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DOI: https://doi.org/10.34069/AI/2022.53.05.12
How to Cite:
Pevko, S., Romaniuk, V., Perekopskyi, S., Khan, O., & Shaituro, O. (2022). Legality of restrictions on human rights and freedoms
in a Covid-19 Pandemic: The experience of Ukraine. Amazonia Investiga, 11(53), 122-131.
https://doi.org/10.34069/AI/2022.53.05.12
Legality of restrictions on human rights and freedoms in a Covid-19
Pandemic: The experience of Ukraine
ПРАВОМІРНІСТЬ ОБМЕЖЕНЬ ПРАВ І СВОБОД ЛЮДИНИ У ПЕРІОД
ПАНДЕМІЇ COVID-19: ДОСВІД УКРАЇНИ
Received: February 20, 2022 Accepted: April 25, 2022
Written by:
Stanislav Pevko54
https://orcid.org/0000-0002-1488-9715
https://publons.com/researcher/4796465/
Vitalii Romaniuk55
https://orcid.org/0000-0001-6077-4591
https://publons.com/researcher/3201774/vitalii-romaniuk/
Serhii Perekopskyi56
https://orcid.org/0000-0001-6304-7795
https://publons.com/researcher/4959990/serhii-perekopskyi/
Oleksandr Khan57
https://orcid.org/0000-0001-9912-1547
https://publons.com/researcher/4960027/khan-oleksandr/
Olga Shaituro58
https://orcid.org/0000-0002-0614-0595
https://publons.com/researcher/4958395/olga-shayturo/
Abstract
The purpose of the study is to examine the
content of the right to health during the COVID-
19 pandemic. The study focused on the
legitimacy of restrictions on constitutional rights
and freedoms due to mandatory vaccination and
other restricition measures in Ukraine.
Diversified views of scholars on this issue were
established, the legislative basis for establishing
restrictions on constitutional rights and freedoms
of citizens was determined, and the method of
normative establishment of such restrictions
during the COVID-19 pandemic adopted by the
Government of Ukraine was criticized. The legal
positions of the European Court of Human
Rights, the Constitutional Court of Ukraine and
the Supreme Court of Ukraine on the legality of
compulsory vaccination during a pandemic and
restrictions on the constitutional rights and
freedoms of citizens are presented. To achieve
the goal of the research, general scientific
research methods were used, such as: analysis,
54
Kharkiv National University of Internal Affairs, Ukraine.
55
Kharkiv National University of Internal Affairs, Ukraine.
56
Kharkiv National University of Internal Affairs, Ukraine.
57
Kharkiv National University of Internal Affairs, Ukraine.
58
Karazin Kharkiv National University, Kharkiv, Ukraine.
Pevko, S., Romaniuk, V., Perekopskyi, S., Khan, O., Shaituro, O. / Volume 11 - Issue 53: 122-131 / May, 2022
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synthesis, modeling and abstraction. These
methods were used to determine the constituent
elements of a person's right to health care, to
determine their relationship, to give specific
examples of solving the problem of vaccination,
to draw conclusions on the legality of vaccination
and to limit certain constitutional rights of
citizens.
Key words: rights to health, the COVID-19
pandemic, compulsory vaccination, restrictions
on constitutional rights and freedoms, rights of
arrested persons.
Introduction
The rapid spread of the acute respiratory disease
COVID-19 caused by the coronavirus SARS-
CoV-2 in the modern world has caused a major
health problem. Governments, looking for ways
to stop its spread and reduce morbidity and
mortality among the population, usually resort to
measures to limit contact between citizens: bans
or restrictions on mass events (cultural,
educational, sports, social), establishing a rule on
keeping a distance (1.5-2 meters) during
individual contacts among citizens, setting
restrictions on the number of people visiting
public catering and trade establishments, service
establishments, etc., public transport,
establishing mandatory vaccination for citizens -
representatives certain professions, mandatory
wearing of protective masks and others. From the
point of view of legal theory, these measures, on
the one hand, are aimed at ensuring the right to
health of citizens, and on the other hand, lead to
a significant restriction of other constitutional
rights of citizens. This raises the legitimate
question of the possibility of restricting one right
in order to secure another right. The search for an
answer to this question was aimed at a study on
the example of Ukraine.
The article considers the concept of the right to
health care and its place in the system of
fundamental human rights and freedoms. It is
stated that the human right to health care belongs
to social rights. It is normatively enshrined in
Article 49 of the Constitution of Ukraine. This
right corresponds to the obligation of the state to
develop, finance and actually implement
programs to protect the population from
infectious diseases. It is stated that the Cabinet of
Ministers of Ukraine and the Ministry of Health
of Ukraine adopted a number of decisions that
are normative, ie mandatory, and which are
aimed at overcoming the COVID-19 pandemic.
