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April 2021

Commonwealth’s Constitution Magazine

CONSTITUTIONAL

EDITORIAL Creative Society freedom & equal rights for every human

Commonwealth Realm: great value

for the people of UKRAINE

The problem of ensuring the independence of the judiciary in Ukraine is obviously transnational in nature

Chairman of the Constitutional Court of Ukraine

LAW

UK £15 EU €18* Recommended Price

Oleksandr Tupytskyi

Constitutional


CONSTITUTIONAL EDITORIAL

Is a collection of thoughts, opinions and insights on events and the needs and wants of the people, and implementation of such via a constitution. The Editorial was inspired by creation of British Ukraine and its future constitution, but is aimed at the wider Commonwealth. It is published to inspire dialogue that will ultimately serve as guidance for policy makers. EDITORIAL BOARD THE RT HON LORD HODGE, Deputy President of the Supreme Court of the UK THE RT HON MARTIN KING, Chancellor of BU and Chief Director of BOFU OLEKSANDR MASHTEPA, President of British Ukraine OLEKSANDR TUPYTSKYI, Chairman of the Constitutional Court of Ukraine The Editorial is openly published by The Times Publisher on behalf of British Ukraine.


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An Introduction to the Constitutional Court of Ukraine

Content |

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Major Differences in British and Ukrainian Constitutional Law

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A Creative Society Is the Only Way to the Future

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Ukraine as a Commonwealth Realm

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Rights of the People for a Corruption Free Society as a Constitutional Right

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Creative Society is a Guarantee of Freedom and Equal Rights for Every Human

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First Steps of a Future Global Britain Framework

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What are the Constitutional Rights of a Judge

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Independence of Constitutional Law and Its Place in Ukrainian Politics

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Europeanisation of Constitutional Law of Ukraine

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The Editorial will be informative, cover some academically focused matters, as well as provide commentary and insights on related ongoing events. As the Chairman of the Constitutional Court of Ukraine, the magazine was inspired as a stepping stone to reforming and updating the Constitution of Ukraine as part of my work at the Committe on Judicial Reform within British Ukraine.

Oleksandr Tupytskyi

Editor In-Chief, Constitutional Editorial

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Editorial |

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his Editorial, is a magazine for all purposes concerning matters related to a constitution, and has been created for the purposes of exploring how the constitution of a country may be improved to best serve the needs and wants of the people of the Commonwealth in the 21st century.


A Constitutional Court plays an essential role as gatekeeper of the Constitution and its values and as the arbiter of separation of powers

Informative Article |

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An Introduction to the Constitutional Court of Ukraine

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ccording to the Constitution, state power in Ukraine is divided into legislative, executive and judicial. The jurisdiction of the courts extends to any legal dispute and any criminal charge. Therefore, the independence of the judiciary is proclaimed at the level of the Basic Law of Ukraine and is one of the main principles of its effective operation. The Constitutional Court of Ukraine is a body of constitutional jurisdiction composed of eighteen judges (six judges each are appointed by the President, Parliament and Congress of Judges of Ukraine). In 2016, the Constitutional Court of Ukraine was separated from the judiciary as a result of the constitutional reform of justice. The main authority of this body is to decide on the constitutionality of acts of the Parliament, the President, the Government, the Parliament of the Autonomous Republic of Crimea. In particular, the Constitutional Court of Ukraine is empowered to review the constitutionality of laws of Ukraine and their specific provisions, draft laws amending the Constitution of Ukraine, as well as international treaties that require ratification by the Parliament. The Constitutional Court plays an essential role as gatekeeper of the Constitution and its values and as the arbiter of separation of powers. During 1997-2020, the Constitutional Court of Ukraine adopted 368 decisions,

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“Given the globalization and other processes observed in the international arena, the cooperation of a Constitutional Court with the bodies of constitutional jurisdiction of other states, international courts and international organisations undoubtedly creates favourable conditions for the initiation and development of dialogue based on mutual respect and the dissemination of universal values nurtured by democracies”

tion and development of dialogue based on mutual respect and the dissemination of universal values nurtured by democracies. Today, the Court is an active member of the international constitutional community. In total, representatives of 62 countries have visited the Constitutional Court of Ukraine over the years. During over 24 years of its activity, the Constitutional Court of Ukraine has established and maintains fruitful relations with the bodies of constitutional jurisdiction of many foreign states, especially European ones, by organising joint scientific and practical events, exchanging delegations, court decisions and other information etc. Judges of the Constitutional Court of Ukraine take an active part in the work of international conferences, seminars and round tables organized by our colleagues abroad. Thus, during this time, representatives of the Court have participated in similar events in 41 countries. In order to deepen bilateral relations, the Constitutional Court of Ukraine signed memoranda on the development of cooperation with 11 bodies of constitutional jurisdiction, including bodies of constitutional jurisdiction of Latvia, Lithuania, Moldova, Turkey, Serbia, etc. The Court actively cooperates with international organisations: the Council of Europe (European Commission for Democracy through Law (Venice Commission), European Court of Human Rights), the OSCE Project co-ordinator in Ukraine, foreign governmental funds, including the German Foundation for International Legal Cooperation (IRZ), etc. Representatives of the Constitutional Court of Ukraine regularly take part in the activities of the European Court of Human Rights in Strasbourg, as well as the European Commission for Democracy through Law (Venice Commission).

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Informative Article |

157 of which - in cases on official interpretation of laws of Ukraine and the Constitution of Ukraine, 140 - in cases on recognition of the provisions of the laws of Ukraine as inconsistent with the Constitution of Ukraine. The Constitutional Court of Ukraine has also adopted decisions concerning socially significant issues that have not yet been implemented, in particular, by making appropriate amendments to the legislation of Ukraine. The Constitutional Court of Ukraine has facilitated implementation of the European Court of Human Rights' judgments/reforms in Ukraine with a list of cases upon constitutional petitions pending before the Constitutional Court on comparable issues to certain judgments of the European Court of Human Rights within cooperation between the Constitutional Court and the Department for the Execution of Judgments of the European Court of Human Rights. International cooperation plays an important role in building and strengthening the institutional capacity of the Constitutional Court of Ukraine, as the scale and effectiveness of international relations is an integral attribute of the quality of any state institution, as well as an indicator of the institution's involvement in the international community. In addition, international cooperation provides an opportunity to use and join the best world experience and elaborate the perspective development model. The Constitutional Court of Ukraine is directly related to the international obligations of the state, and as a result, actively implements and develops international communications in the field of constitutional law within its powers, guided by the basic principles of Ukraine's foreign policy. Given the globalization and other processes observed in the international arena, the cooperation of the Constitutional Court of Ukraine with the bodies of constitutional jurisdiction of other states, international courts and international organisations undoubtedly creates favourable conditions for the initia-


Informative Article |

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In 1999, the Constitutional Court of Ukraine became an associate, and in October 2000 - a full member of the Conference of European Constitutional Courts - an international organisation that unites almost all bodies of constitutional jurisdiction of the European continent, and actively participates in the congresses of this Organisation. By the way, in 2005 the Chairman of the Constitutional Court of Ukraine M. Selivon was the General Rapporteur at the XIII Congress of this venerable organisation, which for 40 years of the Conference was the only exception to the general rule according to which the general report is prepared by the organising court. Since 2009, the Court has joined the work of World Conference on Constitutional Justice, which has held congresses in South Africa, Brazil and South Korea. In September 2011, the Court joined the Organisation among 30 founding courts. In 2015, the Constitutional Court of Ukraine became one of the founding courts of the Association of Constitutional Justice of the Countries of the Baltic and Black Sea Regions (BBCJ), and in 2017 the Court chaired this organisation. Judges of the Constitutional Court of Ukraine are regularly published in professional publications abroad (Armenia, Belarus, Bulgaria, Kazakhstan, Lithuania, Tajikistan). In 2004, the column “Foreign Jurisprudence” of “Notebooks of the Constitutional Council of the French Republic” was devoted to a single body of constitutional jurisdiction of Ukraine. It is common practice for the Court's leadership to meet with heads of diplomatic missions accredited in Ukraine, as well as international organisations - the UN, the OSCE, the CoE, and the EU. At different times, the Court received the Federal President of Germany, R. Herzog, the Presidents of the European Court of Human Rights, L. Wildhaber, and J.-P. Costa,

The Constitutional Editorial

“A Constitutional Court is directly related to the international obligations of the state, and as a result, actively implements and develops international communications in the field of constitutional law within its powers, guided by the basic principles of Ukraine's foreign policy”

OSCE High Commissioner on National Minorities K. Vollebaek, President of the European Commission for Democracy through Law G. Buquicchio, Deputy Prime Minister, Minister of Justice of the Slovak Republic Daniel Lipschitz, Secretary General of the Council of Europe Terry Davis, who praised the work of the Constitutional Court of Ukraine, other high-ranking officials, as well as numerous representatives of foreign bodies of constitutional jurisdiction from around the world. The Constitutional Court of Ukraine regularly organises international conferences, round tables, seminars on topical issues of constitutional justice. Over the years, with the support of the Coun-

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Informative Article |

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cil of Europe and other international organisations in Ukraine, more than ten international conferences have been organized and held, including international conferences on the occasion of the 5th, 15th and 20th anniversaries of the Court, an international conference in Yalta in June, 2013 and a number of others, including ten Ukrainian-German colloquia on constitutional justice issues. It should be noted that on March 1, 2006 the Germany's Federal President Horst Köhler for special services to Germany issued a certificate of awarding the first Chairman of the Constitutional Court of Ukraine Ivan Tymchenko with the Order of the Great Cross of Merit. In recent years, the project cooperation of the Con-

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stitutional Court of Ukraine has significantly strengthened, including within the existing EU and OSCE instruments. This is worth noting the three-year project of the Constitutional Court of Ukraine and the OSCE Project co-ordinator in Ukraine “Support for the protection of human rights by improving access to constitutional justice”, which is currently funded by the Government of Germany. Thus, the diversity of international relations and their forms allows the Constitutional Court of Ukraine to effectively exchange experience on a wide range of issues and enrich its own jurisprudence, while contributing to the establishment of a positive image of Ukraine in the international arena.

