The right to liberty and security: problems of compatibility of rights restrictions in the conditions of existential threats

In this article, the authors consider the problems arising in the law enforcement practice of Ukraine which are related to the possibility of derogation from the obligations assumed by Ukraine in terms of ensuring the right to liberty and security of person in criminal proceedings. It is noted that this right, despite its fundamental nature, is not absolute and can be restricted, however, under certain circumstances provided for by the Constitution of Ukraine and a number of international acts. In addition, in the context of martial law, the issue of derogation from certain state`s obligations, is becoming more significant. Nevertheless, as prescribed by international agreements, the scope of such restrictions cannot be interpreted in such a way as to jeopardize the very essence of the right itself, i.e. such restrictions are only possible when they pursue a legitimate aim and are proportionate and necessary in a democratic society. The state should not apply measures that may lead to a greater restriction of rights than is necessary to achieve the purpose for which they are implemented.  On this basis, the authors analyze the grounds and conditions for derogation from the obligations to ensure the right to liberty and security of person in criminal proceedings (namely, the possibility of applying to a person who has committed a certain type of crime the main preventive measure exclusively in the form of detention), which are set out at the national and international levels. Based on the study, the author concludes that there are no grounds to assert that the provisions of Part 6 of Article 176 of the CPC formally constitute a derogation from the obligations established in Article 29 of the Constitution of Ukraine. The approach of the legislator in the context of the armed conflict in Ukraine can be considered as permissible and proportionate (commensurate) to the severity of the emergency situation, provided that the relevant procedural rules are applied by law enforcement officers promptly.

special regime of pre-trial investigation under martial law; measures to ensure criminal proceedings; preventive measures; international standards for the application of preventive measures; derogation; due process of law