Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 106

MYKHAILO HULTAI - UKRAINE

97

Rights, which applies certain provisions of the European Convention to
protect the rights of legal persons (in particular, property rights or prohibition of discrimination).
At the same time, today there is no established position of the
Constitutional Court itself on this issue; on the contrary, in its earlier
decisions, the sole body of constitutional jurisdiction held the opposite position. Thus, in the Decision in the case upon the constitutional
petition of the National Bank of Ukraine concerning the official interpretation of the provision of Article 58.1 of the Constitution of Ukraine
(case on the retroactive effect in time of laws and other regulatory acts)
dated February 9, 1999 N° 1-rp/99 the court stated: "In the Constitution
of Ukraine, Article 58 is contained in Chapter II 'Human and Citizen's
Rights, Freedoms and Duties', which consolidates primarily human and
citizen's constitutional rights, freedoms and responsibilities and their guarantees. This is evidenced by the title of this chapter, as well as a systematic
analysis of the content of its articles and Article 3.2 of the Constitution of
Ukraine". Accordingly, the Court held that the provisions of Article 58.1
of the Constitution of Ukraine that laws and other normative-legal acts
have no retroactive effect in time, except when they mitigate or cancel the
responsibility of a person, must be understood in the sense that it concerns
a person and citizen (natural person). It is obvious that the circle of the
rights and freedoms guaranteed by the Constitution, the violation of which
can be referred to by the subject of constitutional complaint - a legal entity
of private law, will be clarified precisely through the formation of the relevant case law of the Constitutional Court, while it is appropriate to take
into account the arguments presented in the judgments of the European
Court of Human Rights.
Turning to other requirements which prove that the constitutional
complaint is an effective means of legal protection on the way to the
European Court of Human Rights, let us dwell upon the possibility of
a constitutional court to prevent the execution of actions if their consequences are irreversible, as well as the possibility of restoring violated rights
on the basis of a binding decision in a case.
As regards the first of these requirements, the Law on the Constitutional
Court expressly provided for the possibility of ensuring the constitutional
complaint. Pursuant to Article 78 of the Law, when considering a constitutional complaint, the Grand Chamber, in exceptional cases, may, on
its own initiative, take measures to secure a constitutional complaint by
issuing an interim order which is an executive document. The ground for
securing the constitutional complaint is the need to prevent irreversible
consequences that may arise in connection with the execution of the final
court decision. The way to secure a constitutional complaint is to establish

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

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