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It can be argued that the experience of the formation of states and their legal systems in w general fits into the general historical process and in the research literature is not considered as a phenomenon inherent in a particular historical period

Scientific Article |

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Major Differences in British and Ukrainian Constitutional Law

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kraine's integration into the world community determines the development and improvement of the national legal system, based on relevant international experience. It is important to realise that the functioning of state institutions, the existence of legal institutes in each country took place over a period of time; equally important are the preconditions for the emergence and development of state institutions and legal institutes. The above together gives reason to argue that the emergence and development of law and the state in each country has its own historical basis, and the historical process of development has led to the emergence and introduction of relevant traditions, customs or practices. It can be argued that the experience of the formation of states and their legal systems in general fits into the general historical process and in the research literature is not considered as a phenomenon inherent in a particular historical period. However, the peculiarities of the formation of the Ukrainian state, its modern development necessitate the need to pay due attention to the study and borrowing of certain innovations by Ukraine. The establishment and provision of human and civil rights and freedoms as the main duty of the state (Article 3 of the Constitution of Ukraine) corresponds to the global trend, which prefers to expand the catalogue of human and civil rights and freedoms, as well as guarantees of their implementation. Therefore, the issue of formation and functioning of legal systems, state institutions in the context of possible borrowing of relevant experience, acquires strategic importance for Ukraine. Historically, the United Kingdom has the greatest historical experience of the formation and functioning of parliament as a representative body and the legal system in general. Unlike the continental legal systems, the Anglo-Saxon legal system is also aimed at ensuring human rights. It is worth mentioning that one of the oldest legal acts containing a catalogue of human rights is the Magna Carta of 1215, which is considered the first "unwritten constitution of England" and the Bill of Rights of 1689. Not being a country of the Anglo-Saxon legal family, Ukraine also has ancient historical legal pieces, in particular, "Ruska Pravda", "Pravda Yaroslavychiv", The Statutes of Lithuania, etc.

The Constitutional Editorial

At the same time, the British legal system, unlike the countries of continental law, does not have a constitution as a single codified act, and consists of several acts of a constitutional nature; simultaneously, it can include court precedents, when APRIL 2021


nary courts. Actually, the absence of a constitution in the form of a codified act, combined with various sources of law, such as judicial precedents and the works of scientists -constitutionalists, makes the procedure of "traditional" constitutional review impossible, as neither customary law, nor the works of scholars are legally recorded, which, in turn, makes the procedure for comparing them impossible. Examining the historical retrospective, we can state that the parliament and parliamentarism in Britain arose as a reaction to the unlimited pow-

law, but has repeatedly been recognised by the courts. In addition, a special form of the British constitution is, among other things, that there are no constitutional review bodies in the country. Researchers note the "flexibility" of this form of constitution, which is amended in accordance with the ordinary parliamentary procedure or during the administration of justice by ordi-

er of the monarch, while the history of Ukrainian parliamentarism (in Kyivan Rus the institute of democracy was the People's Assembly - "Viche") had no example of unlimited power of one person or group. It is noteworthy that the competence of such a body of democracy as the People's Assembly, included the vocation, approval or removal of princes.

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courts specified such acts in their decisions. It should be noted that, based on the principle of separation of state power, other principles of functioning and development of British state institutions differ from those enshrined in the Basic Law of Ukraine. First of all, it concerns the place and role of the British parliament, which has a history of almost eight centuries. First of all, being bicameral, the British parliament operates on the principle of sovereignty - a fundamental principle of British constitutional law. It should be noted that this principle is a principle of customary


Scientific Article |

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Obviously, there is no unambiguous answer to the question of what factors determined the historical process of formation of certain forms of political and state system on the respective territories of the countries

Obviously, there is no unambiguous answer to the question of what factors determined the historical process of formation of certain forms of political and state system on the respective territories of the countries. At the same time, this issue has been the subject matter of research by scientists and thinkers. Montesquieu also formulated a systematic idea of the influence of geographical factors on the form of government in the country. However, it should be recognised that the principle of historicism, according to which the evolution of state and its legal system can be traced, is fully inherent in the study of the legal and state system of Great Britain. One of the specific features of the formation of the Ukrainian state is that its territory was at different times under the jurisdiction of different states,

The Constitutional Editorial

which led to the operation of different legal systems in Ukraine (albeit within the Continental legal family). It should not be overlooked that for a significant period of time Ukraine was part of the former USSR, whose political regime was totalitarian. These factors have certainly influenced the state of Ukraine's legal system, the development of which today, especially in light of political events over the past seven years and the global threat posed by the spread of the COVID-19 coronavirus pandemic, is important for the further development of the Ukrainian state. The Constitution of Ukraine, adopted by the Verkhovna Rada of Ukraine in 1996, is the starting point for the development of the national legal system towards its compliance with international standards in the field of human rights protection. APRIL 2021


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trol over the laws adopted by the Verkhovna Rada of Ukraine, which regulated the functioning of the judicial system of Ukraine. However, in Ukraine the tendency to significant interference by the Ukrainian parliament in the constitutionally significant guarantees of the independence of the judiciary and the Constitutional Court of Ukraine continues. It is obvious that the independence of the judiciary is not only a condition for the balanced functioning of the judiciary, but, above all, an important component that ensures the practical implementation of the principle of separation of powers in terms of Articles 1, 6 and 19 of the Constitution of Ukraine. The judiciary in Ukraine, as well as the Constitutional Court of Ukraine operate within the limits established by the Constitution and laws of Ukraine, which is expressly provided for in Article 19.2 of the Basic Law of Ukraine. However, they are extremely vulnerable to legislative amendments passed by parliament, especially those whose implementation adversely affects the constitutionally defined guarantees of judicial independence. Therefore, it is important to introduce at the national level such mechanisms that would protect the judiciary from rapid and ill-considered amendments to the laws which regulate its activities. In this context, it should be emphasised that the Supreme Court of Great Britain has the right to make a "declaration of non-compliance", thus recommending that the British parliament change existing regulations in one area or another if they do not meet the requirements of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. A possible way to overcome the situation related to the encroachment by the parliament on the independence of the judiciary would be to introduce prevention and give the Constitutional Court of Ukraine the opportunity to issue opinions on the constitutionality of not only those laws proposing to amend its provisions, but also those relating to the activities of constitutionally provided public authorities in Ukraine.

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Traditionally for the countries of the Continental legal family, Ukraine has proclaimed the exercise of state power through its division into legislative, executive and judicial (Article 6 of the Constitution of Ukraine); one of the features of the national legal system is also the existence of a body of constitutional control - the Constitutional Court of Ukraine. The assertion of the supremacy of the Constitution of Ukraine as the main principle of the Court's activity, defined by the Law of Ukraine “On the Constitutional Court of Ukraine” is connected with the protection of the Constitution. Of course, we are talking about the norms of the Constitution of Ukraine, each of which can be a measure in assessing the legislative acts adopted by the Ukrainian parliament or regulations of other state authorities of Ukraine. This model of constitutional control completely fits into the system of continental law. In contrast, in Britain there is a well-established practice, according to which constitutional issues do not constitute a separate category of legal problems, but permeate all law and therefore must be considered in general courts. It is clear that this approach is the result of a centuries-old tradition of parliamentary supremacy in Britain; not the least role in such a model is played by the fact that the law in Britain is not only written and codified acts passed by parliament, but also established customs, traditions, works of scholars, court precedents and so on. It is also worth noting that British justice itself is based on centuries-old traditions of obedience to the law in this country. However, even this factor did not stop the discussion at the time that "the close confrontation of judicial lords within the Appellate Committee of the House of Lords with legislative and other forms of parliamentary activity can objectively lead to politicisation of the judiciary, the emergence of doubts about objectivity and impartiality of the court". The problem of ensuring the independence of the judiciary, the independence of the constitutional review body in Ukraine is obviously more global, transnational in nature. The Constitutional Court of Ukraine has repeatedly expressed its legal position while exercising of constitutional con-

The problem of ensuring the independence of the judiciary, the independence of the constitutional review body in Ukraine is obviously more global, transnational in nature


