Problematic issues of the implementation of the law of Ukraine «On the protection of rig and freedoms of citizens and the legal regime on the temporarily occupied territory of Ukraine»

Abstract

The article deals with the problems of operation of legislation on the temporarily occupied territories in time and space. Attention is drawn to the fact that the relevant prohibitions and restrictions established in the Law of Ukraine «On the protection of rights and freedoms of citizens and the legal regime on the temporarily occupied territory of Ukraine» can be considered as a temporary suspension of general norms-principles (freedom of entrepreneurial activity, free movement of capital, goods and services on the territory of Ukraine) on a certain part of the state’s sovereign territory. Under the conditions of war, in order to qualify certain actions, it is important to accurately determine the time of occupation and the boundaries of the occupied territory, which is connected to the “launching” of the relevant legislative prohibitions (prohibitions on the movement of goods, works, services, transfer of funds between the temporarily occupied territory and another territory of Ukraine, prohibitions on concluding transactions under the threat of their nullity with business entities that are located on the temporarily occupied territory, etc.) and restrictions. It is argued that, when applying the norms of the Law of Ukraine «On the protection of rights and freedoms of citizens and the legal regime on the temporarily occupied territory of Ukraine», in particular, Articles 3, 13, 131, one should use the definition of temporarily occupied territories spatially and temporally according to the data contained in the list approved by the Ministry of Reintegration, and should determine the effect of the norms regulating the application of the legal regime of temporary occupation in time and space on the basis of the same list. Attention is drawn to the fact that, in accordance with this Law, as amended on July 1, 2021, the movement of goods (works, services) from temporarily occupied territory to another territory of Ukraine and/or from another territory of Ukraine to the temporarily occupied territory by all types of transport was prohibited for the period of temporary occupation, including by road, rail, air and pipeline transport, as well as by power lines and hydraulic structures. After February 24, 2022, this prohibition automatically applies to all occupied territories, regardless of the time of adoption of a normative act that retrospectively records the actual date of occupation of a territorial community. Under conditions of war, this cannot be considered a retroactive effect of the law in time.