Reservations and Declarations for Treaty No.005 - Convention for the Protection of Human Rights and Fundamental Freedoms

Selected subject-matters : Human Rights (Convention and Protocols only)
Nature of declaration : Derogations
Declarations in force as of today
Status as of 15/04/2020

Ukraine

Derogation contained in a Note verbale from the Permanent Representation of Ukraine, dated 5 June 2015, registered at the Secretariat General on 9 June 2015 - Or. Engl.

On the 21st May 2015, the Verkhovna Rada of Ukraine approved the Resolution №462-VIII by which it adopted the Declaration “On Derogation from Certain Obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms” which states as follows.

“I
Derogation from Obligations


1. Due to the annexation and temporary occupation by the Russian Federation of the integral part of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol – as a result of armed aggression against Ukraine, the Russian Federation is fully responsible for respect for human rights and implementation of the relevant treaties in annexed and temporary occupied territory of Ukraine.

2. In view of armed aggression of the Russian Federation against Ukraine involving both regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by the Russian Federation, an anti-terrorist operation is being conducted by the units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the Armed Forces of Ukraine since April 2014, on the territory of certain areas of the Donetsk and Luhansk oblasts of Ukraine. The anti-terrorist operation is a part of the inalienable right of Ukraine to individual self-defense against aggression according to Article 51 of the UN Charter. The Russian Federation, which actually occupies and exercises control over certain areas of the Donetsk and Luhansk oblasts, is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law.

3. Ongoing armed aggression of the Russian Federation against Ukraine, together with war crimes and crimes against humanity committed both by regular Armed Forces of the Russian Federation and by the illegal armed groups guided, controlled and financed by the Russian Federation, constitutes a public emergency threatening the life of the nation in the sense of Article 4, paragraph 1, of the International Covenant on Civil and Political Rights, and Article 15, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms.

4. In order to ensure the vital interests of the society and the State in response to the armed aggression of the Russian Federation, the Verkhovna Rada of Ukraine, the Cabinet of Minister of Ukraine and other authorities have to adopt legal acts, which constitute the derogation from certain obligations of Ukraine under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

5. On 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Law of Ukraine “On Combating Terrorism” regarding the preventive detention of persons, involved in terrorist activities in the anti-terrorist operation area for a period exceeding 72 hours”. According to the Law, in the area in which a long-term anti-terrorist operation is being conducted, persons involved in terrorist activities may be detained, as an exception, for a period exceeding 72 hours but not exceeding 30 days, with the consent of a prosecutor and without a decision of the court. The application of the provisions of this Law gives reasons for the necessity to derogate from certain obligations of Ukraine under paragraph 3 of Article 2 and Articles 9 and 14 of the International Covenant on Civil and Political Rights and Articles 5, [6 (*)] and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time, the application of this Law exclusively while the anti-terrorist operation is being conducted in exceptional cases for the purpose of the prevention of grave crimes is the limit required by the acuteness of danger caused by the armed aggression of the Russian Federation and actions of the terrorist groups backed by the Russian Federation.

6. On 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine regarding the special regime of pre-trial investigation under martial law, in state of emergency or in the anti-terrorist operation area”. According to the Law, a special regime of pre-trial investigation is introduced for the time during which the anti-terrorist operation is being conducted. In the framework of this regime, the powers of investigating judges, prescribed by the Criminal Procedure Code in force, are temporarily transferred to respective prosecutors, who obtain additional procedural rights. The special regime of pre-trial investigation is applied only in the area of the anti-terrorist operation, and under the condition of impossibility of the investigating judge to perform his duties prescribed by the Criminal Procedure Code in force. The application of the provisions of this law gives reasons for the necessity to derogate from certain obligations of Ukraine under paragraph 3 of Article 2 and Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, [6 (*)], 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the fact that courts do not actually function in certain areas of the Donetsk and Luhansk oblasts because of the armed aggression of the Russian Federation and actions of terrorist groups backed by the Russian Federation is the limit, which allows to transfer powers from investigating judges to prosecutors under condition of threat to the life of the nation.

7. On 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Administering Justice and Conducting Criminal Proceedings in Connection with the Anti-terrorist Operation”. According to the Law on the period of conduct of the anti-terrorist operation, the territorial jurisdiction of court cases amenable to the courts located in the anti-terrorist operation area and investigative jurisdiction on criminal offences, perpetrated in the anti-terrorist operation area, in case of impossibility to conduct pre-trial investigation, was changed. The application of the provisions of this law gives reasons for the necessity to derogate from certain obligations of Ukraine under Article 14 of the International Covenant on Civil and Political Rights, and Article [6 (*)] of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the fact that courts and pre-trial investigation bodies do not actually function in certain areas of the Donetsk and Luhansk oblasts caused by the armed aggression of the Russian Federation and actions of terrorist groups backed by the Russian Federation is the limit which allows to change the territorial jurisdiction of court cases and investigative jurisdiction on criminal offences under condition of threat to the life of the nation.

