Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
Recibido el 14/08/22 Aceptado el 22/11/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 40, Nº 75 (2022), 569-580
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Aspects of implementation of the law
enforcement function of the state under
the legal regime of martial law in Ukraine
DOI: https://doi.org/10.46398/cuestpol.4075.34
Oleksii Drozd *
Oleksandr Kobzar **
Maksym Romanov ***
Denysenko Hryhorii ****
Mykola Pohoretskyi *****
Abstract
The aim of the article was to analyze the main scientic and
practical provisions with respect to the aspects of ensuring the
implementation of the law enforcement function of the state
under the legal regime of martial law in Ukraine. The object of
the analysis were the social relations arising in the sphere of
its implementation under the legal regime of martial law. The diversity
of the posed object of research gave rise to the use of a wide range of
methods, namely: analysis, logical, generalization, interpretation, system
and structural, comparative and legal method. It was concluded that
the most essential mechanism for the functioning of complicated legal
regimes for the state is the provision of human and citizens’ rights and
freedoms (performance of law enforcement functions) regardless of varying
circumstances, situations and factors. In practical terms, the rights violated
as a result of the martial law regime must be restored by the state, which
includes a set of relevant actions and means. The implementation aspects
of the State’s law enforcement function are dened as the main vectors that
are grouped according to common characteristics.
Keywords: State functions; law enforcement; martial law; rights and
freedoms; war in Ukraine.
* Doctor of Law, Professor, Honored Worker of Science and Technology, Professor of the Department
of the Police Law of the National Academy of Intrnal Aairs, Kyiv, Ukraine. ORCID ID: https://orcid.
org/0000-0002-4514-6594
** Doctor of law, Professor, Head of the Faculty of State Security of the Kyiv Institute of the National
Guard of Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-5422-235X
*** Ph.D. in law, Research Ocer of the Research Laboratory on problems of prevention of criminal
oenses of Faculty № 3 of the Donetsk State University of Internal Aairs, Donetsk, Ukraine. ORCID
ID: https://orcid.org/0000-0003-2443-7744
**** PhD in Law, Doctoral Researcher at the National Academy of Intrnal Aairs, Kyiv, Ukraine. ORCID ID:
https://orcid.org/0000-0003-4132-8195
***** Doctor of Science in Law, Professor, Vice-Rector for scientic and pedagogical work of Taras
Shevchenko National University of Kyiv, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-
0936-0929
570
Oleksii Drozd, Oleksandr Kobzar, Maksym Romanov, Denysenko Hryhorii y Mykola Pohoretskyi
Aspects of implementation of the law enforcement function of the state under the legal regime of
martial law in Ukraine
Aspectos de la implementación de la función de
aplicación de la ley del Estado bajo las condiciones del
régimen legal de la ley marcial en Ucrania
Resumen
El objetivo del artículo fue analizar las principales disposiciones
cientícas y prácticas con respecto a los aspectos de garantizar la
implementación de la función de aplicación de la ley del Estado, bajo el
régimen legal de la ley marcial en Ucrania. El objeto del análisis fueron las
relaciones sociales que surgen en el ámbito de su implementación bajo el
régimen legal de la ley marcial. La diversidad del objeto de investigación
planteado dio pie a la utilización de una amplia gama de métodos, a
saber: análisis, lógico, generalización, interpretación, sistema y método
estructural, comparativo y jurídico. Se concluyó que el mecanismo más
esencial para el funcionamiento de los regímenes jurídicos complicados para
el Estado es la provisión de los derechos y libertades humanos y ciudadanos
(desempeño de las funciones de aplicación de la ley) independientemente de
las circunstancias, situaciones y factores variables. En términos prácticos,
los derechos vulnerados como consecuencia del régimen de ley marcial
deben ser restituidos por el Estado, lo que incluye un conjunto de acciones
y medios pertinentes. Los aspectos de implementación de la función de
aplicación de la ley del Estado se denen como los principales vectores que
se agrupan de acuerdo con características comunes.
Palabras clave: funciones del Estado; aplicación de la ley; ley marcial;
derechos y libertades; guerra en Ucrania.
Introduction
The rights and freedoms of a person and citizen in Ukraine and the
world are the important indicators that provide a reference point in the
activities of the State. Ensuring them is one of the main tasks of all State
institutions without exception, which in turn belongs to one aspect and
literally permeates the institution of law enforcement in the system of State
functions. However, the invasion of the Russian Federation on the territory
of Ukraine changed both the world order and the state of protection of the
rights of individuals on the territory of Ukraine (Prytuliak et al., 2022).
