Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 107

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LES COURS CONSTITUTIONNELLES

a temporary prohibition to take a certain action. The interim order expires
on the day the decision was passed or the resolution was issued to terminate
the constitutional proceedings in the case.
This provision is an important step in ensuring the effectiveness of the
constitutional complaint as a national remedy. After all, if the Constitutional
Court adopts a decision in favour of the subject of the constitutional
complaint the latter obtains an opportunity to appeal to courts of general
jurisdiction to review the final court decision in view of the newly discovered
circumstances. Such possibility is expressly provided for by the procedural codes (Article 245.2.5 of the Code of Administrative Proceedings of
Ukraine, Article 361.2.4 of the Civil Procedural Code of Ukraine, 459.2.4 of
the Criminal Procedural Code of Ukraine). In addition, the Final Provisions
of the Law on the Constitutional Court provided that the initiation of
proceedings under new circumstances applies not only to instances where
the Court established unconstitutionality of the law of Ukraine or another
act (their separate provisions), but also when it provided official interpretation of the provisions of the Constitution of Ukraine, which is different
from the one which was applied by the court in deciding on the case.
Regarding the requirement to provide fair compensation upon the results
of consideration of a constitutional complaint, such an opportunity within
the constitutional proceedings in the case upon a constitutional complaint
is not provided. Yet, in case of adopting a decision upon a constitutional
complaint in favour of the subject of a constitutional complaint, the latter
may take advantage of the constitutional right to reimbursement at the
expense of the state or bodies of local self-government of the material and
moral damage caused by illegal decisions, actions or omissions of state
authorities, local self-government bodies, their officials and officers in the
exercise of their powers guaranteed by Article 56 of the Constitution of
Ukraine.
Thus, the analysis of the provisions of the Law on the Constitutional
Court allows us to propose a two-tiered test of the assessment of the situation to which a constitutional complaint relates (in case of its compliance
with other admissibility conditions as defined in Article 77 of the Law).
This test includes:
1) resolving the question of the substantiation of the claim of the subject
of the right to a constitutional complaint concerning violation of human
rights guaranteed by the Constitution of Ukraine (conditionally - "test for
violation of rights and freedoms"); 2) an assessment of the compliance of
the law (its separate provisions) with the provisions of the Constitution of
Ukraine (conditionally - "test for the constitutionality of the law").
In addition, the Law provides that if the Court, when considering a
case upon a constitutional complaint, declares the law of Ukraine (its

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