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Viche 2015 19

19, 2015

Improvement of the Principles of the Legal Regulation of the State of Emergency

In the article the legislation on a state of emergency is analyzed. Special attention is paid to the activity of state authorities, military command, military forces and local self-government authorities under the conditions of a state of emergency which is being introduced when extraordinary situations of social or military character emerge. It is found that a lot of its provisions are out-of-date, and do not take into account modern realities, peculiarities of Russian hybrid aggression against Ukraine and the experience of anti-terror operation in Donbas. Relevant amendments to the legislation have been proposed.

Key words: state of emergency, military command, armed forces, military forces, commandant, command's office of the territories of emergencies.

Since the war began in the East of Ukraine the President, the Verkhovna Rada of Ukraine and the government have revised the legal principles of national security and defense of the state [1]. In particular, more than ten important amendments were brought to the Law of Ukraine On the Fight Against Terrorism. Amended Law of Ukraine On the Legal Regulation of the Military Emergency and the Strategy of National Security of Ukraine went into effect. Unfortunately, the above mentioned changes did not touch the legislation on the legal regulation of a state of emergency. And it is when Russia has increased its actions on destabilization of socio-political, economic and criminal situations in our state, increased the amount and scales of acts of terror  organized by it. This is a dangerous call for the society and the state system of Ukraine.

Under present difficult foreign and domestic policy and socio-economic conditions the necessity to improve the principles of the legal regulation of a state of emergency is also stipulated by these circumstances. First of all, we know that the Law of Ukraine On Legal Regulation of a State of Emergency [2] was already adopted in 2000 (hereinafter - the Law on Emergency). Since then it has not been amended, except for a few amendments which had terminology character. Because of this, some of its provisions are outdated. They do not take into account modern Ukrainian realities, peculiarities of Russian hybrid aggression against Ukraine, the experience of the anti-terror operation (ATO) in Donbas, and contain many other serious drawbacks.

Principles and powers of the supreme bodies of state power under conditions of a state of emergency provided by the above mentioned law are oriented on the state of the year 2000 presidential-parliamentary (and in fact presidential) form of government. Then the President of Ukraine had significant constitutional powers to influence all areas of the government, could appoint and dismiss its members, heads of executive power, military formations and law enforcement authorities, to influence the formation and implementation of the relevant articles of the state budget, etc.

According to the acting Constitution, the President is deprived of significant powers required to perform a number of functions under conditions of a state of emergency. They were transferred to the parliament where the coalition of deputy fractions is to have a significant role in the Verkhovna Rada and the Cabinet of Ministers of Ukraine. These changes should be considered in the law on a state of emergency.

We should remind that given the nature of the origin of the events that may lead to the emergency situations in Ukraine, the current classification identifies their four types: industrial, natural, social and military nature [1]. Depending on the scale of the impact caused and the scope of technical and material resources required for their liquidation, they could be of national, regional, local or site level.

The procedure for classification of emergencies at their levels is established by the Cabinet of Ministers, and the classification features of each of them is defined by the central executive authority that ensures the formation and implementation of state policy in the field of civil defence. Currently that authority is the Ministry of Internal Affairs of Ukraine. However, until now the classification criteria adopted at the end of 2012 by the former Ministry of Emergencies are still in force [8].

Moreover, features of state of emergency situations of social character which are described there require careful adaptation due to the events that take place in our country for over a year, especially in the east of it. And the elements of state of emergency situations of military character are not specified in this document at all. Therefore, the Cabinet of Ministers is recommended to take measures to eliminate these defects in the legal framework in terms of state of emergency issues. 

According to the law, a state of emergency can be temporarily introduced in Ukraine or in its particular areas under different conditions.

