Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 108

MYKHAILO HULTAI - UKRAINE

provisions) as conforming to the Constitution of Ukraine, but at the
same time found that the court, when applying the law of Ukraine (its
provisions), interpreted it in a method that does not comply with the
Constitution of Ukraine, the Constitutional indicates it out in the operative part of the decision (Article 89.4 of the Law). Such provision of the
Law on the Constitutional Court of Ukraine, according to the Venice
Commission, "is a step in the right direction, which allows further study
of the constitutionality of acts, although it cannot introduce a complete
constitutional complaint" (paragraph 44 of the Opinion). At the same time,
in practical terms, this means the need to supplement the proposed test
with the third (optional) stage - assessment of the "constitutionality" of the
interpretation of the law. However, even having stated the interpretation of
the law in a way that does not comply with the Constitution of Ukraine,
the Court will not be able to provide its official interpretation, since the
interpretation of the laws of Ukraine no longer falls within the powers of
the Constitutional Court of Ukraine.
Thus, the experience of foreign states, generalised by the Venice
Commission, suggests that a normative constitutional complaint cannot
in any case satisfy the requirements for effective national remedies in
accordance with Article 13 of the European Convention (see, in particular,
Vekony v. Hungary (No. 65681/13 dated January 13, 2015). The model of
a "normative" constitutional complaint, introduced in Ukraine, directed
only at the law, and not on the acts of its application in a specific case, will
also not become a national "filter" for all cases before the referral of individual applications to the European Court of Human Rights. In practice,
human rights violations are more often caused not by a "technically correct
application" of an unconstitutional law which can be appealed against by
such a complaint, but is the result of an unconstitutional individual act,
which may, but not necessarily, adopted on the basis of a law that complies
with the Constitution. Thus, a large number of human rights violations do
not fall within the scope of the normative complaint and "the effectiveness
of this filter becomes insignificant"16.
However, such a model of a complaint can be considered an effective
means of protecting human rights on the way to the Strasbourg Court in
cases of violation of rights and freedoms by the law applied in a particular
case, and not an individual act adopted contrary to the "constitutional" law.
This approach is shared by the European Court of Human Rights itself
16. Draft Study on Individual Access to Constitutional Justice on the basis of comments
by Mr. G. Harutyunyan, Ms. A. Nussberger, Mr P. Paczolay. European Commission
for Democracy Through Law (Venice Commission), para 84 [Electronic Resource].
- Access: http://www.venice.coe.int/ webforms/documents/CDL-JU(2010)018rev-e.
aspx#P165_13720.

http://www.venice.coe.int/

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

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