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

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

Ukraine”5.

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).