaganda and disinformation. One of the first messages that can be found on this topic is on the X page of the blogger Myroslav Oleshko, who left Ukraine. The SBU stated that Oleshko was publishing posts from abroad urging Ukrainians to avoid serving in the army.
Oleshkoʼs panicking post with the loud headline "Zelensky told the EU to say goodbye!" got 58.7 thousand views on X alone, and another 34 thousand views on Telegram. Already 11 minutes after publication, the post was duplicated by the well-known pro-Russian blogger Anatoliy Sharii.
Former member of parliament from Oleh Lyashkoʼs Radical Party Igor Mosiychuk read Oleshkoʼs post on TikTok, it gathered 909,000 views. It was later circulated by anonymous Telegram channels, followed by other media.
Conspiracy theorists also took advantage of the news. For example, blogger Oleksandr Shavlyuk, who pretends to be a lawyer and provides advice on how to avoid mobilization, released a video on April 29 entitled "There are no more official human rights! Ukraine submitted an application to the EU!". So far, it has already gained 64,000 views.
Translated from Ukrainian by Anton Semyzhenko.