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Restriction of the right to freedom of movement during quarantine
KM Partners, Kyiv, Ukraine
Apr 09, Thu, 2020
In our previous publications, we have analyzed all the quarantine measures that are applied in Ukraine since the introduction of quarantine.
In this article, we will take a closer look at some of the restrictions on the right to freedom of movement established by the Resolution of the Cabinet of Ministers of Ukraine No. 211 as of March 11, 2020 “On prevention of the spread of COVID-19 acute respiratory disease caused by the SARS-CoV-2 coronavirus in Ukraine” (hereinafter – Resolution), the new version of which entered into force on April 03, 2020.
Let’s suppose that you are less than 60 years old, wearing a mask, going to work alone or with one more person, and having a passport with you (currently, this is the minimum required to get outside). How do you get to the work if you can’t walk to your place of work and you do not have your own car (movement by which is still allowed)?
Exception from transportation restrictions
It should be reminded that regular and irregular transportations of passengers by road transport in urban areas is prohibited during the quarantine.
The exception from the above restriction is the transportation of employees of certain categories of companies, establishments and institutions by company-provided and/or leased motor vehicles. However, even if your company falls under the required category defined by the Resolution, such transportation is possible only on a traffic route agreed with the National Police.
The transportation of employees in urban electric (tram, trolleybus) and motor vehicles, which carry out regular passenger transportation on city routes, is again allowed only to those categories of companies, establishments and institutions which are defined by the Resolution.
Therefore, no matter whether you want to get to the work by city or company-provided transport, you can do this only if you work for an employer who:
«provides healthcare, food provision, governance and provision of the most essential state services, energy and water supply, connection and communications, financial and banking services, functioning of transport infrastructure, the defense, law enforcement and civil defense sectors, critical infrastructure objects that have a continuous industrial cycle».
Critical infrastructure objects
In practice, many questions arise as to which companies fall under the above exception. However, in this newsletter, we would like to single out companies that provide the functioning of critical infrastructure objects.
It follows from a literal reading of the Resolution that exactly companies which provide the functioning of critical infrastructure objects are meant, but not companies that are such objects by themselves. Apparently, the mistake has been made in the Resolution due to the poor legal technique, and it still refers to companies that fit certain features, but not those companies that serve the objects. However, it is still necessary to pay attention to this, as the literal interpretation of the provision greatly expands the list of companies that are allowed to transport their employees.
So what are those critical infrastructure objects? At the regulative level, the definition of this term is contained only in the Procedure of forming a list of information and telecommunication systems of critical infrastructure objects of the state, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 563 as of August 23, 2016:
«companies and institutions (regardless of ownership) of such sectors as energy, chemical industry, transport, banking and finance, information technology and telecommunications (electronic communications), food, healthcare, public utilities, which are strategically important for the functioning of the economy and the security of the state, society and population».
At the same time, on the official website the Cabinet of Ministers of Ukraine provides its own definition1:
«Сritical infrastructure objects may include companies, institutions and organizations, regardless of ownership, which:
- perform activities and provide services in the energy, chemical industry, transport, information and communication technologies, electronic communications, banking and financial sectors;
- provide vital services to the population, in particular in the fields of centralized water supply, drainage, electricity and gas supply, food production, agriculture, healthcare;
- are municipal, emergency and rescue services;
- are included to the list of enterprises of strategic importance for the economy and security of the state;
- are objects of potentially dangerous technologies and industries.
That is, all those structures of state, municipal or private ownership, the inaction of which will lead to significant losses for the life of the country».
It should be noted that during the meeting with the European Business Association, the Prime Minister of Ukraine Denis Shmigal stated that the list of critical infrastructure is not planned to be approved, but on the contrary, it is expected to form the list of infrastructure objects which operation will be prohibited2. Currently, there is no such list.
It should also be noted that the List of companies of strategic importance for the economy and security of the state once existed, but has lost its validity. Currently, there is a List of of state property objects of strategic importance for the economy and security of the state, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 83 as of March 04, 20153.
We feel compelled to state that a visit to the work (by city or company transport) by an employee of an “ordinary” company, while the quarantine is in progress, will violate the requirements of the Resolution. At the same time for such violation you can be fined for the amount from 17 thousand UAH to 34 thousand UAH.
Illegality of restrictions introduced by the Resolution
Commenting on the restrictions introduced by the Resolution, we can’t but analyze the legality of their imposition.
There is no doubt that the Resolution restricts the right to freedom of movement guaranteed by Art. 33 of the Constitution of Ukraine. At same time, Art. 64 of the Constitution of Ukraine refers only to two cases when human rights (and only some of them) can be restricted – the introduction of a state of emergency or martial law.
In Ukraine the state of emergency hasn’t been introduced, although the Law of Ukraine “On the legal regime of a state of emergency” indicates the possibility of introducing a state of emergency in the event of particularly severe anthropogenic and natural emergencies, including pandemics.
The restrictions were introduced by the Resolution in connection with the emergency situation in Ukraine, which allows the establishment of certain quarantine-restrictive measures in the territory of occurrence and spread of infectious diseases and injuries of people based on the Law of Ukraine “On ensuring sanitary and epidemic well-being of the population” and the Law of Ukraine “On protecting the population from infectious diseases”. However, none of these laws gives the Cabinet of Ministers of Ukraine the power to restrict the right to freedom of movement guaranteed by the Constitution of Ukraine.
Therefore, the Resolution contains restrictions that can’t be established in case of the absence of a state of emergency in Ukraine (even during an emergency situation), so the relevant provisions of the Resolution are unconstitutional, and the restriction of the right to freedom of movement, introduced by the Resolution, is illegal.
It should be noted that the Resolution is currently being challenged in the District Administrative Court of Kyiv. Thus, the website of the Judiciary of Ukraine contains information on at least 3 lawsuits on recognition as illegal the Resolution and cancellation of it. The proceeding was opened regarding one of these lawsuits (case no. 640/7681/20).
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.