According to their content, the envisaged
restrictions significantly narrow the scope of
some constitutional rights and freedoms of
citizens. In particular, such as: the right to
personal integrity, freedom of movement, the
right to work and education. According to the
results of the analysis of well-known scientific
research on this issue, international legislation
and case law, the general legitimacy of
establishing at the legislative level limited rights
and freedoms of citizens to combat the pandemic
of coronavirus infection.
Further on the text of the article it was stated, that
restrictions on human rights and freedoms may
be established only by the Constitution and laws
of Ukraine, and not by by-laws. the Government
Resolution, which imposes a number of
restrictions on the exercise of constitutional
human rights and freedoms, is a bylaw. Having
resolved by a by-law the issue referred by the
Constitution of Ukraine to the sphere of
exclusive legislative regulation, the Cabinet of
Ministers of Ukraine took over the powers of the
Verkhovna Rada of Ukraine as the sole
legislative body. Thus, the Government of
Ukraine issued the Resolution of the Cabinet of
Ministers of Ukraine "On Quarantine and
Restrictive Anti-Epidemic Measures to Prevent
the Spread of Acute Respiratory Disease
COVID-19 Caused by SARS-CoV-2
Coronavirus" (Law № 1236, 2020) such a
method of decision-making in the field of human
rights, which is incompatible with the
Constitution of Ukraine, as it violates the
principle of separation of powers provided for in
the second part of Article 6, Article 75, paragraph
3 of the first part of Article 85, paragraph 1 of the
first part of Article 92 of the Constitution
(Law № 254к/96-ВР, 1996).
As a result, the authors concluded that the
establishment of mandatory vaccination for
certain categories of professions and the
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establishment of appropriate restrictions on the
exercise of their rights, or rather changes in the
conditions for the exercise of their rights, is
legitimate. However, the issue of establishing
restrictions on the constitutional rights and
freedoms of citizens at the level of bylaws: acts
of the Government and the Ministry of Health
remains controversial. In a democratic society,
such restrictions should be determined at the
level of law - an act of Parliament.
Theoretical framework and Literature
Review
The theoretical basis for studying the essence of
the right to health care in the system of other
basic human rights was determined by such
scientists as: M.V. Tsvik, O.V. Petryshyn,
L.V. Avramenko in the scientific work "General
Theory of State and Law" (Tsvik et al, 2009),
O.F. Skakun "Theory of Law and State"
(Skakun, O., 2009). Normative and legal
regulation at the national and international level
has been studied by such scholars as:
V. Ya. Tatsiy in the work “Constitution of
Ukraine. Scientific and practical commentary”
(Tatsiy et al, 2011). In Ukraine, this issue was
considered at international scientific conferences
by such persons as V.F. Moskalenko,
T.S. Guzeva, G.V. Inshakova "Regulation of the
right to health care in international regulations"
(Moskalenko et al, 2008). Also the issue of
restriction of individual rights from the point of
view of medical law was considered by
S.G. Stetsenko in the monograph "Medical Law
of Ukraine" (Stetsenko et al, 2008). It should be
noted that the problems of restriction of human
rights and freedoms have often been the subject
of research by foreign scientists. These include:
Ensuring Rights while Protecting Health: The
Importance of Using a Human Rights Approach
in Implementing Public Health Responses to
COVID-19 (Zweig et al, 2021), One Health,
COVID-19, and a Right to Health for Human and
Nonhuman Animals (Bernotas and others, 2021),
Is Mandatory Vaccination for COVID-19
Constitutional under Brazilian Law? (Wang et al,
2021), Fault Lines of Refugee Exclusion:
Statelessness, Gender, and COVID-19 in South
Asia (Chakraborty & Bhabha, 2021).
The main feature of the rule of law and civil
society is not only the objective existence of
human and civil rights and freedoms, but also
their real provision by the state. Establishing
measures of possible behavior, the order of their
implementation, guaranteeing their existence is
the main purpose of the state. In this case, the
rules of conduct are established in the relevant
regulations: the Constitution, laws, bylaws.
One of the general provisions of the
constitutional order of society and the state is that
a person, his life and health, honor and dignity,
inviolability and security are recognized as the
highest social value. The rights, freedoms and
responsibilities of man and citizen are integral
elements of the legal essence of man, which is
manifested in his relations with other people,
social and political institutions, the state. Human
rights express and guarantee a certain degree
(norm) of freedom and responsibility, which is
formal, as it should not depend on other
characteristics - race, skin color, gender,
political, religious and other preferences. At the
same time, human rights have their own meaning
- freedom, which is recognized as an important
asset for the harmonious development of both the
individual and society. (Tsvik et al, 2009)
Over time, a certain classification of human
rights and freedoms has emerged in the legal
literature. Physical rights and freedoms include
the right to life, liberty and security of person, the
environment safe for life and health, health care
and medical care, and a sufficient standard of
living for oneself and family.
The category of personal rights and freedoms
includes the right to free development of one's
personality, respect for dignity, freedom of
thought and speech, worldview and religion,
freedom of movement and choice of residence.
