CONSTITUTIONAL FOUNDATIONS FOR THE EXERCISE OF THE RIGHT TO PEACEFUL ASSEMBLY UNDER MARTIAL LAW

Abstract

The article is devoted to a comprehensive analysis of the constitutional and legal foundations for the exercise of the right to peaceful assembly in Ukraine under conditions of martial law, as well as to the search for a balance between the requirements of national security and the preservation of fundamental freedoms in a democratic society. The study identifies key risks accompanying the exercise of freedom of assembly during periods of heightened threats, in particular the tendency towards a de facto shift away from the notification-based model of holding peaceful assemblies, the expansion of public authorities’ discretion to prohibit mass events, and increasing legal uncertainty for organisers and participants. On the basis of an analysis of the constitutional provisions, special legislation on the legal regime of martial law and the practice of restrictive decisions adopted by military administrations, the article establishes the fragmentary nature of national regulation of freedom of peaceful assembly and the absence of a special law that would comprehensively define the procedures, criteria and consequences of restricting this right, including mechanisms of judicial review. The expediency of legislatively enshrining the presumption of the peaceful character of an assembly and introducing clear algorithms for assessing the admissibility of restrictions according to the criteria of legality, legitimate aim, necessity and proportionality is substantiated. At the same time, it is emphasised that an effective response model should provide not only for prohibitions but also for risk management: priority should be given to alternative solutions (such as the designation of safe locations and the establishment of conditions for holding assemblies) capable of ensuring the exercise of freedom of assembly without creating unjustified threats. Special attention is paid to the alignment of national approaches with international standards and the case law of the European Court of Human Rights regarding the state’s positive obligations in the field of freedom of assembly, even in crisis situations. In conclusion, the article substantiates the urgent need for regulatory clarification of definitions, procedures and standards for restricting the right to peaceful assembly during martial law, as well as for the harmonisation of Ukrainian regulation with European approaches in order to eliminate gaps and conflicts in legal regulation and ensure coherence of the legal framework.