34-rp/2009.doc

33-rp/2009.doc

Subject of the right to constitutional petition – 45 People’s Deputies of Ukraine – applied to the Constitutional Court of Ukraine with a petition to recognise as unconstitutional the provisions of Articles 127.2, 127.6, 128.5 of the Law “On the Judicial System of Ukraine” No. 3018-III dated February 7, 2002 (hereinafter referred to as “the Law”) and Decrees of the President of Ukraine “On the State Judicial Administration of Ukraine” No. 780 dated August 29, 2002 (hereinafter referred to as “the Decree No. 780”) and “On the Regulation On the State Judicial Administration of Ukraine” No. 182 dated March 3, 2003 (hereinafter referred as  “the Decree No.182”).

Pursuant to Article 6 of the Constitution, the state power in Ukraine is exercised on the principles of its division into legislative, executive and judicial; bodies of legislative, executive and judicial power exercise their authority within the limits established by the Constitution and in accordance with the laws of Ukraine.

The Constitution has the highest legal force, and laws, as well as other normative legal acts, are adopted on its basis and shall be conformant therewith (Article 8.2 of the Fundamental Law). Bodies of state power and bodies of local self-government and their officials are obliged to act only on the basis, within the limits of authority, and in the manner envisaged by the Constitution and laws of Ukraine (Article 19.2 of the Constitution).

In view of Article 106.1.31 of the Constitution, the President of Ukraine performs the authorities prescribed by the Constitution, which disables him to perform other authorities besides those envisaged by the Fundamental Law. This has been repeatedly upheld in the case-law of the Constitutional Court.

In 2002, the Verkhovna Rada of Ukraine enacted the Law which Article 152.2 read that the State Judicial Administration of Ukraine (SJA) is a central body of executive power for the organisational support of the activities of the courts of general jurisdiction and other bodies and institutions within the judicial system. In accordance with Article 127.2 and 127.6 of the Law, the President appointed and dismissed the Head and the Deputy Heads of the SJA, and under Article 128.5 of the Law the Regulation on the SJA had to be approved by the Decree of the President upon the submission of the Prime Minister approved by the Council of Justice.

Enabling the operation of the Law, the President of Ukraine enacted the Decrees No. 780 and No. 182 whereby established the SJA and approved the Regulation on the SJA.

The authorities of the President enlisted in Articles 127.2, 127.6, 128.5 of the Law were founded on the provisions of Article 106 of the Constitution as of June 28, 1996, namely 106.1.10 and 106.1.15, which allowed the President, upon the submission of the Prime Minister, to establish, reorganise and remove central bodies of executive power, appoint the heads of such bodies and terminate their authorities.

The Law “On Introducing Amendments to the Constitution of Ukraine” No. 2222-IV   dated December 8, 2004 (entered into force on January 1, 2006) amended inter alia Articles 106, 116 of the Constitution. In line with the amended Article 106 of the Fundamental Law, the President of Ukraine has no authority to establish central bodies of executive power and regulate their activities, as well as appoint and dismiss the heads of such bodies. According to the supplemented items 9¹ and 9² of Article 116 of the Constitution, the authorities in question pertain to the Cabinet of Ministers which establishes, reorganises and removes, in accordance with the law, ministries and other central bodies of executive power. Enabling the operation of these provisions of the Constitution, the Law of Ukraine “On the Cabinet of Ministers of Ukraine” stipulates that ministries and other central bodies of executive power are responsible before, accountable to and under the control of the Cabinet of Ministers; the Cabinet of Ministers appoints and dismisses, under the submission of the Prime Minister, the heads of central bodies of executive power which are not members of the Government (Article 22.2 and 22.9.1). Since the Head of the SJA is not a member of the Government his/her appointment and dismissal is the authority of the Cabinet of Ministers of Ukraine.

Thus, the disputed provisions of the Law concerning the authorities of the President of Ukraine enlisted in Articles 127.2, 127.6, 128.5 do not conform with Articles 8, 19, 106 and    116 of the Constitution.

In view of the above-mentioned the Constitutional Court of Ukraine held:

1. To recognise as non-conforming with the Constitution (unconstitutional) some provisions of the Law of Ukraine “On the Judicial System of Ukraine” No. 3018-III dated  February 7, 2002, namely:

- Article 127.2 concerning the appointment and dismissal of the Head of the State Judicial Administration of Ukraine by the President of Ukraine;

- Article 127.6 concerning the appointment and dismissal of the Deputy Heads of the State Judicial Administration of Ukraine by the President of Ukraine;

- Article 128.5 concerning the approval by the President of Ukraine of the Regulation on the State Judicial Administration of Ukraine.

