The Constitutional Court of Ukraine as the main actor in safeguarding of the Constitution

Author:Ivan Pankevych, Iryna Sofinska
Position:Doctor habilitation of Science, Professor of the Constitutional Law Department at the University of Zielona Góra, Poland; Professor of the Constitutional Law Department at the National University of Water and Environmental Engineering, Ukraine/Doctor of Science, Associate Professor of the Constitutional and International Law Department at the ...
Pages:77-92
SUMMARY

This article deals with the main issues of the constitutional justice in Ukraine - its concept, significance and the main principles of development. In this article we try to research pure, clear vision, essential and effective mission of the Constitutional Court of Ukraine on legal and political chessboard of Ukraine, keeping in mind its prominent sole role in constitutional justice. Main... (see full summary)

 
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The Constitutional Court of Ukraine as the main actor
in safeguarding of the Constitution
Professor Ivan PANKEVYCH1
Associate professor Iryna SOFINSKA2
Abstract
This article deals with the main issues of the constitutional justice in Ukraine its
concept, significance and the main principles of development. In this article we try to
research pu re, clear visio n, essential and effective mission of the Constitutional Cou rt o f
Ukraine on legal and political chessboard of Ukraine, keeping in mind its prominent sole
role in constitutional justice. Main objective of this study is to examine the trajectory of legal
and p olitical development of the Constitutional Court of Ukraine and to demonstrate the
impact of its opinions and decisions on legal doctrine of Ukraine. In this study regarding the
constitutional justice in Ukraine we used few mixed research methods to obtain spec ific
scientific results: observation, surveys, secondary data analyses, etc. The present stud y
related to the essence of the Constitutional Court of Ukraine, its foundation and trajectory
of its d evelopment, its key role in constitutional review should be viewed as a follow-up to
the one previously published research in Polish. This article might be useful for students and
master students of law faculties, practitioners in the field of constitutional la w and justice.
Keywords: constitutional court, constitutional jurisdiction, constitutional justice,
constitutional review, Ukraine.
JEL Classification: K10
1. Introduction
Certainly, the first best known example of constitutional justice is concerned
to be the decision of the US Supreme Court in the context of exercising constitutional
review in case Marbury v. Madison (1803) on the constitutionality of the application
of Article 3 of the US Constitution (1787)3. This decision is deeply rooted in the
essence of the constitutional review and became a starting point for real path maker
in constitutional justice worldwide.
The principle of separation of powers is supposed to be the primary principle
of formation of all state bodies in every democratic state. It is not an ideal, however,
its universal theoretical essence is a real pathway to provide a practical response to
1 Ivan Pankevych Doctor habilitation of Science, Professor of the Co nstitutional Law Department at
the University o f Zielona Góra, Poland; Professor o f the Constitutional Law Department at the
National University of Water and Environmental Engineering, Ukraine, ipankevych@gmail.com.
2 Iryna Sofinska Doctor of Science, Associate Professor of the Constitutional and International Law
Department at the National University “Lviv Politechnic”, Ukraine, sofinska@gmail.com.
3 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
78 Volume 9, Special Issue, October 2019 Juridical Tribune
the needs and challenges of modern society. Additionally, we know other principles
what can be used to ensure constitutional justice everywhere: rule of law,
proportionality, check and balances, national interest, protection of human rights etc.
The legal system of such a society guarantees that every citizen will enjoy
and fully realize his/her rights and freedoms underpinned by fundamental democratic
values. By consideration of the role of the constitutional court in protecting the rights
and interests of its citizen, it must be understood that such judicial protection is the
highest form of guaranteeing respect for human rights in every democratic society.
The construction of a state mechanism on the principle of checks and balances
properly confirms this recognition. The said structure usually is duly incorporated in
primary national legislation (acts of the highest legal force) - Basic Laws
(Constitutions). Ukraine is not an exception.
According to art. 6 of the Constitution of Ukraine (1996), the State power in
Ukraine shall be exercised with the consideration of its division into legislative,
executive, and judicial branches. Legislative, executive, and judicial bodies shall
exercise their authority within the limits determined by this Constitution and in
accordance with the laws of Ukraine4.
The Constitutional Court of Ukraine was established in Ukraine in 1992, and
de facto started its activity in October 1996 - after the current Constitution of Ukraine
was adopted. Article 147 of the Constitution of Ukraine (1996), provides: The
Constitutional Court of Ukraine shall be the sole body of constitutional jurisdiction
in Ukraine. The Constitutional Court of Ukraine shall resolve the issues of
conformity of laws and other legal acts with the Constitution of Ukraine and provide
the official interpretation of the Constitution of Ukraine (1996) and laws of
Ukraine5.
During the past at least ten years, courts in Ukraine have indeed become a
specific hostage of the struggle between different branches, political parties for
power and their particular influence on the constitutional court to overrule unwanted
legislation, further to receive wanted decision/opinion due to its (often hypothetical)
incompatibility with the constitution.
That is why six years ago the level of people's trust to the constitutional
court's activity (simply justice and its effectiveness) dropped sharply. Such
decreasing of trust (distrust) was deeply rooted in (including for objective reasons,
when the constitutional court was used as an effective instrument to combat the
opposition, particularly during the revolutionary events in Ukraine at the end of 2013
at the beginning of 2014. Political bodies of legislative and executive branches of
state power, who violated its independence, intervened into its activity, competed to
receive more influence on the constitutional court, as well as the mass media and
other so-called 'experts' in constitutional justice do not allow to create a positive
image of the court.
4 Constitution o f Ukraine. Law № 254к/96-ВР, 28.06.1996 (URL: https://zakon.rada.gov.ua/laws/
show/254%D0%BA/96-%D0%B2 %D1%80?lang=uk).
5 Constitution o f Ukraine. Law № 254к/96-ВР, 28.06.1996 (URL: https://zakon.rada.gov.ua/laws/
show/254%D0%BA/96-%D0%B2 %D1%80?lang=uk).

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