Political rights and freedoms of man and citizen
should include the right to citizenship, freedom
of association in political parties, the right to
assemble peacefully without weapons and to
hold rallies, marches and demonstrations, to
participate in public affairs, in referendums, to
freely elect and be elected to public authorities
and local governments, equal access to public
service.
Humanitarian rights and human freedoms are the
right to education, to enjoy the achievements of
culture and art, freedom of creativity, copyright.
The Constitution of Ukraine includes the right to
social security, pensions and other types of social
benefits and allowances, and the right to housing.
(Tsvik et al, 2009)
Economic rights and freedoms - the ability
(freedom) of man and citizen to own, use and
dispose of consumer goods and the main factors
of economic activity: property (property rights)
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and their labor force (the right to choose the type
of occupation), and therefore use it
independently or under an employment contract
(right to work), as well as to show
entrepreneurship and initiative in the realization
of their abilities, respectively, the acquisition of
means of subsistence, participating in the
production of material and other goods (freedom
of enterprise). (Skakun, 2009).
The human right to health is one of the social
rights of individuals. The meaning of the right to
health is not always as clear as the term "health".
In the literature on human rights and health laws,
the expressions "right to health", "right to health
care" are most common. Various authors have
not yet been able to reach a consensus on which
term should be considered the most successful.
At the international level, the term "right to
health" has become quite widespread, which, in
our opinion, is most in line with the concept. The
term “right to health” more fully reveals the
essence of international human rights agreements
and helps to realize that this category includes
not only the right to health care, but also the right
to a number of conditions, including socio-
economic, without which health is impossible.
However, in recent decades, the concept of the
"right to health" has become more common in
international and national law. (Moskalenko,
Guzeva & Inshakova, 2008).
Legal regulation of human health exists as long
as law exists. There are two levels of protection:
the health of the nation and the health of the
individual. The nation’s health care is an older
form of health care legal protection. It is known
that in the Middle Ages there were legal norms
that established various forms of prohibitions in
order to protect collective health. In particular,
restrictions on freedom of movement during
epidemics were used as a control over infectious
diseases. Reduction of harmful effects on health,
prevention of diseases due to changes in human
behavior confirmed the importance of these
norms. Because health education has not always
been an effective means of instilling behavior, it
is the law that has been used as the most effective
method of enforcing health standards. Thus, such
a preventive means of health care as the
restriction of human rights has come into modern
law from the past.
The individual right to health care at the
international level began to be established in the
middle of the twentieth century. The individual's
right to health care, on the one hand, provides
opportunities for individuals in this area of public
relations, and on the other hand, creates
obligations for the state, which are generally
manifested in providing it with effective means
of health care for each individual. At the same
time, the multifaceted implementation of the
right to health care, the variety of conditions that
affect human health, differences in socio-
economic development of states and models of
health care system hinder the creation of a single
concept of human rights to realize their potential
health care. (Moskalenko, Guzeva & Inshakova,
2008)
Methodology
The following general scientific methods were
used in this study: hypothetical-deductive
method, analysis, induction.
The hypothetical-deductive method provided an
opportunity to create a system of deductively
related hypotheses, from which ultimately
derived allegations of empirical facts, namely by
examining the legal basis of vaccination and
court conclusions on the rights of persons who
may be violated in connection with conducting
this procedure, a statement was made about the
legality of these measures.
The analysis helped in the division, the problems
of legality of the vaccination procedure, the
constituent components that were analyzed and
as a result, a legal assumption was made about
the legality of these actions.
Induction is a logical approach to research that
summarizes the results of observations and
experiments and the movement of thought from
individual to general, which consisted of research
from individual components of the right to health
and vaccination procedures to conclude the
legality of this policy.
The following specific scientific methods of
jurisprudence were used in this study: special-
legal method, theoretical-legal method. Using a
special legal method, a description of the
phenomena of state and legal reality was made
using legal terminology, namely the medical
procedure of vaccination through the right to
health care; highlights the activities of social
actors in terms of legal models of behavior, from
the standpoint of legal or illegal, mandatory or
possible, namely analyzed the introduction of
vaccination by the authorities on the legality of
the decision and its Constitution of Ukraine, laws
of Ukraine and human rights.
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Results and discussion
In Ukraine, the right to health care is enshrined
in Article 49 of the Constitution: “Everyone has
the right to health care, medical assistance and
medical insurance. Health care is provided by
state funding of relevant socio-economic, health
and health prevention programs. The state creates
conditions for effective and accessible medical
care for all citizens. In state and municipal health
care facilities, medical care is provided free of
charge; the existing network of such institutions
cannot be reduced. The state promotes the
development of medical institutions of all forms
of ownership. The state takes care of the
development of physical culture and sports,
ensures sanitary and epidemiological well-
being". (Law № 254к/96-ВР, 1996). Proclaimed
a legal norm aimed at providing a person and a
citizen with the opportunity to receive medical
care; state assistance in public health; guarantee
of health insurance.