8. On 3 February 2015, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Military and Civil Administrations”. In accordance with this Law, the military and civil administrations were established as temporary state bodies functioning in the Donetsk and Luhansk oblasts, within the Anti-Terrorist Centre of the Security Service of Ukraine, and were intended to provide for the operation of the Constitution and law of Ukraine, ensuring the security and normalization of the life-sustaining activity of the population, provision of the rule of law, participation in the prevention of sabotage and terrorist acts, and the prevention of the humanitarian disaster in the area of the anti-terrorist operation. The abovementioned Law grants powers to military and civil administrations, in particular, to set limits on remaining on the streets and in other public places within a period of 24 hours without specific documents; to temporarily restrict or prohibit the movement of vehicles and pedestrians on the streets, roads and terrain areas; to organize the checking of identification documents of individuals,; and, if necessary, the searching of personal belongings, vehicles, baggage and cargo, office premises and private dwellings of citizens, except the restrictions established by the Constitution of Ukraine. The application of the provisions of this law gives reasons for the necessity to derogate from certain obligations of Ukraine under Articles 9, 12 and 17 of the International Covenant on Civil and Political Rights, Articles 5 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the anti-terrorist operation being conducted in order to prevent the threat of destruction of the nation because of the Russian Federation armed aggression is the limit, which allows to temporarily restrict freedom of movement and the right to private life.

9. Therefore, Ukraine exercises the right of derogation from its obligations established in Article 2, paragraph 3, and Articles 9, 12, 14 and 17 of the International Covenant on Civil and Political Rights, Articles 5, [6 (*)], 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in certain areas of the Donetsk and Luhansk oblasts of Ukraine, which is determined by the Anti-Terrorist Centre of the Security Service of Ukraine in connection with the anti-terrorist operation, for the period until the complete cessation of the Russian Federation armed aggression, the restoration of constitutional order and orderliness in the occupied territory of Ukraine and until further notification to the Secretary-General of the United Nations and the Secretary General of the Council of Europe of the resumption of the application in full of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

10. At the same time, without any prejudice to the application of the remaining provisions of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, and bearing in mind the continued existence of the dangerous situation, henceforth while the anti-terrorist operation is being conducted in response to the armed aggression of the Russian Federation, Ukraine reserves the right to take measures that may constitute grounds for derogations from its obligations under other Articles of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, on the basis of, and in the manner determined by, the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms and this Regulation. In such case, Ukraine will inform thereof the Secretary-General of the United Nations and the Secretary General of the Council of Europe in due course.

II
Information on the state of security in the Donetsk and Luhansk oblasts and changes to the territory covered by the derogation


Ukraine shall inform the Secretary-General of the United Nations and the Secretary General of the Council of Europe about the state of security in the Donetsk and Luhansk oblasts in due course, and on the change of the territory covered by the derogation of Ukraine from the obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.”

The exact limits of certain areas of the Donetsk and Luhansk oblasts of Ukraine, covered by this derogation, will be communicated to the Secretary General of the Council of Europe at the later stage, once they are determined according to the legislation of Ukraine.

The Permanent Representation of Ukraine to the Council of Europe, pursuant to Article 15, paragraph 3, of the Convention, will inform the Secretary General of the Council of Europe about future developments and notify him when these emergency measures have ceased to operate and the provisions of the Convention are being fully implemented again.

List of annexes:

1.The Resolution of the Verkhovna Rada of Ukraine of 21 May 2015 №462-VIII «On derogation from certain obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/462-19 ;

2. The Law of Ukraine of 12 August 2014, No. 1630-VII “On Amendments to the Law of Ukraine “On Combating Terrorism” regarding the preventive detention of persons, involved in terrorist activities in the anti-terrorist operation area for a period exceeding 72 hours” (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/1630-18 ;

3.The Law of Ukraine of 12 August 2014, No. 1631-VII “On Amendments to the Criminal Procedure Code of Ukraine regarding the special regime of pre-trial investigation under martial law, in state of emergency or in the anti-terrorist operation area” (English version) The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/1631-18 ;

4. The Law of Ukraine of 12 August 2014, No. 1632-VII “On Administering Justice and Conducting Criminal Proceedings in Connection with the Anti-terrorist Operation” (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/1632-18 ;

5. The Law of Ukraine of 3 February 2015, No. 141-VIII “On Military and Civil Administrations” (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/141-19 .

[Note by the Secretariat: See the partial withdrawal of derogation contained in the Communication from Ukraine dated 3 December 2019 – Or. Engl.]
Period covered: 09/06/2015 -
Articles concerned : 15

Declaration contained in a Note verbale from the Permanent Representation of Ukraine, dated 3 November 2015, registered at the Secretariat General on 4 November 2015 – Or. Engl.

The Permanent Representation of Ukraine to the Council of Europe presents its compliments to the Secretary General of the Council of Europe and, referring to its Note verbale No. 31011/32-119/1-678 of 5 June 2015, has the honour to inform that Ukraine exercises the right of derogation from its obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms on the territory of certain areas of Donetsk and Luhansk oblasts of Ukraine, which are under control of the Government of Ukraine.

The list of localities in Donetsk and Luhansk oblasts under control/partially controlled by the Government of Ukraine as of October 1, 2015 is attached.

The Permanent Representation of Ukraine to the Council of Europe points out that the Russian Federation has committed an act of aggression against Ukraine and actually occupies and exercises effective control over certain areas of Donetsk and Luhansk oblasts. Therefore, the Russian Federation as an aggressor country is fully responsible under international humanitarian law and international human rights law for the respect and protection of human rights in these territories.

The Permanent Representation of Ukraine to the Council of Europe emphasises the need to adopt a very careful approach for the establishment of facts as to whether the areas of Donetsk and Luhansk oblasts of Ukraine, which as specified in this note verbale, are partially controlled by the Government of Ukraine, are under effective control and jurisdiction of either Ukraine or Russian Federation as an aggressor country. The European Court of Human Rights will have to take into account the particular circumstances of each case at a given moment in time.

