21 April 2023
On April 21, 2023, Acting Chief Justice of the Constitutional Court of Ukraine Serhii Holovaty delivered a presentation on "The Legal Positions of the Constitutional Court of Ukraine in the Context of Ensuring the Rule of Law in Ukraine" at a training event for Supreme Court judges organised by the National School of Judges of Ukraine.
Serhiy Holovaty spoke about the historical background of the implementation of the "rule of law" concept in Article 8 of the 1996 Constitution of Ukraine, the fundamental documents of the Venice Commission which clarify the content of the “rule of law" concept, and analysed the legal positions of the Constitutional Court of Ukraine, in which the rule of law was the basis of the Court's decisions.
In particular, the judge noted that at the time of the adoption of the Basic Law of Ukraine, lawyers and linguists were looking for a proper Ukrainian equivalent to the English "the rule of law" and opted for the two-word concept of "verkhovenstvo prava" considering it to be the most successful. "Then, as a result of the political confrontation with the fierce supporters of the “rule of a law”, which was defended by deputies from the Communist and Socialist parties, the qualified majority of the parliament supported, as I insisted, the word combination “rule of law” as an antithesis to the concept of the “rule of a law”, said Serhiy Holovaty.
By replacing the "rule of a law" terminologically with the "rule of law," we believed that we were acting decisively and abandoning the anti-legal positivism of the Soviet era. However, as it turned out over time, this was not entirely true, as the practical application and theoretical interpretation of this concept revealed a number of problems, in particular, the question arose: what "rules" and "over whom?" or "over what?” According to Serhiy Holovaty, this situation arose due to a lack of knowledge that would allow for a correct translation of the phrase "the rule of law," which is in no way equivalent to the Ukrainian or Russian "verkhovenstvo prava”.
As noted by Serhiy Holovaty, he initiated consideration of the issue of clarifying the meaning of the "the rule of law" concept for post-communist countries in the Parliamentary Assembly of the Council of Europe, and later in the Venice Commission. In his speech, the judge drew attention to the fundamental documents prepared and adopted by the Venice Commission, in particular, the Report of the Rule of Law, adopted at the 86th plenary session (Venice, March 25-26, 2011), and the Rule of Law Checklist, adopted at its 106th plenary session (Venice, March 11-12, 2016). According to him, the adoption of these documents has contributed to the evolution of the terminological system in some Eastern European countries.
Serhiy Holovaty provided examples of the decisions of the Constitutional Court of Ukraine, which contained interpretation of the "rule of law" concept. In particular, he noted that for the first time the Court formulated its legal position on the essence of this principle in the Decision in the case upon the constitutional petition of the Supreme Court of Ukraine on the constitutionality of the provisions of Article 69 of the Criminal Code of Ukraine (case on the imposition of a more lenient sentence by the court) of November 2, 2004, No. 15-rp/2004. According to the judge, the legal position expressed in this decision was subsequently cited by the Constitutional Court of Ukraine in 25 decisions, and, unfortunately, it is still used in academia.
However, as noted by Serhiy Holovaty, in 2020, the Constitutional Court of Ukraine began to apply the "the rule of law" concept in accordance with the documents of the Venice Commission. In the Decision of June 18, 2020 No. 5-р(II)/2020 in the case upon the constitutional complaint of Ukrainian citizen Olha Levchenko on the constitutionality of the prescription of paragraph 5 of Section III "Final Provisions" of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Pension Provision" of March 2, 2015 No. 213-VIII, the Court formulated a comprehensive legal position on the essence of the rule of law. In particular, the Court pointed to the six crucial components of the rule of law identified by the Venice Commission: legality; legal certainty; prohibition of arbitrariness; access to justice in independent and impartial courts - including judicial review of administrative acts (actions); respect for human rights; non-discrimination and equality before the law.
Serhiy Holovaty emphasised that the Constitutional Court of Ukraine is currently resolving cases upon constitutional petitions and constitutional complaints through the prism of the six components of the rule of law defined in the Venice Commission Report.
The presentations were also delivered by the Queen's Counsel (QC), retired judge, President of the Appeals Chamber of the International Criminal Court (2011 - 2021) Sir Howard Morrison, Judge of the European Court of Human Rights in respect of Ukraine Mykola Gnatovskyy, and Deputy Minister of Justice of Ukraine Iryna Mudra. They presented reports on the following topics: "International Criminal Justice and Human Rights", "National and International Mechanisms for Compensation for Damage Caused to Ukraine as a Result of the Aggression of the Russian Federation", "The Principle of Legal Certainty as a Component of the Rule of Law: ECHR Case-Law".