The implementation of this legal rule is
manifested, inter alia, through the development,
funding and actual implementation of programs
aimed at protecting the population from
infectious diseases COVID-19. Public health
policy in this direction is also a means of
realizing the right of citizens to health care. After
all, the state is a social phenomenon created to
ensure the interests of its inhabitants, so the
implementation of this right is entrusted to the
state in the face of its bodies.
During 2020-2021, the Cabinet of Ministers of
Ukraine and the Ministry of Health of Ukraine
adopted a number of decisions that are
normative, ie mandatory, and which are aimed at
overcoming the COVID-19 pandemic.
According to their content, the envisaged
restrictions significantly narrow the scope of
some constitutional rights and freedoms of
citizens. In particular, such as: the right to
personal integrity, freedom of movement, the
right to work and education.
On December 9, 2020, the Cabinet of Ministers
of Ukraine adopted a resolution "On the
establishment of quarantine and the introduction
of restrictive anti-epidemic measures to prevent
the spread of acute respiratory disease COVID-
19 caused by coronavirus SARS-CoV-2"
(Law № 1236, 2020), which provides a set of
mandatory measures for the population of the
country, which in its content also limits the set of
constitutional rights of individuals. Depending
on the epidemic situation on the territory of the
state, a “green”, “yellow”, “orange” or “red”
level of epidemic danger of the spread of
COVID-19 is established. Moreover, each
subsequent level provides for more significant
restrictions on the rights and freedoms of citizens
compared to the previous one. For example, in
the regions where the "red" level of epidemic
danger is established, the Government prohibits:
1) reception of visitors by business entities
engaged in the field of public catering (bars,
restaurants, cafes, etc.), in shopping and
entertainment centers, in the field of trade
and consumer services, cultural institutions,
sports facilities (except for certain
exceptions);
2) holding all mass (cultural, sports,
entertainment, social, religious, advertising,
scientific, educational, professional,
thematic and other) events, except for
official sports events;
3) the activities of markets other than food;
4) visits to educational institutions by
applicants for education, except for
preschoolers, students of special educational
institutions and grades 1-4 of general
secondary education (except for certain
exceptions);
5) carrying out regular and irregular
transportation of passengers by road and rail
within the respective regions, except for
transit traffic and private travel;
6) carrying out of planned hospitalization
measures by state and municipal health care
institutions, except for carrying out urgent
and urgent hospitalization measures, if as a
result of their transfer (postponement) there
is a significant risk to human life or health;
7) stay without wearing personal protective
equipment, including respirators or
protective masks in public areas, etc.
Restrictions on detainees are more burdensome.
In particular, there is a general ban on visiting
detention centers by associations of citizens,
representatives of charitable organizations, visits
to detainees except for law enforcement officers,
courts, representatives of embassies and
consulates of relevant states, employees of the
Office of the United Nations High Commissioner
to the United Nations. refugees, lawyers, and
relatives, provided they have completed a full
course of vaccination or a confirmed negative
COVID-19 test. (Law № 1236, 2020).
Restrictions imposed during the quarantine do
not allow to fully apply measures to respond to
crimes. There are difficulties in conducting any
investigative (search) and procedural actions that
involve contact with the suspect and other
participants in criminal proceedings, difficulties
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in detaining a person and his stay in temporary
detention facilities until a court decision, etc.
The possibility of restricting fundamental human
rights and freedoms by the state is provided for
in most international legal acts regulating human
rights and fundamental freedoms. Each
agreement defines the limits of possible
restrictions and an exhaustive list of grounds for
them, as well as establishes a number of rights
that under any circumstances can not be limited.
For example, Art. 29 of the Universal
Declaration of Human Rights contains the
formulation of permanent restrictions necessary
for the existence of society, but such that may be
imposed by the state "to meet the just demands of
morality, public order and general welfare"
(Law. Universal Declaration of Human Rights,
1948). In Art. 10 of the European Convention on
Human Rights contains a similar basis "in the
interests of national security and territorial
integrity", etc. (Law. Convention for the
Protection of Human Rights and Fundamental
Freedoms, 1950).
Such restrictions may be imposed only by law
and to the extent prescribed by law. In our
opinion, considering the problem of restriction of
human rights, it is necessary to distinguish two
concepts: the first - direct restriction of rights (as
deprivation of owners of rights or part of a right),
second - restrictions on the exercise of rights (as
full or partial realization impossibility of certain
rights). The second approach to understanding
restrictions assumes that all rights in full remain
with the person - the holder of rights, and only
the possibility of their realization ceases. This
type of restriction can be voluntary (when a
person waives the right, for example, in private
prosecution cases), or forced - applied depending
on external, mostly unpredictable,
circumstances. The principle of human rights is
based on the idea that people in any case have the
right and opportunity to choose a certain way of
life. (Donelli, 2004).