2. To terminate the constitutional proceedings in the case in the part of examination of the constitutionality of the Decrees of the President of Ukraine “On the State Judicial Administration of Ukraine” No. 780 dated August 29, 2002 and “On the Regulation On the State Judicial Administration of Ukraine” No. 182 dated March 3, 2003 on the ground of Article 45.3 of the Law of Ukraine “On the Constitutional Court of Ukraine” – the lack of authority of the Constitutional Court of Ukraine to resolve the issues raised in the constitutional petition.

31-rp/2009.doc

30-rp/2009.doc

29-rp/2009.doc

28-rp/2009.doc

27-rp/2009.doc

Summary to the Decision of the Constitutional Court of Ukraine No. 26-rp/2009 dated October 19, 2009 in the case upon the constitutional petition of the President of Ukraine and 48 People’s Deputies of Ukraine concerning conformity with the Constitution of Ukraine (constitutionality) of particular provisions of the Laws “On Elections of the President of Ukraine”, “On the State Register of Voters”, “On Introducing Amendments to some Legislative Acts of Ukraine on Elections of the President of Ukraine ” and the Code of Administrative Proceedings of Ukraine (case on introducing amendments to some legislative acts of Ukraine on elections of the President of Ukraine)

The provision of Article 2.6 of the Law “On the Elections of the President of Ukraine” No. 474-XIV as amended dated March 5, 1999 (hereinafter referred to as “the Law No. 474”) established an additional requirement to realisation of active voting right of citizens who reside or stay beyond the borders of Ukraine during preparation and conduct of elections – registration in consulates which narrow the scope and extent of the citizens’ right to elect the President of Ukraine.

The provision of the information stipulated in Articles 36¹.2.1, 36¹.2.4, 36¹.2.5 of Law No. 474 by the heads of diplomatic and consular establishments of Ukraine to the body of the State Register of Voters (hereinafter referred to as “the Register”) in the Ministry of Foreign Affairs of Ukraine is a way of realisation of the elective procedures established by the law, therefore there is no reason to assert that this legislative provision violates the constitutional rights of citizens of Ukraine to elect freely to state bodies.

Constitutional human and citizen’s rights and freedoms shall not be restricted, except in cases envisaged by the Constitution (Article 64.1 of the Constitution). The establishment of restrictions on human and citizen’s rights and freedoms is admissible only on condition that such a restriction is balanced (proportional) and socially necessary. Deprivation of a citizen of Ukraine of his or her right to take part in the administration of state affairs by means of participation in activities of district or polling election commission in view of his or her residence outside of the respective district or city when there is no marital law or state of emergency is a violation of Articles 15.4, 38.1 of the Constitution.

Reasons for cancellation of the registration of a candidate for the office of the President of Ukraine stipulated in Article 56.1 of the Law No. 474 are legal facts related either to the exercise by a candidate for the office of the President of Ukraine of his or her right to withdraw the candidacy or the loss of the passive electoral right etc.

The Decision of the Central Election Commission (hereinafter referred to as “the CEC”) on cancellation of the registration of a candidate to the office of the President of Ukraine may be challenged in court by a candidate on the grounds of Article 55 of the Constitution of Ukraine and norms of the Code of Administrative Proceedings of Ukraine (hereinafter referred to as “the Code”).

The provision of the Law No. 474, pursuant to which non-signing or refusal to sign a protocol by some members of a commission does not have legal effect on the force of a protocol, does not exclude a possibility to challenge the protocol’s force in case it was not signed or refused to be signed by some members of commission from the number of those who participate in the election commission’s meeting, or on the ground of other reasons not defined by the disputed provisions, and also does not exclude responsibility in cases and order established by law.

The prohibition to file a complaint with the CEC concerning preparation and conduct of elections of the President of Ukraine on the election day and the following days of election process and to review a complaint by the CEC contravenes the stipulations of Article 40 of the Constitution. According to this Article everyone has the right to file individual or collective petitions, or to appeal personally to bodies of state power, bodies of local self-government, and to the officials and officers of these bodies, that are obliged to consider the petitions and to provide a substantiated reply within the term established by law. Pursuant to Articles 22, 64 of the Fundamental Law this right is guaranteed and shall not be restricted.

Complaints concerning objects and subjects of petition, which election commissions do not review and which are mentioned in the constitutional petition, may be examined judicially which is a guarantee of the protection of voting rights. The diminishing of the scope of objects and subjects of complaint for election commissions is connected with the specific features of the legislative regulation of the election process issues which does not refer to the guarantees envisaged by Article 55.5 of the Constitution concerning everyone’s right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.

Article 99.6 of the Law No. 474, according to which the court leaves the claims concerning decisions, actions or omissions of the election process subjects without consideration if they are not considered within the period provided, restricts the guarantee stipulated by the Constitution for execution of human and citizen’s rights and freedoms – the right to be protected by the court (Articles 55.1, 55.2) which is guaranteed (Article 22.2), shall not be restricted (Article 64), and its content and scope shall not be diminished (Articles 22.3).

