scholarly journals Constitutional Complaint in Ukraine: The Interrelation Between the Protection of Subjective Civil Rights and Constitutional Control

2020 ◽  
Vol 10 ◽  
pp. 341-354
Author(s):  
Oleksandr D. Krupchan ◽  
◽  
Volodymyr V. Kochyn ◽  
Vitalii I. Zaporozhets ◽  
Mykyta V. Bernatskyi
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Individual Rights ◽  
Real Possibility ◽  
The Rule Of Law ◽  
The Right ◽  
Judicial Protection ◽  
Subjective Rights

The real possibility of judicial protection of individual rights and freedoms is a key element of effective legal regulation, as well as the manifestation of the rule of law. The new institution of the constitutional complaint lies in a rather specific plane, being both a part of the national system of protection of individual rights and freedoms and an element of constitutional control that ensures the supremacy of the Constitution of Ukraine. The relevance of this study is conditioned by the right of a citizen to complain about the mechanism of legal regulation, taking the provisions of the Constitution as an example. The purpose of the study is to consider the specific features of the interrelation between the protection of subjective civil rights and constitutional control. This study analyses the theoretical aspects, legislative regulation, and practice of the Constitutional Court of Ukraine. It was concluded that subjective rights and interests established by law might be violated, unrecognised or challenged only at the stages of legal implementation or enforcement.

scholarly journals Principle of Equality in Decisions of the Constitutional Court of Ukraine

2020 ◽  
pp. 45-58
Author(s):  
Мariana АNDRYTS
Keyword(s):  
Civil Rights ◽  
Public Space ◽  
Social Life ◽  
Legal Regulation ◽  
Legal Rights ◽  
Labor Rights ◽  
Constitutional Court ◽  
Judicial Process ◽  
Substantive Content ◽  
The Right

The article analyzes the implementation of the principle of equality in the constitutional legal proceedings of Ukraine nowadays. It has been established that this principle is reflected in the decisions of the Constitutional Court of Ukraine: 1) equality of citizens before the law, which does not exclude differentiation of legal regulation, is guaranteed by the prohibition of «negative discrimination» and is not absolute in scope; 2) equality of everyone (i.e. citizens of Ukraine, foreigners, stateless persons) before the court, including equality of all participants of the judicial process; 3) equality of citizens in duties, which means their equal subordination to the laws of Ukraine; 4) equality (equal significance) of rights and freedoms, the manifestation of which is the equality of material and procedural rights, the equality of positive and negative rights. On the basis of the analysis of the decisions of the Constitutional Court of Ukraine, a number of «ontological factors» that determine the principle of equality and are considered methodologically important for legal characterization, have been identified. The first of the proposed factors is the sphere of social life, i.e. the part of the public space that has become «discriminatorily vulnerable», and in light of this the legal positions of the Constitutional Court of Ukraine in respect of the principle of equality in the sphere of realization of electoral rights, labor rights, property rights etc. have been systematized. The second factor can be considered the peculiarities (nature) of legal rights that are «in the area of discriminatory risk», which affects the functions of certain legal means of ensuring equality, in particular, the functions of the so-called legislative qualifications. A third reviewed factor is the relationship between human and civil rights. The dependence of the content and scope of the principle of equality on the joint realization of the right to education and the right to free development of one’s personality; the right to housing and freedom of movement and free choice of place of residence. The fourth factor of the substantive content of the principle of equality is the criteria of differentiation of legal regulation, namely, «appropriateness» (economic, political, social), «justifiability in a democratic society» and «relevance». The fifth factor is associated with the specificity of guarantees of ensuring the principle under consideration, among which — «accessibility», «free-of-charge» basis of education and health care. As the sixth factor, the correlation of the principle of equality with other principles of law, in particular, with the principles of justice, freedom, presumption of innocence and inadmissibility to hold a person responsible for refusing to testify against him/her, has been substantiated. Keywords: rule of law, legal principles, human rights and freedoms, The Constitutional Court of Ukraine, principle of equality.

