For more than a year, we have been living under martial law, which, among other things, imposes a curfew on the entire territory of Ukraine, which prohibits being on the streets and in other public places during a certain period of the day without special passes and certificates. Such restrictions are a necessary and important step to protect people and public order.
What does the introduction of a curfew entail?
In accordance with the Law of Ukraine “On the Legal Regime of Martial Law” and the “Procedure for the Implementation of Measures During the Implementation of Curfew and the Establishment of a Special Mode of Light Masking in Certain Localities Where Martial Law Is Introduced” (hereinafter – the Procedure), approved by the Resolution of the Cabinet of Ministers of Ukraine, the curfew is introduced by issuing an order by the military command or military administration. That is, in the territory where the curfew has been introduced, it is forbidden to stay on the streets and other public places during a certain period of the day for persons without issued passes, as well as the movement of vehicles. Control of persons’ observance of the curfew and special light masking regime is carried out by patrols.
Let’s take a closer look at what this means. First, the curfew is aimed at ensuring the safety of citizens: it aims to reduce the number of victims and the risks for residents who may find themselves in dangerous situations, for example, due to explosions, shelling, etc. Secondly, it allows to control the movement of people and transport, which helps in preventing kidnappings, robberies, acts of terrorism and other crimes. Thirdly, it ensures national security: it keeps order in conditions of war, reduces the number of possible terrorist acts, crimes and other dangerous events. In addition, the curfew allows law enforcement agencies to optimize their work, especially at night, and to focus on other important issues directly related to national security, especially in wartime.
What is regulated and the features of the pass
The introduction of the curfew is regulated by the Procedure approved by the resolution of the CMU. During the curfew in the territory where it was introduced, it is necessary to have passes and certificates issued by the military commandant’s office (military administration) for lawful stay in the streets and other public places during a certain period of the day. The appropriate pass must be presented to: a citizen of Ukraine together with an identity document confirming Ukrainian citizenship or its special status; to servicemen of the Armed Forces, the State Special Transport Service, the National Guard, the State Border Service, policemen of the National Police, servicemen and employees of the Security Service of Ukraine, employees of the Federal Security Service, State Security Service, State Emergency Service along with a service card; and also to foreigners or stateless persons together with the foreigner’s passport document and a document confirming the legality of their stay on the territory of Ukraine. Passes are valid only within the territory where the curfew is introduced, their accounting is also carried out by the commandant (military administration) in the territory where the given curfew is introduced, that is, such passes are not universal for movement in any other city or region.
Is there real responsibility for violating the curfew regime?
During the curfew, entry/exit (entrance/exit) to or from the territory where this regime is implemented is carried out only through checkpoints designated by the commandant’s office. In case of violation of the curfew, the curfew patrol in turn has the right to detain and deliver to the bodies or units of the National Police the persons who committed the offense; check identity documents and find out whether a person can be outside at this time; to carry out an inspection of things, vehicles, luggage and cargo, office premises and housing of the detained person; to remove objects that are tools, means or objects of an offense. For failure to comply with the requirements of a legal order or a patrol demand, the violator faces a fine, community or correctional work, or administrative arrest for up to 15 days (in accordance with Article 185 of the Code of Ukraine on Administrative Offenses). If the violator resists, he faces a fine or criminal liability. However, in practice, there are no relevant sanctions for curfew violations, neither in the Code of Ukraine on Administrative Offenses, nor in the Criminal Code of Ukraine. Although this is expressly provided for in the Law of Ukraine “On Martial Law” and normative legal acts of the CMU. In turn, punishment is possible only for refusal to comply with a legal order or demands of the patrol. Because even in court, such protocols do not withstand appeals and cases are closed due to the lack of a criminal offense. That is, there is currently no political will in our country either to conduct this issue through the Committee or to adopt it at the level of the Law.
For example, draft laws were submitted to the Verkhovna Rada of Ukraine, such as: on amendments to the Code of Ukraine on Administrative Offenses regarding the introduction of administrative liability for violation of established restrictions under martial law, registered under No. 7356; as well as a draft law on amendments to some legislative acts of Ukraine regarding the violation of certain requirements or non-fulfillment of the measures of the legal regime of martial law, registered under No. 8096. However, both Drafts require significant revisions, due to the insufficient justification of the proposed draft laws, in particular, in the part about curfew violations , the effectiveness of both administrative responsibility in this connection and the addition of the Code of Administrative Offenses in terms of the collection of fines.
Curfews are one of the important tools of public order management in conditions of large-scale war, especially when national security is a weighty issue for the state. Therefore, the issue of the curfew regime should have real legal force. This violation can have real consequences that affect people’s health and lives. The introduction of a curfew allows you to preserve the life and health of citizens. It is important to realize that the curfew is not just a whim of the authorities, it is an important issue of the country’s security that requires state regulation. Appropriate restrictions help the authorized bodies in such a difficult period to fulfill their key purpose – to protect a person and his life directly. However, at present, the Code of Administrative Offenses does not provide for liability specifically for this violation. Draft Laws on making relevant changes to the Code are currently only registered in the Verkhovna Rada of Ukraine, but they require significant revisions in order to properly fix administrative responsibility for curfew violations, which will not create a gap in the legislation.
Therefore, in my opinion, the introduction of administrative responsibility in our country, which is in the conditions of a large-scale war, is extremely important and urgent, which in turn will lead to responsibility for offenses and protection of people and public order, than the adoption of another sketchy draft law.
Hryhoriy Mamka – People’s Deputy of the 9th convocation,
doctor of legal sciences