The Constitution of Ukraine contains both
concepts related to the restriction of rights. In
particular, Part 2 of Art. 64 declares that in
conditions of martial law or state of emergency,
certain restrictions on rights and freedoms may
be imposed, indicating the duration of these
restrictions. At the same time, some articles
concerning certain rights contain conditions for
restricting their exercise. For example, Part 3 of
Art. 34 (the right to freedom of thought and
speech, the freedom to express one's views and
beliefs, the right to freely collect, store, use and
disseminate information) provides that the
exercise of these rights may be restricted by law
in the interests of national security, territorial
integrity or public order, to prevent riots or
crimes, to protect public health, to protect the
reputation or rights of others, to prevent the
disclosure of confidential information, or to
maintain the authority and impartiality of justice.
In Part 2 of Art. 35 (right to freedom of thought
and religion) stipulates that the exercise of this
right may be restricted by law only in the
interests of protection of public order, health and
morals of the population or protection of the
rights and freedoms of others. Part 2 of Art. 39
(the right to assemble peacefully, unarmed and to
hold rallies, marches and demonstrations), which
states that restrictions on the exercise of this right
may be imposed by a court in accordance with
law and only in the interests of national security
and public order to prevent riots or crimes, to
protect the health of the population or to protect
the rights and freedoms of others
(Law № 254к/96-ВР, 1996.).
It seems that it is more accurate to formulate
these restrictions as restrictions on the exercise
(or realization) of rights, because even in martial
law or state of emergency is not a temporary
deprivation of citizens of certain rights, and
temporarily makes it impossible to use them in
full. The Constitutional Court of Ukraine has
made an important step in protecting the
constitutional rights and freedoms of man and
citizen from arbitrary restrictions, determining
that the restriction of constitutional rights and
freedoms must have a legitimate aim; be
conditioned by the public need to achieve this
goal, proportionate and reasonable; in case of
restriction of the right the legislator is obliged to
introduce such legal regulation which will give
the chance to achieve optimally the legitimate
purpose with the minimum interference in
realization of the corresponding right, and not to
break its essential maintenance. (Judgment of the
Constitutional Court of Ukraine № 3-rp / 2015,
2015).
Consider in more detail the legal mechanism for
restricting the right to personal integrity. This
natural human right is limited by compulsory
vaccination for workers in certain occupations.
Thus, the Ministry of Health of Ukraine issued an
order dated 04.10.2021 № 2153 "On approval of
the List of professions, industries and
organizations whose employees are subject to
mandatory preventive vaccinations".
Compulsory preventive vaccinations against
acute respiratory disease COVID-19 are subject
to employees of central and local executive
bodies, educational institutions and research
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institutions, regardless of type and form of
ownership. (Law № 2153, 2021).
The question arises whether the norms of the
Constitution of Ukraine are violated due to the
relevant state policy. After all, according to
Article 43, everyone has the right to work, which
includes the opportunity to earn a living by work,
which he freely chooses or freely agrees to. The
state creates conditions for the full exercise of
citizens' right to work, guarantees equal
opportunities in choosing a profession and type
of employment. Article 24 of the Constitution of
Ukraine also states that citizens have equal
constitutional rights and freedoms and are equal
before the law (Law № 254к/96-ВР, 1996).
There is a question not only of forcing
vaccination, which at first glance does not
correspond to the concept of "the right to health
care", but also of violating the equality of citizens
before the law by giving preference to vaccinated
persons. For example, this is the case when non-
vaccinated persons are not allowed to enter
public places or are admitted only if they have
certificates of prior testing for the absence of
COVID-19.
We will remind that the right is a measure of
possible behavior which order of realization is
established by the law. There are such forms of
realization of the right as observance, execution
and use. Use is a form of realization of the
subjective right at which implementation of
authorizing norms of the right is carried out.
The use of a right differs from the two previous
forms in that the person is given the right to
decide whether to exercise the right or not. But in
any case, if a person wishes, this rule will be
implemented. For example, in accordance with
Part 1 of Art. 35 of the Constitution of Ukraine,
everyone has the right to freedom of thought and
religion. Usually the use involves active
behavior. (Gusareva & Tikhomirova, 2017)
Permit norms (the right to health care is a
permissive norm) are implemented in the form of
use. Their implementation is envisaged
according to the person's own will. Forcing a
person to exercise his right contradicts the
general legal provisions. This norm is also
contained in a normative legal act that has a
higher legal force (the Constitution of Ukraine)
than the order of the Ministry of Health. Based
on this, it can be assumed that forcing
vaccination is, at first glance, illegal and
unconstitutional. However, if the right to health
care is considered in an objective sense, the
restrictions in society that may be imposed by the
state to prevent the spread of an infectious
disease may be legitimate. After all, the relevant
restrictive measures are taken for public
necessity. This category is contained in the Law
of Ukraine "On Alienation of Land Plots and
Other Real Estate Objects Located on Them,
which are in Private Ownership, for Public Needs
or Public Necessity". According to paragraphs 5
and 6 of Article 1 of the Law, public necessity -
due to national interests or the interests of the
territorial community exclusive need to ensure
the forced alienation of land and other real estate
located on it, in the manner prescribed by law
(Law № 1559-VI, 2021)
Thus, social necessity can be defined as due to
the national interests or the interests of the
territorial community the exclusive need to
commit or refrain from teaching certain actions.