Firstly, in the event of very serious emergency situation of man-caused or natural origin (natural disasters, accidents, big fires, use of weapons, pandemics, panzootics etc.), endangering the lives and health of large populations (p. 1, p. 2, art. 4). In general, in the future we will not consider the law on a state of emergency related to the peculiarities of its administration in the event of disasters or man-caused natural disasters, as their analysis and preparation of proposals for improvement of such norms have to be done by the civil defense experts. It should be noted that in the event of introduction of a state of emergency because of the above reasons, in addition to civil defense forces, the military units of the Armed Forces of Ukraine can be involved for the rescue and recovery work (p. 2, art. 20).

Secondly, the legal regulation of a state of emergency may also be introduced in Ukraine or in its particular areas in emergency situations of social or military nature in case of (p.p. 2-7 p. 2, art. 4):

- massive acts of terror involving loss of lives or destruction of essential critical infrastructure;

- ethnic and religious conflicts, blocking or capture of some objects of prime importance or areas that threatens the security of citizens and interrupts the regular activity of the state and local government;

- riots which are accompanied with violence against citizens, restricting their rights and freedoms;

- attempts to capture state power or to change the constitutional order of Ukraine by force;

- mass violation of the state border from the territory of neighboring states;

- the need to restore constitutional order and the activities of public authorities.

It should be noted that during the introduction of a state of emergency due to the mentioned reasons, the Armed Forces of Ukraine may be involved only in the event of a mass state border crossing from the territory of neighboring states (p. 3, art. 20). In other cases, in the events of emergency along with the forces and means of the Ministry of Internal Affairs, including the National Guard and Security Services, exclusively the forces and means of Military Police of the Armed Forces of Ukraine may be involved, (p. 1, art. 20).

That is according to the emergency law, it is prohibited to use other divisions and units of the Armed Forces, their planes, helicopters, ships, etc. in a state of emergency introduced in case of emergencies of social or military nature.

However, we know that the Military Police of the Armed Forces of Ukraine (hereinafter - the Military Police) has very limited capabilities. These are the control authorities, military divisions which protect the military facilities, patrol service, traffic safety and special purpose divisions. Their personnel counts 2.0-2.5 thousand people armed mostly with light small arms. In addition, the Military Police while participating in the events of emergency has the right to perform relatively narrow range of specific tasks [3].

Along with that, the experience of ATO showed that forces and means of the Security Service, the Ministry of Internal Affairs, the National Guard and the State Border Service of Ukraine for various reasons are not capable by themselves to counteract Russian illegal armed formations, sabotage and reconnaissance groups, militants and terrorists, and to ensure the restoration of the constitutional order and activities of public authorities without the adequate support from the military and other divisions of the Armed Forces of Ukraine. Therefore we suggest to bring amendments to Article 20 of the Law on emergency, which will give the right to involve the mentioned divisions and units in the state of emergency measures introduced based upon the reasons specified in its paragraphs 2-5 and 7 of Part 2 of Article 4. 

The law on emergency gives a special role to the so-called military command as a part of the Main body of military control of the National Guard, the Security Service and the Military Police. Under modern conditions the name and especially particular composition of this command do not meet the requirements of the emergency measures and do not take into account the significant changes in the law enforcement system of Ukraine.

In particular, Articles 16-18 of the said Act foresee the implementation of twenty five events of a state of emergency. On the basis of the analysis of their content we can assert that twenty-one of them have law enforcement, economic, medical, humanitarian, administrative or other non-military nature. Therefore, to ensure public safety of the population, normal operation of the state and local governments, strengthening of public order, fighting against terrorist attacks, etc., they will be performed mostly by law enforcement and special authorities of the state.

Only one of the mentioned events in nature is somewhat military. We are talking about the prohibition to military service officers and draftees to change their palce of residence without the consent of the military commissariat (p. 3, paragraph 1, art. 18). Under such circumstances it is illogical and impractical to call the mentioned command military.

Recently, within the framework of the reform of the law enforcement system the National Police was created. Its activities are directed and coordinated by the Cabinet of Ministers through the Minister of Internal Affairs to ensure the protection of human rights and freedoms, crime prevention, support of public safety and order, including the maintenance of legal regulation of a state of emergency [4]. Also through the mentioned Minister the Cabinet of Ministers directs and coordinates the activities of the State Border Service and the State Emergency Service of Ukraine.