List of localities in Donetsk and Luhansk oblasts under control/partially controlled by the Government of Ukraine (as of October 1, 2015)

Donetsk oblast

District under control of Ukrainian authorities:
1. Artemivskyi
2. Velykonovosilkivskyi
3. Volodarskyi
4. Dobropilskyi
5. Krasnoarmiyskyi
6. Krasnolymanskyi
7. Oleksandrivskyi
8. Pershotravnevy
9. Slovyansky.

District partially controlled by Ukrainian authorities:
1. Volnovakhskyi
2. Konstyantynivskyi
3. Maryinskyi
4. Telmanivskyi
5. Yasynuvatskyi.

Cities of regional subordinance under control of Ukrainian authorities:
1. Avdiivka
2. Artemivsk
3. Vugledar
4. Dzerzhynsk
5. Dymytrov
6. Dobropillya
7. Druzhkivka
8. Kramatorsk
9. Krasny Lyman
10. Krasnoarmiysk
11. Konstyantynivka
12. Mariupol
13. Novogrodivka
14. Selidove
15. Slovyansk.

Luhansk oblast

District under control of Ukrainian authorities:
1. Bilovodskyi
2. Bilokurakynskyi
3. Kreminskyi
4. Markivskyi
5. Milovskyi
6. Novoaidarskyi
7. Novopskovskyi
8. Svativskyi
9. Starobilskyi
10. Troyitskyi.

District partially controlled by Ukrainian authorities:
1. Popasnyanskyi
2. Stanychno-Luhanskyi.

Cities of regional subordinance under control of Ukrainian authorities:
1. Lysychansk
2. Rubizhne
3. Severodonetsk.
Period covered: 04/11/2015 -
Articles concerned : 15

Declaration contained in a Note verbale from the Permanent Representation of Ukraine, dated 29 June 2016, registered by the Secretariat General on 30 June 2016 - Or. Engl.

The Permanent Representation of Ukraine to the Council of Europe presents its compliments to the Secretary General of the Council of Europe and, referring to its Verbal Notes №31011/32-119/1-678 of 5 June 2015 and №31011/32-119/1-1124 of 3 November 2015, has the honour to convey the following information in accordance with the obligations of the Government of Ukraine under Article 15, paragraph 3, of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 2015.

In February 2014, the Russian Federation launched armed aggression against Ukraine and illegally occupied a part of the territory of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol, and today exercises overall effective control over certain districts of the Donetsk and Luhansk oblasts of Ukraine. These actions are in gross violation of the Charter of the United Nations, the Charter of the Council of Europe, other legally binding international instruments and constitute a threat to democracy, human rights and the rule of law in Europe. The Russian Federation, as the Aggressor State and Occupying Power, bears full responsibility for respecting human rights in temporarily occupied territories of Ukraine under international humanitarian law as well as in accordance with international human rights law.

Ongoing armed aggression of the Russian Federation against Ukraine, together with war crimes and crimes against humanity committed both by regular Armed Forces of the Russian Federation and by the illegal armed groups guided, controlled and financed by the Russian Federation, constitutes a public emergency threatening the life of the nation in the sense of Article 15, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In order to ensure the vital interests of the society and the State, the Verkhovna Rada of Ukraine, the Cabinet of Minister of Ukraine and other authorities adopted legal acts, which constituted the derogation from certain obligations of Ukraine under the Convention for the Protection of Human Rights and Fundamental Freedoms, among them the Law of Ukraine “On Amendments to the Law of Ukraine “On Combating Terrorism” regarding the preventive detention of persons, involved in terrorist activities in the anti-terrorist operation area for a period exceeding 72 hours” of 12 August 2014, the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine regarding the special regime of pre-trial investigation under martial law, in state of emergency or in the anti-terrorist operation area” of 12 August 2014, the Law of Ukraine “On Administering Justice and Conducting Criminal Proceedings in Connection with the Anti-terrorist Operation” of 12 August 2014 and the Law of Ukraine “On Military and Civil Administrations” of 3 February 2015.

On the above-mentioned basis, the Ukrainian Side exercised its right to derogate from its obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms on the territory of certain areas of Donetsk and Luhansk oblasts of Ukraine, which are under control of the Government of Ukraine, and informed the Secretary General of the Council of Europe of the measures which Ukrainian authorities had taken and the reasons therefor by the Verbal Note №31011/32-119/1-678 of 5 June 2015.

On 3 November 2015 by the Verbal Note №31011/32-119/1-1124 the Ukrainian Side specified areas of the Donetsk and Luhansk oblasts of Ukraine, covered by the derogation submitted by the Government of Ukraine on the basis of the Resolution of the Verkhovna Rada of Ukraine N462-VIII of 21 May 2015.

One year after adopting the Resolution of the Verkhovna Rada of Ukraine “On Derogation from Certain Obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms” №462-VIII of 21 May 2015, Ukrainian authorities reviewed the security situation in certain areas of Donetsk and Luhansk oblasts of Ukraine which fall within the scope of derogation. According to the security, defence and law enforcement agencies of Ukraine, it remains tense and fragile. In defiance of the Minsk agreements, the illegal armed groups and Russian Armed Forces place firing positions in residential neighbourhoods of the occupied settlements and, using heavy weapons prohibited by the Minsk agreements, continue to shell the positions of the Ukrainian Armed Forces.

