On Tuesday, November 1, at a plenary session, the Grand Chamber of the Constitutional Court of Ukraine delivered a Decision in the case regarding the constitutional review of amendments to the Constitution of Ukraine, which had entered into force, upon the constitutional petition of 50 People's Deputies of Ukraine concerning the conformity of the Law of Ukraine On Amendments to Article 80 of the Constitution of Ukraine (On the Immunity of People's Deputies of Ukraine) (hereinafter referred to as the Law) with the Constitution of Ukraine (constitutionality).
The subject of the right to constitutional petition argued that the Law was unconstitutional, considering that it had been adopted in a violation of the constitutional procedure.
The Constitutional Court of Ukraine, in order to ensure the consistency of its jurisprudence, legal certainty and constitutional stability, established that it should carry out subsequent (a posteriori) constitutional review over constitutional amendments after they had entered into force, since the lack of judicial review over the procedure for consideration and adoption of relevant laws, defined by the provisions of Chapter XIII of the Constitution of Ukraine, may result in restricting or abolishing human and citizen’s rights and freedoms, eliminating independence or violating territorial integrity, or changing the constitutional order in a manner that is not allowed by the Constitution of Ukraine.
The Decision states that at the seventh session of the Verkhovna Rada of Ukraine (hereinafter referred to as the Verkhovna Rada) of the eighth convocation on October 17, 2017, a draft of the disputed Law (hereinafter referred to as the Draft Law) was registered, the President of Ukraine was the subject of legislative initiative. On October 19, 2017, it was included into the agenda of the seventh session of the Verkhovna Rada of the eighth convocation. After considering the Draft Law, the Verkhovna Rada adopted the Resolution on inclusion into the agenda of the seventh session of the Verkhovna Rada of Ukraine of the eighth convocation of the Draft Law on Amendments to Article 80 of the Constitution of Ukraine (On the Immunity of People's Deputies of Ukraine) and on its submission to the Constitutional Court of Ukraine.
On June 19, 2018, the Constitutional Court of Ukraine, following the constitutional petition of the Verkhovna Rada, deliberated the Draft Law and declared it to be in compliance with the requirements of Articles 157 and 158 of the Constitution of Ukraine.
On August 29, 2019, the Chairman of the Verkhovna Rada of the eighth convocation, on the basis of Article 105 of the Rules of Procedure, approved the list of drafts laws that remain unconsidered and are considered withdrawn in view of the termination of the powers of the Verkhovna Rada of the eighth convocation.
The Draft Law was included in this list. Thus, the Verkhovna Rada of the eighth convocation, after receiving the Opinion of the Constitutional Court of Ukraine dated June 19, 2018 No. 2-v/2018, did not pre-approve the said Draft Law.
The first plenary meeting of the first session of the Verkhovna Rada of the ninth convocation took place on August 29, 2019. The aforementioned Draft Law was included into the agenda of this meeting. The Constitutional Court of Ukraine considers that the Draft Law was reasonably included into the agenda of the first session of the Verkhovna Rada of the ninth convocation, as it was not withdrawn or considered by the Verkhovna Rada of the previous convocation in the prescribed manner.
The Verkhovna Rada considered the Draft Law and adopted it as a Law at the first meeting of the second session of the Verkhovna Rada of the ninth convocation on September 3, 2019, which is the next regular session of the Verkhovna Rada within the meaning of Article 83.1 of the Constitution of Ukraine. More than two-thirds of People's Deputies of the constitutional composition of the Verkhovna Rada voted for the Draft Law in compliance with the requirements of Article 155 of the Constitution of Ukraine.
The Decision states that “when carrying out constitutional review over compliance with the constitutional procedure of consideration, adoption or entry into force of the laws of Ukraine in accordance with Article 152.1 of the Basic Law of Ukraine, the Constitutional Court of Ukraine reviews not only compliance with the formal procedures provided for in the Constitution of Ukraine. Observance of the democratic essence by the parliament as a representative body of the people is also subject to verification, in particular, the consideration, consistency and reasonableness of the process of consideration of the decisions it adopts, the true possibility of People's Deputies of Ukraine to exercise their rights in this process.”
In this case, the Constitutional Court of Ukraine made a constitutional reservation regarding the practice of development and adoption of laws on amendments to the Constitution of Ukraine, which do not have the proper signs of consideration and consistency, which should be intrinsic to the adoption of constitutional amendments, in particular, regarding the actual separation over time of two Verkhovna Rada votes for the Draft Law.
According to the legal positions of the Constitutional Court of Ukraine, set out in its decisions, “the legal act may be declared as unconstitutional, in particular, in relation to which the procedural requirements established by the Constitution of Ukraine, and not by other legal acts, were violated”, as well as “the criterion for declaring acts as unconstitutional, in particular, there may be a violation of those procedural requirements for their consideration, adoption or entry into force, which are established by the Constitution of Ukraine, and not by other legal acts.”
The provisions of Article 8.1, Article 19 of the Constitution of Ukraine do not regulate issues of the constitutional review procedure, the adoption of laws of Ukraine by the Verkhovna Rada or their entry into force; therefore, they cannot be applied in this case.
Having concluded that the constitutional procedure for consideration, adoption and entry into force of the Law had not been violated, the Constitutional Court of Ukraine found the disputed Law to be in conformity with the Constitution of Ukraine.