Scientific Article |

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Researchers note the need to borrow the practice of political consolidation of its members, who should be more coordinated in their actions while representing the will of the people and not only care about their own interests. Agreeing with this view, it should be noted, however, that British parliamentarism itself is based, as already noted, on a centuries-old tradition of obedience to the law; historical events that took place on the territory of the Ukrainian state did not always fit into the normal course of the global historical process. It is appropriate to recall the scale of the genocide of the Ukrainian people during the Holodomor of 1932-1933, the mass repressions that led to the destruction of a large part of the Ukrainian people, and so on. Of course, it would be too frivolous to count on rapid changes in a country that has historically existed as a sovereign state for a short period of time. Having an ambiguous and heterogeneous historical past, the Ukrainian state is forced to go through its own process of formation, which must certainly include the formation and development of the national legal system. At the same time, the historical experience of other countries, in particular, the British experience can be useful in the introduction of those novels that due to various factors, including historical, were not inherent in Ukraine in different periods of its existence. The study of such experience, combined with respect for one's own historical experience, will allow introducing certain legal innovations into the Ukrainian legal system with as few difficulties as possible, which may mainly consist in society's rejection of introduced novels. Oleksandr Tupytskyi Chairman of the Constitutional Court of Ukraine

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Scientific Article |

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The Constitutional Editorial


Expert Opinion |

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A Creative Society Is the Only Way to the Future

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he era of global changes in society has begun. It is already obvious to many that society is now on the verge. As if frozen in a lie, deceit, inhumanity, a cold snow mass on a steep mountain slope, on which all our consumerist civilization is stuck. People are tired of wars, strife, everyday stress in solving problems of survival, uncertainty about the future. An avalanche of public consciousness stress, provoked by climatic, economic, political, pandemic, and other causes, is inevitable. The only question is the consequences. How can we, humans, preempt our future now? How can we all survive and minimize the risks of inevitable losses? Everyone should ask himself these questions, in order to consciously and responsibly begin the evolution into a creative format, this is the only way out today - the transformation of society in a peaceful way. As you know, an avalanche can be caused by a slight push, even by pressure on the snow by a single person. But where will the general movement of society be directed? To the fatal abyss of egoism and pridefulness? Or in the direction of a full-flowing creative river that will give society a new form of existence and create favorable conditions for the revival of life for the next generations of our civilization? Global climate change is one of the most important international problems of the 21st century. The overall rapid increase in the dynamics of cataclysms, which have been observed in recent decades, is particularly alarming. Today, there is a big risk of misunderstanding and underestimation of all the factors and the scale of influence of various cosmic and geological processes on the global climate change on Earth. Just a while ago, at the end of the 20th century, some scientists put forward various hypotheses and theories about gradual climate change. But in practice everything turned out to be somewhat different. A thorough analysis of the growing number of natural disasters and extreme weather events around the world, as well as statistical factors of cosmic and geophysical parameters in the recent years, has shown a disturbing tendency towards their significant increase over a short period of time. Global climate change, climatic cataclysms and catastrophes in the world, occurring already every week, further increase people's anxiety and raise the question - "what to do?"

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Expert Opinion |

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A creative society is the fairest and most honest socety, because it is focused on the benefits and freedoms of Man. And this is the whole point of the society of the new format APRIL 2021

The Constitutional Editorial


“ Expert Opinion |

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Global climate change is one of the most important international problems of the 21st century. The overall rapid increase in the dynamics of cataclysms, which have been observed in recent decades, is particularly alarming. Today, there is a big risk of misunderstanding and underestimation of all the factors and the scale of influence of various cosmic and geological processes on the global climate change on Earth.

History has taught us that lack of unification of human society on the spiritual and moral basis and joint actions of people on the planet, continent, and region regarding preparations for large-scale cataclysms and disasters result in the destruction of most of these people. And survivors die of incurable diseases, epidemics, and self-destruction in wars and civil strife in the struggle for means of sustenance. As a rule, disasters appear suddenly, causing chaos and panic. Only advance preparation and unity of the peoples of the world before the impending natural danger gives mankind more chances of survival and the possibility to jointly overcome the difficulties in the era of global climate change of the planet. The main goal is to achieve and build a Society of spiritually free people, a Creative society that would guarantee our future generations a worthy life, benefits, and spiritual and moral prosperity. The society of the future is the Society of Love and Humaneness, which will take our civilization out of the deadlock of self-destruction; provide for a future without wars, conflicts, violence, and hunger; ensure decent life for people all over the world and eliminate fear for the present and the future; bring modern society to a new level of unity and peaceful development of civilization in all spheres of life. The most important - to create conditions for building a Creative society on the whole planet by peaceful means. A creative society is, first of all, the fairest and most honest society, because it is focused on the benefits and freedoms of Μan. And this is the whole point of the society of the new format. Anastasia D’Bar Human Rights Ambassador of the Athens Council

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UKRAINE as a Commonwealth Realm


Perspective Article |

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Ukraine has an extensive developed varied industry with leading positions in some areas that can bring a lot of value to the developing countries in the Commowealth The Constitutional Editorial

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In essence a future constitutional act of Ukraine could vest the executive authority in the Sovereign and carried out in her name at a national level by a Governor General, considered a direct representative of the Queen or ruling Sovereign, and appointed by the Crown Liaison and other representatives of the ruling Sovereign according to the British Crown Canon on the advice of the Commonwealth Trustees’, with legislative powers exercised by the unicameral Parliament made up of the Supreme Council of Ukraine and the Crown, whereas judicial powers exercised by an independent judiciary. Any change to the position of the Queen, Sovereign or her representatives in Ukraine would then require unanimous consent of the Commonwealth Senate and Supreme Council of Ukraine. Royal visits during the reign of the Sovereign will undoubtedly help strengthen the relationship between the people of Ukraine, the Commonwealth nations and the Royal Family. Such a relationship based in shared goals in democracy and development, would aid in securing a neutral Ukraine and ending any conflicts beginning a period of prosperity for the nation. Claire Griffith Assistant Crown Liaison at the Commonwealth Senate

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Perspective Article |

This article wishes to provide a perspective on the value to the Commonwealth and to the people of Ukraine should the country become a fully-fledged British Commonwealth realm, adopting as the official head of state and Sovereign, the Queen, by the grace of god, of the United Kingdom, potentially Ukraine and Her other realms and territories, head of the Commonwealth, defender of the faith and her any rightful successor. The Commonwealth is home to more than two billion citizens of numerous faiths and ethnicities, whereas sixty-percent of whom are under the age of 30, representing over one third of the global youth population. Young people have a proven capability to lead change, and are a vital and valuable link to building meaningful international trade and cooperation of which Ukraine is in dire need of. Ukraine itself has a lot to offer to the British Commonwealth. Ukraine due to its location is an important geopolitical player and alignment with the interests of the United Kingdom and the wider Commonwealth provides additional leverage to London on the world scene. Ukraine has an extensive developed varied industry with leading positions in some areas that can bring a lot of value to the developing countries in the Commonwealth like member states of Africa. An element of that is substantial agricultural possibilities, in large part centered around potential uses of chernozemic soil and trade routes for the Commonwealth. As potentially a constitutional monarch, the Queen would not be involved in the day-to-day business of Ukraine, but play an important unifying, ceremonial and symbolic role in the life of the nation, to achieve credibility for Ukraine not only on the world stage but also with member states of the Commonwealth. With the people of Ukraine having created British Ukraine with one of the goals of joining the British Commonwealth, and on the other hand of participating in the Supreme Congress of the Commonwealth, and ultimately moving to closer relationship with the United Kingdom, it is only natural that similar in spirit to the Statute of Westminster of 1931 to create as part of the Ukrainian constitution a legally distinct monarchy, a Crown of Ukraine that forms part of the Crown as represented at the Commonwealth Senate.


The main goal of a constitution of a country is to reflect the rights of the people and protect such by providing guiding fundamental axioms to any decision making process of such people and the government created in their name to run said society

Scientific Article |

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Rights of the People for a Corruption Free Society as a Constitutional Right

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constitution of the people should at minimum afford every member of society to what constitutes an acceptable level of standards of living. In the most prosperous variant this would be basis for a creative society that values every person and their contribution to society. Corruption is a form of dishonesty undertaken by a person entrusted with a position of authority, essentially to acquire illicit benefit or abuse power for one's private gain. Clearly such conduct is harmful to society, but this article aims to conclude how it is also incongruent with any form of an even remotely acceptable level of standards of living. In a society disagreement is inevitable as breadth of opinion is a virtue, hence when appropriate the people have the right to be judged fairly. Being judged fairly means having access to a judiciary that is competent and independent of any political proceedings or financial conflicts of interest, meaning a judiciary that is corruption free. It is widely acknowledged and there exists strong consensus in many countries that judicial reform is required due in large part to corruption. Public service is important, and the judiciary is not the only area affected by corruption. It is crucial for the public to maintain faith in public institutions and elected public officials, as well as to have confidence in tomorrow to enable continuation of law and order in society. To discourage public servants of all types from illegal activity, as such is often done in a way not seen by the public eye, promote transparency of economic affairs of elected officials and of public expenditure entrusted to them. Combined with building trust of the election, nomination and appointment procedures allows the public to know that their government is run by public servants with the correct credentials and experience, where remuneration reflects contribution. The transparency of how the government is run can only be at scale communicated by a free and independent mass media sector that is isolated from influence by politicians, thereby reducing the incentive for corruption. Overall this allows the government to com-

The Constitutional Editorial

municate that it is running society in the interest of the people and to enable participation of said people in important decisions. Different economies have different types of organisations that conduct a variety of business and commercial activities, but everywhere such organisations need some sort of degree of cooperation from public servants and officials depending on the regulatory requirement of the industry or sector. Lack of clear legislation and rules,

