DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of December 11, 2003 No. 20-rp/2003

On case on the constitutional representation of 62 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of Item 3 parts two of Article 18, Articles 32, 33, 34, 35, 36, 37, the subitem 5 of Item 3 of the Section VII "Final and transitional provisions" of the Law of Ukraine "About judicial system of Ukraine" (case on Court of cassation of Ukraine)

Case No. 1-38/2003

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Shapoval Vladimir Nikolaevich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Ivashchenko Vladimir Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Mironenko Alexander Nikolaevich,

Nimchenko Vasily Ivanovich,

Wheaten Valery Grigoryevich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Timchenko Ivan Artemyevich,

Silent Vladimir Pavlovich,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna - the judge-speaker,

with the participation of authorized at the request of the person of law on the constitutional representation of Crimson Yury Anatolyevich, the People's Deputy of Ukraine; recruited in consideration of the case: Markush Maria Andreevna - the representative of the Verkhovna Rada of Ukraine, Committee of the Verkhovna Rada of Ukraine concerning legislative ensuring law-enforcement activities, the People's Deputy of Ukraine; Selivanov Anatoly Aleksandrovich - the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine; Nosov Vladislav Vasilyevich - the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine; Lukashovy Nadezhda Pavlovnypostoyannogo of the representative of the Supreme Court of Ukraine in the Constitutional Court of Ukraine; Yemelyanova Inna Ivanovna - the deputy minister of justice of Ukraine; Poltavts Yury Pavlovich - the member of the High Council of Justice, the secretary of section concerning preparation of representation for appointment of judges for the first time and releases them from positions; Volkov Alexander Fedorovich - the member of council of judges of Ukraine, the judge of the Supreme Court of Ukraine,

considered at plenary meeting case on the constitutional representation of 62 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of Item 3 parts two of Article 18, of Articles 32, of 33, of 34, of 35, of 36, of 37, of the subitem 5 of Item 3 of the Section VII "Final and transitional provisions" of the Law of Ukraine "About judicial system of Ukraine" of February 7, 2002 N 3018-III (Sheets of the Verkhovna Rada of Ukraine, 2002, N 27-28, Art. 180).

Pretext for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of 62 People's Deputies of Ukraine.

The basis for consideration of the case according to article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of matters of argument concerning compliance of the Constitution of Ukraine (constitutionality) of the specified provisions of the law of Ukraine "About judicial system of Ukraine".

Having heard the judge-speaker Chubar L. P., explanations of Yu.A Crimson., Markush M. A., Selivanova A. O., Nosov V. V., Lukashova N. P., Yemelyanova I. I., Poltavtsa Yu. P., Volkova O. F. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - 62 People's Deputies of Ukraine - appealed to the Constitutional Court of Ukraine with the petition for recognition unconstitutional Item 3 parts two of Article 18, of Articles 32, of 33, of 34, of 35, of 36, of 37, of the subitem 5 of Item 3 of the Section VII "Final and transitional provisions" of the Law of Ukraine "About judicial system of Ukraine" of February 7, 2002 (further - the Law).

The Item 3 parts two of article 18 of the Law provides education in system of courts of law of Court of cassation of Ukraine as its component, and the subitem 5 of Item 3 of the Section VII "Final and transitional provisions" of the Law - the term of its education and the beginning of implementation by Court of cassation of Ukraine of powers concerning hearing of cases. The article 32 "Structure of Court of Cassation of Ukraine", the article 33 "Powers of Court of Cassation of Ukraine", the article 34 "Judge of Court of Cassation of Ukraine", the article 35 "Chairman of Court of Cassation of Ukraine", the article 36 "Vice-chairmen of Court of Cassation of Ukraine" and the article 37 "Presidium of Court of Cassation of Ukraine" constitute Chapter 6 "Court of cassation of Ukraine" of the Law.