Given that the state represents the interests of the
whole society living in its territory, and the
territorial community represents the interests of
persons living in the relevant administrative-
territorial unit, we can assume that the public
interest is in the interest of society as a whole. In
case of restriction of certain rights and freedoms
of individuals in the public interest, it is
necessary to determine what is the right to health
care in accordance with the provisions of national
legislation of Ukraine.
According to Article 3 of the Law of Ukraine
"Fundamentals of Ukrainian Legislation on
Health Care", health care is a system of measures
aimed at preserving and restoring physiological
and psychological functions, optimal
performance and social activity at the maximum
biologically possible individual life expectancy.
According to Article 6 of the Law, every citizen
of Ukraine has the right to health care, which
provides: the opportunity to have naturally
necessary resources for subsistence (food,
clothing, etc.), safe sanitary and epidemiological
existence, safe for life and health working
conditions, the right to receive medical care, to
participate in the activities of government bodies
in the field of state health policy, the right to
protection and compensation for damage caused
by illegal actions in the field of health care, etc.
(Law № 2801-XII, 2021).
The International Covenant on Economic, Social
and Cultural Rights of 19 October 1973 defines
the right to health as the right of everyone to the
highest attainable standard of physical and
mental health. In order to exercise this right, the
state has a duty to prevent and treat epidemic,
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endemic, occupational and other diseases and to
control them. (Law А/RES/2200 А, 1973)
That is, based on these tasks of the state, it can be
determined that coercive vaccination measures
can be provided for in state policy. Vaccination
is one way to prevent and treat epidemic diseases
and control them.
Based on the legal regulation of public health,
national legislation provides for the introduction
of vaccination not because of possible behavior,
but because of the necessary behavior. Article 10
of the Law of Ukraine "Fundamentals of the
Legislation of Ukraine on Health Care", citizens
of Ukraine are obliged to take care of their health
and the health of children, not to harm the health
of other citizens; in cases provided by law to
undergo preventive medical examinations and
vaccinations. Thus, vaccination is provided as a
duty of citizens, which ensures the fulfillment of
the duty to take care of their health, the health of
children and other citizens.
Legislative consolidation of the obligation of
citizens to vaccinate is also provided in parts 2
and 3 of the Law of Ukraine "On Protection of
Infectious Diseases", according to which
employees of certain professions, industries and
organizations whose activities may infect these
workers and ( or) the spread of infectious
diseases by them are subject to mandatory
preventive vaccinations against infectious
diseases. In case of refusal or evasion of
obligatory preventive vaccinations in the order
established by the law, these workers are
suspended from performance of the specified
types of works. The list of occupations, industries
and organizations whose employees are subject
to mandatory preventive vaccinations against
other relevant infectious diseases is established
by the central executive body, which ensures the
formation of state policy in the field of health
care.
In case of threat of occurrence of especially
dangerous infectious disease or mass spread of
dangerous infectious disease in the
corresponding territories and objects obligatory
preventive inoculations against this infectious
disease according to epidemic indications can be
carried out.. (Law № 1645-III, 2000).
Therefore, vaccination against infectious
diseases is mandatory in cases provided by law.
The possibility of dismissal in connection with
the refusal to vaccinate is provided in Article 46
of the Labor Code of Ukraine: "dismissal of
employees by the owner or his authorized body
is allowed in the case of: refusal or evasion of
obligatory medical examinations, training,
instruction and testing of knowledge on labor
protection and fire protection; in other cases
provided by law ". (Law № 322-VIII, 1971).
According to the European Court of Human
Rights, the freedom to consent to medical
intervention is a principle of case law. (Judgment
of the European Court of Human Rights in the
case № 2346/02, 2002). In some cases, the court
recognized compulsory vaccination as an
unwanted medical intervention carried out
without voluntary consent, which was an
interference with the right to respect for private
life, including the physical and psychological
integrity of the individual (“Salvetti v. Italy”,
“Matter v. Slovakia”) (Demchenko &
Dubitskaya, 2017). However, in case
“Solomakhin v. Ukraine”, the Court found that
compulsory vaccination was required by law and
had a legitimate aim, and found no evidence that
the vaccination in question had harmed the
applicant's health. (Judgment of the European
Court of Human Rights № 24429/03, 2011).
The Constitutional Court of Ukraine in the case
of the constitutional petition of the Supreme
Court on the constitutionality of certain
provisions of the resolution of the Cabinet of
Ministers of Ukraine "On quarantine to prevent
the spread of acute respiratory disease COVID-
19 caused by coronavirus SARS-CoV-2" also
supported the introduced quarantine restrictions.
