Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 104

MYKHAILO HULTAI - UKRAINE

the issue of violation of the rights guaranteed by the Constitution of Ukraine
and not resorting to an assessment of the correctness of application of the
law by courts of general jurisdiction. Indeed, as H. Harutyunyan rightly
states, the constitutional court should consider only "constitutional issues",
although their detection may be complicated, for example, regarding the
right to a fair trial, since any procedural violation of ordinary courts may
be considered a violation of the right to a fair trial, protected by Article 6
of the European Convention14. In the Opinion of the Venice Commission
in providing the example of the Federal Republic of Germany also stresses
that "the Constitutional Court applies the Constitution as "a measure" of
control and does not decide on the correct application of the law in other
respects. As a result, the Constitutional Court exercises subsidiary, specific
constitutional control and does not act as "the 4th instance" (paragraph 38
of the Opinion).
The next issue that will arise in connection with the application of the
relevant legislative requirement regarding constitutional complaint is the
wide scope and content of human rights and freedoms guaranteed by the
Constitution of Ukraine, which also covers social and economic rights. At
the same time, the Ukrainian legislator did not take into account the experience of the leading European countries, which ensure, with the help of
the institute of constitutional complaint, only the so-called negative rights
that have the constitutional effect, whereas a group of human rights having
a programmatic character (primarily social rights, sometimes referred to
as "social intentions", or "social goals"), is not given legal means for their
protection. Violations of such rights (in particular, total or partial failure
to ensure them) are not recognised as grounds for filing a constitutional
complaint.
This approach is based on the liberal theory of human rights, which
proceeds from the fact that socio-economic rights are declarative and depend
on the degree of development and available resources of a particular state,
the implementation of its social functions. According to V. Seriohin, within
the "western" approach, such rights are proclaimed, but cannot be protected
by court procedure. The state undertakes to promote the realisation of
these rights, but taking into account the realities of socio-economic life
does not guarantee them to all15. It should be added that these rights are
14. H. Harutyunyan, Individual Constitutional Complaint: European Trends of System
Development [Text]/H. Harutyunyan, Protection of Human Rights by the Bodies of
Constitutional Justice: Opportunities and Problems of Individual Access: Materials of
International. Conf., Kyiv, September 16, 2011/Constitutional Court of Ukraine; responsible Ed. A. Holovin. - K.: Logos, 2011. - p. 75.
15. V. Seriohin, Constitutional Law of Ukraine: Teach. manual [Text]/V. Seriohin;
Ministry of Internal Affairs of Ukraine, Kharkiv. - Kh.: 2010. - p. 94-95.

Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ?

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