Published on 20 November 2023

FIFTH SECTION

Application no. 57699/22 Oleg Viktorovych KONICHENKO against Ukraine lodged on 4 December 2022 communicated on 30 October 2023

STATEMENT OF FACTS

1. The applicant, Mr Oleg Viktorovych Konichenko, is a Ukrainian national, who was born in 1978 and lives in Kryukivshchyna, in the Kyiv region.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. Following the full-scale invasion of the territory of Ukraine by the Russian Federation, martial law was imposed in Ukraine as of 24 February 2022 by Decree no. 64/2022 of the President of Ukraine, which on the same date was approved by the Law of Ukraine no. 2102-IX and entered into force. This Decree provides that military commands, together with the Ministry of Internal Affairs of Ukraine, other executive authorities and local self-government bodies, must introduce and implement measures provided for by the Law of Ukraine on the Legal Regime of Martial Law (“the Martial Law Act”) that are necessary to ensure the defence of Ukraine. It further provides that in connection with the introduction of martial law in Ukraine, certain constitutional rights and freedoms, including the right to freely leave the territory of Ukraine as set out in Article 33 of the Constitution of Ukraine, may be temporarily restricted for the period of martial law to the extent necessary to ensure implementation of the measures provided for by the Martial Law Act.

4. On the same date, by Decree no. 69 of the President of Ukraine, general mobilisation was announced in Ukraine. Decree no. 69 ordered the conscription of persons liable for military service and reservists in a number determined under the mobilisation plans. On a number of occasions, Parliament extended both martial law and mobilisation in Ukraine, and both are still in place.

5. By a letter of 28 February 2022, the Permanent Representative of Ukraine to the Council of Europe informed the Secretary General of the Council of Europe, for the purposes of Article 15 of the Convention, of the introduction of martial law in Ukraine by Decree no. 46. In that letter, and in subsequent letters extending the validity of the measures taken, Ukraine derogated from the rights enshrined in the Convention for the duration of the state of martial law.

6. On 24 February 2022, referring to Decree no. 64, the Head of the State Border Guard Service (“the SBGS”) sent a letter (No. 23-6122/0/6-22-Вих) to all bodies of the SBGS ordering that all male citizens aged 18 to 60 years be banned from travelling outside Ukraine for the period of martial law in order to ensure the defence of Ukraine, the protection of its sovereignty, territorial integrity and inviolability, and timely and complete mobilisation. Later on the same date, the SBGS announced the ban via the website of the Cabinet of Ministers of Ukraine.

7. On 25 February 2022 the Head of the SBGS specified in another letter to the SBGS bodies that the ban should not be applicable to persons who under section 23 of the Law of Ukraine on Mobilisation Training and Mobilisation (“the Mobilisation Act”) were not subject to call-up for military service during mobilisation. This included individuals bringing up a child or children under the age of 18 on their own.

8. In another letter, dated 17 March 2022, the Head of the SBGS further defined the documents to be presented by individuals to prove that they belonged to one of the categories of persons to whom the restriction on the right to travel did not apply. For men bringing up a child or children under the age of 18 on their own, these documents were defined as follows: the birth certificate(s) of the child(ren), aссompanied by: (a) the death certificate of the child’s mother, or (b) a court order depriving the mother of parental rights, or (c) a court order removing the child from the mother without depriving her of parental rights, or (d) a court declaration that the mother was missing or dead.

9. On 29 March 2022 the Government of Ukraine amended the Rules on State Border Crossing by Ukrainian citizens as approved by Resolution no. 57 of the Cabinet of Ministers of 27 January 1995. The amendments formalised the ban by providing, among other things, that under martial law, persons liable for military service who were not subject to the call-up for military service during mobilisation retained the right to cross the State border. It was further stated that the decision to grant permission to travel outside Ukraine to a male person accompanying a child under the age of 16 depended on whether the accompanying person belonged to the category of persons exempted from military service and mobilisation and the provision of supporting documents. The Rules on State Border Crossing, as amended, did not specify what documents had to be submitted in this respect.

(a) 3 March 2022

10. According to the applicant, on 3 March 2022 he tried to leave the territory of Ukraine with his two-year-old son T but was refused by the State Border Guard without being provided with a written document recording that refusal.