The official statistics show that as of 30 May 2016, at least 6,380 attacks from Russian-backed militants against Ukraine’s Armed Forces have been reported starting this year. 42 Ukrainian soldiers have been killed and 350 have been wounded. The facts of disregard by the Russian occupation forces of the Minsk agreements in terms of the withdrawal of heavy weapons are constantly recorded. From the beginning of 2016, 699 cases of the presence of tanks, artillery systems of over 100 mm calibre, MLRS’s and mortars near the contact line have been confirmed.

In June 2016, security situation in Donbas started to deteriorate rapidly. Russia-led terrorist forces continued to blatantly violate ceasefire and heavy weapons withdrawal commitments under the Minsk agreements. They widely used heavy weapons, mostly mortars and high calibre artillery. As a result, 7 Ukrainian soldiers were killed and 18 were wounded between 16 and 21 June. On 22 June 2016, 1 Ukrainian soldier was killed and 11 were wounded; over 300 mortar shells and more than 160 projectiles were fired at Ukrainian positions. Current shelling intensity is similar to an active fighting phase of August 2015.

On 22 June 2016, OSCE SMM monitors were shelled with mortars by pro-Russian militants in the Donetsk region. The fire came from 82mm calibre mortars, which had to be withdrawn under the Minsk Agreements.

The uncontrolled border remains a critical impediment to the de-escalation as Russia continues sending its weaponry, regular troops and mercenaries to Donbas. On 27 May - 3 June 2016, Russia supplied through the uncontrolled sections of the Ukrainian state border to Donbas nearly 2500 tons of fuel, more than 160 tons of ammunition, 9 MLRS “Grad”, 2 self-propelled artillery systems “Akatsiya”, 36 “T-72” tanks and 6 armoured vehicles. On 22 June 2016, 2 self-propelled howitzers, 6 infantry fighting vehicle, 6 howitzers and 10 trucks were brought to the town of Chervonopartyzansk in the Luhansk region from the Russian territory.

The fact that the situation in the East of Ukraine remains tense and volatile is confirmed by many reports of international organisations, operating in the conflict-affected area, and in the first place by the United Nations Human Rights Monitoring Mission in Ukraine. According to the Fourteenth report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the situation of human rights in Ukraine, based on the work of HRMMU, from mid-April 2014 to 15 May 2016, OHCHR recorded 30 903 casualties in the conflict area in eastern Ukraine, among Ukrainian armed forces, civilians and members of the armed groups. This includes 9 371 people killed and 21 532 injured (para. 3).

The Ukrainian Side, having established that the circumstances which led to submitting the derogation still prevail, has found it necessary to continue to exercise in relation to the situation in certain areas of Donetsk and Luhansk oblasts of Ukraine, which are under control of the Government of Ukraine, the powers described in above-mentioned legislative acts. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the Ukrainian Side has availed itself of the right of derogation conferred by Article 15, paragraph 1, of the Convention and will continue to do so until further notice.

In pursuance of Article 15, paragraph 3, of the Convention the Permanent Representation of Ukraine to the Council of Europe has the honour to transmit the reviewed list of localities in Donetsk and Luhansk oblasts under control/partially controlled by the Government of Ukraine as of June, 14, 2016.

At the same time, the Permanent Representation of Ukraine to the Council of Europe emphasises once again the need to adopt a very careful approach for the establishment of facts as to whether the areas of Donetsk and Luhansk oblasts of Ukraine, which as specified in this Note Verbale, are partially controlled by the Government of Ukraine, are under effective overall control and jurisdiction of either Ukraine or Russian Federation as an Aggressor State. The European Court of Human Rights will have to take into account the particular circumstances of each case at a given moment in time.
Period covered: 30/06/2016 -
Articles concerned : 15

Declaration from the Permanent Representation of Urkaine, dated 31 January 2017, registered by the Secretariat General on 2 February 2017 - Or. Engl.

The Permanent Representation of Ukraine to the Council of Europe presents its compliments to the Secretary General of the Council of Europe and, referring to its Verbal Notes N° 31011/32-119/1-678 of 5 June 2015, N° 31011/32-119/1-1124 of 3 November 2015 and N° 31011/32-119/1-580 of 29 June 2016, has the honour to convey the following information in accordance with the obligations of Ukraine under Article 15, paragraph 3, of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950.

The Russian Federation launched armed aggression against Ukraine in February 2014 and illegally occupied a part of the territory of Ukraine - the Autonomous Republic of Crimea and the city of Sevastopol. Today, the Russian Federation also exercises overall effective control over certain districts of Donetsk and Luhansk regions of Ukraine. These actions are in gross violation of the Charter of the United Nations, the Charter of the Council of Europe, other legally binding international instruments, and constitute a threat to democracy, human rights and the rule of law in Europe. The Russian Federation, as the Aggressor State and Occupying Power, bears full responsibility for respect of human rights in the temporarily occupied territories of Ukraine under international humanitarian law and international human rights law.

The ongoing armed aggression of the Russian Federation against Ukraine, together with war crimes and crimes against humanity, committed both, by regular Armed Forces of the Russian Federation and by the illegal armed groups guided, controlled and financed by the Russian Federation, constitute a public emergency threatening the life of the nation in the sense of Article 15, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms.

