Freedom of movement: problems of correlation of public-law and private-law approaches

Abstract

The author of the article examines the essence and nature of freedom of movement as an institution that embodies the idea of freedom in law. She proves that in the Constitution of Ukraine and in the norms of public law in general, freedom of movement is declared as a fundamental freedom of a person and a citizen. The specific content of freedom of movement is revealed through a number of subjective rights, which are defined in the norms of public law. These are the following rights: the right of a person to free and unhindered movement within the territory of Ukraine; the right to leave Ukraine; the right to unimpeded return of a citizen of Ukraine to Ukraine; the right to freely choose the place of residence/stay. At the same time, the Constitution of Ukraine declares the right to freely leave the territory of Ukraine, but the provisions of the special law do not mention "free" departure from the territory of Ukraine, and therefore the special law somewhat narrows the limits of freedom of movement. In contrast to public law, in the norms of private law (in the Civil Code of Ukraine), the right to freedom of movement is enshrined as a subjective civil right, but not a fundamental freedom. The content of this right includes the possibility of free movement on the territory of Ukraine and the right to leave the territory of Ukraine and return (citizens of Ukraine) to Ukraine without hindrance. According to the norms of civil legislation, the right to freedom of movement also includes the ability to freely choose a place of residence, but this applies only to a minor. The author proves the fallacy of this approach and substantiates the conclusions that, firstly, the right to freely choose a place of residence cannot exist without the right to a place of residence; secondly, the possibility to freely choose the place of residence/residence should be included in the content of the right to freedom of movement.