(Judgment of the Constitutional Court of Ukraine
№ 10-r / 2020, 2020)
In Ukraine, the question of the legitimacy of
quarantine restrictions due to the inconsistency
of their form with the Constitutional provisions
remains controversial. The fact is that these
restrictions on the essence of constitutional rights
of citizens are set at the level of bylaws of the
Government: Resolution of the Cabinet of
Ministers of Ukraine "On quarantine and
introduction of restrictive anti-epidemic
measures to prevent the spread of acute
respiratory disease, COVID-19 caused by
coronavirus SARS-CoV-2 " (Law № 1236,
2020), Order of the Ministry of Health of
Ukraine" On approval of the List of professions,
industries and organizations whose employees
are subject to mandatory preventive vaccination"
(Law № 2153, 2021).
Restrictions on human rights and freedoms may
be established only by the Constitution and laws
of Ukraine, and not by by-laws. The supremacy
of the Constitution of Ukraine does not make
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sense if its principles and norms that guarantee
human rights and freedoms are grossly violated.
Thus, in particular, from the provision of
paragraph 1 of the first part of Article 92 of the
Constitution of Ukraine, which provides that
only the laws of Ukraine determine "human and
civil rights and freedoms, guarantees of these
rights and freedoms", it follows that the scope of
these restrictions of Ukraine. In Ukraine, the only
body of legislative power is the Parliament - the
Verkhovna Rada of Ukraine, which in
accordance with paragraph 3 of the first part of
Article 85 of the Constitution of Ukraine adopts
laws. It can be seen from the above that the
Verkhovna Rada of Ukraine could not delegate
the authority to adopt an act restricting the
exercise of constitutional human rights and
freedoms to any other body of state power.
However, the Government Resolution, which
imposes a number of restrictions on the exercise
of constitutional human rights and freedoms, is a
bylaw. Having resolved by a by-law the issue
referred by the Constitution of Ukraine to the
sphere of exclusive legislative regulation, the
Cabinet of Ministers of Ukraine took over the
powers of the Verkhovna Rada of Ukraine as the
sole legislative body. Thus, the Government of
Ukraine issued the Resolution of the Cabinet of
Ministers of Ukraine "On Quarantine and
Restrictive Anti-Epidemic Measures to Prevent
the Spread of Acute Respiratory Disease
COVID-19 Caused by SARS-CoV-2
Coronavirus" such a method of decision-making
in the field of human rights, which is
incompatible with the Constitution of Ukraine, as
it violates the principle of separation of powers
provided for in the second part of Article 6,
Article 75, paragraph 3 of the first part of Article
85, paragraph 1 of the first part of Article 92 of
the Constitution.
Conclusions
Thus, analyzing the legal basis for vaccination in
Ukraine, it is clear that this is not a right of every
person and citizen, but a duty. This obligation is
directly regulated by the Law of Ukraine "On the
Fundamentals of the Legislation of Ukraine on
Health Care", which provides a general rule
establishing the mandatory vaccination in cases
provided by law. Another normative legal act
regulates specific subjects and grounds on which
vaccination can be carried out, this issue is
regulated by the Law of Ukraine "On Protection
of the Population from Infectious Diseases".
Therefore, the establishment of mandatory
vaccination for certain categories of professions
and the establishment of appropriate restrictions
on the exercise of their rights, or rather changes
in the conditions for the exercise of their rights,
is legitimate. However, the issue of establishing
restrictions on the constitutional rights and
freedoms of citizens at the level of bylaws: acts
of the Government and the Ministry of Health
remains controversial. In our opinion, in a
democratic society, such restrictions should be
determined at the level of law - an act of
Parliament. Otherwise, the public thinks that
such acts of the Government or ministries are
illegitimate.
Bibliographic references
Bernotas, K., Sellars, L., & Sebo, J. (2021). One
Health, COVID-19, and a Right to Health for
Human and Nonhuman Animals. Health and
Human Rights Journal, 23(2), 35-47.
Chakraborty, R., & Bhabha, J. (2021). Fault
Lines of Refugee Exclusion: Statelessness,
Gender, and COVID-19 in South Asia.
Health and Human Rights Journal, Vol 23/1,
237-250.
Code of Administrative Procedure of Ukraine
№ 3-rp/2015. Judgment of the Constitutional
Court of Ukraine in the case of the
constitutional petition of the Commissioner
for Human Rights of Ukraine on the
constitutionality of the provisions of the
second part of Article 1712, Database
"Legislation of Ukraine", April 8, 2015
Demchenko, I. S., & Dubitskaya, N. T. (2017).
Regulatory regulation of compulsory
vaccination: pros and cons. Journal of Kyiv
University of Law, № 4, 133–138.
Donelli, J. (2004). Human rights in international
politics. Lviv: Calvary.
Gusareva, S., & Tikhomirova, O. (2017). Theory
of state and law. Kiev: NAVS.