(b) 26 May 2022

11. On 26 May 2022 the applicant and T attempted to leave the country for the second time. The applicant submitted to the border officer his own and his son’s international passports, T’s birth certificate, T’s mother’s authorisation for T to travel, and a notarised agreement with T’s mother on parental rights and obligations dated 25 May 2022. According to the notarised agreement, T’s place of residence was with his father, who had the sole obligation to financially support and maintain him. On 26 May 2022 the SBGS refused to allow the applicant to cross the border on the basis that he did not have grounds to leave. A written refusal given to the applicant referred to Decrees nos. 64 and 69 and the Mobilisation Act and stated that the applicant “had failed to provide the necessary documents to be authorised to cross the border”. It was not specified what documents were missing.

12. The applicant challenged the lawfulness of the refusal in the Lviv Administrative Court. He submitted, among other things, that the refusal had not indicated what documents he had allegedly failed to submit and what the legal basis for requiring those documents was.

13. On 6 July 2022, in separate proceedings, the applicant’s wife – the mother of the applicant’s son T – was ordered by a court to pay child maintenance to the applicant in respect of their son. On 21 July 2022 the applicant and his wife divorced.

14. On 26 July 2022 the Lviv Administrative Court rejected the applicant’s action against the SBGS’s decision of 26 May 2022. The court noted that citizens’ constitutional rights to freedom of movement had been restricted by the SBGS following Decree no. 64, in view of the introduction of martial law and the announcement of the general mobilisation. It found that the documents submitted by the applicant at the border did not show that he had been bringing his son up on his own and noted that the relevant documents were listed in the letter of the Head of the SBGS of 17 March 2022 (see paragraph 8 above).

15. The applicant appealed, arguing that while Decree no. 64 provided for the possible restriction of some constitutional rights, in accordance with the Constitution, any such restriction could be imposed only by a law, which had not been the case as regards the ban on leaving the country. The legislation in force did not provide for the delegation of powers to restrict constitutional rights to the SBGS or the government. The Mobilisation Act referred to by the authorities did not regulate issues relating to crossing the State border and did not specify what documents were required in that respect. The Rules on State Border Crossing referred to “documentary evidence” to be provided by a person accompanying a child abroad but neither set out a list of required or appropriate documents nor referred to any law setting out such a list. The SBGS’s letter of 17 March 2022 was not a law but an internal document; it had not been published or duly registered with the Ministry of Justice. Relying on Article 19 of the Constitution of Ukraine, the applicant complained that the SBGS was acting ultra vires in preventing men, including the applicant himself, from leaving the country. He also submitted that such a prohibition was discriminatory as it was imposed only on men.

16. On 5 October 2022 the Eighth Administrative Court of Appeal (“the Court of Appeal”) upheld the decision of the Lviv Administrative Court of 26 July 2022, finding that the SBGS had introduced the ban under authority conferred by Decree no. 64 and that the documents provided by the applicant did not show that he had been bringing up his child alone and therefore belonged to the category of persons exempted from mobilisation under martial law.

17. The applicant lodged an appeal on points of law, noting, as the grounds for the review, that the issue of the ban constituted a matter of high public concern, given that it had been raised before the President of Ukraine in public petitions three times in a row, and that the issue was of exceptional personal importance for him.

18. On 28 November 2022 the Supreme Court of Ukraine refused to open cassation proceedings, finding no legal grounds for the re-examination of the lower courts’ decisions. It noted, in particular, that there was nothing to suggest that the case concerned any issue of high public concern, that the examination of the case was necessary to ensure the uniform application of the law, or that the issue was of exceptional importance to the applicant.

(c) 21 September 2022

19. On 21 September 2022 the applicant attempted to leave the country for the third time, accompanied by his son and his seventeen-year-old daughter. In addition to the documents submitted during his earlier attempts to leave the country, he provided the SBGS with the divorce decision, the court order for T’s mother to pay child maintenance, and certificates from the kindergarten, family doctor and housing authorities attesting that T lived with his father and that it was the father who was taking care of the child. On the same day, the applicant was prevented from crossing the border because he had not shown any grounds to be granted permission since he “had failed to provide the relevant documents” authorising him to leave the country under martial law. The record of the refusal did not state what documents were missing. It stated that the applicant’s right to leave the country had been temporarily restricted on the basis of the Martial Law Act and Decree no. 64. It further referred to section 23 of the Mobilisation Act and the Rules on State Border Crossing as setting the legal framework for using the right to cross the State border.

