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16JURIDICAL SCIENCES
THE ADMINISTRATIVE JURISDICTION DELIMITATION FROM THE CONSTITUTIONAL
COURT PROCEDURAL ACTIVITIES
Kropyvna K.
Graduate student of the National Technical University of Ukraine "Kyiv Polytechnic Institute named after Igor Sikorsky "
Abstract
The article deals with the theoretical justification of the administrative jurisdiction distinction from the procedural activities of the Constitutional Court. The role of the Constitutional Court and the significance of its decisions in the legal space of a state and such an interstate association as the European Union are shown on the example of Ukraine, Germany, Bulgaria, Poland and France. Criteria for distinguishing between both constitutional and administrative jurisdiction are highlighted. Attention is also focused on a new legal institution for Ukraine - a constitutional complaint.
Keywords: administrative jurisdiction, constitutional jurisdiction, administrative court, Constitutional Court, criteria for delimiting cases, constitutional complaint, jurisdictional authority.
Topic relevance. Judicial reform, ongoing in Ukraine and other countries of the world, requires theoretical developments on justice issues. An important aspect of the Ukraine judicial system is the adequacy of the cases' subject jurisdiction as courts of administrative jurisdiction and of the Constitutional Court within the distribution of cases' types between both administrative and constitutional courts. In this regard, this article is devoted to the theoretical justification of the jurisdiction relevant type objective affiliation for the cases' consideration by appeals of the procedural relations' relevant entities.
The degree of the topic scientific development. Works of IP. Golosnichenko, Yu.S.Pedko, M.F. Sta-khurskyy, M.I. Smokovich, V.S. Stefanyuk, E.A. Tymoshenko and other scientists are devoted to the delimitation of the courts' administrative jurisdiction. However, it is necessary to deepen scientific research on these issues, because there are still both inaccuracies and gaps preventing clear cases' resolution in administrative and constitutional courts in the legislation of Ukraine.
Aim of the article. The aim of this article is to analyze regulatory material on the delimitation of the courts' jurisdiction when considering cases on the individual rights' and freedoms' protection.
Material statement. Both constitutional and administrative courts occupy a special place in the judicial system, as they are the links in this system designed to protect human rights and freedoms from state institutions. Thus, the Constitutional Court "considers the issue of compliance with the Constitution of Ukraine (constitutionality) of existing acts (their individual provisions). In order to protect and restore human rights. The court considers the issue of compliance with the Constitution of Ukraine (constitutionality) of the act (its individual provisions), having a lost force, but continuing applying to legal relations that arose during its operation "[1, part 1, 2. Art. 8]. In accordance with Part 1 of Art. 2 of the Code of Administrative Procedure of Ukraine "The objective of administrative proceedings is a fair, impartial and timely resolution by a court of disputes in the sphere of public law relations with the
aim of effectively protecting the rights, freedoms and interests of individuals, the rights and interests of legal entities from violations by authority subjects" [ 2, part 1, article 2].
A comparative tasks' analysis of the two above-mentioned courts in legal acts defining their competence allows us to state that both courts are designed to protect both rights and freedoms of individuals and legal entities, but each in its own way. The Constitutional Court considers cases on the laws of Ukraine constitutionality and other legal acts of the Verkhovna Rada of Ukraine, acts of the President of Ukraine, acts of the Cabinet of Ministers of Ukraine, legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea [1]. At the same time, administrative courts decide the protection of the rights, freedoms and legitimate interests of individuals and legal entities from the arbitrariness of state authorities, local authorities and other subjects of authority.
First of all, it is necessary to state the existence of differences in the cases' types considered by the courts of these jurisdictions. The Constitutional Court considers cases on the constitutionality of laws of Ukraine and other acts referred to in the Law of Ukraine on this judicial authority, for representations, appeals and complaints to this constitutional body. In contrast, administrative courts hear administrative cases. Under paragraph 1 of paragraph 1 of Art. 4 Code of Administrative Procedure of Ukraine "administrative case is referred to the administrative court public law dispute decision" [2].