To ensure vital interests of the society and the State, the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine and other authorities adopted legal acts, which constituted the derogation from certain obligations of Ukraine under the Convention for the Protection of Human Rights and Fundamental Freedoms, among them: Law of Ukraine “On Amendments to Law of Ukraine “On Combating Terrorism” Regarding the Preventive Detention of Persons, Involved in Terrorist Activities in the Anti-terrorist Operation Area for a Period Exceeding 72 hours” of 12 August 2014, Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine Regarding Special Regime of Pre-trial Investigation Under Martial Law in State of Emergency or in the Anti-terrorist Operation Area” of 12 August 2014, Law of Ukraine “On Administering Justice and Conducting Criminal Proceedings in Connection with the Anti-terrorist Operation” of 12 August 2014 and Law of Ukraine “On Military and Civil Administrations” of 3 February 2015.

On the above-mentioned basis, the Ukrainian Side exercised its right to derogate from its obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms in the territory of certain areas of Donetsk and Luhansk regions of Ukraine, which are under control of the Government of Ukraine, and informed You of the measures, which Ukrainian authorities had taken and the reasons therefor by Verbal Note N° 31011/32- 119/1-678 of 5 June 2015.

On 3 November 2015 and on 29 June 2016, by Verbal Notes N° 31011/32-119/1-1124 and N° 31011/32-119/1-580 the Ukrainian Side specified areas of the Donetsk and Luhansk regions of Ukraine, covered by the derogation, submitted by the Government of Ukraine on the basis of the Resolution of the Verkhovna Rada of Ukraine N° 462-VIII of 21 May 2015.

Since adopting the Resolution of the Verkhovna Rada of Ukraine "On Derogation from Certain Obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms” N° 462-VIII of 21 May 2015, the Ukrainian authorities regularly reviewed the security situation in certain areas of Donetsk and Luhansk regions of Ukraine, which fall within the scope of derogation. According to the security, defence and law enforcement agencies of Ukraine, it remains tense and fragile. In defiance of the Minsk agreements, the illegal armed groups and Russian Armed Forces place firing positions in residential neighbourhoods of the occupied settlements and, using heavy weapons prohibited by the Minsk agreements, continue to shell positions of the Ukrainian Armed Forces.

The official statistics demonstrate that between July 2016 and 20 December 2016, at least 7,200 attacks from Russian-backed militants against Ukraine’s Armed Forces have been reported. 100 Ukrainian soldiers have been killed and 600 have been wounded. The facts of disregard by the Russian occupation forces of the Minsk agreements in terms of the withdrawal of heavy weapons are constantly recorded. From July 2016, 403 cases of the presence of tanks, artillery systems of over 100 mm calibre, MLRS's and mortars near the contact line have been confirmed.

Russia-led terrorist forces continued to blatantly violate ceasefire and heavy weapons withdrawal commitments under the Minsk agreements. They widely used heavy weapons, mostly mortars, and high calibre artillery.

Nowadays, the total number of illegal armed groups counts nearly 35,300 persons who are using 403 tanks, 848 infantry fighting vehicles and armoured vehicles, 621 artillery systems, 208 MLRS, and 413 air craft defence systems.

The uncontrolled border remains a critical impediment to the de-escalation as Russia continues sending its weaponry, regular troops and mercenaries to Donbas. There are increasing cases of the transportation of equipment and ammunition to certain areas of Donetsk and Luhansk regions by railways. Since July 2016, Russia supplied Donbas through the uncontrolled sections of the Ukrainian state border with 30 cisterns of fuel, more than 100 tons of ammunition, 7 122-mm MLRS “Grad”, more than 40 tanks, self-propelled artillery systems, and armoured vehicles.

During July - December 2016, the Russian terrorist troops had been using the tactics of expansion of the controlled territory by occupying the so-called "Gray zone" west of the contact line. As of mid-November 2016, illegal armed groups almost completely brought under control previously demilitarized neutral zone in the village of Petrivske, Volnovaskyi district.

The fact that the situation in the East of Ukraine remains tense and volatile is confirmed by many reports of international organisations, operating in the conflict-affected area, and in the first place by the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU). According to the Sixteenth report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the situation of human rights in Ukraine, based on the work of HRMMU, from mid-April 2014 to 15 November 2016, OHCHR recorded 32,353 casualties in the conflict area in eastern Ukraine among Ukrainian armed forces, civilians, and members of the armed groups. This includes 9,733 people killed and 22,620 injured.

The Ukrainian Side, having established that the circumstances, which led to submitting the derogation still prevail, has found it necessary to continue to exercise in relation to the situation in certain areas of Donetsk and Luhansk regions of Ukraine, which are under control of the Government of Ukraine, the powers described in the above-mentioned legislative acts. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the Ukrainian Side has availed itself of the right of derogation conferred by Article 15, paragraph 1, of the Convention, and will continue to do so until further notice.

In pursuance of Article 15, paragraph 3, of the Convention, the Permanent Representation of Ukraine to the Council of Europe has the honour to transmit herewith the reviewed list of localities in Donetsk and Luhansk regions under control/partially controlled/uncontrolled by the Government of Ukraine as of 20 December 2016, submitted by the Security Service of Ukraine.

At the same time, the Permanent Representation of Ukraine to the Council of Europe emphasizes once again the need to adopt a very careful approach to the establishment of facts as to whether the territories of Donetsk and Luhansk regions of Ukraine, which, as specified in this Note Verbale, are partially controlled by the Government of Ukraine, are under effective overall control and jurisdiction of either Ukraine or the Russian Federation as Aggressor Slate. The European Court of Human Rights will have to take into account particular circumstances of each case at a given moment in time.