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long way to go to be free of corruption, which leads to the natural conclusion that authorities that deal with preventing corruption, should not be corrupt themselves and that there should be mechanisms in society for ensuring that, within the transition period, inclusive of the ability of the people to fully participate in building the ideal society and economy. Under the assumption therefore that the existence of corruption makes at least one of the purposes of a constitution unachievable, we can conclude that the issues rooted in corruption that this article reflects upon are incompatible with a constitution. As a consequence of the above conclusions, we can state that the people are entitled to having their rights to a corruption free society protected in the constitution by addressing the aforementioned issues, by amending and enforcing the constitution accordingly. Andrew Van Derve Legal Adviser to the Sydney Commonwealth Relations Commission

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and their poor enforcement or complexity, often leads to incentives for corruption, unfair advantage, insider trading and broken economics of the marketplace. The people wish to live in a safe and prosperous environment where illegal activities do not thrive due to corruption. Whether that is ensuring integrity of a nations’ borders, preventing terrorism, reducing unemployment and preventing any forms of economic crisis’, or ensuring that immediate consequences for crimes are guaranteed, the people need to know that their elected officials and public servants are doing what they undertook to do under their positions, and that they are running society and the economy in their interest. A society where there is a stable, established and settled climate of fairness, prosperity and openness, naturally condemns and prevents corruption which is seen as an unacceptable occurrence, and most importantly there is no incentive for it economically or socially. Even in the most ideal world mistakes can happen, and of course as of currently the world has a


Creative Society Is a Guarantee of Freedom and Equal Rights for Every Human Expert Opinion |

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Every human is born with the right to be a Human being. All People are born free and equal. Everyone has the right to choose. There can be no one and nothing on Earth superior to a Human, his freedom and rights. The implementation of Human rights and freedoms must not violate the rights and freedoms of others.

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he desire for freedom is one of the strongest inner needs of a person. In achieving freedom, people see the chance to ensure a safe independent existence as an opportunity to build their life in comfort and happiness. The concept of "freedom" can be found in different historical epochs. It occupied the minds of many historical thinkers and was used by religious and political figures in their appeals to people. People still use it and manipulate by its means in everyday life, starting with the individual understanding of this word and up to the scale of states and society as a whole. There are many declarations and conventions on human rights, individual freedom, as well as slogans and manifestos calling for this great goal. However, over the past 6,000 years, despite the variety of applications of this term, not a single promise of freedom for the whole society and each person in it has actually been implemented in practice. History abounds with examples when bloody wars and revolutions began under the great slogan of "freedom", and illegal invasion of the territories of other states took place. Numerous political conflicts were justified in this way, and anti-human actions aimed at enriching some at the expense of others were excused. Under the external pretext of good intentions, violent interference in the lives of civilians took place, threatening not only their peaceful existence but also their safety and preservation of life. The reason for this is the consumerist format of public relations.

The Constitutional Editorial

The very desire of a person for freedom is noble and absolutely natural. But in our global society, which lives in the consumerist format of relationships, the concept of "freedom" is stained with deception, lies, and manipulation in the sordid achievement of selfish goals of individuals with the aim of their total control over the masses. Speculating on people's noble inner need, the inhuman game in pursuit of power over them has been going on for 6,000 years already. The laws of consumer society remain the same at all times of its existence. Let us recall the historical examples of the times of the slave-holding system. In Ancient Mesopotamia, people sold themselves into slavery due to the inability to pay off debts to their kings. From the period of the Third Dynasty of Ur, free citizens became slaves because of debts or hunger; impoverished parents were forced to sell their children. In the 1st millennium BC, there existed temple slavery in Babylonia. Among the slaves were prisoners of war, given or bequeathed to the temple, as well as free people: tramps, and children of poor parents, given to temples to be saved from starvation. The Laws of Hammurabi are a vivid example of that time. These laws legally formalized the existence of a slave-holding system. According to the Code of Hammurabi, not only prisoners of war, but also free people could become slaves. The Code was aimed at protecting slave owners from willful slaves. Only a tiny percentage of laws gave slaves a formal opportunity to gain freedom. The procedure for challenging their slave position took place in court, but should they lose, the consequences for the slave were far from encouraging. According to the laws of the Code, the average price for a slave was 150-250 grams of silver; the same amount was paid for a hired bull. APRIL 2021


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There are many similar examples in the history of the slave-holding system. In Ancient Judea and in Ancient Egypt, a free human being became a slave as a result of inability to pay off his debts. Slavery was a natural result of poverty. Peasants sold themselves into slavery due to the need for food and shelter, as the life of slaves was valued higher than life of peasants, and was therefore often better. In other words, extremely unbearable conditions were created for ordinary people, who had no choice but to sell themselves and their family into slavery. The population was left on their own without means for further subsistence. In a selfish society of consumption and profiteering, free existence of a human is devalued as unnecessary and unfavorable for masters. By ceasing to be dependent on his master, a person was losing his commodity value as a slave and gained freedom only technically. APRIL 2021

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The same happened during the times of indentured slavery, when the label "slave" was replaced with "hired worker". The value of a hired employee's life for an owner was often even lower than the life of a slave, as the employee was able to leave. But again, the social conditions for human existence of that time did not give him any guarantees of providing for his vital needs. Accordingly, he could choose either working for and being dependent on his employer, or poverty, hunger, and even death. If we compare the life of slaves in the past centuries with the modern life of an ordinary human, we can see the same exploitation, poverty, need, oppression, chronic shortage of funds for meeting basic needs, and a constant race for survival. Debt obligations, an actual lack of the right to choose, constant restrictions, high taxes, and at the same time hard work and meager wages — these factors are seen everywhere in modern "free civilized society" for the majority of its population. Equal rights in society often exist only on paper. Freedom that every person vitally needs — something that should actually be one of the main pillars of society, in the consumerist format of relationships is nothing but a skillful tool for lucrative manipulation of the masses by a few individuals.

The The Constitutional Constitutional Editorial Editorial

Despite the altered appearance and loud slogans with the words "democracy", "freedom" and "independence", slavery is still maintained today just as it was back in the days of the slave-holding system, only in a camouflaged form. At all times, democracy was presented as a society of free individuals with self-governance by the people, but in actual fact, the reality does not correspond to the pretty label. The concept of "democracy" originates in Ancient Greece. In the democratic Polis of Athens, the supreme governing body was the so-called "Assembly of citizens". At that, the ancient Greek society was strictly divided, including on the basis of gender. It had a hierarchical ladder of power. The demos consisted of free male citizens who had civil rights. They were a minority compared to others. The rest of the population was considered inferior. In the understanding of full-fledged male Hellenes, women were creatures of a lower class. Slaves were not regarded as human beings. The privileged part of society gave loans with the debtor himself or land as collateral. The development of commodity and money relations resulted in the emergence of people enslaved for debts. The political democratic system of the ancient state actually corresponded to the slave-holding system with a new pretty label. State laws of many modern democracies are not just designed to favor the interests of the minority and serve to improve their prosperity, but are also arranged in a way that prevents the majority of the population from correcting and amending these laws. An ordinary citizen has no opportunity to take part in the formation of society and, thus, influence the improvement of his own prosperity and of society as a whole; he cannot repeal laws that are detrimental to people' lives, safety, and health. Citizens of many countries remain brutally oppressed by high taxes and debt obligations; they have no time to participate in life of the state. Social order in the modern world is established by vigorous expression of the will of just a few individuals and inactivity of the majority of the population. Such a position of silence becomes tacit support of domination of some over others along with delegating them power. Yet, where is our responsibility? Where is the participation of the entire society for the public benefit, and not just for the benefit of those few individuals? Where is the active position and personal responsibility of each person? Is it not us who will live in the society that we form? However, we are forming it not only by action, but also by inaction. Isn't this inaction a tacit APRIL APRIL 2021 2021


To date, the only alternative for building a free and fair society peacefully for each of its citizens is building a Creative Society. The consumerist format of relationships means inevitable division and degradation of society in its limitless consumption with its unavoidable end. The creative format of relationships is a society of unity, freedom, peace, equal rights, and vast opportunities for everyone along with evolution of humanity to an Ideal Society, a society of everyone's dreams. A Creative society is the only way that can bring humanity out of the dead-end of consumerism and self-destruction. The pillars of the Creative Society are the 8 Foundations of the Creative Society. Since in this article we touch upon such a sore topic as freedom and Human rights, it is appropriate to quote the second foundation of the Creative Society — Human Freedom.

The Second Foundation of the Creative Society: The Human Freedom Every human is born with the right to be a Human being. All People are born free and equal. Everyone has the right to choose. There can be no one and nothing on Earth superior to a Human, his freedom and rights. The implementation of Human rights and freedoms must not violate the rights and freedoms of others. The second foundation, along with the other foundations, reveals to us the entire necessary understanding of the main pillars and guidelines of a free society and the existence of a free human being in it. Slavery, coercion, oppression, humiliation, and limitation of any person have no place in the Creative Society. The life of every Human being acquires the necessary highest value as of a free and equal individual with his rights guaranteed. APRIL 2021

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People need freedom! It is an essential factor for their normal existence and their healthy development. The freedom and equality in society open up opportunities for internal discovery of the best qualities of every human being, for individual personal growth, and for creation for the benefit of that very society

HUMAN FREEDOM

transfer of responsibility, and thus, a transfer of our rights and freedoms? Where is everyone's participation? And what should it consist in? What is our alternative of getting out of the dead-end of the consumerist format of relationships? Since freedom, equal rights and opportunities for each person are excluded in the consumerist format of relationships a priori, then it is necessary to change the very format of human relationships.