The person of law on the constitutional representation proves approval about illegality of the specified provisions of the law by the fact that article 125 of the Constitution of Ukraine "accurately determined system of courts of law which local, Appeal, supreme specialized courts and the Supreme Court of Ukraine shall constitute", and creation of Court of cassation of Ukraine the Constitution of Ukraine is not provided. People's Deputies of Ukraine refer also to provision of part two of article 6 of the Constitution of Ukraine according to which bodies of legislative, executive and judicial authority perform the powers in the limits set by this Constitution and according to the laws of Ukraine, provision of part two of article 8 of the Constitution of Ukraine according to which the Constitution of Ukraine has the highest legal force, the laws and other regulatory legal acts are adopted based on the Constitution of Ukraine and shall correspond to it.

2. The chairman of the Verkhovna Rada of Ukraine in written explanation in the Constitutional Court of Ukraine specifies that provisions of article 125 of the Constitution of Ukraine settled system of courts of law in Ukraine, having determined the Supreme Court of Ukraine the highest judicial authority in this system, and the supreme judicial authorities specialized sudovsootvetstvuyushchy supreme courts which are the highest zvenomkassatsionny instance; according to the law local and Appeal Courts are effective. In the Constitution of Ukraine there are no provisions concerning creation in this system of courts of Court of cassation of Ukraine. Cassation instance under the Constitution of Ukraine is the Supreme Court of Ukraine and the supreme specialized courts which by the Law are granted the right to organize the internal activities and to enhance it. Therefore, the Chairman of the Verkhovna Rada of Ukraine provided in the constitutional representation the argumentation considers gives the grounds to recognize Law provisions concerning Court of cassation of Ukraine not meeting the requirements of article 125 of the Constitution of Ukraine.

The president of Ukraine considers that article 125 of the Constitution of Ukraine to which authors of the constitutional representation refer does not determine judicial system, and establishes the principles of creation of system of courts of law which territoriality and specialization are. The judicial system, according to Item 14 parts one of article 92 of the Constitution of Ukraine, is determined only by the laws of Ukraine. One of the main constitutional bases of legal proceedings is ensuring appeal and cassation appeal of the judgment whereas the Constitution of Ukraine did not determine what courts shall perform hearing of cases in cassation procedure. According to the President of Ukraine, parliament it is proved realized in the Law Item provision 8 parts three of article 129 of the Constitution of Ukraine, having determined courts which shall consider cases in cassation procedure therefore there are no bases for recognition unconstitutional the challenged provisions of the Law.

Line items of Committee of the Verkhovna Rada of Ukraine concerning legislative ensuring law-enforcement activities, Committee of the Verkhovna Rada of Ukraine concerning fight against organized crime and corruption and the Ministry of Justice of Ukraine match with line item of the person of law on the constitutional representation.

The chairman of the Supreme Court of Ukraine, the Supreme Economic Court of Ukraine, Judicial council of Ukraine, the Prosecutor General's Office of Ukraine, the Chairman of the Supreme council of justice hold other opinion. The chairman of the Supreme Court of Ukraine notes that the Constitution of Ukraine does not determine what courts will be engaged in the cassation. The list of courts and investment with their powers, it is specified in the letter, are legally determined by the Law which the legislator entered into system of courts of law Court of cassation of Ukraine for consideration in cassation procedure for the civil and criminal cases referred by the procedural laws to its cognizance. In the letter of the chairman of the board of judges of Ukraine, besides, it is specified that availability of Court of cassation of Ukraine will provide single procedure for review of solutions of general and specialized freighters, the four-unit system of courts similar to system of economic courts will be observed, and the Supreme Court of Ukraine will reconsider case according to the procedure of the repeated cassation.