Access to Justice: Ukraine and Europe

2020 ◽  
Vol 11 (4) ◽  
pp. 1122
Author(s):  
Tetiana M. BREZINA ◽  
Nadiia P. BORTNYK ◽  
Iryna Yu. KHOMYSHYN
Keyword(s):  
Civil Rights ◽  
Legal Regulation ◽  
Modern Concept ◽  
Free Access ◽  
Access To Justice ◽  
Legal Provisions ◽  
European Experience ◽  
The Right ◽  
Judicial Protection ◽  
Right Of Access

The paper examines the right of access to justice through the lens of domestic and European experience. The purpose of the study is to improve the theoretical and legal provisions of the content of the right of access to justice based on European experience, the formation of its modern concept, including the construction of proposals for defining this concept in the domestic doctrine of the judiciary. The methodological basis of the study comprises a set of methods that have been comprehensively used to achieve the purposes of this paper: the study of the legal nature of the right of access to justice, the establishment of its structural elements, the formulation of conclusions and proposals for the implementation of European Court of Human Rights standards in Ukrainian legislation was carried out with the use of system-structural and Aristotelian methods. It is noted that the access to justice is the availability, legal consolidation, and direct functioning of guarantees stipulated by law, which allow everyone to freely exercise their right to judicial protection and restoration of the violated right. It is concluded that the right to judicial protection cannot be exercised without a mechanism of access to justice and legal regulation. Ukraine, as a full subject of international law, must guarantee, based on universal standards, the personal right of every individual to free access to justice. However, identification of the social nature of the right of access to justice, for any state, including Ukraine, means an assertion of a fairly wide margin of appreciation both upon specifying forms of support for citizens to exercise the right, and upon determining the categories of citizens who need such support. This obliges the legislator to respect the constitutional principles of justice, equality, proportionality, as well as stability and guarantee of human and civil rights in Ukraine.

scholarly journals Constitutional court procedure and constitutional control in the field of lustration

2021 ◽  
pp. 99-115
Author(s):  
Oksana Shcherbanyuk
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Judicial Control ◽  
European Court ◽  
Long Time ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The article considers the constitutional court procedure and constitutional control in the field of lustration.  These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice.  It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release.  It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools.  For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

scholarly journals How Much Law Does the School System Need?

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Miro Cerar
Keyword(s):  
Rule Of Law ◽  
School System ◽  
Legal Regulation ◽  
Educational Process ◽  
The Rule Of Law ◽  
Responsible Attitude ◽  
The Law ◽  
Legal Administration ◽  
The Right

In its ideal form, the law is a guardian of the freedom and autonomy of the school system. On the other hand, the school system must, as part of its responsibility, establish a respectful and responsible attitude toward the rule of law. In Slovenia, practice deviates from such ideal to too great an extent. Excessive and inappropriate legal regulation reduces the freedom and autonomy of the school system. The consequences within this system are: partly ignored legal regulations, and the resulting ineffectiveness; excessive legal administration in schools; increased teachers’ opposition to the law; a lack of teachers’ motivation; and, as a consequence, worsened quality of the educational process. The law, however, is only a part of the problem. The latter has its roots mainly in a general disorientation of society with regard to its values. In order to establish the right measure and manner of the legal regulation of the school system, the moral and common sense basis of society must first be healed and strengthened.

scholarly journals Constitutional principles and their impact on the establishing of constitutional order and rule of law in Kosovo

2020 ◽  
Vol 57 (4) ◽  
pp. 1079-1096
Author(s):  
Nur Çeku ◽  
Haxhi Xhemajli
Keyword(s):  
Rule Of Law ◽  
Minority Groups ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The Republic ◽  
European Standards ◽  
The Right ◽  
The Impact

Considered as a progressive document based on the models of the Western constitutions, the Constitution of the Republic of Kosovo has established the legal basis for a functional statethat respects rights and fundamental freedoms while guaranteeing the rule of law. In its provisions, the Constitution has laid down basic principles which serve as the foundation for Kosovo’s constitutional order. In this regard, these constitutional principles have been further enshrined in the provisions of laws that emanate from the Constitution, and also have been established in the institutional mechanisms for its appropriate application. In addition, what played a prominent role in defining these principles was the impact of the Constitutional Court’s case-law. Case-law has reaffirmed in many instances the tremendous importance of constitutional principles in enhancing the rule of law, protecting the rights of minority groups and other members of Kosovo’s society, and the right to freedom of belief and secularism by implementing the most modern European standards in human protection. Hence, this paper analyzess the impact that constitutional principles have had on defining the structure of the state, guaranteeing the rule of law, protection of human rights and establishing Kosovo as a multi-ethnic society. Likewise, it examines the case-law of Kosovo’s Constitutional Court by providing some of the most prominent cases.