When delimiting jurisdiction, it is advisable to dwell on the concept of "public law dispute". It is well known that a legal dispute is a legal conflict between participants in a legal relationship, in which each of the participants in a legal relationship protects its subjective rights. Public law means one being based on public law norms, that is, the law governing public relations in the sphere of public authority [3, p. 197]. It should be noted that both administrative law and constitutional law are public law spheres. Constitutional jurisdiction is an institution of constitutional law, therefore, cases that are decided by the Constitutional Court are cases
where public law disputes are resolved. Thus, by analogy, the constitutional case is referred to the Constitutional Court decision of a public law dispute. Being aware of this, the legislator predicted that the jurisdiction of administrative courts does not extend to cases that fall under the jurisdiction of the Constitutional Court of Ukraine in clause 1 part 2 of article 19 Code of Administrative Procedure of Ukraine, where the subject jurisdiction of the administrative court is determined, [2].
Constitutional jurisdiction was introduced by the Constitution of Ukraine on June 28, 1996. Despite the fact that the Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it [4, Art. 8]. Certainly, a constitutional control body was needed in Ukraine, as in other Europe legal states.
Constitutional review bodies occupy a prominent place in the system of state power separation, being independent of other state power bodies in the exercise of their powers. They make final decisions.
Constitutional control in Ukraine is an independent sphere of state-power activity. It is carried out not only by the Constitutional Court, but also by other state bodies. The President of Ukraine is the guarantor of the Constitution of Ukraine, the rights and freedoms of man and citizen in accordance with Part 2 of Art. 102. He takes measures to protect the sovereignty of Ukraine, its independence and state integrity, ensuring the coordinated functioning and interaction of public authorities in the manner prescribed by the Constitution.
The protection of the Constitution of Ukraine, as the duty of the head of state, is stated in the text of the oath of the President, where he swears to protect the Constitution and adhere to it.
Article 106 of the Constitution of Ukraine gives the President important powers to exercise constitutional review. The President appoints an all-Ukrainian referendum on amendments to the Constitution of Ukraine in accordance with Article 156 of the Basic Law of the State. The right to suspend acts of the Cabinet of Ministers of Ukraine on grounds of non-compliance with the Basic Law of Ukraine with simultaneous appeal to the Constitutional Court of Ukraine regarding their constitutionality is the most important right of the guarantor of the Constitution of Ukraine. The Cabinet of Ministers of Ukraine also contributes to the cause of constitutional review. The legal norm enshrined in paragraph 1 of Art. 116 of the Constitution of Ukraine authorizes this supreme body in the system of central executive bodies to ensure the implementation of the Constitution of Ukraine.
However, the dominant position in the system of institutions of constitutional review in Ukraine is judicial constitutional review. It is understood as the official activity of the body specially authorized by the Constitution and the
Law of Ukraine "On the Constitutional Court of Ukraine", which is carried out using a special procedure in order to protect the foundations of the constitutional system, the fundamental rights and freedoms of man
and citizen, to ensure the supremacy and direct effect of the Constitution throughout Ukraine, prevention of the existence of unconstitutional acts in the legal system, interpretation of the Constitution and the like.
The role of the Constitutional Court, in this case, is extremely important. The actual operation of the Constitution of Ukraine, strengthening the foundations of the constitutional system, protecting human rights and freedoms depend to a large extent on the Constitutional Court. Judges of the Constitutional Court are able to make a significant impact on fostering respect for law, law, and justice by their decisions.
On the one hand, the Constitutional Court is a body of constitutional jurisdiction, as recorded in Art. 1 of the Law of Ukraine On the Constitutional Court of Ukraine, on the other hand, the Constitutional Court is a constitutional body of state power, standing on a par with other constitutional bodies of the state — the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine, the High Council of Justice. According to A.A. Selivanova, the Constitutional Court is methodologically correctly called "a court of law, not facts", and "its procedural and procedural powers — as a reflection of an important form of judicial law, and not just as legal proceedings. The scientist notes that this feature distinguishes constitutional proceedings from other procedural types of justice "[5, p. 38]. Of course, the establishment of law determines the activities of the Constitutional Court of Ukraine in the first place from administrative jurisdiction.
From an institutional point of view, the Constitutional Court is one of the highest state bodies, independently and independently exists and acts along with all other higher bodies of state power of Ukraine. From the standpoint of functional characteristics, the Constitutional Court is a judicial body that exercises its activities in the form of constitutional proceedings. This aspect is preferred when correlated with the practice of organizing state power. That is why the decision of the Constitutional Court within the meaning of the Constitution and the Law on the Constitutional Court is not an act of expression of political will. The court does not consider any political issues, and its decision should always be legal.
