Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 103

LES COURS CONSTITUTIONNELLES

Law). That is, it is about the person's ability to initiate verification of the
law for compliance with any provision of the Constitution of Ukraine. At
the same time, as it was already noted, in substantiating the allegations of
unconstitutionality of the law of Ukraine (its separate provisions), the Law
on the Constitutional Court requires to indicate which of the "human rights
guaranteed by the Constitution of Ukraine, according to the subject of the
right to constitutional complaint, was violated as a result of the application
of the law".
It is obvious that compliance with this requirement (at least at the stage
of the formation of the relevant case law) will cause a lot of questions, since
the proposed construction is rather complicated. The Ukrainian legislator
did not take a more logical path, which is used in other European countries,
namely: a constitutional complaint could only concern the compliance of
the law (its separate provision) with the provisions of the Constitution of
Ukraine, which guarantee human rights and freedoms (here it would be
possible to provide an indication to specific articles of the Constitution of
Ukraine or to indicate the rights and freedoms guaranteed by its Chapter II).
For example, it follows from Article 79 of the Constitution of the
Republic of Poland that the grounds for a constitutional complaint are
violations of the constitutional rights and freedoms. Most of these rights are
set forth in Chapter II "The Freedoms, Rights and Obligations of Persons
and Citizens" of the Constitution of the Republic of Poland, but a constitutional complaint may concern the rights, freedoms or duties contained
in other chapters of the Fundamental Law. However, the Constitutional
Tribunal of the Republic of Poland stated in its decisions: "the norms
defining the general principles of the constitutional system, as well as the
norms addressed to the legislator... cannot be the basis for a constitutional
complaint ... The preamble of the Constitution does not contain norms
defining rights and freedoms ..."13.
Within the proposed structure, the key question is whether the
Constitutional Court of Ukraine, when assessing the admissibility of a
constitutional complaint and substantiation of the position by the subject
of the right to a constitutional complaint, should establish a violation of the
human right guaranteed by the Constitution of Ukraine as a result of the
application of the law? If so, then the Court must deviate from the established role of the "court of law" and assess the facts on the merits. At the
same time, it is extremely important to limit itself to examining exclusively
13. A. Vashkevich, Institute of constitutional complaint in the Republic of Poland:
organisational and legal problems of consideration [Text]/A. Vashkevich, Theoretical
and practical aspects connected with individual constitutional complaint in the European
model of constitutional justice: International scientific practice. conf. (May 13-14, 2010).
- Minsk: 2010. - p. 98.

Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ?

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