The Permanent Representation of Ukraine to the Council of Europe avails itself of this opportunity to renew to the Secretary General of the Council of Europe the assurances of its highest consideration.

The revised list of localities in Donetsk and Luhansk regions under control/partially controlled/uncontrolled by the Government of Ukraine as of 20 December 2016 is attached to this letter.
Period covered: 02/02/2017 -
Articles concerned : 15

Communication and Partial withdrawal of a derogation contained in a Note verbale from the Permanent Representation of Ukraine, dated 29 November 2019, registered by the Secretariat General on 3 December 2019 - Or. Engl.

I - Communication in accordance with the obligations of the Government of Ukraine under Article 15 paragraph 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms

1. Considering that the Russian Federation is committing a crime of aggression against Ukraine and is temporarily occupying a part of its territory by the armed formations of the Russian Federation, which consist of regular units subordinated to the Ministry of Defence of the Russian Federation, units and special formations subordinated to other security agencies of the Russian Federation, their advisors, instructors, and irregular illegal armed formations, armed gangs and groups of mercenaries, created, subordinated, commanded and financed by the Russian Federation, as well as with the help of the occupation administration of the Russian Federation consisting of its state organs and structures, functionally responsible for governing of the temporarily occupied territories of Ukraine, and self-proclaimed bodies controlled by the Russian Federation that usurped executive functions in the temporarily occupied territories of Ukraine, on January 18, 2018, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On the peculiarities of State policy on ensuring state sovereignty of Ukraine over temporarily occupied territories in Donetsk and Luhansk regions” (hereinafter - the Law № 2268), which aims to determine peculiarities of state policy for ensuring state sovereignty of Ukraine in the temporarily occupied territories in Donetsk and Luhansk regions.

The Law № 2268 came into force on February 24, 2018 and defines peculiarities of a state policy for ensuring the state sovereignty of Ukraine in the temporarily occupied territories in Donetsk and Luhansk regions in conditions of the ongoing crime of aggression and temporary occupation of a part of the territory of Ukraine.

To secure the state sovereignty of Ukraine in the temporarily occupied territories of Donetsk and Luhansk regions, state bodies and their officials, acting on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and laws of Ukraine, take measures to ensure national security and defence, repelling and containing of the armed aggression of the Russian Federation (Article 5.3 of the Law № 2268).

Measures to ensure national security and defence, repelling and containing of the armed aggression of the Russian Federation in Donetsk and Luhansk regions include measures to restore the territorial integrity of Ukraine, which are performed by security and defence bodies, other state bodies of Ukraine, their officials (article 7.1 of the Law № 2268).

The initiating and finalizing of measures to ensure national security and defence, repelling and containing the armed aggression of the Russian Federation in Donetsk and Luhansk regions are determined by separate decisions of the Supreme Commander-in-Chief of the Armed Forces of Ukraine (Article 8.3 of the Law № 2268).

The President of Ukraine as Supreme Commander-in-Chief of the Armed Forces of Ukraine, by his Decree № 116 dated April 30, 2018, in accordance with Article 8.3 of the Law № 2268, put into force the Decision of the National Security and Defence Council of Ukraine (hereinafter – NSDC) on initiation of national security and defence measures, repelling and containing the armed aggression of the Russian Federation in Donetsk and Luhansk regions (hereinafter – Joint Forces Operation (JFO)).

According to Article 18 of the Law of Ukraine “On Combating Terrorism” and the Decree of the President of Ukraine № 166 dated of April 30, 2018, a decision to terminate an anti-terrorist operation in connection with the launch of the JFO was taken.

Thus, on April 30, 2018, the anti-terrorist operation was terminated and were launched measures to ensure national security and defence, repelling and containing the armed aggression of the Russian Federation in Donetsk and Luhansk regions (the JFO).

2. According to Article 5 of the Law of Ukraine “On civil-military administrations” (as amended by the Law № 2268), civil-military administrations in the area of conducting of the JFO, with consent of the Commander of the Joint Forces, have the right: to set limitations on presence on the streets and other public places without documents at certain times of day ; temporarily restrict or prohibit the movement of vehicles and pedestrians on the streets, roads and sections of the territory; to arrange verification of identity documents of individuals, and, if necessary, the inspection of belongings, vehicles, luggage and cargo, offices and housing of citizens, except restrictions established by the Constitution of Ukraine.

In security zones adjacent to the combat areas, a special procedure is in place, which provides security and defence bodies and other state bodies of Ukraine with the special powers necessary for carrying out this operation (Article 8.2 of the Law № 2268).

In order to ensure vital interests of the society and the state in the period of repelling of the armed aggression in the security zones adjacent to the combat areas, military personnel, law enforcement agents and persons defined by Article 8 of the Law № 2268, who are involved in implementation of the JFO measures, in accordance with the Constitution and legislation of Ukraine have the right: 1) to apply, in case of absolute necessity, weapons and special means to persons who have committed or are committing offences or other actions that impede the fulfilment of legitimate demands of persons involved in implementation of the JFO measures, or actions related to unauthorised attempt to enter the area of implementation of the mentioned measures; 2) to detain and deliver persons mentioned in paragraph 1 of this part to the National Police of Ukraine; 3) to check identity documents of citizens and officials, and in the absence of documents, to detain them for identification; 4) to carry out a personal inspection of citizens, an inspection of things in their possession, vehicles and things that are transported by them; 5) temporarily restrict or prohibit the movement of vehicles and pedestrians on streets and roads, not to allow vehicles, citizens to certain sections of the territory and objects, to move out citizens from certain sections of the territory and objects, to tow vehicles; 6) to enter (gain access) to residential and other premises, land plots belonging to citizens, sites and premises of enterprises, institutions and organizations, to check vehicles for the purposes of the JFO conduct; 7) to use for official purposes communication means and means of transport, including special, belonging to citizens (with their consent), enterprises, institutions and organizations, except vehicles of diplomatic, consular and other representations of foreign states and international organizations.

