Greek communists demand the release of Mikhail and Alexander Kononovich

The authorities at both the central and local levels have repeatedly stated that the conversation with criminals (marauders, saboteurs, etc.) will be short – according to the laws of war. In fact, this means that the legal system, including the right to a lawyer, the presumption of innocence and a fair trial, does not work in time of war.

Without the right to inviolability of home, work and education

Recall: on February 24, the parliament approved presidential decree No. 64/2022 on the introduction of martial law for a period of 30 days.

According to the Center for Free Legal Aid under the Ministry of Justice, at this time, the constitutional rights and freedoms of citizens, provided for in Articles 30-34, 38, 39, 41-44 and 53, may be limited.

Temporary restrictions on the rights and interests of legal entities may also be introduced within the limits and to the extent necessary to ensure martial law. What kind of constitutional rights and freedoms of citizens, which now may not be respected, are we talking about?

Article 30 The Constitution of Ukraine prescribes guarantees of the inviolability of the home.

“It is not allowed to enter the dwelling of a person, conduct an inspection or search in it otherwise than by a reasoned decision of the court,” this article says. But there are exceptions – in cases when it comes to saving people’s lives, prosecuting persons suspected of committing crimes, etc.

That is, it turns out that now there are no special guarantees for the inviolability of the home of citizens.

Article 31 The Constitution guarantees the secrecy of correspondence, telephone conversations, telegraphic and other correspondence (but also with exceptions – in cases where it is a question of investigating crimes. In this case, exceptions should be established exclusively by the court).

Article 32 states – no one can be subjected to interference in personal and family life. Everyone is guaranteed judicial protection of the right to refute false information and compensation for material and moral damage caused as a result of the collection, storage, use and dissemination of false information.

Article 33 – on guarantees for free movement, choice of place of residence, travel outside the country and return back.

Article 34 – on the rights to freedom of thought and speech, expression of views and beliefs, collection and dissemination of information.

The next constitutional article, which may be limited in martial law, is article 38.

It says: citizens have the right to take part in the management of public affairs, referendums, elections, have an equal right of access to civil service and work in local governments.

Article 39 – on the right to freedom of assembly, rallies and demonstrations.

Article 41 – on the right to own, use and dispose of their property, the results of intellectual and creative activity. No one can be unlawfully deprived of the right to private property – it is inviolable. Confiscation of property can only be applied by court order, this article says, which may not be implemented now. That is, property can be confiscated without trial.

Article 42 – on the right to entrepreneurial activity not prohibited by law. It also spells out the duty of the state to protect the rights of consumers, control the quality and safety of products and services.

Article 43 – on guarantees of the right to work and the prohibition of the use of forced labor.

But there is also a clarification that such is not military service or work in accordance with the laws of martial law or a state of emergency.

Article 44 prescribes the right of working citizens to strike to protect their economic and social interests.

And finally, the last article, according to which a free interpretation is allowed for the period of martial law, is 53.

It speaks of the right of citizens to education and that secondary education in the country is compulsory.

Investigation instead of trial

But restrictions are possible not only under constitutional articles.

On March 8, 2022, Law No. 2111-IX came into force, which regulates the specifics of criminal cases in wartime conditions.

So, if the investigating judge cannot fulfill the relevant powers within the established time limits (say, due to hostilities in the locality where the court is located), his powers can be exercised by the head of the prosecutor’s office.

“He can authorize temporary access to things and documents, a search and covert investigative actions (for example, conducting audio-video monitoring, removing information from telecommunication networks, examining a home, surveillance, etc.), seizing property, extending the pre-trial investigation, authorizing obtaining samples for examination, detention.Also, the head of the prosecutor’s office can authorize detention for up to 30 days in criminal investigations under articles on murder, crimes against property (theft, robbery, robbery, abuse of official position) and more, “explained” Strana Denis Nenov, attorney at Ilyashev & Partners Law Firm.

That is, in fact, the investigating authorities can enumerate the powers of the courts. You can complain about the prosecutor’s office to the court (for example, when its work is restored or to a court in another locality).

“However, in practice, it is not always possible to appeal against these decisions (if, for example, hostilities are taking place in several settlements or districts at the same time). In addition, the head of the prosecutor’s office can extend the period of detention several times (up to 30 days each) – noted the lawyer.

According to the new law, it is also possible not to apply the technical fixation of procedural actions during the pre-trial investigation (for example, a search). True, we are talking about exceptional cases (if fixing is impossible for technical reasons). “But before the adoption of this law, technical fixing was mandatory for a number of procedural actions, say, the same search,” says Nenov.

It is clear that searches without fixing in theory can provoke violations of the law, which, moreover, will be very difficult for a person to prove.