Published on 8 January 2024

FIFTH SECTION

Applications nos. 16877/23 and 29499/23 Andriy Volodymyrovych KUZMENKO against Ukraine and Kyryl Vyacheslavovych DORONDOV against Ukraine lodged on 7 April 2023 and 7 July 2023 respectively communicated on 14 December 2023

SUBJECT MATTER OF THE CASE

The issues raised by the present applications are similar to those in the case of Konichenko v. Ukraine (no. 57699/22) which has been communicated to the respondent Government on 30 October 2023.

The applications concern refusals to allow the applicants to cross the Ukrainian border because of the ban on travelling abroad for men aged 18 to 60, introduced in Ukraine on 24 February 2022 following the full-scale invasion of Ukraine by the Russian Federation (further details about the particular circumstances for each applicant and the judicial decisions in their cases are set out in the appended table).

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, without specifying particular Articles to which the derogation was applicable.

The applicants complain that the restriction on their travelling abroad during times of war was unlawful under domestic law and in breach of both their right to liberty of movement under Article 2 of Protocol No. 4 and their right to respect for their private life under Article 8.

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? 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 applicants’ travelling abroad in breach of their right to liberty of movement under Article 2 of Protocol No. 4? More precisely:

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

(i) Was the ban on male citizens aged 18 to 60 leaving Ukraine, relied on by the State Border Guard Service 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?

(ii) Were the provisions allowing exceptions to the restriction on crossing the border 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 applicants’ freedom “necessary in a democratic society” and, in particular, proportionate in the applicants’ individual circumstances?

3. Was the restriction on the applicants’ travelling abroad in breach of their right to respect for their private life under Article 8 of the Convention?

APPENDIX

No.

Application no. Case name Introduction date

Applicant’s name Year of birth

Place of residence Nationality

Representative’s name Location

The relevant facts

1.

16877/23 Kuzmenko v. Ukraine 07/04/2023

Andriy Volodymyrovych KUZMENKO 1985 Khreshchate Ukrainian

On 15/05/2022 the applicant tried to leave the territory of Ukraine. He submitted to the border officer his international passport and military ID card with a mark of exclusion from the military register as a person having criminal record. The border service did not allow the applicant to cross the border noting that he had failed to provide documents showing that he had legal grounds to leave the country. It was not specified what documents were missing. A written refusal given to the applicant referred to Decree no. 64/2022 of the President of Ukraine, which imposed martial law in Ukraine as of 24 February 2022, and the Law of Ukraine on the Legal Regime of Martial Law.

On 26/06/2022 the applicant challenged the lawfulness of the refusal in the Kyiv Circuit Administrative Court. On 15/12/2022 the Kyiv Circuit Administrative Court was liquidated, and the case was to be transferred to a new court. The proceedings are still pending.

On 18/05/2022 the applicant attempted to leave the country for the second time having submitted the same set of documents but was again refused on the same grounds. The applicant challenged the lawfulness of the refusal in the Chernivtsi Administrative Court, claiming, inter alia , that none of the laws contained a ban on men’s leaving the country and setting any such ban via by-laws had been contrary to the Constitution. On 17/10/2022 the Chernivtsi Administrative Court rejected the applicant’s action against the decision of 18/05/2022. On 14/11/2022 and 9/03/2023 the Seventh Administrative Court of Appeal and the Administrative Cassation Court of the Supreme Court accordingly upheld the decision of the first-instance court.

On 15/05/2023 the applicant was granted a work visa to Canada but is unable to leave because of the ban.

2.

29499/23 Dorondov v. Ukraine 07/07/2023

Kyryl Vyacheslavovych DORONDOV 1983 Chernigiv Ukrainian

Mykhaylo Oleksandrovych TARAKHKALO Kyiv

On 14/10/2022 the applicant, a student at a Polish university, attempted to leave Ukraine for Poland for study. He submitted to the border officer his international passport, documents proving he was a student and a copy of his written request sent to a military enlistment office asking for a deferment from military service as provided for by the law. The border service did not allow the applicant to cross the border noting that he had failed to provide documents showing that he had legal grounds to leave the country. It was not specified what documents were missing. A written refusal given to the applicant referred to Decree no. 64/2022 of the President of Ukraine, which imposed martial law in Ukraine as of 24 February 2022, section 23 of the Law of Ukraine on Mobilisation Training and Mobilisation and 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 applicant challenged the lawfulness of the refusal in the Chernihiv Administrative Court, claiming, inter alia , that none of the laws contained a ban on men’s leaving the country and setting any such ban via by-laws had been contrary to the Constitution. On 3/01/2023 the Chernihiv Administrative Court rejected the applicant’s action against the decision of 14/10/2022 noting that the fact that the applicant, as a student, cannot be mobilised to the army did not grant him a right to cross the border. On 23/03/2023 the Sixth Administrative Court of Appeal upheld the judgment of the first-instance court. Having established that the rules concerning crossing the border by students had been unclear and conflicting, the Court of Appeal found that the list of relevant documents had been specified in a letter of the State Border Guard Service of 17 March 2022, and that the applicant had failed to provide those documents. The judgment of 23/03/2023 was final.

By a final judgment of 9 May 2023, delivered in separate proceedings instituted by the applicant against the military enlistment office, the Sixth Administrative Court of Appeal of the applicant confirmed the applicant’s deferment from military service.