Ukrainian Constitutional Court (UCC) has made a decision on the legality of the lockdown restrictions – some of the government's decisions were unconstitutional. So now a mother of a 13-year-old teenager who walked alone down the street to visit his old granny, can demand through the court the return of the fine (616 USD), paid back in March? Unfortunately, no. So what does the decision of the court mean in practice?
Who applied to UCC?
When it comes to the Ukrainian Constitutional Court, it is important to know exactly has sent the application. This is the key to understanding the decisions of the UCC.
This time the Supreme Court applied to the Constitutional Court:
"The Supreme Court appealed to the Constitutional Court with a request to check a number of provisions of the Resolution of the Cabinet of Ministers of Ukraine On the establishment of quarantine in order to prevent the spread of acute respiratory disease Covid-19 caused by the SARS-CoV-2 coronavirus in Ukraine for compliance with the Constitution. It was, in particular, about restrictions on holding mass events; the prohibition of the work of catering establishments, malls, hotels, fitness centers, cultural institutions, and the like; termination of regular and irregular passenger traffic; cancellation of planned hospitalization measures, as well as the mandatory self-isolation of persons over 60 years of age."
It is somewhat strange that the Supreme Court suddenly began to infiltrate fitness centers or the elderly. But there is an explanation for this. "Here, first of all, the judges of the Supreme Court tried to protect their own interests. For the period of quarantine, a salary limit of up to 1,700 USD was established, and it was precisely this moment that the UCC first of all recognized as unconstitutional. Such a restriction hit the judges hard, and this was the first The rest of the moments were concomitant because you can't just say: return our salaries to us. And now they compensated for this and removed the restrictions on salaries," says Bohdan Petrenko, deputy director of the Ukrainian Institute for the Study of Extremism.
The court ruled unconstitutional changes to the state budget regarding the establishment of the maximum wage. And this is the key phrase to remember. “The emphasis was primarily on limiting wages,” lawyer and MP Antonina Slavitska adds, “and I believe that the only ones who should be limited are members of the supervisory boards of state-owned enterprises. After all, they, besides their significant salaries, still have the opportunity to work part-time.”
What about restrictions on freedom of movement?
Well, the situation with salaries is clear. But what about moving through public space? Constitutional Court noted that such restrictions on constitutional rights and freedoms of a person and a citizen cannot be established by bylaws, like the resolution of the Cabinet.
In addition, regarding a part of the considered provisions, the Constitutional Court decided to close the constitutional proceedings due to their loss of validity.
That is, if a person lives in a "green" zone, which is not subjected to the strict quarantine restrictions, it will be too late to go to court and sue the actions of the police.
Therefore, lockdown in Ukraine was continued, however, the Constitutional Court noted that "restriction of constitutional rights and freedoms of man and citizen is possible in cases determined by the Constitution of Ukraine."
How about recovering financial losses?
Suppose you are not a civil servant whose salary is limited, but a businessman. Let's say your business has gone bankrupt or is barely smoldering at the moment. And you blame the government with its quarantine restrictions (which is quite logical). But can sue to court with this?
Former judge of the Constitutional Court Viktor Shyshkin assures: “UCC does not investigate specific facts, that is, who has suffered or not suffered. Further, relying on UCC decisions, the person must apply to the courts of general jurisdiction, which should assess the actual consequences of quarantine for the person concerned. For me, as a pensioner, there were no consequences that would cause me material damage. However, there are people who have lost in the material aspect, especially entrepreneurs.”
“Those who have suffered financially can try to restore justice in court - fortunately, that a precedent has been set. I also believe that destroying someone’s business or limiting citizens’ salaries was a crime,” Antonina Slavitska adds.
But financial expert Oleksiy Kushch believes that such opportunities look good only in theory. “It's no use crying over spilled milk,” he laconically explains. “The Constitutional Court recognizes unconstitutional legal acts that cannot be corrected retroactively. The same practice was, for example, when it came to limiting social standards. In particular, on payments to children of war. The government ruled this, the Constitutional Court did everything. outplayed, but no one compensated anyone for anything.”
“We have, I think, few direct bankruptcies from quarantine, somewhere around 5% of the total business. But on the other hand, up to 40% of entrepreneurs have in one way or another faced the fact that their income level has fallen. And more than half of the subjects of these affected are representatives of small and medium-sized businesses, which turned out to be more sensitive to forced downtime. Large businesses, exporters, as well as those who work in agriculture, are less affected,” Kushch adds.
And he sums it up: “The problem of Ukraine is that we have introduced one of the most stringent models of quarantine. And at the same time, one of the least weak models of compensation for business. But now nothing can be done about it.”
What will be the political consequences of the UCC decision?
However, if a business, perhaps, is too late to count on compensation, then it is a hot harvest for politicians to reap the benefits of quarantine decisions. For Minister of Health Stepanov and chief sanitary doctor Lyashko, there were no consequences for the fact that the mega-hard lockdown on the territory of Ukraine in March-May was not at all obligatory. In the end, they eventually admitted it themselves, noting that they resorted to restrictions, rather, with an "educational" purpose, so that Ukrainians, under threat of a fine, would sit at home and not "snoop" through the streets.
“Before introducing quarantine restrictions,” the expert notes, “the authorities should have introduced a state of emergency. Only it gives the right to temporarily limiting human rights. But the authorities were afraid of the state of emergency. As a result, the prime minister is not so much responsible for everything that happened.”
The central government has harmed itself by introducing lockdown, and it is not a secret. It is no secret that the local authorities, relying on directives "from above", on the contrary, have gained additional political points. And local elections would once again prove this thesis, and we would see it at the end of October.