The topic studied by freshmen lawyers became an apple of discord in the Grand Chamber of the Supreme Court.

The draft “On Amendments to Certain Laws of Ukraine on Ensuring the Rule of Law for the Protection of Fundamental Human Rights and Freedoms” (No. 10061) was registered with the Verkhovna Rada (the Parliament). It may seem that the draft law prohibits referring to the provisions of the Constitution as the norms that have direct effect. However, the problem is much deeper.

No right to an independent conclusion

Article 8 of the Constitution establishes that laws shall conform to it. In case of any discrepancies, provisions of the Constitution shall prevail. Procedure related to consideration of cases in respect of application of the law provisions that are not compliant with the Constitution, is regulated by the procedural codes.

Before 15/12/2017 the law provided that in case of any doubt as to the conformity of the law or another regulation with the Constitution, the court had to refer to the Supreme Court of Ukraine to obtain a decision on the submission of an application with respect to conformity of an instrument with the Constitution (part 3 Article 8 of the Civil Procedural Code in force as of 18/03/2004, part 5 Article 9 of the Code of Administrative Proceedings in force as of 06/07/2005).

Introduction of a rule whereby the court was prohibited to independently decide on compliance of the law provisions with the Constitution, and was required to refer the matter to the Constitutional Court, resulted in complications in terms of protection of human rights under the provisions of the Constitution as the norms having direct effect.

Case No. K-314/09 reviewed by the court of cassation may be used as an example. In its ruling dated 10/06/2011, the Supreme Administrative Court stated: “The defendant acted under effective legislation, and the court of first instance, contrary to the Code of Administrative Procedure, independently found that provisions of sub-clauses 7, 8 clause 23 Section II of the Law “On the State Budget of Ukraine for 2008 and Amendment of Some Pieces of Legislation of Ukraine” were not compliant with the Constitution, though it had no authority to do so. Under such circumstances, the Court of Appeal, having partially revoked the decision of the court of first instance, has come to the conclusion that the claim should have been rejected”.

Therefore, until 15/12/2017, the courts could not apply the provisions of the Constitution as the norms having direct effect in terms of a particular case review. In case of a conflict between the provisions of the Constitution and the Law, the priority of provisions of the former could have been established only after the relevant regulation had been found unconstitutional.

The decision comes first and the submission – next

The situation was expected to have changed after the new versions of the procedural codes had entered into force. To ensure this, the following provision was included: if the court finds that a law or another regulation is not compliant with the Constitution, it shall apply provisions of the latter as such that have direct effect. In such a case, the court, following the decision in the case, shall apply to the Supreme Court for a decision on whether a certain law shall be challenged as unconstitutional. The decision of this matter falls within the competence of the Constitutional Court (part 6 Art. 10 of the Civil Procedural Code, part 4 Art. 7 of the Code of Administrative Procedure, part 6 Art. 11 of the Economic Procedural Code).

Literal interpretation of this provision would result in understanding that the courts are empowered to independently determine non-compliance of the law with the Constitution, as well as to resolve conflicts by adhering to the rule that provisions of the Basic Law should prevail. However, the effective legislation envisages that the courts are obliged to file a submission to the Constitutional Court in case of application of the provisions of the Constitution rather than the provisions of the conflicting law. However this requirement is not always adhered to. Moreover, there are no legal consequences if the courts do not comply with this procedure.

In the context of the above-mentioned, the decision of the Grand Chamber of the Supreme Court in the model case No.806/3265/17 shall be mentioned. The Regulation dated 19/09/2018 states: “The provisions of the law No. 5492-VI not only limit, but actually cancel the right of a citizen to obtain a passport in the form of a passport book without a contactless e-carrier of personal data that contains encrypted surname, name and patronymic of a holder; it only provides for the right to receive a passport of a citizen of Ukraine containing contactless e-carrier, which is an obvious violation of the requirements of Article 22 of the Constitution which prohibit adoption of new laws or amendments to effective laws that limit the scope of existing rights and freedoms”. Therefore, the Supreme Court assessed the conformity of the Law No. 542-VI to the Constitution and decided on the merits.

Despite the conclusions made, the Supreme Court did not file a submission to the Constitutional Court to assess the compliance of the law therewith. Natalia Antoniuk and Oleksandr Prokopenko, the judges of the Supreme Court, considered this to be a violation of the procedural requirements and noted same in their dissenting opinion. In particular, they noted as follows: “A reference to non-compliance of the law with the provisions of the Constitution may only be possible in case of simultaneous filing by the Supreme Court of a submission to the Constitutional Court in respect of the constitutionality of the law”.

Stop and wait

Currently, the draft No. 10061 is registered with the Verkhovna Rada (the Parliament). It specifies that if the court finds that a law or another regulation is not compliant with the Constitution, it shall suspend the proceedings and send a request to the Supreme Court. In its turn, the latter should, within 60 days from the date of the receipt of request, convene a Plenum to decide on whether to file a submission that would claim the law or another regulation to be unconstitutional. It is proposed to add the relevant provision to the Economic Procedural Code, the Civil Procedural Code, and the Code of Administrative Procedure.

That is, the draft stipulates that courts of general jurisdiction cannot independently assess the constitutionality of the law. They shall only be entitled to file a submission to the Constitutional Court. The explanatory note refers to a common practice whereby courts find the laws to be unconstitutional without applying to the Constitutional Court. The author of the draft considers this practice as an “interference with the balance among power branches”, a manifestation of “the legal order that impairs the rule of law”, as well as “messing up with the existing models of access to judicial constitutional control”.

However, it seems that abidance with the provisions of effective legislation would anyway obligate the courts to apply to the Constitutional Court. Still, this should not be achieved through introduction of changes into the current legislation but through other means of influence, in particular, through public control and disciplinary liability imposed under the relevant grounds. Introduction into the codes of yet another provision on mandatory compliance with the requirements of the legislation can hardly be relevant.

Igor Bagnyuk, senior associate, dispute resolution, and Yulia Shyshka, attorney-at-law, exclusively for «Zakon & Business»