Also scientists who gave replies to the requests of the judge-speaker adhere to different line items. So, at Institute of the state and right of V. M. Koretsky and Institute of economical and legal researches of National academy of Sciences of Ukraine, National academy of internal affairs of Ukraine, Academy of legal profession of Ukraine, National academy of the Security Service of Ukraine, the Center of the European and comparative right came to conclusion about illegality of formation of Court of cassation of Ukraine as separate judicial authority. However in Academy of legal sciences of Ukraine, Institute of the legislation of the Verkhovna Rada of Ukraine, at law department of the Kiev national university of Taras Shevchenko adhere to opposite view - regulations of article 125 of the Constitution of Ukraine have blanket nature and therefore do not fix more exhaustively than all elements of judicial system.

3. In proceedings on the reference at open plenary meeting of the Constitutional Court of Ukraine representatives of the person of law on the constitutional provision, the Verkhovna Rada of Ukraine and the Ministry of Justice of Ukraine paid attention to provision of article 131 of the Constitution of Ukraine where the list of judges of courts of law is provided.

The permanent representative of the President of Ukraine in the Constitutional Court of Ukraine in performance emphasized that article 125 of the Constitution of Ukraine does not determine judicial system, and determines the principles of creation of system of courts of law that general courts (except the Supreme Court of Ukraine) are not provided in the Constitution of Ukraine and the Court of cassation of Ukraine, in essence, is the supreme specialized court.

Representatives of the Supreme Court of Ukraine, the Supreme council of justice and Judicial council of Ukraine, specifying that the cassation instance is not determined in article 125 of the Constitution of Ukraine, supported line item of bodies which they represent, that the Constitution of Ukraine determined the principles of creation of system of courts of law and some courts, and the judicial system is established by the Law. Specified that formation of Court of cassation of Ukraine will allow the Supreme Court of Ukraine to be concentrated on implementation of own powers as highest judicial authority in system of courts of law.

4. Constitutional court of Ukraine, resolving the question which is brought up in the constitutional representation, proceeds from it.

4.1. Ukraine is the constitutional state (article 1 of the Constitution of Ukraine in which rights and freedoms of man and citizen are protected by court (Article 55). The right to judicial protection is provided with the constitutional guarantees of implementation of justice by the courts formed based on the Constitution of Ukraine and in the procedure determined by the law. At the same time, according to part two of Article 8 of the Fundamental Law of Ukraine, the laws are adopted based on the Constitution of Ukraine and shall correspond to it.

The constitution of Ukraine provides that judicial bodies is the Constitutional Court of Ukraine - single body of the constitutional jurisdiction in Ukraine, and courts of law.

The constitutional provisions concerning questions of system of courts of law, and also the principles and types of production on them contain in the Section VIII "Justice" of the Constitution of Ukraine.

4.2. By content of provisions of parts two, third, fourth article 125 of the Constitution of Ukraine they determine system of courts of law, all its links are called: The Supreme Court of Ukraine, other types of courts - the highest specialized, appeal, local. According to part one of the specified Article this system of courts is based on the principles of territoriality and specialization. "Formation of system of courts of law in Ukraine according to article 125 of this Constitution" is provided in Item 12 of the Section XV "Transitional provisions" of the Constitution of Ukraine, in essence.

Providing the Conclusion of July 11, 2001 to N 3-v/2001 on the case of the Rome Statute, the Constitutional Court of Ukraine based on the analysis of relevant provisions of the Constitution of Ukraine also recognized that: "The system of courts of law in Ukraine is constituted: The Supreme Court of Ukraine - the highest judicial authority in system of courts of law, the supreme specialized courts, Appeal and local courts (parts two, the third, fourth Articles 125)".

Availability constitutionally of certain system of courts of law is confirmed also by Item provision 3 parts one of article 131 of the Constitution of Ukraine according to which implementation of disciplinary production and consideration of claims to decisions on attraction to disciplinary responsibility of judges only of those courts which are determined in its Article 125 belongs to maintaining the Supreme council of justice.

