The Exercise of the Right to Judicial Protection under Martial Law in Ukraine

In the discussion of the exercise of the right to judicial protection, it should be noted that its most important theoretical foundation is the Universal Declaration of Human Rights of 1948, which, although not legally binding, provides in Article 10 that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.

Another legal act, which – in contrast to the aforementioned Universal Declaration of Human Rights – is legally binding for the member states of the Council of Europe, is the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (European Convention on Human Rights), whose Article 6 guarantees that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Ukraine became a full member of the Council of Europe – a recognized international organization which currently (after the exclusion of Russia) includes forty-six member states – on 9 November 1995, after the Verkhovna Rada of Ukraine ratified the Statute of the Council of Europe. Since then, the state has committed itself to complying with European standards for the protection of human and citizen rights, including the right to judicial protection of rights. Similar guarantees for the realization of the human and citizen right to judicial protection of rights are also established in Article 14 of the International Covenant on Civil and Political Rights of 1966, which states that “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice (...)”.

Based on the above, it can be concluded that the most important principles of the norms contained in the Universal Declaration of Human Rights of 1948, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) of 1950, and the International Covenant on Civil and Political Rights of 1966 are the principle of the rule of law and the principle of proper administration of justice. These principles also constitute fundamental elements of the right to a fair trial, which encompasses various aspects of public and social life in every democratic state, including Ukraine. Given the consistent efforts of the Ukrainian authorities to strengthen the rule of law, as well as recent positive trends in the Ukrainian legal system resulting from the alignment of Ukrainian legislation with the requirements of the European Union—especially after Ukraine was granted EU candidate status on 24 June 2022—there is hope that the application of the relevant provisions of international legal instruments, primarily the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and the case-law of the European Court of Human Rights by public authorities and courts will, in the future, prevent the Court from finding violations of human rights and fundamental freedoms in Ukraine.

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