Current Issues of Ensuring Citizens’ Right to a Fair Trial under the Legal Regime of Martial Law

Abstract

The subject of this research is highly relevant, given that the war initiated by the Russian Federation against Ukraine has been ongoing for twelve years. However, even under martial law, the state must guarantee citizens’ right to judicial protection and to a fair trial as established by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine, and the laws of Ukraine. Unfortunately, only a limited number of comprehensive studies have been conducted in Ukraine regarding the state’s obligation to ensure citizens’ rights to judicial protection, particularly procedural rights, during the operation of the legal regime of martial law. The purpose of this article is to provide a systematic analysis of the adopted legal and regulatory acts in terms of their effectiveness in ensuring the implementation of citizens’ right to a fair trial during wartime. In particular, the study examines amendments to Article 147 of the Law of Ukraine “On the Judiciary and the Status of Judges,” as well as orders issued by the Head of the Supreme Court of Ukraine and decisions of the High Council of Justice concerning changes in territorial jurisdiction and the restoration of court operations, in the context of their impact on the administrative and legal status of citizens during martial law. The study employed both special and general scientific methods of cognition, including the dialectical, dogmatic, system analysis, and formal-logical methods. The research concludes that in cases where court proceedings are transferred from courts located in active combat zones to courts operating in safer regions, such cases at the new location may be considered only upon the written consent of the claimant (applicant or complainant) as the initiator of the judicial process, except where the person has submitted a request for consideration of the case in their absence. It has been demonstrated that territorial jurisdiction is determined personally by the claimant (applicant or complainant) when filing a claim in accordance with the rules of jurisdiction established by the relevant procedural legislation, taking into account the person’s status, place of residence, subject matter of the claim, and other circumstances. Therefore, territorial jurisdiction of a case cannot be altered by judicial authorities. The study also concludes that persons who, as a result of the armed aggression of the Russian Federation against Ukraine, were forced to leave the territory of Ukraine and who were parties to judicial proceedings or against whom claims were filed during the war should have the right to mandatory suspension of proceedings upon their request. This is justified by the fact that such persons left the country not voluntarily, but due to force majeure circumstances caused by the war. Accordingly, amendments to procedural legislation are proposed in order to establish the court’s obligation to suspend proceedings in such cases.