In addition, the Minister of Internal Affairs has military-political and administrative leadership over the National Guard of Ukraine as a military organization with law enforcement functions, which is a part of the system of Ministry of Internal Affairs of Ukraine.

Taking this into account, it is recommended in the law on emergency to replace the term military command with the term law enforcement-military command, and to define in Article 10 of this law that this command is:

the Headquarters of the Ministry of Internal Affairs of Ukraine, which provides and fulfills within its competence the functions of the Ministry of coordination, analysis, planning, control and coordination of the activities of the agencies and units of the internal affairs on the implementation of the state policy on protection of human and citizen rights and freedoms, property, the interests of the society and the state from criminal and criminal unlawful acts [9];

- the central governing authority of the National Police of Ukraine;

- the General Directorate of the National Guard of Ukraine;

- the Administration of the State Border Service;

- the Central Administration of the Security Service of Ukraine;

- the General Staff of the Armed Forces of Ukraine.

While improving the rules and provisions of the law on emergency, it is recommended also to review carefully the content of emergency measures and to consider the content of military situation measures which are stated in the amended Law of Ukraine On Legal Regulation of Military Situation, and also the experience of the ATO.

Special attention should also be paid to the improvement of the foundations of the state authorities, local government, law enforcement and military authorities in the event of a state of emergency.

Consequently, the law on emergency stipulates upon the decree on the introduction of a state of emergency issued by the President of Ukraine creation of local command centers which will coordinate the actions of the authorites of the executive power, Council of Ministers of the Autonomous Republic of Crimea, military command, local self-government authorities, enterprises, establishments and organizations on the maintenance of law and order and providing of safety of citizens on the relevant territory (n. 4, p. 14). The structure of such command centers will include the representatives of the Security Service, central executive authorities which provide the  formation and implementation of the state policy in the field of civil protection, internal affairs, Military Police and local authorities of the executive power and local governments led by the commandants of the territories.

However, the law still does not define the legal status and powers of these centers and commandants. Moreover, these commandants will be able to effectively exercise their functions only if the commandant areas are created in a state of emergency areas. However, the law on emergency does not even mention about these commandant areas. In this context it should be noted that a lot of analytical materials were already prepared in Ukraine in 2013-2014 in which, in particular, the results of the analysis of foreign experience on the state of emergency and recommendations for improvement of the Ukrainian legislation were provided [10; 11]. We believe that they will be useful in the preparation of amendments to the law on a state of emergency.

The law on emergency does not correspond to modern Ukrainian realities with regard to the inadmissibility of termination of the plenary powers, in particular, of local authorities of the executive power and local self-government (art. 11). It is known that during the Russian military aggression in the Crimea and in Donbas there were frequent occasions when village, town, city, regional councils and / or their executive authorities did not execute their authority required by Constitution and the laws of Ukraine. Amongst other things, aggression and occupation became possible as a  result of their actual dissolution or withdrawal. For this reason, the legislation has been amended  so that the President is allowed to terminate the activity of local authorities of the executive power and local self-government during the ATO and / or in the areas where legal regulation of a military situation is introduced, and to create instead the respective temporary government authorities - military and civilian administrations [5; 6; 7].

We offer to introduce to the law on emergency as well the provisions which in the areas where the state of emergency is introduced will provide the President of Ukraine with the right to: 

terminate the activities of village, town and city councils and / or their executive authorities that do not carry out their authorities laid upon them by Constitution and laws of Ukraine,  as well as due to the actual dissolution or withdrawal from their authorities or their actual non-fulfillment;

create instead of them temporary respective state authorities, such as command centers of the territories of emergencies.

The mentioned command centers should be headed by commandants of respective territories of emergency. In addition, these command centers should be defined as parts of the law enforcement and military command. And exactly under these command centers the President will be able to create the above mentioned operational staffs. 