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The value of an individual as a consumerist commodity of a slave or a thing, that has been imposed for centuries, is removed. Every person in the Creative Society is guaranteed to gain freedom and a lot of opportunities. Nowadays, to survive, many people have to step on other people’s toes. And even if one succeeds in raising a little capital, no one has a guarantee that tomorrow he will not lose it and all his years of work will not fade into oblivion, and he will be left with nothing. This will not be the case in the Creative Society. Every person has the right at birth to have their basic needs, housing, food, high-quality medicine, and necessary education provided for. Everyone's rights and freedoms are preserved and valued by society. If desired, everyone can take part in the governing of society, having the absolute right to do so on an equal footing with everyone else, taking on personal responsibility towards all people. All members of society will be able to take part in the formation of public laws, in their amendment or abolition. In the age of scientific and technological progress, when such a technology as the Internet appeared, which can bring together many people from all over

the world, accomplishing all of the above mentioned is absolutely realistic. The World Wide Web allows us to create the necessary conditions for making joint decisions by the whole society, informing the entire humanity, and if necessary, contributes to the rapid consolidation of people around the world. People need freedom! It is an essential factor for their normal existence and their healthy development. The freedom and equality in society open up opportunities for internal discovery of the best qualities of every human being, for individual personal growth, and for creation for the benefit of that very society. This creates an impetus for the necessary evolutionary development of society. Only the creative vector of events development will finally allow everyone, whose oxygen supply has been interrupted by the consumerist system, taking them off the rails of balance and stability, to take a deep breath and feel solid ground under their feet. You will say it is impossible to create such a society, right? Isn't this opinion imposed on your thinking by those who do not benefit from your freedom? Isn't this restriction an actual lever of controlling us? Two terrible things have been done to human-

In fact, building a Creative Society is absolutely simple if everyone who understands this vital necessity takes an active part in the implementation of this global initiative of all people. The Constitutional Editorial

APRIL 2021


ple just need to stop shifting responsibility for their own destiny and the destiny of all humanity, to take the situation into their own hands, to stop listening to empty promises and to unite with like-minded caring people in creative positive peaceful actions already now. We are all born equal! It is in everyone's power to make the maximum effort to restore true freedom to ourselves and to all humanity by building a new format of relationships. We are all one society, one humanity, and one family. Today, we have a real chance to revive in equality and brotherhood a universal human family which was once lost. Finding ourselves, as humankind, before the choice between life and death, the answer is obvious: everyone wants to live! There is no life without freedom, there is no freedom without equality, and there is no equality without a Creative Society where every Human being is valuable! True equality, freedom, and individual fulfillment are possible only in a Creative Society. This is the only way for all of us. A Creative Society is the only way for you, your friends and family and all of humanity to survive, to get rid of the burden of slavery and gain the long-awaited freedom. The choice is yours! Alex Friedman Political Analyst of KTI Think Tank

APRIL 2021

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kind: they have separated our united family because it is easier to manage us this way, and they have imposed slave psychology on the masses. But our strength is in unity, and it is in freedom! If people choose the Creative Society in deeds and not in words, nothing and no one can take away their freedom; their rights will never be trampled again! Inside, everyone understands that creating such a society is possible, realistic and vitally important. Everyone dreams of such a free and beautiful life! In the Creative Society, freedom and equality will be the actual reality of all people. This will inevitably lead to evolution, thus creating necessary conditions for attaining an Ideal Society. Only consolidation of all people around one creative goal will make everyone's dream of a happy and peaceful life real and achievable. A Creative Society is a free society with equal opportunities for all; it provides the real right of choice and guarantees a free and safe life for all of us. In fact, building a Creative Society is absolutely simple if everyone who understands this vital necessity takes an active part in the implementation of this global initiative of all people. We can do it together by creating, uniting and consolidating! Peo-


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First Steps of a Future Global Britain Framework

t the opportune time following the conclusion of the Brexit negotiations, the United Kingdom marks the vital step of taking back control of British laws, and aims to expand the British global horizons to grasp the enormous opportunities of free trade, investment and cooperation, leading by example as a force for good in the world. The United Kingdom has a confident outlook for the future, with significant steps having been taken to effectively kickstart the Global Britain agenda by the British government centered around the British Commonwealth, the beginnings of the Supreme Congress, and an expanding global diplomatic network with new sovereign missions. Global Britain is a large and complex conversation involving many agencies of the British government, with the initial parliamentary debate on the mandate for the next steps having taken place in January of 2021. The debate focused around the need to create a first relationship template of Global Britain that would form the basis of a future Global Britain framework – a set of regulations for global cooperation for a better tomorrow for everyone. The main difficulty of establishing such a template with any nation is the lack of strong commitment from both sides, and specifically of representatives of a specific industry, sector or topic. The appearance of British Ukraine in the name of the people of Ukraine, which is shaping the new and evolving sovereignty of Ukraine on British soil, and the willingness of its committees to enter into a dialogue with the British government, prompted the creation of the British Office for Ukraine, a non-ministerial department accountable to parliament, to effectively engage with Ukraine on building this new and first template of relationships, eliminating the difficulty. For example, British Ukraine has already established a Committee on Judicial Reform, chaired by Oleksandr Tupitskiy, who is also Chairman of the Constitution Court of Ukraine, that will en-

The Constitutional Editorial

gage with a future British Committee on British Legal Oversight that will be likely chaired by a representative of the Supreme Court of the UK, with a view to, for instance, participate in ensuring integrity of the new Judicial Ethics Bureau, and participate thus under the Anti-Corruption, Economic and Taxation Program of British Ukraine that was created to develop the relationship of the UK and Ukraine on these issues. I look forward on engaging on this exciting journey.

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Ann Sharp Permanent Under-Secretary British Office for Ukraine

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A Judge, whose main work is to interpret the law, is the foundation upon which a fair society is built by virtue of the importance of an unbiased interpretation of such law

Constitutional Rights of a Judge

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he judiciary during the course of its work is called upon to decide on matters of justice that are often based in conflict and therefore the work of a Judge has a wide effect on society. Various parties of interest may as such look to influence judgements made for or against them, and this highlights the importance of the matter that the judiciary should be truly independent and feel secure in making a judgement based in law, and not one that is based on subjective preference. The problem of ensuring independence of the judiciary is closely tied to the need to ensure immunity for a Judge who is operating within the law. What constitutes immunity is mainly composed of two major items, the inability to unconstitutionally dismiss a Judge, and the lack of ability to pressure a Judge in any form by any third party. The matter of constitutionality of an action is of course first and foremost fielded by the nations’ highest constitutional review body, whether that’s a separate Constitutional Court or the Supreme Court of a nation, and the independence of such a body in turn is obviously more global, and transnational in nature. Such a constitutional review body is the gatekeeper of the constitution. Disregarding a judgment of such a court is equivalent to disregarding the constitution and the constituent power, which attributed the competence to ensure this supremacy to a constitutional review body. Immunity and independence as such of the judiciary is a twotiered aspect, and presence of both tiers serves as a constitutional guarantee in which the public can place their faith. On the one hand the relevant constitutional rights should be protected in the constitution, and on the other such a constitution should be safeguarded from malicious changes, and ultimately this means enforcement of such constitution – a Judge being the ultimate interpreter, whose judgements must be without fail actioned by other branches of government, whom the judiciary is called to keep in check from time to time, this being the basic matter of separation of powers which most countries have adopted. It is obvious that the independence of the judiciary is not only a condition for the balanced functioning of the judiciary, but, above all, an important component that ensures

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the practical implementation of the principle of separation of powers in terms of a constitution. However, such are extremely vulnerable to legislative amendments passed by parliament, especially those whose implementation adversely affects the constitutionally defined guarantees of judicial independence, whom should be the sole interpreter of laws of the land operating completely independently from other branches of government. Therefore, it is important to introduce at the national level such mechanisms that would protect the judiciary from rapid and ill-considered amendments to the laws which regulate its activities. A possible way to overcome the situation related to the encroachment by the parliament on the independence of the judiciary would be to introduce prevention and give the courts, first and foremost the constitutional review body, the opportunity to issue opinions on the constitutionality of not only those laws proposing to amend its provisions, but also those relating to the activities of constitutionally provided public authorities. A constitutional review body should recognise the importance of the work by other branches of government including in terms of their fight against corruption, but the tools provided through legislation naturally form a critically important part in that work, and as such the work of the constitutional review body in terms of providing oversight to the legislative process and to ensure that legislation adheres to the standards, as set out by the constitution, should not be infringed upon by those other branches of government. This is the only path to ensure impartial and sustainable enforceability of our laws. In addition, it is critical that both enforcement bodies and the judiciary are adequately equipped and protected to ensure procedural integrity and compliance with the constitution. The assertion of the supremacy of the constitution as the main principle of such a courts’ activity, defined by the relevant law, is connected with the direct protection of the constitution. Of course, we are talking about the norms of a constitution, each of which can be a measure in assessing the legislative judgements adopted by the parliament or regulations of other government branches. The basic nature of what constitutes immunity for the judiciary and its objective implementation in a nation that has adopted the principle