The official Constitution interpretation in accordance with Article 147 is provided exclusively to the Constitutional Court in the legal system of Ukraine. This does not mean that the interpretation is not used by other public authorities. It is carried out by the subject of law enforcement, as well as by citizens, but only the Constitutional Court adopts interpretative acts being strictly binding on all the law subjects and being essentially normative. This distinguishes the Constitutional Court from all courts or other bodies of state power, which may be guided by short-term interests or decisions under the influence of pressure from various public groups. In this regard, the Constitutional Court is the custodian of long-term constitutional values, on the basis of which the regulatory legal acts of both legislative and executive authorities are checked.
According to I. Berestovoy, due to the fact that the human rights function of the Constitutional Court is manifested in direct and secondary manifestations,
based on the legal nature of a constitutional review, the latter can be concrete and abstract. The author bounds the existence of specific control with the emergence of the Constitutional powers to consider constitutional complaints. "In the order of specific constitutional review, she writes, the rights and freedoms of man and citizen are protected by the Constitutional Court when deciding specific cases on constitutional complaints" [6, p. 155-156].
The Constitutional Court of Ukraine plays a specific role, performing an integral function in the government system of Ukraine as a body of constitutional jurisdiction and among the judicial bodies of national jurisdiction is an institution that guarantees the supremacy of the Constitution throughout Ukraine.
In the unchanged Constitution of Ukraine of 1996. The Constitutional Court of Ukraine was considered as the only body of constitutional jurisdiction in Ukraine [6, Art. 147]. The Law of Ukraine dated 02.06.2016 No. 1401-VIII "On Amending the Constitution of Ukraine (regarding Justice)" was amended in Article 147. The thesis on the only body of constitutional jurisdiction in Ukraine was deleted from this article [7, Art. 147] The questions of the only body of constitutional jurisdiction were not reflected in the new Law of Ukraine On the Constitutional Court of Ukraine in 2017. Or did the Constitutional Court of Ukraine cease to be the only body of constitutional jurisdiction in Ukraine? There is a right to establish compliance with the laws of Ukraine, acts of the President and the Government of the Constitution of Ukraine, and in cases of unconstitutionality, these legal acts cannot be applied or implemented in any other way. However, the amendments made to Article 55 of the Constitution of Ukraine expand the possibilities of subjects of the right to appeal. Part 5 of Article 55 of the Constitution of Ukraine provides that "Everyone has the right, after using all national legal remedies, to apply for the protection of their rights and freedoms in accordance with international judicial institutions or the relevant bodies of international organizations of which Ukraine is a member or participant. " So, the decisions of the Constitutional Court of Ukraine also fall under the review of bodies of European jurisdictions, after expanding its powers, in connection with the changes introduced by the Law of Ukraine of 02.06.2016 No. 1401-VIII. It should be emphasized that according to the Program of adaptation of the legislation of Ukraine to the legislation of the European Union, approved by the Law of Ukraine of March 18, 2004 N 1629-IV "An element of the adaptation of the law should be the verification of draft laws of Ukraine and other regulatory legal acts for their compliance with the acquis 55ommunautaire in order to prevent adoption acts that contradict the acquis of the European Union "[8]. When preparing and adopting the Law of Ukraine "On Amending the Constitution of Ukraine (regarding justice)", the subject of its adoption should have taken into account the requirements of acts of legislation of the European Union regarding the powers of domestic and European judicial authorities. Articles 34 and 35 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ratified by Ukraine No. 475/97-BP of 07.17.97) [9, Art. 34-35]
give the person the right after all domestic remedies have been exhausted within six months from the date of the final decision at the national level to file an application with the European Court of Human Rights. Article 46 of the Convention enshrines the binding nature of EU decisions and their implementation. Ukraine must comply with the final decisions of this court in any cases in which it is a party.
The competence of the European Court of Human Rights also extends to the administrative court decision, when the judicial authorities of the state of Ukraine did not adhere to the requirements of Part 1 of Art. 6 of the Convention. As indicated in part 5 of article 355 of the Code of Administrative Procedure of Ukraine in administrative court proceedings, "court decisions of the cassation court are final and not subject to appeal". However, after the entry into force of such decisions, they can be appealed to the European Court of Human Rights, although the state of Ukraine will already act as a defendant, as one of the High Contracting Parties, guaranteeing the rights and freedoms defined in section I of the Convention to everyone under their jurisdiction [9, Art. One].