The stay of persons not involved in carrying out such measures in the area of the JFO conduct may be temporarily limited by the Joint Forces Commander for the period of carrying out such measures (Article 12.4 of the Law № 2268).

Implementation of these measures may imply a derogation from Ukraine's obligations under Articles 9, 12, 17 of the International Covenant on Civil and Political Rights, Articles 5, 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 2 of the Protocol № 4 thereto and necessitates the continuation of such a derogation.

3. According to Article 2.8 of the Law № 2268, procedure for territorial jurisdiction of cases, falling within the jurisdiction of courts located in the temporarily occupied territories in Donetsk and Luhansk regions, for the time of the JFO, is established under the Law of Ukraine № 1632-VII dated August 12, 2014 “On the administration of justice and criminal proceedings in connection with the conduct of an anti-terrorist operation”(hereinafter – the Law № 1632).

As set out in the above Article 2.8 of the Law № 2268, the Law № 1632 defines legal regulation measures in the area of the JFO conduct and aims at ensuring access of citizens and legal entities to justice.

According to Article 1 of the Law № 1632, due to impossibility of administering justice by certain courts in the area of the JFO conduct, the territorial jurisdiction of court cases in the area of the JFO conduct, is changed, and civil cases, administrative offenses, administrative cases, commercial and criminal proceedings are taken by local and appeal courts as determined by the President of the Supreme Court.

Issues related to the competence of the investigating judge in criminal proceedings at the stage of pre-trial investigation and carried out in the area of the JFO conduct, in the case of impossibility of administering justice, are examined by investigative judges of local general jurisdiction courts as determined by the President of the Supreme Court (Article 1.2 of the Law № 1632).

The issue of access to justice in the territories not controlled by Ukraine, was considered by the European Court of Human Rights (ECHR) in cases of Khlebik v. Ukraine and Tsezar and Others v. Ukraine, in which the ECHR stated that the applicants' inability to go to court at their places of residence did not violate the merits of the right of access to a court, and held that there was no violation of Article 6 of the Convention.

In paragraph 52 of the judgment in the case of Tsezar and Others v. Ukraine (Applications nos. 73590/14, 73593/14, 73820/14, 4635/15, 5200/15, 5206/15 and 7289/15 dated 13/02/2018), the ECHR acknowledged that the State authorities might sometimes experience certain difficulties in ensuring the proper functioning of the judicial system in certain regions in view of ongoing hostilities in those regions. Nevertheless, in the Court stated that, the State authorities are expected to take certain steps to resolve the problem by, for instance, specifically authorizing claims to be filed in courts in another region of the State.

Thereby, the ECHR does not consider the above measures as violation by Ukraine of its obligations under Article 6 of the Convention.

In view of the above, there is no need to continue derogation from obligations of Ukraine under Article 14 of the Covenant and Article 6 of the Convention.

4. The Law of Ukraine “On Amendments to the Law of Ukraine “On Combating Terrorism” regarding the preventive detention of persons, engaged in terrorist activities in the anti-terrorist operation area for a period exceeding 72 hours” allows preventive detention of individuals who are engaged in terrorist activities for more than 72 hours, but not more than 30 days, with consent of the prosecutor’s office and without a court’s order. This Law is applied in the area of the anti-terrorist operation. Its applicability has not been expanded for the Joint Forces Operation.

Therefore, measures regarding preventive detention of individuals, enacted by the Law of Ukraine “On Amendments to the Law of Ukraine “On Combating Terrorism” regarding the preventive detention of persons, engaged in terrorist activities in the anti-terrorist operation area for a period exceeding 72 hours” in the conditions of the JFO and from the date of JFO enactment – 30 April 2018 – are not applicable.

5. The Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine regarding the special regime of pre-trial investigation under martial law, in state of emergency or in the anti-terrorist operation area” for a period of an anti-terrorist operation introduces a special regime of pre-trial investigation, according to which authority of investigating judges defined by the Criminal Procedure Code of Ukraine are temporarily transferred to respective prosecutors, who have obtained additional procedural rights. This Law is applied in the area of the anti-terrorist operation. Its application has not been expanded for the Joint Forces Operation.

Therefore, measures regarding special regime of pre-trial investigation, enacted by the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine regarding the special regime of pre-trial investigation under martial law, in state of emergency or in the anti-terrorist operation area” in the conditions of the Joint Forces Operation and from the date of JFO enactment - 30 April 2018 - are not applicable.

II - Regarding the territory, to which the derogation applies

Special order of guarantying rights and freedoms of civilians applies:

- in the security zone, adjacent to the combat area and provides granting authorities of security and defense bodies, other state bodies of Ukraine special powers necessary for the implementation of measures, aimed at ensuring national security and defense, repelling and containing the armed aggression of the Russian Federation (first paragraph of Article 8.2 of the Law № 2268).