scholarly journals Udział stowarzyszeń zwykłych w postępowaniu sądowoadministracyjnym w sprawach z zakresu ochrony środowiska – analiza rozbieżności w orzecznictwie

2018 ◽  
Vol 4 (1) ◽  
pp. 160-180
Author(s):  
Piotr Korzeniowski
Keyword(s):  
Civil Society ◽  
Civil Rights ◽  
Public Participation ◽  
Environmental Protection ◽  
Rule Of Law ◽  
Basic Principles ◽  
The Rule Of Law ◽  
Administrative Proceedings ◽  
The Right ◽  
Democratic Country

Participation of unincorporated associations in court and administrative proceedings is a tool of public participation which is a part of basic principles of performance of a democratic country and a civil society. By means of abiding by those principles administrative bodies and courts respect the rule of law and it becomes a standard. The rule of public participation can be as well treated as a part of the basic civil rights stipulated in the Constitution. By respecting the right of unincorporated associations to participate in court and administrative proceedings in environmental protection-related cases the goals and functions of environmental protection law can be accomplished. 

scholarly journals Constitutional Complaint in Indonesia Through the Lens of Legal Certainty

2021 ◽  
Vol 2 (1) ◽  
pp. 57
Author(s):  
Standy Wico ◽  
Michael Michael ◽  
Patricia Louise Sunarto ◽  
Anastasia Anastasia
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
Government Officials ◽  
The Rule Of Law ◽  
Rights Protection ◽  
Legal Standing ◽  
The Government

To date, there is no trial mechanism for Indonesian citizens to claim their rights through the constitutional complaint, even if the Constitutional Court has existed since 2003. In fact, civil rights guaranteed in the 1945 Constitution are often ignored by the government even though these rights are essential in promoting the rule of law. This paper aims to revisit the range of constitutional complaints and further consequences about the legal certainty by taking into account the rationale of civil rights protection following the establishment of the Constitutional Court for adjudicating civil complaints. This study uses juridical research with normative and comparative approaches. In this context, a constitutional complaint is different from the judicial review for which, the actions of government officials are deemed to be detrimental and violate the constitutional rights of citizens. Rather, it is an adjudication for protecting civil rights when it is found the constitutional rights are breached by the government so that each citizen has legal standing before the Constitutional Court. As for the effort to apply legal certainty to constitutional complaints, a legal basis is needed, namely the laws that regulate and their application. By doing so, it can be implemented after amending the 1945 Constitution that outlines the additional power-wielding to the Constitutional Court. KEYWORDS: Constitutional Complaint, Constitutional Court, Indonesian Constitution.

About judicial protection of subjective civil rights

2020 ◽  
Vol 7 (1) ◽  
pp. 9-16
Author(s):  
Yury N. Andreev
Keyword(s):  
Civil Rights ◽  
Scientific Knowledge ◽  
Scientific Methods ◽  
Methodological Basis ◽  
Optimal Ratio ◽  
The Right ◽  
Judicial Protection ◽  
Subjective Rights

The article is devoted to the judicial protection of subjective civil rights. The author tries to formulate the concepts of subjective civil rights and the judicial protection of subjective civil rights to determine the ratio of subjective civil rights and the right to judicial protection as well as the judicial protection features of various subjective civil rights categories. The paper presents the authors conception of subjective rights, the various ways by which they are protected, and the features of the protection of certain types of subjective civil rights. The aim of the research is to find the most optimal ratio of the right of subjective rights owner to protection and the right of subjective right for protection, in order to determine the most typical ways to protect certain categories of subjective civil rights. The methodological basis of the research includes the well-known general and private scientific methods of scientific knowledge. The paper concludes by stating that subjective civil rights have general (universal) and specific ways of protection.

scholarly journals The Teleos and the Anatomy of the Rule of Law in EU Infringement Procedures