The introduction of martial law is reected in the provision of
constitutional human rights under martial law conditions (Panasiuk et al.,
2022). That is why the law enforcement function of the State, the procedure
for its implementation and the main vectors (directions) are almost the
most important and relevant in the conditions of a large-scale military
invasion of Ukraine by Russian troops.
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Vol. 40 Nº 75 (2022): 569-580
The content and essence of the concept of the law enforcement function
has been studied by many scientists and scholars; it is fragmentarily
highlighted in a number of regulatory and organizational and administrative
acts, but some aspects of its implementation, especially during the operation
of the legal regime of martial law, remain neglected.
The legal regime of martial law, its administrative essence, fundamentally
changes the work algorithms of State authorities and, accordingly,
dynamizes and globalizes law enforcement processes in general. In such
circumstances the risk of signicant violation of the citizens’s liberties
remains extremely high.
The Oce of the United Nations High Commissioner for Human
Rights also notes this in a declarative format, emphasizing that during the
investigation of the circumstances and events related to the beginning of
the Russian invasion of Ukraine at the end of February and in March 2022
in Kyiv, in the Chernihiv, Kharkiv and Sumy regions, the use of explosive
weapons with a wide range of action in populated areas was recorded,
causing 1,495 deaths and injuries in these four regions alone during the
reporting period, which represents 70% of the civilians killed and harmed
in these areas and the damage or destruction of thousands of residential
buildings, schools, hospitals and basic infrastructure facilities (Korotkyi
2022).
The above, as well as the absence of standardized and thoroughly
developed scientic works on the issues of determining aspects of the law
enforcement function of the State, which in the general legal sense create
prerequisites for fragmented implementation by specially authorized
subjects of various law enforcement branches, necessitate the need for
research in the indicated direction.
1. Methodology
The outlined object of research gives grounds for the use of a wide
methodological toolkit. Thus, the authors used the method of analysis,
which made it possible to establish the basic views on law enforcement as
a function of the State mechanism, which should be implemented in any,
including complicated conditions (for example, during martial law), as a
basic theoretical legal category.
Logical method was applied in the context of the need to structure
important State processes and functions assigned to it, made it possible
to consistently investigate all the necessary processes, draw scientically
based and accessible conclusions.
572
Oleksii Drozd, Oleksandr Kobzar, Maksym Romanov, Denysenko Hryhorii y Mykola Pohoretskyi
Aspects of implementation of the law enforcement function of the state under the legal regime of
martial law in Ukraine
The generalization method revealed the prospects for composition and
logically correctly presentation of the text, which should clearly convey to
the reader the scientic opinion and position held by the authors, and also
allowed, as a result of the application of other methods, to complementarily
present the proposals based on the results of the discussion.
The method of interpretation in the legal sense was used to clarify the
legal content of legal instruments regulating the implementation of the law
enforcement function of the State and, in fact, the operation of the legal
regime of martial law in Ukraine.
The system-structural method, as one of the forms of analysis of legal
validity, allowed to combine all the information obtained in relation to the
object of research and to present it consistently, logically and in an orderly
manner.
The comparative legal method was applied in the context of making
analogies and parallels in the interpretation of aspects of the law
enforcement function of the State under the legal regime of martial law in
Ukraine and in other countries.
2. Literature Review
It should be noted that a number of researchers analyzed the problematic
issues of implementing the law enforcement function of the State and
its aspects. For example, Vakarova (2019) drew attention to the issue of
constitutional and legal status of law enforcement agencies, which, in our
opinion, is an element of ensuring certain aspects of the law enforcement
function of the State, and needs to be used in our research.
Bilas (2016) also paid considerable scientic attention to the issues of
law enforcement activities of the European Union countries, proposing to
incorporate th relevant experience into the activities of Ukraine.
Mamchur (2019) in her scientic research thoroughly characterized the
law enforcement function of the state and noted the presence of signicant
shortcomings.
Shay (2012) studied the issues related to the theoretical and legal
understanding of the law enforcement function of the legal State (its
theoretical and practical aspects).
However, a prominent place is occupied by the work by Bezpalova
(2014), who examined the issues related to the administrative and legal
mechanism of implementing the law enforcement function of the state at
the doctoral dissertation level.