Boundaries of security zones, adjacent to the combat area, are determined by the Chief of General Staff - Commander-in-Chief of the Armed Forces of Ukraine, upon a submission of the Commander of Joint Forces (second paragraph Article 8.2 of the Law № 2268).

Boundaries of security zones, adjacent to the combat area, are determined as follows: Vynohradne, Kurakhove, Ocheretyne, Rozivka, Vovcheyarivka, Bila Hora, Novoaidar, Sadky, Makarivka, Prostyane, along the state border, Chernyavka, along the administrative border of Luhansk and Kharkiv regions, Olhivka, along the administrative border of Donetsk and Kharkiv regions, Znamenivka, along the administrative border of Donetsk and Dnipropetrovsk regions, Komyshuvakha, along the administrative border of Donetsk and Zaporizhia regions, Urzuf, along the seacoast, Prymorske;

- in the area of implementation of measures to ensure national security and defense, repelling and containing the armed aggression of the Russian Federation in Donetsk and Luhansk regions, which is as follows: village Shyrokine, along the contact line, village Parkhomenko, along the state border of Ukraine, village Novoznamianka, along the administrative border of Luhansk and Donetsk regions, village Urzuf.

If armed aggression by the Russian Federation is expanded outside the territory of the Autonomous Republic of Crimea and the city Sevastopol, Donetsk and Luhansk regions, special forces and means are involved and used in order to repel and contain the aggression in any time at any part of Ukraine’s territory, mentioned in Article 8 of this Law, and under procedure established by Article 9 (Article 10 of the Law № 2268).

III - Regarding temporarily occupied territories of Ukraine in Donetsk and Luhansk regions

On the day of adoption of the Law № 2268 as temporarily occupied territories in Donetsk and Luhansk regions are recognised the parts of the territory of Ukraine within which the armed groups of the Russian Federation and occupation administration of the Russian Federation established and are exercising overall control: land territory and its internal waters within certain districts, cities, towns and villages of Donetsk and Luhansk regions; marine internal waters adjacent to the land; subsoil beneath these territories and the airspace above these territories (part 1 of Article 1 of the Law № 2268).

The boundaries and the list of districts, cities, towns and villages, parts of their territories temporarily occupied in Donetsk and Luhansk regions are determined by the President of Ukraine upon the submission of the Ministry of Defence of Ukraine, prepared on the basis on the proposals of the General Staff of the Armed Forces of Ukraine (part two of Article 1 of the Law № 2268).

The boundaries and the list of districts, cities, towns and villages, parts of their territories temporarily occupied in Donetsk and Luhansk Regions are determined by the Decree of the President of Ukraine № 32 dated February 7, 2019 “On the boundaries and the list of districts, cities, towns and villages, parts of their territories temporarily occupied in Donetsk and Luhansk regions”.

The special order of guarantying rights and freedoms of civilians is enacted within the temporarily occupied territories in Donetsk and Luhansk Regions, which is determined by this Law, other laws of Ukraine, international agreements, to which the Verkhovna Rada of Ukraine gave consent to bound by, principles and norms of international law (part five of article 2 Law № 2268).

IV - Regarding the security situation in the area of the Joint Forces Operation (as of 16.09.2019)

1. Despite the decision of the Trilateral Contact Group to establish a comprehensive, sustainable and permanent ceasefire regime from 00:01 on 21.07.2019, the number of shelling during August-September 2019 points to an upward trend and reveals as well a decrease of the control by the command by the Russian occupation forces in regards to compliance with this regime.

2. Currently, an average number of shelling is at 16 per day (in August 2019 – 10 shelling per day). In September 2019, positions of the JFO were shelled by the armed forces of the RF 70 times by heavy weaponry with 479 artillery/mortar shells (in August 2019 - 25 times by heavy weaponry with 194 artillery/mortar shells). There were also 4 cases of sniper fire causing the death of 2 military personnel and 3 injured (in August - 5 cases of sniper fire causing the death of 2 military personnel and 3 injured).
In total, during August-September 2019 16 military personnel were killed and 47 were injured.

3. In September 2019, armed forces of the Russian Federation shelled twice residential areas (in August – 4 times, which resulted in the injuries of 1 civilian, 2 residential buildings were damaged).

4. The total number of the occupational forces constitutes more than 30 thousand personnel. 2.1 thousand instructors of the Armed Forces of the Russian Federation conduct training of specialists for military intelligence and radio-electronic warfare, as well as for participation in combat operations in the temporarily occupied territories of Donetsk and Luhansk regions. Fuel and lubricants along with ammunition are continuously supplied from the territory of the Russian Federation to support the Russian occupation forces.
The Russian Federation continues to increase its military potential and intensified holding of military exercises of an offensive nature of various branches of its military forces near the borders of Ukraine.
The Russian Federation deploys along the state border of Ukraine 28 battalion tactical groups over 22 thousand strong, in particular at the military training grounds in Rostov region 12 battalion tactical groups 8A (numbering 7.5 thousand personnel) are stationed with a readiness level of less than 24 hours; at Smolensk, Orlovsko-Voronezh and Crimean directions 16 more battalion tactical groups of the Armed Forces of the Russian Federation are deployed numbering around 14.5 thousand personnel.

5. In order to hide the movement of tanks and artillery, armed forces of the Russian Federation systematically use modern systems of radio-electronic warfare, which render impossible operation of unmanned aerial vehicles of the OSCE Special Monitoring Mission, in particular, 2 times in September 2019.
Period covered: 03/12/2019 -
Articles concerned : 15


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