Systems analysis of provisions of parts two, third, fourth Article 125 and Item 8 parts three of article 129 of the Constitution of Ukraine certifies that creation of system of courts of law is approved with legal proceedings stages, the corresponding modes of production (in particular, in appeal and cassation instances). On content of these provisions by appellate instance Appeal Courts are called, and cassation production can be performed in the relevant courts determined by article 125 of the Constitution of Ukraine. The internal organization and procedure for activities of judicial authorities, powers and the number of degrees of jurisdiction, structure of court when implementing justice and so forth based on the constitutional bases of judicial system and legal proceedings are determined only by the law according to Item 14 parts one of article 92 of the Constitution of Ukraine.

Thus, the Constitutional Court of Ukraine came to conclusion that education in system of courts of law of Court of cassation of Ukraine contradicts articles 125, of 131 Constitution of Ukraine.

Based on stated and being guided by Articles 147, of 150, 152 Constitutions of Ukraine, Articles 51, of 61, of 63, of 65, of 70, 73 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. Recognize not corresponding to the Constitution of Ukraine (being unconstitutional), provisions of the Law of Ukraine "About judicial system of Ukraine" relatively:

educations in system of courts of law of Court of cassation of Ukraine (Item 3 parts two of Article 18);

structure of Court of cassation of Ukraine, its powers, powers of judges, status of the chairman, vice-chairmen and presidium of Court of cassation of Ukraine (Article 32, 33, 34, 35, 36, 37);

the term of education and the beginning of implementation by Court of cassation of Ukraine of powers concerning hearing of cases (the subitem 5 of Item 3 of the Section VII "Final and transitional provisions").

2. Provisions of the Law of Ukraine "About judicial system of Ukraine", recognized as unconstitutional, lose force from the date of acceptance by the Constitutional Court of Ukraine of this Decision.

3. Accomplishment of this Decision to assign to the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine according to their powers.

4. The solution of the Constitutional Court of Ukraine is obligatory for accomplishment in the territory of Ukraine, final and cannot be appealed.

Decision of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine" and in other official publications of Ukraine.

 

Separate opinion of the judge of the Constitutional Court of Ukraine V. E. Buffoons concerning the Solution of the Constitutional Court of Ukraine on case on the constitutional representation of 62 People's Deputies of Ukraine on compliance of the Constitution of Ukraine (constitutionality) of Item 3 parts two of Article 18, Articles 32, 33, 34, 35, 36, 37, the subitem 5 of Item 3 of the Section VII "Final and transitional provisions" of the Law of Ukraine "About judicial system of Ukraine" (case on Court of cassation of Ukraine)

1. Article 125 of the existing Constitution of Ukraine does not give complete definition of judicial system, and installs only basic provisions for further development systems of courts of Ukraine and the legislation concerning the organization and activity of the courts of the general jurisdiction. According to the Constitution of Ukraine, the system of courts of law in Ukraine is based on the principles of territoriality and specialization (1).

F. G. Burchak paid attention to lack of the complete list of system of courts in due time, claiming that in Ukraine the system of Arbitration Courts (nowadays economic V.S.) headed by the Supreme Arbitration Court of Ukraine is effective. This court directly in the Constitution is not called and is one of types of specialized freighters (2).

On determination of types of courts of law the Law of Ukraine "About judicial system of Ukraine" and creation of system of courts of law in Ukraine according to part one of article 125 of the Constitution of Ukraine by the principles of territoriality and specialization O. F. Fritsky places emphasis (3).

The Constitution of Ukraine which established only the principles of creation of judicial system, but not actually judicial system and furthermore did not fix the list of levels (links), degrees of jurisdiction of judicial system focused attention on lack of accurate, complete and consecutive definition of system of courts, in particular, of the Conclusion of National legal academy of Ukraine of Yaroslav the Wise, the Kiev national university of Taras Shevchenko, Interregional academy of personnel management, are sent at the request of the Constitutional Court of Ukraine.

To brought concerning contents of article 125 of the Constitution of Ukraine it is possible to add lack in it of mentioning of public vessels that gave the grounds to I. B. Koliushk, R. O. Kuybida and V. I. Shishkin to deny preserving public vessels in national judicial system as their allocation happened not by the principle of specialization or territoriality which are determined by article 125 of the Constitution as the principles of creation of system of courts of law (4).