It is worth noting that the vision consolidation of the Constitutional Court as the only body of constitutional jurisdiction is avoided by the member states of the European Union. So in the section of THEIR Basic Law of the Federal Republic of Germany on such a definition does not go. Two articles are devoted to the Federal Constitutional Court (Articles 93 and 94). Art. 93 of this law determines the powers of the Constitutional Court to make decisions, interpretations of the Basic
Law and the like. This normative act gives the right to every person, if the state authority has violated his rights, to file a constitutional complaint [10, p. 4. A, paragraph 4 b of Art. 93]. Section 94 of the above Basic Law is devoted to the organization and organization of the Federal Constitutional Court of Germany.
The Constitutional Court and the Constitution of Poland do not call the sole body of constitutional jurisdiction. However, it gives the right of constitutional complaint to persons provided for in Art. 79 of this legal act. Part 1 of article 79 of the Polish Constitution states that "everyone whose constitutional freedoms and rights are violated, has the right, on the basis of statutory provisions, to file a complaint with the Constitutional Tribunal regarding the constitutionality of the law or other regulatory act, on the basis of which a court or public administration body made a final conclusion about his freedom or right, or about his duties enshrined in the Constitution "[11, Art. 79]. The Constitution of the Republic of Bulgaria of July 13, 1991, with amendments and additions, also does not call the Bulgarian Constitutional Court the only body of constitutional jurisdiction of this state [12].
In France, the role of the Constitutional Court is played by the Constitutional Council (Conseil constitutionnel). The Constitution of the French Republic does not call the Constitutional Council the only body of constitutional jurisdiction, especially since this body in France plays a slightly different role from the bodies of constitutional jurisdiction of other EU member states. The Constitutional Council oversees the affiliation
(veille a la regularite) of the election of the President of the Republic and the holding of a referendum. She reviews the relevant complaints and announces the election results. This body decides the constitutionality of bills for the adoption of laws. The French Constitution does not provide for the legal institution of a constitutional complaint, however, if the provisions of the law that restrict guaranteed rights and freedoms apply within the jurisdiction of any court, in this case, the Constitution granted the State Council or the Court of Cassation the right to appeal to the Constitutional Council. The Constitutional Council, within a certain period, makes an appropriate decision to ensure human rights. [13, Art. 6-1].
Differentiation of the jurisdiction of the Constitutional Court and administrative courts becomes more important after amendments to the Constitution of Ukraine in 2016 and in 2017 to the Law of Ukraine "On the Constitutional Court of Ukraine", also a new edition of Code of Administrative Procedure of Ukraine. Of course, the norms of the Procedure Rules of the Constitutional Court of Ukraine, the new version of which was approved by the Decree of the Constitutional Court of Ukraine of February 22, 2018 No. 1 / 2018, influenced the activities of this body of constitutional jurisdiction [14, p. 14].
The jurisdictional powers of the Constitutional Court are significantly expanded. Moreover, some provisions regarding the competence of this body of constitutional jurisdiction are being specified.
The criteria for distinguishing administrative jurisdiction from constitutional jurisdiction are the cases' types considered by the courts of these jurisdictions, the variety of sources of legal regulation of these jurisdictions, the subjects of appeal, the procedural documents on which proceedings are initiated, the proceedings' subjects, legal acts issued in the proceedings and at the end thereof stages.
A special role is played by the introduction of an individual constitutional complaint. This strengthens the national system for protecting human rights and brings it into line with modern European practices.
P. 9 h. 1 Article 7 of the Law of Ukraine on the Constitutional Court of Ukraine provides that the authority of this body includes "resolving issues of compliance with the Constitution of Ukraine (constitutionality) of the laws of Ukraine (their individual provisions) on a constitutional complaint of a person who believes that the law Ukraine applied in the final court decision in her case contrary to the Constitution of Ukraine. " This right of a person is related to that expressed in part 3 of article 55 of the Constitution of Ukraine a guarantee of the right of everyone to appeal by a constitutional complaint to the Constitutional Court of Ukraine on the grounds established by the Constitution and in the manner determined by law.
The challenging decisions of administrative courts in the Constitutional Court has several features that can be divided on the basis of such criteria as: objective circumstances and subjective rights.