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CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 569-580
At the same time, the eect of the legal regime of martial law in Ukraine
signicantly complicated the functioning of the State apparatus and caused
the need for additional scientic study of the law enforcement function of
the State in wartime conditions. Another important argument for the need
to research this topic is that Ukraine, having chosen the course of European
integration and received the status of a candidate for the European Union
membership, took democracy and law and order as the formats and concept
of life of the entire society, which, in turn, requires systematic provision of
eective functioning of all State institutions and the State as an entity in
general.
3. Results and discussion
First of all, the issue of the conceptual-categorical relationship, which is
currently used in the scientic article, needs to be claried, since, depending
on the content of the basic principles, it is possible to substantiate logical
conclusions. The essence of the term of «function» can be established by
means of lexical and legal analysis of the corresponding denition, since the
content of its main features is laid down in this way. “Functio”, from Latin,
literally means the performance of something, some activity; it serves to
determine the role of a separate part in the general system of a certain
phenomenon.
Khamula (2013) emphasizes that in the theory and philosophy of law, as
well as the history of the State, the use of this term in the national sense and
through the prism of law enforcement as a socio-political phenomenon, the
general structure is personied by the State as the main subject of ensuring
human and citizen’s rights and freedoms, and law enforcement agencies act
as tools for achieving the outlined. That is, the function of the State in the
context of law enforcement is a regulatory obligation, which is implemented
with the help of a certain authority (or specically authorized service).
Besides, one should pay attention to the fact that there is a certain
terminological inconsistency with the interpretation of the very phenomenon
of «protection» and «defense» of law. For example, Parshak (2014)
justies that they dier because their content and essence direct their main
characteristics to achieve dierent goals and in various ways. For example,
the author emphasizes that protection is aimed at preventing violations of
rights, while their defense is performed during the actual breach of rights,
the threat of it, or when preventing their implementation. This means that
the categories cannot be equated, since «rights protection» in the legal
sense means a static state of legal norms aimed directly at preventing rights
violations.
574
Oleksii Drozd, Oleksandr Kobzar, Maksym Romanov, Denysenko Hryhorii y Mykola Pohoretskyi
Aspects of implementation of the law enforcement function of the state under the legal regime of
martial law in Ukraine
Thus, we should note that through the prism of legal statehood, the
prerequisites for the implementation of the law enforcement function of
the State are those principles and fundamental categories that make it
impossible to violate and even attempts or the emergence of tendencies to
encroach on other people’s rights.
Since the most characteristic features of modern civilization are the rule
of law, the priority of public interests and the supremacy of human rights
in general – the issue of implementing the law enforcement function of the
state is quite acute. Law enforcement activity, the organization of which
is entrusted to the State as the central institution in the legal relations of
society, involves the use of force and coercion, which are actually forms
(tools) of the State law enforcement mechanism, which can be implemented
only by the authorities.
Since the state authorities, their ocials are obliged to act exclusively
within the limits and in the manner provided for by the legislation
of Ukraine, specically coercion and force (as forms of ensuring the
implementation of the law enforcement function of the State) must be
clearly regulated within outlined limits and correspond to the principles of
legality and proportionality of the damage caused and the averted oense;
in addition, such activity cannot be carried out by anyone, but only by the
authorized actors.
When referring to the concept of «law enforcement function of the
State», it should be noted that the scientists put dierent meanings into it,
which can negatively aect the further study of this phenomenon in synergy
with the essence and content of the legal regime of martial law. That is why
it is suggested to describe it briey.
Thus, it is an independent and priority direction of the State policy,
which is carried out with the help of legal means to achieve a certain social
eect, such as the protection of law in general, the foundations of the
constitutional system, including rights, freedoms and legitimate interests
of an individual, strengthening legality and law and order, and at the same
time acts as a legal form of achieving other goals of society and the country.
Thus, the corresponding phenomenon has a clear direction – the
protection of laws and interests of a person by all legal instruments and
means available, as well as the expansion of the number and pluralization
of their forms, taking into account the development of society and
civilizational assets.
Some researchers draw attention to the fact that the law enforcement
function of the State is a tool and direction of exclusively internal State
activity, which is designed to ensure the prevention of violations of all social
relations established and regulated by law (Moskovets, 2011). In our opinion,
this interpretation can be considered only in a narrow understanding (in
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CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 569-580
the work of a separate sectoral law enforcement institution), since the
activity of Ukraine, as the actor of international humanitarian law, also
extends its boundaries to the protection of citizens, including abroad, as
well as the prosecution of persons who have committed oenses, including
on international level.
