Institutional mechanism of securing a constitutional complaint in Ukraine: conceptional problems

Abstract

Article 78 of the Law of Ukraine «On the Constitutional Court of Ukraine» prescribes that exclusively the Grand Chamber, on its own initiative, may take measures to secure a constitutional complaint by imposition of a temporary ban on a certain action when it is necessary to prevent irreversible consequences that may occur due to execution of the final court judgment wherein challenged law of Ukraine (specific provisions thereof) has been applied.

However, according to the second section of article 32 of the Law ofUkraine«On the Constitutional Court of Ukraine», the Grand Chamber, the Senates and the Boards shall act as the Constitutional Court of Ukraine under the powers determined by this Law in respect of constitutional proceedings.

Moreover, analysis of the provisions of the Law of Ukraine «On the Constitutional Court of Ukraine» gives rise to stress that both the Board and the Senate are empowered to consider an issue of initiating constitutional proceedings in the case upon a constitutional complaint (an issue concerning the admissibility of a constitutional complaint). In addition, the Senate is empowered to consider an issue of conformity to the Constitution of Ukraine (constitutionality) of laws of Ukraine (specific provisions thereof) in the case upon a constitutional complaint (an issue concerning the merits of a constitutional complaint), and the Grand Chamber has this power in the event of relinquishment of jurisdiction by the Senate in favour of the Grand Chamber.

That is why, prescribed by the Law of Ukraine «On the Constitutional Court of Ukraine» institutional mechanism of securing a constitutional complaint could be very ineffective in practice. It cannot access either the legitimate aim of securing a constitutional complaint that consists in preventing irreversible consequences that may occur due to execution of the final court judgment wherein challenged law of Ukraine (specific provisions thereof) has been applied, or the urgency of such an interim measure in the form of imposition of a temporary ban on a certain action.

Nevertheless, the above problems could be easily improved by the relevant amendments to the Law ofUkraine«On the Constitutional Court of Ukraine» (for instance, by changing a phrase «the Grand Chamber», available into the first section of article 78 of the Law ofUkraine«On the Constitutional Court of Ukraine», to a phrase «the Constitutional Court ofUkraine»).