2019 ◽  
Vol 11 (2-3) ◽  
pp. 439-445 ◽  
Author(s):  
Anna Śledzińska-Simon ◽  
Petra Bárd
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
Judicial Protection ◽  
The Eu

Abstract The article proves a long-lasting legacy of Martin Krygier’s work on the rule of law. Taking the European Union as a case study, and specifically—the recent infringement action concerning the judicial independence in Poland, the article addresses the point (teleos) of the rule of law, the conditions the institutions need to fulfill to make this point, and institutional measures that help to meet these conditions in the EU as a whole and its Member States. It argues that the rule of law can be achieved via various paths, but there is general agreement on when its basic elements such as the guarantees against arbitrary removal of judges are missing. Therefore, it concludes, the EU does not need to determine the anatomy of national institutions, but it needs to remain vigilant against such modifications that put at risk the effectiveness of EU law, and the judicial protection of individual rights in particular.

scholarly journals IS THE MANDAMENT VAN SPOLIE AN APPROPRIATE REMEDY IN CASES OF STATUTORY CONFLICTS? Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 (CC)

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Lefa S Ntsoane
Keyword(s):  
Rule Of Law ◽  
Motor Vehicle ◽  
Road Traffic ◽  
High Volume ◽  
Constitutional Court ◽  
Legal Process ◽  
The Rule Of Law ◽  
Statutory Provision ◽  
The Law ◽  
The Right

The availability of the mandament van spolie in cases where a statutory provision provides for despoilment has been dealt with in a recent Constitutional Court judgment, handed down on 15 May 2014 (Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 (CC)). In this case the Court had to decide on the question whether the mandament van spolie, as a common-law remedy aimed to restore lost possession, can be granted by the Court despite the fact that section 68(6)(b) of the National Road Traffic Act 93 of 1996 prohibits possession “without lawful cause” of a motor vehicle of which the engine or chassis number has been falsified or mutilated. The question was answered in the affirmative. The Court held that the mandament van spolie can be granted, despite the prohibition against the return of the vehicle as provided for by the Traffic Act. This is also the case despite the fact that section 31(1)(a) of the Criminal Procedure Act 51 of 1977 provides for almost the same relief as that which can be achieved by the mandament van spolie, except that the remedy provides for an urgent relief, and it is more cost-effective than resorting to the CPA. In terms of a mandament van spolie, a person who has been unlawfully despoiled of possession may apply to the Court for this remedy, claiming restoration of that possession. The main purpose of the remedy is to protect lost possession of the property by the applicant. This remedy is only concerned with whether the applicant was in factual possession (ius possessionis) of the property, whether movable or immovable, rather than the right to possess (ius possidendi). The merits of the case are therefore not considered by the Court in an application for a mandament van spolie. The aim is to prevent people from taking the law into their own hands by prohibiting the taking of possession otherwise than in accordance with the law . There are two requirements that must first be met for a successful reliance on the mandament van spolie. Firstly, the applicant must prove on a balance of probabilities that he was in peaceful and undisturbed possession of the item. Secondly, the applicant must also prove that the respondent deprived him of possession unlawfully. The first requirement will not be discussed because it was not an issue in this case. A brief analysis of the second requirement will be conducted because of the role it played in this judgment. It is, however, important to mention that these requirements were not the subject of dispute in the present case. This note carries the view that the Ngqukumba judgment strengthened the applicability of the mandament van spolie in cases of dispossession where compliance with due legal process has been compromised. The judgment is important because it promotes the rule of law and due legal process, by ensuring that no one (including organs of State) is above the law. This is particularly true, taking into account the high volume of civil claims lodged by individuals against the Minister of Police in cases where police officials failed to comply with the law. The rule of law has both a procedural and a substantive component. The procedural component of the rule of law requires every action (be it by an individual or an organ of State) to be in accordance with the relevant provisions regulating that act. This is meant to prevent the abuse of power by individuals or Government institutions. The substantive component is concerned with the protection of rights, and this includes the right to dignity, privacy and property. The purpose of this note is threefold. Firstly, the facts, arguments and the judgment will be stated briefly. Secondly, this note will analyse the applicability of the remedy in cases where a statutory provision provides for despoilment. Thirdly, suggestions for a way forward for the applicability of the remedy in cases of a conflict with a statutory provision will be given.

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