As a rule, researchers distinguish the following sub-functions among the
internal elements of the law enforcement function of the State: protection of
the constitutional order; protection of human rights and freedoms; property
protection; protection of public order; protection of natural resources and
environment; ght against crime (Buhaichuk 2017).
At the same time, such a view should be based on the classication
criteria, since, for example, the above classication is more than applicable
(even practically oriented) in terms of the scope of law enforcement, and
through the prism of the characteristics of the tools of achievement, it can
be a set of the list of measures of persuasion and coercion enshrined in the
legislation.
A number of scientists justify the position that the types of law
enforcement functions of the State can be: restrictive, proactive, preventive,
resocialization, etc., which in turn can also be considered as structural
elements of the corresponding theoretical and legal category.
However, since we have outlined the aspects of this term as a dynamic
element of social and legal structure of society, which will allow us to
characterize the relevant phenomenon through the prism of risks and
threats of systematic violation of human and citizen rights and freedoms
under the legal regime of martial law in Ukraine, it is proposed to provide
their meaningful characteristics by outlining the content and dierences.
Thus, relying on the position by Kritcak (2009), which, in our opinion,
should become the main one in the issue of dening aspects of the law
enforcement function of the State, the following targeted programs for
its implementation will be distinguished in jurisprudence: prevention of
individual violations of public order that may occur; termination of current
violations of public order; general deterrence of potential violations of public
order in the future; restoration of public order after it has been violated;
correction of behavior that causes a violation of public order; rehabilitation
of victims of public order violations; restoration in a broader social sense
in order to eliminate conditions that may cause violation of public order.
By accepting this interpretation, we state that without a meaningful
characterization of the essence and circumstances created by the legal
regime of martial law in Ukraine, it will be impossible to unify the relevant
aspects.
576
Oleksii Drozd, Oleksandr Kobzar, Maksym Romanov, Denysenko Hryhorii y Mykola Pohoretskyi
Aspects of implementation of the law enforcement function of the state under the legal regime of
martial law in Ukraine
The aggression of the Russian Federation against Ukraine, rst of
all, had a signicant negative impact on the observance of the rights of
every person and citizen living not only on the territory of Ukraine, but
also throughout the world, since it provoked a commodity crisis, the
impossibility of maintaining Ukraine’s grain turnover; the usual level
of migration of the world’s population, tourist routes and other civilized
aspects of the functioning of society are at risk.
First of all, through the prism of people-centrism, the freedoms of
an individual are under threat, since the cruel atrocities of the Russian
invaders, who illegally started hostilities on the territory of peaceful
Ukraine, negatively (and in some places destructively) aect the observance
of the institutions of laws in general, the possibility of State provision of
social and individual benets.
At the same time, the legislation of most countries of the world contains
an indication of a special legal structure that would grant additional rights to
the public administration in cases when theSstate is faced with unforeseen
situations that make the normal functioning of society impossible,
overcoming which requires the mobilization of all available resources – the
so-called emergency regimes or martial law regimes state (Slavko, 2016).
The legislation of Ukraine denes that martial law is a special legal
regime introduced in Ukraine or in some of its localities in the event of
armed aggression or threat of attack, danger to the independence of
Ukraine, its territorial integrity, and grants the relevant State agencies,
military command and administrations and local self-government bodies
of authorities necessary to avert the threat, repulse armed aggression and
ensure national security, eliminate the threat of danger to the State, its
territorial integrity, as well as temporary restriction of the constitutional
rights and freedoms of a person and citizen and the laws and interests of
legal entities resulting from the threat with an indication of the period of
validity of these restrictions (Law No. 389-VIII, 2015).
Thus, the legal regime of martial law is the introduction of the series of
measures aimed at ensuring the prevention of violation of the liberties of a
person and a citizen under signicant threat in the manner of consolidation
of all State law enforcement institutions and providing them with tools
to achieve the goals of establishing law and order and protecting the
population.
Kyrychenko et al., (2019), analyzing the relevant direction, draw
attention to the fact that under the introduction of martial law, the task of
ensuring the rights and freedoms of a person and a citizen acquires special
importance. Clearly, when the normal functioning of the State and society
becomes impossible, individual interests are subject to certain restrictions.