In our view, the given results of the analysis of the legal base on the implementation and support of actions in Ukraine or in its particular areas of emergency in the event of a state of emergency of social or military character, as well as suggestions for their improvement will be useful during the corresponding legislative activity of the Cabinet of Ministers, the committees of the Verkhovna Rada of Ukraine and deputies.

 

References:

1. Kodeks tsyvilnoho zakhystu Ukrainy. [Civil Defense Code of Ukraine]. Available at: http://zakon4.rada.gov.ua/laws/show/5403-17.

2. Zakon Ukrainy Pro pravovyi rezhym nadzvychainoho stanu [the Law of Ukraine On Legal Regulation of a State of Vadym TIUTIUNNYK, Valentyn HOROVENKO

3. Zakon Ukrainy Pro Viiskovu sluzhbu pravoporiadku u Zbroinykh Sylakh Ukrainy [the Law of Ukraine On the Military Police of Ukraine]. Available at: http://zakon4.rada.gov.ua/laws/show/3099-14.

4. Zakon Ukrainy Pro Natsionalnu politsiiu [the Law of Ukraine On the National Police]. Available at: http://www.golos.com.ua/article/257729.

5. Zakon Ukrainy Pro borotbu z teroryzmom [the Law of Ukraine On the Fight Against Terrorism]. Available at: http://zakon4.rada.gov.ua/laws/show/638-15.

6. Zakon Ukrainy Pro viiskovo-tsyvilni administratsii [the Law of Ukraine On Military-Civil Administrations]. Available at: http://zakon4.rada.gov.ua/laws/show/141-19.

7. Zakon Ukrainy Pro pravovyi rezhym voiennoho stanu [the Law of Ukraine On Legal Regulation of Military Situation]. Available at: http://zakon1.rada.gov.ua/laws/show/389-19 .

8. Nakaz Ministerstva nadzvychainykh sytuatsii Ukrainy vid 12 hrudnia 2012 roku 1400 Pro zatverdzhennia Klasyfikatsiinykh oznak nadzvychainykh sytuatsii [Decree of the Ministry of Emergencies No. 1400, 12 December 2012 On Approval of Classification Features of Emergencies]. Available at: http://zakon4.rada.gov.ua/laws/show/z0040-13/paran13#n13.

9. Nakaz Ministerstva vnutrishnikh sprav Ukrainy vid 17 zhovtnia 2014 roku 1090 Pro zatverdzjennia Polozhennia pro Holovnyi shtab Ministerstva vnutrishnikh sprav Ukrainy [Decree of the Ministry of Internal Affairs of Ukraine No. 1090, 17 October 2014 On Approval of Regulation on the Main Headquarters of the Ministry of Internal Affairs of Ukraine]. Available at: http://search.ligazakon.ua/l_doc2.nsf/link1/MVS551.html.

10. Yemanov V.V. (2013), Neobkhidnist pravovoi rehlamentatsii diialnosti komendatury ta komendanta terytorii nadzvychainoho stanu [Necessity of legal regulation of the activity of a command center and commandant of territories of emergency], Zbirnyk naukovykh prats Natsionalnoi akademii Derzhavnoi prukordonnoi sluzhby Ukrainy. Ser.:Viiskovi ta tekhnichni nauky, Nats. akad. Derzh. Prukordon. Sluzhby Ukrainu imeni Bohdana Khmelnytskoho, Kmelnytsk: Vyd-vo NADPSU.

11. Analitychna dopovid Natsionalnoho instytutu stratehichnykh doslidzhen Ukraina v umovakh zovnishnioi ahresii do pozacherhovoho poslannia Presydenta Ukrainy do Verkhovnoi Rady Ukrainy Pro vnutrishnie i zovnishnie stanovyshche Ukrainy u sferi natsionalnoi bezpeky [Analytical report of National Institute of Strategic Studies Ukraine under the conditions of external aggression to extraordinary message of the President of Ukraine to the Verkhovna Rada of Ukraine On internal and external state of Ukraine in the sphere of national security], K.: NISD, 2014.

Vadym TIUTIUNNYK, Valentyn HOROVENKO