Enforcement of decisions and opinions of the Constitutional Court of Ukraine
The legal basis of the mechanism of the enforcement of decisions and opinions of the Constitutional Court of Ukraine consists of the Constitution of Ukraine and the Law of Ukraine “On the Constitutional Court of Ukraine” (hereinafter referred to as “the Law”). Decisions, opinions of the Constitutional Court of Ukraine are mandatory for the enforcement (Article 124.3, Article 150.2 of the Constitution of Ukraine, Decision of the Constitutional Court of Ukraine dated June 9, 1998 No.8-rp/98 in the case on amending the Constitution of Ukraine, Article 69 of the Law of Ukraine “On the Constitutional Court of Ukraine”).
The obligation to enforce decisions of the Constitutional Court of Ukraine is the requirement of the Constitution of Ukraine, which has the highest legal force in respect of all other normative legal acts. This eliminates the possibility of a body of public authority, including parliament, body of local self-government and their officials to reproduce the provisions of legal acts declared unconstitutional by the Constitutional Court of Ukraine, except the cases when the provisions of the Constitution of Ukraine, due to the non-conformity to which a specific act (individual provisions) was declared unconstitutional, were subsequently amended in the manner envisaged in Chapter XIII of the Constitution of Ukraine (second and third paragraphs of item 3.3 of the motivation part of the Decision of the Constitutional Court of Ukraine dated June 10, 2010 No.16-rp/2010).
The Constitutional Court of Ukraine in its Decision dated 9 June 1998 No. 8-rp/98 in the case on amending the Constitution of Ukraine pointed out that despite the differences as to their form, decisions and opinions of the Constitutional Court of Ukraine are mandatory for enforcement. This follows from Article 124.3 of the Constitution of Ukraine, under which judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction and from Article 124.5, pursuant to which all judicial decisions regardless of their specific forms are adopted by courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine. Therefore, adoption of judicial decision in the form of the opinion of the Constitutional Court of Ukraine is mandatory for enforcement (eighth paragraph of item 2 of the motivation part).
With regard to this, opinions of the Constitutional Court of Ukraine on conformity of draft laws amending the Constitution of Ukraine to Articles 157 and 158 of the Constitution of Ukraine are mandatory during consideration of relevant issues by the Verkhovna Rada of Ukraine. The procedure for amending the Constitution of Ukraine is established by the provisions the Constitution of Ukraine and the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine” dated February 10, 2010 No.1861-VI. Under the provisions of the Rules of Procedure of the Verkhovna Rada of Ukraine, opinion of the Constitutional Court of Ukraine on the draft law amending the Constitution of Ukraine is mandatory for consideration by the Verkhovna Rada of Ukraine (Article 147.10); the Verkhovna Rada of Ukraine may adopt a draft law stipulated by Article 155 of the Constitution of Ukraine, provided that the draft law, upon the opinion of the Constitutional Court of Ukraine, is recognised to be in compliance with the requirements of Articles 157 and 158 of the Constitution of Ukraine and the Constitutional Court of Ukraine has not expressed any reservations to it and under Article 155 of the Constitution of Ukraine the draft law was previously adopted by the Verkhovna Rada of the same convocation at the previous regular session of the Verkhovna Rada of Ukiraine (Article 149.6).
As stated in the Decision of the Constitutional Court of Ukraine dated June 9, 1998 No.8-rp/98 in the case on amending the Constitution of Ukraine, in the event of introducing amendments to the draft law during its consideration in the Verkhovna Rada of Ukraine, it shall be adopted by the Verkhovna Rada of Ukraine upon the availability of an opinion of the Constitutional Court of Ukraine providing that the draft law with all amendments conforms to the requirements of Articles 157 and 158 of the Constitution of Ukraine (second paragraph of item 2 of the operative part). According to Article 159 of the Constitution of Ukraine, not only a draft law submitted to the Verkhovna Rada of Ukraine in the order of Articles 154, 155 and 156 of the Constitution of Ukraine, but also all possible amendments made to it during consideration at the plenary session of the Verkhovna Rada of Ukraine are subject to mandatory examination on compliance with Articles 157 and 158 of the Constitution of Ukraine. The draft law, which upon the opinion of the Constitutional Court of Ukraine was in conformity with the requirements of Articles 157 and 158 of the Constitution of Ukraine and which was amended during the consideration at the plenary session of the Verkhovna Rada of Ukraine, shall be also examined by the Constitutional Court of Ukraine on the conformity of the draft law to the requirements of the specified articles of the Constitution of Ukraine before its adoption as a law amending the Constitution of Ukraine (sixth, seventh paragraphs of item 3 of the motivation part).