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Precisely because any State activity is directed and regulated by the
legislation of Ukraine, its individual norms directly «determine the rules»,
even in matters of narrowing the limits of the rights. For example, the Law
of Ukraine “On the Legal Regime of Martial Law” (Law No. 389-VIII, 2015)
establishes the main mechanisms for the operation of such a regime, the
limitations that are permissible and a clear list of the functions and powers
of authorities, in order to ensure law and order and repel armed aggression
or the threat of attack, other danger, respectively to the legislation of
Ukraine.
Fihel (2015), in turn, draws attention to the fact that the operation of
the legal regime of martial law in Ukraine is regulated not only by national
legislation, but also by the international instruments ratied by Ukraine,
since each person should undergo restrictions established by law solely for
the purpose of ensuring proper recognition and respect for the rights and
freedoms of others and ensuring fair requirements of morality, public order
and general welfare in a democratic society.
However, according to Topolnitskyi (2019) in relation to the specics
of the Russian armed aggression against Ukraine, which, in his opinion,
lies not in the general methods and goals of war, but in the unconditional
violation of the system of basic international legal agreements, all customs
of warfare, the issue of the ratio of limited liberties of an individual with the
aim of averting the likely damage is gaining considerable seriousness and
urgency, since, as we have noted, the level of damage already caused by the
Russian invaders both to the State as an actor of international legal relations
and to the society and each of its members individually, is extremely high.
Senatorova (2018), having analyzed international legal provisions and
in particular judicial practice, notes that restrictions on human rights and
freedoms are applied only under clearly dened conditions, namely: 1) their
determination by legislation and clear delineation of the boundaries and
methods of their implementation (law must be suciently accessible; the
rule of law must be formulated clearly enough to enable a person to foresee
the consequences of the relevant actions); 2) be necessary in a democratic
society (proportional in terms of limiting the liberties of an individual and
the achieved (protected) interests of society); 3) interest-oriented (since
legislation, including international one, enshrines the list of goals for
limiting each specic right, corresponding restrictions and vice versa; the
procedures for ensuring them should be properly incorporated).
Therefore, the legal regime of martial law in Ukraine in the conditions
of undeclared war by Russia Federation, determines the situation in which
the law enforcement function of Ukraine as the actor of international legal
relations and the central element in the system of national legal relations
plays a key role in all types of relation. The content of this function and its
main purpose, individual aspects and directions are clear.
578
Oleksii Drozd, Oleksandr Kobzar, Maksym Romanov, Denysenko Hryhorii y Mykola Pohoretskyi
Aspects of implementation of the law enforcement function of the state under the legal regime of
martial law in Ukraine
Among the most important are: the cessation of further violations of
rights and freedoms that have already been violated; the prevention of
violations of the rights and freedoms of vulnerable persons; introduction
of comprehensive preventive programs to avoid the spread of deviant
manifestations in society at all levels.
Conclusions
Thus, on the basis of the analyzed approaches to the concept and essence
of the law enforcement function of the State as a theoretical and legal
structure, the mechanism and content of the legal regime of martial law, its
close mutual (dualistic) relationship with law enforcement, as well as other
views and opinions of scientists and researchers regarding of the studied
phenomenon, the main aspects of the law enforcement function of the State
under the legal regime of martial law, in our opinion, may be such as:
• Organization and prevention of re-occupation of the de-occupied
territories, or centralized provision of resettlement of local residents
in order to ensure the highest social value – human life.
• Establishment of the main mechanisms and structural subdivisions
of law enforcement agencies to ensure the compliance with the
inviolable and those that cannot be limited rights and freedoms of
an individual and citizen both on the territory of the entire State
and, rst of all, on the de-occupied territories.
• Ensuring the implementation of State programs and strategies
aimed at improving and raising the level of public understanding
of potential and real threats of occupation of their permanent
residences by enemy troops.
• Creation of mechanisms for the social rehabilitation of injured
persons, which in turn will contribute to both the restoration of
violated rights and within the scope of the law enforcement function,
- to the prevention of further violations.
• Introduction of a wide range of social and legal instruments and
regulators of State inuence on the issues related to the reconstruction
of destroyed territories (rst of all – critical infrastructure, and
immediately after – civilian objects and housing stock).
• The prospect of further research, in our opinion, lies in the need
to outline the main actors of such activity and determine their
competence in relation to each of the outlined aspects with a
simultaneous justication of the interconnectedness of the functions
and duties specied and available in the legislation.
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Esta revista fue editada en formato digital y publicada
en diciembre de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 75