There is in article 125 of the Constitution of Ukraine also no jury trial about which it is in part two of article 129 of the Constitution of Ukraine though the Constitution of Ukraine does not give exact definition of the concept of jury trial, as well as about the Constitutional Court of Ukraine to which the Section XII of the Constitution of Ukraine is devoted.

According to V. Dahl, "the principle - scientific or moral basis, the base, the rule, basis from which do not depart" (5).

If to adhere to line item that article 125 of the Constitution of Ukraine gives complete definition of judicial system, then there is impression that S. Gavrish and I. Koliushko, V. Onopenko, V. Sirenko, V. Shishkin, the Cabinet of Ministers of Ukraine - authors of at least five bills on judicial system, in due time "forced open door", offered a little different organizational structures of judicial system and bodies which will provide its activities, pursuing the aim to combine three principles determined in the Constitution of Ukraine: territoriality, specialization and non-admission of embracing by one court of several diverse functions (6).

It is necessary to have big creative imagination that "see" military courts of garrisons, regions and Naval forces or system of economic courts or jury trial in article 125 of the Constitution of Ukraine.

2. Example of determination of structure (links) of courts is the part two of article 79 of the Constitution of the Kyrgyz Republic according to which "courts of the Kyrgyz Republic is the Constitutional Court, the Supreme Court, the Supreme Arbitration Court and local courts (courts of areas, the city of Bishkek, areas, cities, Arbitration Courts of areas and the city of Bishkek, military courts)" (7). The system of general and Arbitration Courts of Kyrgyzstan, implementation of supervision of judicial activities respectively by the Supreme Court and the Supreme Arbitration Court of the Kyrgyz Republic are determined also by articles 83 and 84 of the Constitution.

The judicial system is made by set of the courts of this state interacting among themselves and combined by common goals, tasks and functions (8).

In Ukraine the judicial system is constituted by courts of law and the Constitutional Court of Ukraine (article 3 of the Law of Ukraine "About judicial system of Ukraine").

The term means judicial system:

1) set of the regulations establishing tasks, the principles of the organization and activities, structure and competence of the courts;

2) system of legal agencies (9).

The legal encyclopedia determines judicial system (English judicial system) as system of legal agencies of the state, their structure and structure (10).

According to Item 14 parts one of article 92 of the Constitution of Ukraine the laws of Ukraine are determined, in particular, judicial system and legal proceedings, as is realized by adoption of law on judicial system of Ukraine.

Approval in the Decision that creation of system of courts of law is approved with stages of legal proceedings and the corresponding types of production (in particular, in appeal and cassation instances) is incorrect as on such line item 8 parts three of article 129 of the Constitution of Ukraine the basis concerning providing appeal is fixed in Item (for persons condemned by Appeal Courts as the first instance of V.S.) and cassation appeal of the judgment, was not implemented in article 125 of the Constitution of Ukraine which did not determine relevant organ of review of cases.

Provisions of parts two, the third, fourth and fifth, as well as first article 125 of the Constitution of Ukraine, are fundamental and mean the principles of the organization of system of courts of law: unity, intrasystem and territorial branching, certain autonomy of the specialized freighters headed by the supreme courts, monocentrism of judicial system through declaration of the Supreme Court of Ukraine as the highest judicial authority in system of courts of law unlike the Russian Federation where judicial authority in the field of civil, criminal, administrative cases is headed by the Supreme Court, and concerning resolution of economic disputes - the Supreme Arbitration Court of the Russian Federation.

3. The ensuring cassation appeal of the judgments fixed in Item 8 parts three of article 129 of the Constitution of Ukraine as one of the basic principles of legal proceedings did not find accurate permission in other articles of the Constitution of Ukraine: where in what court of Ukraine, how the court of cassation instance, shall address with the writ of appeal the participant of process who is not satisfied with the decision of local, Appeal Court or the court verdict of jurors?

