UKRAINE LEGAL UPDATE
26 March 2022
Ukraine bans men from leaving the country. Those aged 18 to 60 must stay behind to provide a reserve force for the army. Women and children are free to go. Foreign firms' empolyees may be stranded.
Ukraine’s declaration of martial law on 24 February 2022 also had the effect of triggering a ban on all able-bodied men (and some women too) aged 18 to 60 leaving the country. These are to be kept in as a reserve force from which to draw reinforcements for the army in the field.
Ukrainian law requires all physically fit men to do military service in wartime. Such men are subject to registration with local recruitment offices across the country. The offices supply lists of those available for service to the military, which then decide who should be called up as per their combat training and qualifications. In conditions of martial law, men may further be limited in their ability to travel and choose places to stay within the country. Women in certain occupations (e.g., medics) may also be liable to military services and so prohibited from leaving.
The ban is enforced by the border authorities. Papers of whose wishing to leave are checked at the border and offenders are turned back. Those trying to sneak out of the country will be hunted down and prosecuted for illegal border crossing.
The legal basis for the ban, though, is not entirely clear. Expressly decreed by an executive regulation on entering and leaving Ukraine, it is absent from a special law on the same subject. The law lists reasons for which a Ukrainian citizen may be stopped from leaving the country, but being subject to military service in wartime is not among them. The Constitution further guarantees a right of free departure for all, subject to exceptions listed in a law. The regulation thus seems to be against both the law in question and the Constitution.
But until a successful court challenge is brought or the law is updated accordingly, the regulation will likely remain in actual use. (As delegated legislation, it can be overturned by an ordinary court, without raising a constitutional challenge with the Constitutional Court.) So it remains to be seen what the courts will do. Likely, given the wartime emergency, they will find ways to uphold the ban.