| Article | Doctrinal Issues of Introduction of the Constitutional Complaint in Ukraine |
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| Authors |
MYKHAILO SAVCHYN
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| Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
| Issue | 12 / 2018 |
| Pages | 39 - 54 |
| Annotation | The article verifies the practice of the Constitutional Court of Ukraine (CCU) which, upon the introduction of constitutional complaint, implies the imposition of excessive restrictions on access to constitutional justice. The author analyzes the nature of human rights and freedoms from the perspective of respect for human dignity as the major constitutional value, and on this basis reviews the main criteria for admissibility of constitutional complaints. The issues pertaining to the consideration of constitutional complaints are analyzed in the context of negative and positive obligations of the State, and depending on this the conclusion is made whether an infringement of a right as the fundamental right is essential. The purpose of the article is to highlight the doctrinal issues pertaining to the introduction of the constitutional complaint in light of constitutional values and principles. These issues are considered in the context of the integral, autonomous, dynamic, and internationally conformal interpretation of the constitution as an “open” legal matter based on the principles of legal syllogism. The author contests the understanding of human rights as a closed system of concepts and the concept of constitutional justice as “the court of law” and formulates the approach to the integral and value-based understanding of human rights in dealing with constitutional complaints. For legal argumentation of the CCU decisions, compliance with the rules of legal syllogism is essential, and this syllogism has a triple nature given the nature of constitutional justice: 1) to determine the set of facts of a case taking into account the requirements of establishing the constitutionality of the procedure for adoption of a legal act; 2) to what extent an infringement of a subjective public right is significant and crucial for the national legal system; 3) subsidiarity of the constitutional complaint in the systematics of legal protection. To understand the fundamental nature of the right which the claimant asserts before the Court, the vertical and horizontal structure of the right is important: 1) the vertical structure of human rights characterizes the relations between the State and an individual and in view of these relations the State has the duty to protect an individual against infringements by other public authorities or third persons, and also to provide access to certain material and spiritual goods; 2) the horizontal structure of human rights determines the understanding of the constitution as legal order which establishes the guarantees of relations between private individuals based on the principles of equivalence and equality. This will allow the claimants to prove to the CCU that there is an infringement of their subjective public right as the right fundamental and essential for the legal system.
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| Keywords | constitutional complaint; constitutional values; human dignity; human rights and freedoms; admissibility of constitutional complaint; very essence of the right |
| References | List of legal documents |
| Electronic version | Download |