The judicial system and judicial proceedings are determined exclusively by the laws of Ukraine (Article 92.1.14 of the Constitution). In other words the establishment of terms of the administrative proceedings is a subject of legislative regulation. Duration of such terms depends on the specific character of administrative cases, in particular reduced term of consideration of claims, stipulated in Article 172.11 of the Code, is related to the character of the election process.

All the activities of election commissions, including the CEC, are an object of judicial control.

Pursuant to Article 124.2 of the Constitution the jurisdiction of courts extends to all legal relations that arise in the State, thus including legal relations which took place in the process of drawing up protocols on the results of voting within the territorial election district during conduct of elections of the President of Ukraine, as well as protocols on the tabulation of votes on the polling station.

The prohibition envisaged by the disputed provisions of the Law No. 474 and the Code for courts to proceed with a claim relates to designation, preparation and conduct of elections, in other words covers all the stages of election process. On this condition the execution of the courts’ decisions adopted in cases on disputes concerning designation, preparation and conduct of elections is made impossible which, in fact, disables the implementation of the right to judicial protection guaranteed by Article 55 of the Constitution. According to Article 64 of the Constitution the right to judicial protection shall not be restricted. The amendments introduced by legislator to the disputed provisions of the Law No. 474 and the Code concerning the prohibition for courts to proceed with a claim related to designation, preparation and conduct of elections diminished the content of the citizens’ right to judicial protection which contravenes Article 22.3 of the Constitution.

The right to establish the order of keeping the Register granted to the CEC by Article 14.7 of the Law “On the State Register of Voters” No. 698-V as amended dated February 22, 2007 (hereinafter referred to as “the Law No. 698”) comes from the CEC’s authority to ensure keeping the Register by means of execution of organisational and legal preparation for its keeping. In its turn, this authority of the CEC is envisaged by Article 17.8 of the Law on CEC and Article 16.1 of the Law No. 698. The provisions of Article 14 of the Law No. 698 and Article 17 of the Law on CEC mentioned above specify that the order of keeping the Register should be based on the requirements of law which is a guarantee of lawful adoption of the acts of relevant  content by the CEC.

The main form of fulfillment of the tasks and functions by executive bodies is issuance of administrative legal acts. The authority of the head of the body keeping the Register to issue an order on taking measures for keeping the Register, which is provided by Articles 17.1, 17.2 of Law No. 698, means the issuance of an administrative legal act namely.

Issuance of orders by head of the body the Register keeping which is stipulated in the disputed provisions of Article 17 of the Law No. 698 means the adoption of administrative acts which should be written out in compliance with all the requirements of legal technique.

The amendments introduced by item 4.8, paragraph 2 of item 4.9, items 4.14, 4.15, 4.34 of Chapter I of the Law “On Introducing Amendments to some Legislative Acts of Ukraine on Elections of the President of Ukraine” No. 1616-VI dated August 21, 2009 do not abolish the possibility for the citizens of Ukraine to vote not by their election address, but only amend the mechanism of its ensuring.

Thus, the Constitutional Court of Ukraine held:

1. To recognise as conforming with the Constitution (constitutional):

-             Articles 36¹.2.1, 36¹.2.4, 36¹.2.5 paragraph 1 of Article 56.1, Article 56.2, 56.5, paragraph 2 of Article 79.4, paragraph 2 of Article 83.5, Articles 92, 100 of the Law “On Elections of the President of Ukraine” No. 474-XIV as amended dated March 5, 1999;

-             Articles 14.7, 17.1, 17.2, second sentence of item 3¹ of Chapter VII “Final Provisions” of the Law “On the State Register of Voters” No. 698-V as amended dated February 22, 2007;

-             Item 4.8, paragraph 2 of item 4.9, items 4.14, 4.15, 4.34, 4.46 of Chapter I of the Law “On Introducing Amendments to some Legislative Acts of Ukraine on Elections of the President of Ukraine” No. 1616-VI dated August 21, 2009;

-             Articles 172.11, Articles 176.10 of the Code of Administrative Proceedings of Ukraine as amended.

1. To recognise as non-conforming with the Constitution (unconstitutional) the provisions of:

-             Articles 2.6, 23.6, 24.9, 84.7, 99.4, 99.6 of the Law “On Elections of the President of Ukraine” No. 474-XIV as amended dated March 5, 1999;

-             Articles 109.1.4, Articles 117.6, second sentence of Article 172.4, Article 176.12 of the Code of Administrative Proceedings of Ukraine as amended.

25-rp/2009.doc