The Constitutional Editorial

of separation of powers, means that no other branch of government should be able to prosecute a Judge, other than the judiciary itself, and a Judge ultimately by virtue of the constitution is solely and only accountable to the constitution itself and the entirety of the body of law. Since a Judge is called to perform the work of the highest responsibility, a Judge should enjoy the respective status in society as well as the courts themselves, and any form of pressure or disrespect should be accordingly dealt with, and such a right should be constitutionally defined to ensure the value and authority of the courts. This of course means that to ensure an effective judiciary the constitution should provide guarantees in respect of execution of judicial judgements, as by their nature they should be binding without exception to every other branch of government, civil organisations, all authorities whether public, private or international locally operating, and the public at large. Judges should be able to have access to all the relevant information and documents for the administration of justice and failure to comply with the courts and respective judgements should entail the relevant liability established by law for all - public and other government branches. An important matter is the matter on conflicts of interest that a Judge may be a part of, and a conflict of interest may have multiple dimensions, broadly falling into the conceptual categories of a real conflict of interest, a potential conflict of interest, and private interest, all of which have various interpretations based on the complexity of the relevant situation. Clearly an obvious view of such conflicts of interest entails to remove the financial conflicts of interest, this dealt in part via the immunity prescribed to a Judge as outlined above, and in part via the adequate remuneration of the judiciary, to ensure a Judge is paid not only to the degree to enable a comfortable lifestyle, but to a degree that corresponds to the value of the judiciary, to ensure that a Judge would not be interested or need any additional income – that usually arises as a result of some form of corruption. Such remuneration should be immune from persecution by other branches of government, protecting the private property of a Judge, and clearly entails measures to ensure social proAPRIL 2021


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potential Judge that would be entitled to privileges as outlined by this article. Within the judiciary there may be the relevant hierarchy based on qualification, track record and experience, and relevant process for swearing in and dismissing a Judge, but for the public and other government branches, the status of a Judge should be undisputable and equal between all Judges of all judicial bodies and courts. As outlined above, the Judge should enjoy such constitutional protections and privileges as that is done for the overall benefit of society, that is for a fair society. Erick Banwell Human Rights Ambassador for Eastern Europe

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tection of a Judge and members of his family – preventing influence on a Judge from the public or other governmental branches. It is important to note that when combining the views on the matter of conflicts of interest and judicial independence, we can clearly see that the work of a constitutional review body, essentially executing functions of constitutional control, via which it adopts relevant judgements, that affects the judiciary in its entirety, is sometimes accompanied by ambiguous understanding by other branches of government – which is why it is important that this process of constitutional review is not itself considered a conflict of interest. This is often the case, or implied to be the case, when other branches of government attempt to make the judiciary dependent on them via virtue of an inherent conflict of interest that is often claimed to exist when the independence of the judiciary is under threat. In such cases what is claimed as real conflict of interest rooted in the basis of a specific judgement, is actually just a potential conflict of interest that is often shared by all Judges of a nation, and there is global consensus that this does not actually form a conflict of interest. It is clear that no authority other than the judiciary itself should be able to prosecute a Judge, in whatever form such prosecution takes, covering everything from pre-trial investigations to sentencing, as only such an approach provides for a true independence. The judiciary should be free to enact all the necessary mechanisms to ensure the immunity of a Judge, to ultimately ensure that the Judge has complete immunity from any prosecution by other branches of government, with the only recourse for such other bodies to refer such cases to the relevant judicial prosecution bodies. It is also beneficial for the judiciary to keep a register of Judges' reports on interference in their administration of justice, and to conduct the verification of such reports, ultimately publishing the results to enable the adoption of appropriate prevention judgements to deal with specific cases of interference. It is also clear that the judiciary should be responsible for, and enact transparent procedures and mechanism to ensure the credibility of any


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Independence of Constitutional Law and Its Place in Ukrainian Politics This article takes a look at the social and political processes surrounding the Constitutional Court of Ukraine as relates to the relationship between the Constitution and society from the point of view of sociology, political science and conflictology

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he very formulation of the issue, as it might seem, breeds society and the constitution on different sides of the conditional barrier, suggesting their antagonism in some kind of conflict. However, even a superficial analysis of the relevant social and political processes is enough to conclude that such a conflict is inevitable and permanent. Thus, the constitution of the state is a public contract created by society, while the political form of organisation of the latter in a certain territory is the state. In the process of activity, fulfilling its constitutional duties, the state issues rules that, in its opinion, should enable it to more effectively carry out its functions and streamline social relations. At the same time, the state ensures the implementation of such rules, forcing society to comply with them. If the new rules contradict the main social contract, in particular, restrict the constitutional rights and freedoms of people, a social conflict arises, which is potentially associated with great social risks. In such cases, society is made to seek a way to restore its rights and ensure that the state enforces the constitution. The history of Europe and Ukraine, in particular, clearly shows that in the absence of legal means to resolve such conflicts, revolutions can occur, which entails significant social upheaval and an economic downturn. The resolution of public conflicts and, as a consequence, the prevention of their negative consequences, is one of the goals of creating constitutional courts. Actually, one of the main ideas of constitutionalism is to provide legal ways to resolve the contradictions of society and the state, to limit the discretion of the latter and to monitor compliance with the social public contract (constitution). However, when you put out the fire, it is hard not to be burned, and resolving the dispute is almost impossible to completely satisfy each side. Therefore, almost every decision of the Constitutional Court of Ukraine is accompanied by criticism. Moreover,

The Constitutional Editorial

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APRIL 2021

powers of the current parliament - the Verkhovna Rada of Ukraine. It is clear that this went against the interests of the majority of current deputies and they appealed to the Constitutional Court. Having examined their petition, the Court held on the conformity of the Decree with the Constitution of Ukraine. However, it was necessary to see with what expressions the mass media of a particular political orientation were full of at that time, what kind of words the judges had not heard enough - from swearing to accusations of undermining the foundations of the state system. Unfortunately, politicians are not always discerning even in public statements. However, it is much worse when negative political rhetoric against the Constitutional Court is accompanied by political actions. In 2010, the Constitutional Court of Ukraine adopted a decision whereby it declared as unconstitutional the law on amendments to the Constitution, adopted in violation of the constitutional lawmaking procedure. In this case, not only the Constitutional Court held on a violation of the procedure; authoritative lawyers and academic institutions both in our country and abroad pointed out this fact, in particular, the Venice Commission spoke about this. However, after the change of political elites in 2014, the parliament recognised this decision as the main instrument by which the fourth President of Ukraine managed to usurp power, and its authors - a number of judges of the Constitutional Court appointed by the quota of the parliament were dismissed by a parliamentary resolution for the breach of the oath. At the same time, the Supreme Court of Ukraine, considering claims of dismissed judges against such a decision of the parliament, allowed itself to go beyond its powers and these claims and provide for a negative assessment of the constitutionality of the decision of the Constitutional Court itself. By the way, the President of Ukraine and the Congress of Judges of Ukraine, according to the quo-

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we always have opponents, some regularly question not only the correctness of our decisions, but also the feasibility of the very body of constitutional jurisdiction. It is unlikely that such opponents are able to fully realise the fact that the creation of constitutional courts in Europe took place in two main periods: post-war and post-Soviet, and, among other things, was aimed at excluding the possibility of a return to totalitarianism for democratic states. Apparently, the well-known statement that “history teaches that it teaches nothing” is so well founded. Among the opponents of the Constitutional Court of Ukraine, practice allows us to distinguish several main groups. Included are political forces in the first group, the positions of which on topical issues of state legal practice do not coincide with the corresponding legal positions formulated by the Constitutional Court of Ukraine. Criticism from a professional politic is connected with the essence of constitutional control, the objects of which are mainly laws as a source of law, the most used by society. At the same time, the authors of a specific draft law have to make a lot of efforts, and sometimes spend several years to get their brainchild through all the working structures of parliament, through all stages of the legislative process. Thus, after the law has become effective and is in force, the Constitutional Court, having considered the relevant petition or complaint, declares it wholly or in some part incompatible with the Constitution, thereby depriving it of legal effect and excluding it from the legal regulation system. Quite often, decisions of the Constitutional Court also hit specific political interests, political positions embodied in the law or in another act; therefore, such decisions are usually accompanied by a very negative reaction from their carriers. For example, last year, one of the first steps of the newly elected President of Ukraine was the publication of the Decree on early termination of


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ta of which the remaining judges-authors of this decision were appointed, did not see any reason for such a reaction, despite the calls of parliamentarians. The second group of opponents of the Constitutional Court of Ukraine includes citizens whose interests are affected by its acts. This category of opponents is rather arbitrary, since ultimately the acts of the Constitutional Court directly or indirectly concern all citizens. However, quite often the subject of constitutional proceedings are issues affecting the interests of specific social groups, in particular, issues of social protection of certain categories of citizens or the legal status of representatives of certain professions. Sometimes a significant public outcry can be caused by issues of a different nature related, for example, to countering corruption or illicit enrichment of officials, the introduction of a free land market. In cases where the case considered by the Constitutional Court is fraught with relevant social expectations (for example, regarding pension benefits or other forms of social protection) and the Court provides for decisions, so to speak, “not in favour” of citizens, a very painful reaction follows. People in various forms express their disagreement with the position of the Court and, in general, they begin to perceive all its work very critically. This refers to a really difficult problem in the activities of constitutional courts, in particular, the Constitutional Court of Ukraine. We often have to consider issues about the cancellation or reduction by the state