Objective circumstances revealed the following:
- legal grounds for filing a complaint, as indi-
cated in Art. 55 of the Constitution of Ukraine "Everyone is guaranteed the right to file a constitutional complaint with the Constitutional Court of Ukraine on the grounds established by this Constitution and in the manner prescribed by law";
- the presence of the Law of Ukraine does not comply with the Constitution of Ukraine;
- the presence of an administrative case, the results of which are appealed against;
- the presence of a separate norm of the Law of Ukraine does not comply with the Constitution of Ukraine;
- legal provisions of the Law of Ukraine "On the Constitutional Court of Ukraine", which defines the procedure for considering a constitutional complaint;
- the presence of a final decision of the administrative court where the law of Ukraine is applied in the case of a person is contrary to the Constitution of Ukraine;
- Mandatory implementation of the decision of the Constitutional Court on a constitutional complaint.
Subjective circumstances were also found that affect the exercise of the right to appeal decisions of administrative courts to the Constitutional Court of Ukraine;
- the presence of a competent person who lodges a complaint with the Constitutional Court;
- the manifestation of the legal capacity of a person in the form of a constitutional complaint;
- the right of a person to file an application with the European Court of Human Rights if all domestic remedies have been exhausted.
Why did the legislator draw attention to the fact that a person filed a constitutional complaint when she considers that the law of Ukraine applied in the final court decision in her case contradicts the Constitution of Ukraine? But the Constitutional Court of Ukraine checks for constitutionality not only laws, but also acts of the President of Ukraine, the Cabinet of Ministers of Ukraine and legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea (part 1 of article 150 of the Constitution of Ukraine) [15]. In substantiating its decisions, an administrative court often relies not only on the law, but also on the above acts. Thus, the legislator should be consistent if, in Art. 150 of the Basic Law of Ukraine, he expands the powers of the Constitutional Court, then he would have been obliged to provide for part 5 of Art. 55 of this legal act expanding the powers of the court.
Conclusion. Despite the fact that the main criterion for distinguishing the jurisdiction of an administrative court from other jurisdictional courts ' powers is the publicity of a legal dispute, the application of this criterion for distinguishing between the jurisdictions of an administrative court and the Constitutional Court is impossible. Differentiating the jurisdiction of these two courts, it is necessary to use other criteria, among which there are cases' types considered by the courts of these jurisdictions, a variety of legal regulation sources, appeal subjects, procedural documents on
which proceedings are initiated, proceedings ' subjects, legal acts issued during the proceedings and at its final stages.
It is advisable to grant the Constitutional Court the right to appeal a constitutional complaint in those cases where it considers that not only the law of Ukraine, but also the decree of the President of Ukraine, legal acts of the Cabinet of Ministers of Ukraine, the Supreme Council and Rada of the Autonomous Republic of Crimea contradict the Constitution of Ukraine.
References
1. Law of Ukraine of July 13, 2017 No. 2136-VIII "On the Constitutional Court of Ukraine". Verkhovna Rada of Ukraine, 2017, No. 35, Art. 376.
2. Code of Administrative Procedure of Ukraine. Verkhovna Rada of Ukraine Information, 2005, N° 3536; 37 ,, Art. 446.
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15. Constitution of Ukraine (as amended). URL: https://zakon.rada.gov.ua/laws/show/254k/96-vr (accessed: 06/10/10).
МОДЕЛИ ГЛОБАЛИЗАЦИИ УГОЛОВНОГО СУДОПРОИЗВОДСТВА
Кучерков И.А.
к.ю.н., доцент
кафедра уголовного права, уголовного процесса
и криминалистики
ФГАОУ «Российский университет транспорта» (МИИТ) MODELS OF GLOBALIZATION OF CRIMINAL PROCEDURE
Kucherkov I.
Candidate of law, associate Professor Department of criminal law, criminal procedure and criminalistics Russian University of Transport» (MUT)
Аннотация
В статье рассмотрены современные модели глобализации уголовного судопроизводства. Отмечается, что модели уголовного судопроизводства основаны на единстве правовой идеологии. Выделяются две основные модели глобализации уголовного судопроизводства - колониальная модель и модель, основанная на взаимодействии правовых систем, рассматриваются их основные характеристики.
Abstract
The article considers modern models of globalization of criminal procedure. It is noted that the models of criminal procedure are based on the unity of legal ideology. There are two main models of globalization of criminal justice-the colonial model and the model based on the integraction of legal systems, their main characteristics are considered.