20. The applicant challenged the refusal in the Lviv Administrative Court, noting, among other things, that none of the laws and rules referred to by the SBGS prohibited him from crossing the State border. He further submitted that the oral demand of the border officer for a court order defining T’s place of residence as being with the applicant had conflicted with the Family Code, which provided that such an order was to be made only if the parents disagreed on the child’s place of residence, whereas he and T’s mother had no dispute on the matter and had signed a notarised agreement defining T’s place of residence as being with the applicant.

21. On 25 November 2022 the Lviv Administrative Court found for the applicant and declared the refusal of 21 September 2022 unlawful. The court found that the combination of documents submitted by the applicant to the SBGS confirmed that he was bringing up his child alone. It further noted that neither in the record of the refusal to allow the applicant to cross the border nor in its submissions to the court had the SBGS explained why the documents submitted by the applicant had not been considered sufficient. Likewise, the SBGS had never indicated what documents were missing and what law obliged the applicant to submit those particular documents.

22. On 22 March 2023 the Court of Appeal quashed the judgment of the first-instance court and found that the SBGS had lawfully refused to allow the applicant to cross the border on 21 September 2022. It noted, among other things, that the divorce and the agreement on parental rights and obligations could not serve as proof that the applicant was bringing T up on his own since family rights and obligations were attached to a person and could not be delegated to other persons. Accordingly, only documents establishing a legal fact (such as a death certificate) or a court order (depriving the mother of parental rights or recognising that she was incapacitated, dead or missing) could have served as evidence that the applicant was bringing up his child on his own, but the applicant had failed to provide those documents. This decision was final.

COMPLAINTS

23. The applicant complains that the restriction on his travelling abroad during times of war was in breach of his right to liberty of movement under Article 2 of Protocol No. 4. He further alleges, relying on Article 14 of the Convention, that the ban on leaving the country is discriminatory since there has been no ban on women travelling abroad.

QUESTIONS TO THE PARTIES

1. Is the letter of 28 February 2022 from the Permanent Representative of Ukraine to the Council of Europe, informing the Secretary General of the Council of Europe of the declaration of martial law by Decree no. 64/2022 of the President of Ukraine, and the subsequent letters extending the validity of the measures taken, to be understood by the Court as implying a derogation from Ukraine’s obligations under Article 2 of Protocol No. 4, taken alone and in conjunction with Article 14? If so, was the prohibition on male citizens aged 18 to 60 leaving the country, as a measure derogating from the respondent Government’s obligations under the above-mentioned provisions of the Convention, justified and limited to what was strictly required by the exigencies of the situation?

2. Was the restriction on the applicant’s travelling abroad in breach of his right to liberty of movement under Article 2 of Protocol No. 4? More precisely:

(a) Did the refusals to allow the applicant to cross the Ukrainian border have a lawful basis? In particular,

- Was the ban on male citizens aged 18 to 60 leaving Ukraine, relied on by the SBGS as the legal basis for the refusal to allow the applicant to cross the border, “in accordance with the law” within the meaning of the Convention, having regard to the applicant’s assertions that Decree No. 64 does not place any restrictions on citizens’ constitutional rights but merely envisages the possibility of such restriction in the future and that neither the SBGS nor the Government had the power to adopt rules restricting constitutional rights?

- Were the provisions allowing exceptions to the restriction on crossing the border, namely in respect of persons bringing up a child on their own, in compliance with the “quality of law” requirement under the Convention? Were those provisions, in particular as regards the “documentary evidence” to be provided, accessible to the public and foreseeable as to their application?

(b) Was the restriction of the applicant’s freedom “necessary in a democratic society” and, in particular, proportionate in the applicant’s individual circumstances?

3. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his gender, contrary to Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 4 to the Convention?