The Constitutional Editorial

of certain social payments. Moreover, such actions of the state are motivated by objective factors - a decrease in budget revenues due to the recession in the economy. In such cases, the Constitutional Court has the courage to deliver decisions that are obviously unpopular and to be prepared for appropriate criticism. Nevertheless even positive decisions in this area are quite difficult to implement, since changes are required in the current state budget and the formation of items of additional costs, sometimes the state simply does not have sources for financing. A sharp flurry of criticism fell on the Constitutional Court of Ukraine and in regard of its decision on the unconstitutionality of the article of the Criminal Code, which provides for liability for illicit enrichment. In fact, the problem was not the essence of the decision as such (the Court did not see unconstitutionality in criminal prosecution for such acts). The recognition of the norm as unconstitutional led to the termination of a number of criminal cases against officials suspected of illicit enrichment. The latter circumstance, however, is very instructive and calls on the Constitutional Court to take into account all the possible consequences of its normative control acts. The third group of consistent critics of the Constitutional Court of Ukraine includes civil society institutions, especially those that position themselves as public controllers of the state. We are talking about everyone who, having in one form or another special knowledge, information and access to the media, assumes the function of monitoring the activities of public authorities and, most often, APRIL 2021


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to the best of their abilities and skills. The fourth group of opponents of the Constitutional Court of Ukraine, which until today have not yet sufficiently shown themselves, can be attributed to judges of general jurisdiction, especially from higher courts. One example of their critical assessments was given by me above. It is convincing that in the future there will be more and more cases of such opposition due to the operation of the institute of constitutional complaints. Within its framework, the rule is applied by the general court in a decision that has become final in the case subject to examination. Often such a decision is the decision of the Supreme Court, since the law makes it possible to appeal to the Constitutional Court by exhausting all legal remedies. In addition, when considering such cases, the Constitutional Court is authorised to declare as unconstitutional not only the rule of law itself, but also the method of its application by the general court. Thus, the body of constitutional normative control will intrude into areas that traditionally belonged to the jurisdiction of general courts, and even give their decisions a constitutional and legal assessment. Obviously, the response will be criticism. Thus, in view of its role in the Ukrainian legal system, the Constitutional Court will always remain under the control of the regular opponents. From time to time politicians will declare its activity harmful, as it intervenes in current legislative regulation and blocks positive public processes, of course, provided for by the relevant political programs and projects. Citizens will believe that it does not properly protect their constitutional rights. Civil society institutions will often find the work of the Court insufficiently professional, biased and ineffective, and judges of general courts express dissatisfaction with the constitutional revision of their decisions. There is nothing critical in these forms of opposition, unless

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its public criticism. Such an activity, in principle, benefits society if it is carried out competently, impartially and with the understanding that not one of the institutions created by society is perfect. Any work can always be presented with any claims, but these claims should not be an end in itself. Professional criticism of the Constitutional Court is quite positive, since it helps to improve the quality of its acts and work in general. In addition, civil society institutions can significantly help the Constitutional Court, acting where its competence terminates (for example, in the field of substantive explanation of its decisions, their popularisation, provision of legal assistance to entities whose intentions are to interact with the Constitutional Court, and providing advice to practicing lawyers, etc.). The Constitutional Court of Ukraine has constructive experience in working with civil society institutions and accepts such cooperation with appreciation. However, there are situations when, for one reason or another, our colleagues from independent organisations, when critically analysing the work of the Court, lose their sense of proportion and, as they say, “turn to personalities”: they carefully examine the biographies, professional histories of judges, their contacts, their declarations, conduct other studies that have nothing to do with the substantive assessment of the work of the Court. Unfortunately, the “opponents”, who reduce the topic of constitutional justice to discussion at the level of the “yellow press”, lack an understanding that the damage is not caused to the Court. The damage is done to the common cause of strengthening and protecting constitutionalism in the state, the upbringing of a deeply respectful attitude to the Constitution, its values and principles, the upbringing in every citizen of readiness to defend them


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attacks on the Constitutional Court cross a reasonable line and are carried out to the extent permitted by law. On the other hand, in anticipation of criticism, the Constitutional Court, delivering and motivating its decisions, will be guided by the principle of measuring once, cutting twice. The following expresses a thought, perhaps not entirely original, but constantly confirmed by practice. The most adequate public perception of what and how the Constitutional Court does, largely depends on itself. Everything is important here: and the proper motivation of all its acts; and the impeccability of its legal argument; and transparency of court hearings; and openness (within the law) of all public information held by the Court. The law also does not exclude situations where the Constitutional Court itself or its judge can speak out on the merits of the act adopted by the Court. Although this is not an obligation, but the right of the Court, it should not be neglected; after all, no one feels the features of the examined issue deeper than the judge who studied the case. Ultimately, the activities of the Constitutional Court are aimed not only at the constitutionalisation of the legal system of the state, but also - which seems to me paramount - at the constitutionalisation of the legal consciousness of society. Therefore, realising its mission and making a choice between public opinion and the constitution, a constitutional judge should not be afraid to be unpopular. Although such a choice may be complicated by the fact that the Constitutional Court is not exclusively a scientific and theoretical institution, and its judges are not isolated from the general information space and are well aware of the current situation in the country, the needs of society and its dominant opinions. Nevertheless, in delivering each decision, the Constitu-

The Constitutional Editorial

tional Court legitimises the position of only a certain part of society, while the position of another, sometimes much larger part of it, is in fact recognised as unconstitutional. In this regard, at the end of my report I would like to cite quotes from the decision adopted by the Constitutional Court of the South African Republic a quarter of a century ago, but which, it seems to me, will never lose its relevance. In this decision dated June 6, 1995, a separate section is devoted specifically to public opinion on the constitutionality of the death penalty, since at the time of its consideration by the Constitutional Court of South Africa, the vast majority of citizens and politicians in the country were in favour of maintaining this type of punishment. In particular, in this section of its decision, the Constitutional Court of South Africa indicated that the issue under consideration was not that most citizens considered the death sentence for murder to be correct, but whether the constitution allowed the sentence. No matter how the amorphous ebbs and flows of public opinion as a whole on this unstable issue are evaluated, this type of research lies on the periphery, and not at the center of the proceedings in constitutional cases. Assessing public opinion is, in fact, a legislative, not a judicial function. The court cannot allow it to be distracted from the obligation to act as an independent arbiter of the Constitution, making a choice on the basis that it will enjoy the support of the public. Public opinion may have some relevance to research, but in itself it does not replace the obligation of the courts to interpret the Constitution and defend its provisions without fear or personal respect. If public opinion were decisive, there would be no need for a constitutional decision. Then the protection of rights can be left to the discretion of the parliament, which has a mandate from the public and is accountable to it in how its mandate is implemented;

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tection of the rights of minorities and others who cannot adequately protect their rights through a democratic process. Those who have the right to demand this protection include social outcasts and marginalised people in our society. Only if we have the desire to protect the worst and the weakest we can all be sure that our own rights will be protected. Committee for Judicial Reform British Ukraine

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but this will be a return to parliamentary sovereignty and a departure from the new legal law - the order established by the Constitution. Similarly, the constitutionality issue of the death penalty cannot be referred to a referendum in which the majority will prevail over the wishes of any minority. The reason for establishing a new legal order and empowering the courts to judicially review all legislation was the pro-


The evolution of constitutional law in Ukraine after restoring state sovereignty, as the nation embarked on the path of returning to the family of European states with which it is bound by a common cultural and historical heritage, the ideals of freedom, equality and humanism

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Europeanisation of Constitutional Law of Ukraine

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years ago, after restoring state sovereignty, Ukraine embarked on the path of returning to the family of European states with which it is bound by a common cultural and historical heritage, the ideals of freedom, equality and humanism. Four years later, in 1995, our state became a member of the Council of Europe, and a year later the Constitution was adopted in Ukraine. Due to this Basic Law of Ukraine within the territory of the state, the rule of law was first proclaimed, and the human being, his/her rights and freedoms are recognised as the highest social value. In essence, the Constitution of Ukraine guarantees the same rights and freedoms as the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by our state on July 17, 1997. At the same time, a number of formulations that enshrined the basic rights and freedoms in these legal acts are identical. According to the meaning of the Constitution of Ukraine, only those international agreements that correspond to it are to be concluded, and the existing international treaties ratified by the Parliament of Ukraine are part of the legislation - Article 9. In such a way secured priority of the Constitution of Ukraine before the acts of international law is one of the legal guarantees of state sovereignty and independence. Meanwhile, the Law of Ukraine on the ratification of the Convention and its protocols implies that in the sphere of human rights protection the state has actually surrendered some of its sovereignty in favour of the permanent body of the Council of Europe, the European Court of Human Rights, recognising its competence to consider applications