The procedure of enforcement of decisions and opinions of the Constitutional Court of Ukraine is defined in Article 70 of the Law. According to its provisions, copies of decisions and opinions of the Constitutional Court of Ukraine shall be sent next working day after their official promulgation to the subject of the right to constitutional petition or constitutional appeal upon whose initiative the case was considered, to the Ministry of Justice of Ukraine as well as to the state body that adopted the legal act which was considered by the Constitutional Court of Ukraine (Article 70.1). Where necessary, the Constitutional Court of Ukraine may determine in its decision or opinion the procedure and terms of their enforcement and oblige appropriate state bodies to ensure enforcement of the decision or adherence to the opinion (Article 70.2). Article 74 of the Law also envisages that the Constitutional Court of Ukraine may determine that its decision has pre-judicial effect for courts of general jurisdiction during consideration of claims in connection with legal relations that emerged on the basis of an unconstitutional act.
Laws and other legal acts, or their separate provisions, declared unconstitutional, lose legal force from the day the Constitutional Court of Ukraine adopts the decision on their unconstitutionality (Article 152.2 of the Constitution of Ukraine).
The Decision of the Constitutional Court of Ukraine dated December 14, 2000 No.15-rp/2000 in the case on the procedure of execution of decisions of the Constitutional Court of Ukraine stipulates that the provisions of Article 70 of the Law of Ukraine “On the Constitutional Court of Ukraine” on the procedure of execution of decisions and opinions of the Constitutional Court of Ukraine should be understood as the right of the Constitutional Court of Ukraine to establish, if necessary, in its decision, opinion procedures and timeframes and charge appropriate public authorities with responsibility for their enforcement. In doing so, regardless of whether the procedures of enforcement are specified in a decision or opinion of the Constitutional Court of Ukraine, appropriate public authorities must act only in accordance and within the scope of their authorities and in the matter envisaged by the Constitution and laws of Ukraine (item 3 of the operative part). The above Decision states that decisions of the Constitutional Court of Ukraine have direct effect and their enactment does not require confirmation by any public authorities (the first sentence of the third paragraph of item 4 of the motivation part); additional determination of the procedure in the decisions, opinions of the Constitutional Court of Ukraine of their enforcement does not cancel nor substitute the general mandatory nature of the requirement of their enforcement. Regardless of whether these decisions, opinions of the Constitutional Court of Ukraine contain specified procedure of their enforcement, appropriate laws, other legal acts or their individual provisions which were declared unconstitutional, are not subject to the application as invalid from the date of appropriate decision of the Constitutional Court of Ukraine on their unconstitutionality (sixth paragraph of item 4 of the motivation part).
According to Article 70.3 of the Law, the Constitutional Court of Ukraine has the right to demand from bodies stated in this Article a written confirmation of execution of the decision or adherence to the opinion of the Constitutional Court of Ukraine. Failure to enforce decisions or adhere to opinions of the Constitutional Court of Ukraine shall entail liability under the law (Article 70.4 of the Law). Yet, currently responsibility for failure to enforce decisions and adhere to opinions of the Constitutional Court of Ukraine is not established by the law.
The Constitutional Court of Ukraine in its Decision dated June 30, 2009 № 16-rp/2009 noted that enforcement by all subjects of legal relations of the requirements laid down in court decisions which gained legal force asserts the authority of the state as a legal one (second paragraph of item 4 of the motivation part). However, as the practice shows, not all the decisions of the constitutional Court of Ukraine are enforced.
Enforcement of the decisions of the Constitutional Court of Ukraine in most cases requires filling of gaps in legislation which are the result of declaration of norms to be unconstitutional by the Constitutional Court of Ukraine which must be implemented with account of the legal positions (some kind of ratio decidendi) of the Court. Yet, the terms for adoption of relevant acts to eliminate such gaps are not defined by the law. This creates a problem of legislative regulation of certain legal relationships, makes it impossible during a certain period of time to exercise the constitutional rights and freedoms by individuals.
In addition, implementation of these decisions requires development, introduction and adoption of relevant draft laws which is complicated by the reluctance of subjects of legislative initiative to timely develop and introduce draft law and the lack of consolidation of all political forces represented in the Verkhovna Rada of Ukraine for its adoption.
It is difficult to correct the terms of enforcement of such decisions of the Court since the Rules of Procedure of the Verkhovna Rada of Ukraine conditions the terms of the legislative process by the specific features of parliamentary work, and therefore they are not clearly established.
There are numerous facts of reproduction by the Verkhovna Rada of Ukraine of the content of the rules, declared unconstitutional by the Court, in the provisions of the new legislative acts that testifies to the ignoring by the legislative body of the requirements of the Constitution of Ukraine concerning the obligatory nature of execution of acts of the Constitutional Court of Ukraine.