Judgment of the European Court of Human
Rights in the case of Priti v. The United
Kingdom № 2346/02. Database "Legislation
of Ukraine", April 29, 2002.
Judgment of the European Court of Human
Rights in the case of Solomakhin v. Ukraine
№ 24429/03. Database "Legislation of
Ukraine", March 15, 2011.
Judgment of the Constitutional Court of Ukraine
№ 10-r / 2020, in the case of the constitutional
petition of the Supreme Court on the
constitutionality of certain provisions of the
resolution of the Cabinet of Ministers of
Ukraine "On quarantine to prevent the spread
of acute respiratory disease COVID-19
caused by coronavirus SARS-CoV-2 and
SARS-CoV-CoV stages of mitigation of anti-
epidemic measures ", provisions of parts one,
three of Article 29 of the Law of Ukraine" On
Volume 11 - Issue 53
/ May 2022
131
https:// www.amazoniainvestiga.info ISSN 2322- 6307
the State Budget of Ukraine for 2020 ",
paragraph nine of item 2 of Section II" Final
Provisions "of the Law of Ukraine" On
Amendments to the Law of Ukraine " About
the State Budget of Ukraine for 2020"
Database "Legislation of Ukraine", August
28, 2020.
Law № 1559-VI. On the alienation of land plots,
other real estate objects located on them,
which are in private ownership, for public
needs or for reasons of public necessity,
2021. Retrieved from:
https://zakon.rada.gov.ua/laws/show/1559-
17#Text
Law № 254к/96-ВР. Constitution of Ukraine,
1996. Retrieved from:
https://zakon.rada.gov.ua/laws/show/254%D
0%BA/96-%D0%B2%D1%80#Text
Law № 2153. About the statement of the List of
the trades, manufactures and the
organizations which workers are subject to
obligatory preventive, 2021. Retrieved from:
https://moz.gov.ua/article/ministry-
mandates/nakaz-moz-ukraini-vid-04102021-
-2153-pro-zatverdzhennja-pereliku-profesij-
virobnictv-ta-organizacij-pracivniki-jakih-
pidljagajut-obovjazkovim-profilaktichnim-
scheplennjam
Law № 2801-XII. Fundamentals of Ukrainian
legislation on health care, 2021. Retrieved
from:
https://zakon.rada.gov.ua/laws/show/2801-
12#Text
Law А/RES/2200. А International Covenant on
Economic, Social and Cultural Rights, 1973.
Retrieved from:
https://zakon.rada.gov.ua/laws/show/995_04
2#Text
Law № 1645-III. About protection of the
population against infectious diseases, 2000.
Retrieved from:
https://zakon.rada.gov.ua/laws/show/1645-
14#n9
Law № 322-VIII. Labor Code of Ukraine, 1971.
Retrieved from:
https://zakon.rada.gov.ua/laws/show/322-
08#Text
Law. Universal Declaration of Human Rights,
1948. Retrieved from:
http://zakon4.rada.gov.ua/laws/show/995_01
5
Law. Convention for the Protection of Human
Rights and Fundamental Freedoms, 1950.
Retrieved from:
http://zakon5.rada.gov.ua/laws/show/995_00
4.
Law № 1236. On quarantine to prevent the
spread of acute respiratory disease COVID-
19 caused by coronavirus SARS-CoV-2 and
SARS-CoV-CoV stages of mitigation of anti-
epidemic measures. December 9, 2020.
Retrieved from:
https://zakon.rada.gov.ua/laws/show/1236-
2020-%D0%BF#Text
Moskalenko, V., Guzeva, T., & Inshakova, G.
(2008). Regulation of the right to healthcare
in international legislative acts. Medical law
of Ukraine: the legal status of patients in
Ukraine and its legislation (genesis,
development, problems and prospects for
improvement): Proceedings of the II All-
Ukrainian scientific-practical conference,
189-190.
Skakun, O. (2009). Theory of state and law.
Kiev: Alert.
Stetsenko S.G., Stetsenko V.Yu., &
Senyuta I.Ya. (2008). Medical law of
Ukraine. Kiev: Legal unity All-Ukrainian
association of publishers.
Tatsiy, V., and others (2011). Constitution of
Ukraine: scientific and practical commentary.
Kharkiv: Law
Tsvik. M., and others (2009). General theory of
state and law. Kharkiv: Law.
Wang, D. W. L., Moribe, G., & Arruda, A. L. G.
(2021) Is Mandatory Vaccination for
COVID-19 Constitutional under Brazilian
Law? Health and Human Rights Journal,
23(1), 163-174.
Zweig, S.A., Zapf, A.J., Beyrer, C.,
Guha-Sapir, D., & Haar, R. J. (2021).
Ensuring Rights while Protecting Health: The
Importance of Using a Human Rights
Approach in Implementing Public Health
Responses to COVID-19. Health and Human
Rights Journal, 23(2), 173-186.