Prohibition for MPs and officials to leave the country under martial law and final decision on the appointment of Yuriy Vitrenko as the Head of Naftogaz

18 February 2022
Prohibition for MPs and officials to leave the country under martial law and final decision on the appointment of Yuriy Vitrenko as the Head of Naftogaz
Home > Monitoring > Prohibition for MPs and officials to leave the country under martial law and final decision on the appointment of Yuriy Vitrenko as the Head of Naftogaz

The Supreme Court makes the Cabinet dismiss Yuriy Vitrenko as the Director of Naftogaz Ukraine while “servants of the people” want to ban top officials and heads of strategic companies to leave Ukraine under martial law.

A moratorium for officials to leave the country under martial law

Draft bill #7055 of February 15, 2022

Cosponsors: 139 MPs from the Servant of the People faction and For the Future group, Ruslan Stefanchuk, Speaker of the Parliament, and Oleksandr Kornienko, First Deputy Speaker of the Parliament.

Status: awaits to be included on the parliamentary agenda.

Who is affected: the President, ministers and their deputies, civil servants, service members, employees of law enforcement agencies, heads of strategic enterprises, companies, and organizations.

Background: facing the growing threat of a full-scale Russian invasion, many MPs, mostly from a pro-Russian Opposition Block — For Life, fled from the territory of Ukraine. Without a quorum in the Verkhovna Rada or if many top officials are missing, the state will not be able to properly react to Russian escalation and quickly adopt necessary decisions.

Summary of the draft bill:

– the bill introduces a prohibition on leaving Ukraine under martial law for the following people:

a) MPs

b) ministers and their deputies

c) heads of other executive bodies, including bodies with special status

d) civil servants of category A

e) heads of local state administrations and their deputies

f) service members

g) employees of law enforcement agencies

h) heads of enterprises, companies, and organizations that have strategic value for the economy, defense, and stability of critical infrastructure objects

– grants the President the authority to give permission to leave the country under martial law for state officials that are traveling on official business.

What is right:

  • the bill ensures that government bodies, strategic enterprises, companies, and organizations will be able to work under martial law

  • minimizes the risk of collapse of the state management system in the face of serious military threat to the state.

What is wrong:

  • the Constitution does not grant the President the authority to give permission to leave the country under martial law, so the bill violates the Constitution. President’s authority cannot be extended by laws or bylaws

  • the monopoly of the President to give permission to leave the country can to some extent paralyze the work of government bodies that represent Ukraine in the international arena. In particular, it can hinder diplomatic and trading activities

  • prohibition for MPs to go abroad without presidential permission can be used as a tool to put pressure on the MPs

  • the bill does not address the case when officials have left the country before martial law was declared

  • the list of reasons when it is necessary to leave the country is much larger than the fulfillment of professional duties. For example, it is sometimes necessary to send abroad sick or wounded service members for treatment

  • heads of enterprises, companies, and organizations do not fulfill the functions of the state or local government, so they do not have the legal status that justifies for them to travel abroad to exercise their authority. The prohibition, as a result, can disrupt export-import operations that in many cases will stop the work of enterprises, companies, and organizations

  • there will be no real prohibition on leaving the country since the bill does not propose penalties for violating it.

Alternative solution:

  • to extend the list of legal reasons to leave the country, including there at least medical treatment for service members and employees of law enforcement agencies. Allow heads of enterprises, companies, and organizations to go abroad to negotiate contracts

  • permission to leave the country for ministers, heads of local state administrations, and civil servants of category A should be given by the Prime Minister, the head of the executive branch

  • permission to leave the country for service members and employees of law enforcement agencies should be given by the Minister of Internal Affairs and the Minister of Defense (including permission to leave for employees of their other subordinate bodies)

  • permission to leave the country for heads of enterprises, companies, and organizations should be given by the Minister of Economy

  • to require from MPs leaving the country that they notify the Verkhovna Rada and the State Border Guard about the goal and expected duration of their travel

  • to make it an obligation for persons listed in the bill to return back to Ukraine immediately after martial law is declared

  • to introduce criminal punishment for persons listed in the bill for leaving the country under martial law or refraining from returning back to Ukraine after martial law is declared.

The Supreme Court made a final decision concerning Yuriy Vitrenko

Decision by the Supreme Court of February 2, 2022, case #640/18576/21

Decision-maker: the Administrative Court of Cassation at Supreme Court.

Who is affected: the Cabinet, the NAPC, Naftogaz of Ukraine, and Yuriy Vitrenko.

Background: last year the Cabinet made a decision that destroyed the system of corporate management of Naftogaz Ukraine that was introduced to prevent political influences on corporate management: Andrii Kobolev and members of the Supervisory Board were dismissed. After that, the Cabinet instead appointed Yury Vitrenko, the acting Minister of Energy at the time. However, the Law on Corruption Prevention does not allow appointing people fulfilling functions of the state to occupy positions within companies like Naftogaz for at least a year after they were dismissed. Reacting to this violation, the NAPC issued an order demanding from the Cabinet to terminate the contract with Yuriy Vitrenko, and the latter appealed against this order to the court.

Summary of the decision: Yuriy Vitrenko’s appeal against the order by NAPC to dismiss him as the Head of Naftogaz Ukraine was turned down by the final appeal court. The court recognized the order by NAPC to dismiss Vitrenko as legitimate.

What’s next: the Cabinet now must dismiss Yuriy Vitrenko as the Head of Naftogaz Ukraine and ensure the appointment of a new Head in compliance with regulations on corporate management.