Does not give the answer to this question and the Solution of the Constitutional Court of Ukraine, claiming that "cassation production can be performed in the relevant courts".

Thereby the Judgment, in my opinion, fixes lack of fixing in article 125 of the Constitution of Ukraine not only judicial links, but also degrees of jurisdiction which the courts considering cases according to stages of their consideration and limits of their powers are.

4. Incompleteness in determination of judicial system in article 125 of the Constitution of Ukraine is reproduced in article 131 of the Constitution of Ukraine which has the subject of regulation - power of the Supreme council of justice. The constitutional powers of the Supreme council of justice are concretized by provisions of the Law of Ukraine "About the Supreme council of justice". Therefore it cannot testify to the exhaustive list of courts in the specified Article. Article 131 of the Constitution of Ukraine does not mention not only judges of courts of cassation, but also the Constitutional Court of Ukraine.

Systems analysis of the Section VIII "Justice" of the Constitution of Ukraine demonstrates that the Constitution determined not all judicial system, and fixed only its basic provisions - the principles of creation.

5. The conclusion of the Constitutional Court of Ukraine of July 11, 2001 of N 3-v/2001 on the case of the Rome Statute to which the Decision refers, meant not self-sufficiency of system of courts of Ukraine, but not anticipation by the Section VIII "Justice" of the Constitution of possibility of such amendment of judicial system of Ukraine jurisdiction of the International Criminal Court which under the Charter "supplements national authorities of punitive justice" without entering of corresponding changes into the Constitution of Ukraine.

Confirmation of it is recognition by the Constitutional Court of Ukraine of nonagreement of the paragraph of the tenth of preamble and Article 1 of the Rome Statute of the International Criminal Court "with provisions of parts one, third article 124 of the Constitution of Ukraine". Comparing the charter of court with provisions of article 125 of the Constitution of Ukraine concerning possibility of reference of the International Criminal Court to emergency and special courts which creation is not allowed according to part five of article 125 of the Constitution, the Constitutional Court came to conclusion that "consider the paragraph the tenth preambles and article 1 of the Charter contradicting article 125 of the Constitution of Ukraine, there are no bases" (11).

Reproduction in the Conclusion of content of parts two, third and fourth article 125 of the Constitution of Ukraine is not legal line item of Court. That is the conclusion of the Constitutional Court of Ukraine about inconsistency of the paragraph of the tenth of preamble and article 1 of the Charter with provisions of parts one, third article 124 of the Constitution of Ukraine as result of interpretation by the Constitutional Court and identifications of contents of the Constitution of Ukraine by it and the Rome Statute (12).

6. Proceeding from given I consider that to the Constitution of Ukraine does not have the bases for recognition not corresponding (being unconstitutional) Item provisions 3 parts two of Article 18, of Articles 32, of 33, of 34, of 35, of 36, 37, to the subitem 5 of Item 3 of the Section VII "Final and transitional provisions" of the Law of Ukraine "About judicial system of Ukraine".

 

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(7) Constitutions of the State Parties of the CIS. Under the editorship of Okunkov L. A., etc. M. Prod. Norma-Infa. 1999. - Page 360.

(8) Jobbers V. V. Constitutional right: Dictionary. M, Lawyer. 2001. - Page 484.

(9) Big legal dictionary. Under the editorship of A. Ya. Sukharev, V. D. Zorkin, V. E. Krutsky. - M.: INFRA-M, 1997. - Page 672.

(10) Tikhomirova L. V., Tikhomirov M. Yu. Legal encyclopedia. Under the editorship of Tikhomirov M. Yu. - M, 1997. - Page 435.

(11) Constitutional Court of Ukraine: Decisions. Conclusions of 1997-2001. To. 2001. - Page 469.

(12) Legal line items of the Constitutional Court of Ukraine in decisions and the conclusions (1997-2003). To.: Attica., 2003. - Page 154.

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