The Constitutional Editorial

on the violation by Ukraine of the rights, set out in the Convention. In particular, this Law provides that "Ukraine within its territory fully recognised the effectiveness of Article 46 of the Convention" regarding the "compulsory jurisdiction" of this Court "in all matters related to the interpretation and application of the Convention". Thus, only the case law of the European Court of Human Rights on complaints against Ukraine was recognised as binding. This significantly slowed the Europeanisation of the legal system of our state, since the first decision against it was adopted only five years later - the case of Sovtransavto-Holding vs. Ukraine No.48553/99, Judgment dated July 25, 2002. Consequently, the place of the Convention and the case law of the European Court of Human Rights in the legal system of Ukraine and in constitutional law in particular, remained uncertain for the first years after the ratification of this international treaty, which hampered their effective application. Only in 2006, after more than eight years after the ratification of the Convention, the Parliament of Ukraine adopted a special Law "On the Execution of Judgments and Application of the Case Law of the European Court of Human Rights", instructing national courts to apply the Convention and the case law of this Court as a source of law when considering cases - Article 17. A significant role in the legislative consolidation of this legal doctrine belongs to the Constitutional Court of Ukraine, which long before this began to apply these sources of Pan-European law in its practice. As the only body of constitutional jurisdiction, the Constitutional Court of Ukraine began to consider appeals by authorised persons from January 1, 1997. The subject of most of these appeals was the provision of an official interpretation of the Constitution and laws of Ukraine or examination of the constitutionality of APRIL 2021


laws and other legal acts of subjects of power. According to the Law "On the Constitutional Court of Ukraine", the task of this body is to ensure the supremacy of the Constitution throughout the state, that is, the constitution-

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Political Article |

alisation of Ukraine's legal system. Implementation of this task is ensured by the established by the Constitution binding nature of the acts of constitutional justice for all, without exception, subjects of internal public relations. In particular, the recognition of the unconstitutionality of the law, other legal act or its separate provision, as a rule, results in the immediate loss of its force - paragraph two of Article 152, which excludes its further application. The implementation of the official interpretation of the provision of a normative legal act actually determines the constitutional regime for its application, excluding the subsequent application of any interpretations of this provision that contradict the position of the Constitutional Court. Of course, the Constitutional Court bases its decisions on the Constitution of Ukraine. At the same time, as additional arguments in support of legal positions, most of its acts contain references to sources of international law, including the Convention and the judgments of the European Court of Human Rights. Applying the case law of this convention body, the Constitutional Court seeks to harmonise its legal positions with it. The common approaches and principles formulated by the European Court of Human Rights are generally taken into account in the development of the concepts of constitutional justice. As a result, one can adopt the decisions that not only correspond, but also rely largely on the case law of this international Court. Thus, by constitutionalising the legal system of Ukraine, the Constitutional Court simultaneously carries out its Europeanisation. Therefore, it contributes to the formation of a new national sense of justice and legal under-

standing, orienting the law enforcement and norm-setting process to compliance with legal standards, enshrined in the acts of the bodies of the Council of Europe. Indeed, the Convention and the judgments of the European Court of Human Rights have been applied by the Constitutional Court of Ukraine as a source of law long before the formal securing of such doctrine by the Parliament. However, due to the mentioned shortcomings in the primary legislative regulation of these relations, the Constitutional Court's formulation of such an understanding of the legal nature and role of these legal acts in the constitutional law of Ukraine was not instantaneous. Initially, among Ukrainian constitutionalists, there was no prevailing view about whether our state belongs to the countries of a monistic or dualistic tradition of implementing the norms of international law. In other words,

The Constitutional Editorial


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it was not clear whether these norms should be applied directly or their implementation in domestic law should be applied through its adaptation in the established order. One of the reasons for the dualistic approach was the provision of Article 52 of the Convention, according to which the State party provides an explanation to the Secretary-General of the Council of Europe on how its domestic legislation ensures the effective implementation of any of the provisions of the Convention. This uncertainty explains the fact that during the first two years after the ratification of this international treaty, any mention of it in the practice of the Constitutional Court of Ukraine was extremely foggy and did not contain any indices of concrete provisions or quotations - Decision No. 5 dated October 30, 1997zp/1997; December 25, 1997 No. 9-zp/1997. Subsequently, the application of this source of Pan-European law in acts of constitutional justice acquires more meaning and certainty. Thus, in Decision dated June 24, 1999, the Constitutional Court simply referred to Article 6.1 of the Convention in support of its conclusion that "among the means of

the Convention and the judgments of the European Court of Human Rights have been applied by the Constitutional Court of Ukraine as a source of law long before the formal securing of such doctrine by the Parliament

protection of human and citizen’s rights and freedoms, an independent and impartial court plays an especial role". The Decision dated December 29, 1999 in the case on the death penalty refers to the substantive commonality of paragraph one of Article 27 of the Constitution and Article 3 of the Convention, and that the inconsistency of this punishment with this article of the Convention is confirmed by the European Court of Human Rights. However, neither quotations, nor even the requisites of the relevant decisions of this international body, nor the wording of the Convention itself have not been given yet. For the first time since the ratification of the Convention, its provision was cited by the Constitutional Court of Ukraine more than three years ago - Decision No. 11-rp/2000 dated October 18, 2000, and the position of the Europe-

The Constitutional Editorial

an Court of Human Rights – almost ten years ago - Decision No.5-rp/2007 dated June 20, 2007. In the early 2000s, Ukraine was institutionalising the doctrine which the former President of this convention body Lucius Wildhaber called "sector monism". All the codes and many special laws adopted at that time and then directly stipulate that if the norms of international law differently regulate social relations, then it is international law that is to be applied. In addition, the procedural codes began to prescribe that the application of their provisions should be carried out in accordance with the case law of the European Court of Human Rights. This doctrine found unexpected reflection in the practice of the Constitutional Court, which, having formulated its positions at that time, even allowed itself to examine the provisions of laws directly in accordance with the Convention - Opinion No. 2-v dated July 11, 2000, Decision No.14-rp dated July 8, 2003. Subsequently, the approach was radically changed and in the Ruling No.18-u/2009 dated April 7, 2009, the Constitutional Court indicated that its competence did not include the issue of the compliance of laws with international treaties. Finally, in Decision No.2-rp/2016 dated June 1, 2016, the role of these sources of Pan-European law in the constitutional law of Ukraine was for the first time relatively clearly defined. In the sense of the positions formulated in this decision, when the case is settled on the basis of a provision of the Constitution according to the principle of friendly treatment to international law, the application of the relevant provision of the Convention by the European Court of Human Rights should be taken into account. Thus, the Constitutional Court formally consolidated the subsidiary nature of the Convention and the case law of the European Court of Human Rights in the constitutional law of Ukraine. According to this concept, in the case law of the national body of constitutional jurisdiction these and other sources of Pan-European law perform a subsidiary function in the implementation of the official interpretation and definition of the contents, the scope and criteria of the restriction of fundamental rights and freedoms, the principles of the rule of law enshrined in the Fundamental Law of Ukraine when clarifying the content contained in its text of concepts and the meaning of individual terms. In other words, a friendly to international law constitutional-legal interpretation APRIL 2021


requires the adaptation of the legal positions of the Constitutional Court to the requirements of the Convention and the case law of the said convention body in that cases, when it is possible and expedient in a methodological point of view in a particular case and consistent with the Constitution of Ukraine. It follows that the sources of Pan-European law are formally not binding for the Constitutional Court of Ukraine. Nevertheless, if a relevant position of the European Court of Human Rights is found in the case, the Constitutional Court is forced either to conform its future decision with it, or – what else was not in its practice – to state that this position does not comply with the Constitution of Ukraine. Such approaches are demonstrated today by the majority of the bodies of constitutional justice of the member states of the Council of Europe. This state of affairs allows us to speak of the increasingly widespread recognition of the role of the supranational European constitution in the field of human rights in the Convention, and of the supranational constitutional court for the European Court of Human Rights. In addition to simply establishing a violation of a provision of the Convention, this body of the Council of Europe often orders the respondent State to review the applicant's case at the national level, sometimes making a supplementary opinion on the non-compliance of the provisions of the national legislation to the Convention (nonconventionality) and ordering necessary changes under the supervision of the Committee of Ministers. Such role of the European Court of Human Rights, taking into account the compulsion and precedent nature of its decisions, places great responsibility on its composition for maintaining the balance of existing social interests in the internal legal systems of jurisdictions that are different under its jurisdiction, different in their cultural traditions. In this context, Pan-European law should be viewed as the result of harmonising the various interAPRIL 2021

ests of its subjects, in which the implementation of one interest should not violate other interests. The effective respect to the bodies of the Council of Europe of the national characteristics of the participating States, often enshrined at the level of constitutions, is an important condition for constructive interaction between the Pan-European and national legal systems, their maximum convergence and harmonisation with a view to creating a single Pan-European legal space. Oleksandr Tupytskyi Congressman of the British Commonwealth

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Pan-European law should be viewed as the result of harmonising the various interests of its subjects, in which the implementation of one interest should not violate other interests


The Constitutional Editorial

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The Constitutional Editorial


Constitutional Editorial is openly published by The Times Publisher on behalf of British Ukraine. 3 London Bridge Street, London SE1 9SG United Kingdom britishukraine.uk thetimes.co.uk public@timespublisher.com ISSN 2752-6089

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Constitutional Editorial | April 2021  

A collection of thoughts, opinions and insights on events and the needs and wants of the people, and implementation of such via a constituti...

Constitutional Editorial | April 2021  

A collection of thoughts, opinions and insights on events and the needs and wants of the people, and implementation of such via a constituti...

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