At the same time, judicial practice has developed, when courts of general jurisdiction adopt decisions in cases based on explanations of the higher courts with no attention on the legal positions expressed by the Constitutional Court of Ukraine.
- In fact, the Constitutional Court of Ukraine has no control over the implementation of its decisions otherwise than as it is prescribed in Article 70.3 of the Law, according to which the Constitutional Court of Ukraine has the right to demand from bodies stated in this Article a written confirmation of enforcement of the decision or adherence to the opinion of the Constitutional Court of Ukraine.
At the same time, paragraph 2 of the Rules of Procedure of the Constitutional Court of Ukraine approved by the Decision of the Constitutional Court of Ukraine dated March 5, 1997, empowers the Chairperson of the Constitutional Court of Ukraine to pronounce official statements on behalf of the Constitutional Court of Ukraine. The text of official statements of the Constitutional Court of Ukraine shall be approved at its session upon the initiative of the Chairperson of the Constitutional Court of Ukraine or no less than three judges of the Constitutional Court of Ukraine. Such powers of the Constitutional Court of Ukraine and its Chairperson could be used to respond to cases of failure or untimely execution of decisions and opinions of the Constitutional Court of Ukraine.
It should be noted that the constitutional reform in the part of justice involves the establishment of additional mechanisms to facilitate the proper enforcement of acts of the Constitutional Court of Ukraine.
For example, the Law of Ukraine “On Introducing Amendments to the Constitution of Ukraine (on justice)” provides a new wording of Article 147 of the Constitution of Ukraine, which consolidates the principles on which the activity of the Constitutional Court of Ukraine is based. Among these principles obligatory nature of the decisions and opinions adopted by the Constitutional Court of Ukraine is indicated. In addition, the Fundamental Law of Ukraine is supplemented by Article 151-2, which stipulates that decisions and opinions adopted by the Constitutional Court of Ukraine are binding, final and can not be appealed. Such constitutional regulation is consistent with the above legal positions of the Constitutional Court of Ukraine as to equivalence of the obligatory implementation of decisions and opinions of the Court.
The new constitutional regulation also provides the new wording of paragraph two of Article 152 of the Constitution of Ukraine. Pursuant to this wording, laws, other acts, or their specific provisions, declared unconstitutional, shall lose legal effect from the day the Constitutional Court of Ukraine adopts the decision on their unconstitutionality, unless otherwise provided for in the decision of the Court. Thus, the constitutional provision that currently definitely determines the moment of loss of effect by laws and other legal acts or their provisions in case of declaration of unconstitutionality – from the day of adoption by the Constitutional Court of Ukraine of the relevant decision, the new wording provides for the right of the Constitutional Court of Ukraine to set peculiarities of losing effect by laws, other acts or their specific provisions in its decision.
The above amendment will not only enable preventing gaps in the legislation, the occurrence of which is possible in case when the regulations are declared unconstitutional, but will also allow the entity that issued the relevant legal act to independently cancel such act and issue the new one or make amendments to it that will provide the regulation of the issue within this body, with observance of the constitutional and legal procedures for its consideration, approval and entry into force.
- The Constitutional Court of Ukraine may prescribe to addressee how to enforce particular decisions. As an example – the decision of the Constitutional Court of Ukraine in the case upon the constitutional petition of the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine on the conformity to the Constitution of Ukraine (constitutionality) of the provision of the third sentence of the first paragraph of Article 13 of the Law of Ukraine “On psychiatric care” (case on the right to judicial control of hospitalisation of legally incapable persons in a psychiatric institution).
To declare as such that do not conform to the Constitution of Ukraine (unconstitutional), the provisions of the third sentence of the first paragraph of Article 13 of the Law of Ukraine “On psychiatric care” dated February 22, 2000 in conjunction with the provisions of paragraph two of this Article regarding hospitalisation of the person declared legally incapable in the manner established by law, to a psychiatric institution at the request or with the consent of his/her guardian by the decision of psychiatrist without judicial control.
The Constitutional Court of Ukraine considers it necessary to specify the following procedure for the implementation of this decision: until the legislative regulation of judicial control over hospitalisation in a psychiatric institution of incapable person at the request or with the consent of his/her guardian by the decision of the psychiatrist such hospitalisastion shall be possible only upon the decision of the court.
Given the above, the Constitutional Court of Ukraine also considers it necessary to recommend the Verkhovna Rada of Ukraine, with account of this decision, to immediately settle the issue of judicial control over hospitalisation in a psychiatric institution of the person legally declared incapable in the manner prescribed by law, at the request or with the consent of his/her guardian by the decision of the psychiatrist.
Stanislav Shevchuk
