Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 99

LES COURS CONSTITUTIONNELLES

through judicial law-making, when the courts ensure the supremacy of the
Constitution and the exercise of human rights by their own decisions3. At
the same time, the authors cited the possibility of considering constitutional
complaints in the absence of a special law4. Given this, the constitutional
model of a constitutional complaint, foreseen by Article 151-1 of the
Fundamental Law, for unknown reasons, did not indicate its intrinsic
connection with the alleged violation of fundamental rights and freedoms, which stipulates the legal nature of the constitutional complaint as
a national means of protecting human rights5. It is the adopted Law on the
Constitutional Court, although with a certain delay, among the requirements with which a constitutional complaint must comply, that indicated
"the substantiation of the allegations of unconstitutionality of the law of
Ukraine (its separate provisions), and mentioned which of the human rights
guaranteed by the Constitution of Ukraine, in the opinion of the subject
of the right to a constitutional complaint, was violated as a result of the
application of the law" (clause 6 of paragraph two of Article 55 of the Law).
However, this requirement raises the need to clarify a number of important
issues, among which: the role of a constitutional complaint in the context
of the exhaustion of all domestic remedies as a prerequisite for appeal to
the European Court of Human Rights, as well as the "accessibility" and
"effectiveness" of the constitutional complaint in view of relevant Council
of Europe standards.
First of all, it should be noted that it is the violation of human rights by
legal act of state power as the basis of a constitutional complaint, combines
its various models, accordingly, a constitutional complaint serves as a
means of their renewal, protection and prevention of further violations.
According to O. Luchterhandt, a constitutional complaint means that the
fundamental rights guaranteed by the Fundamental Law are not only "loud
declarations", but are subjective rights that a person can refer directly to.
An individual in this case, "having armed" only with the Constitution,
makes a challenge to the state and forces it to acquit itself in court for its
behaviour. From a historical point of view, this is an "incredible change
both psychologically and legally"6. It is the role of the constitutional
3. V. Lemak, O. Petryshyn Constitutional complaint in Ukraine: problems of the
mechanism of implementation // Bulletin of the Academy of Legal Sciences of Ukraine.
- 2017 - No. 2 (89). - p. 87.
4. Ibid. - p. 83-86.
5. For details see: M. Hultai, Constitutional complaint in the mechanism of access to
constitutional justice: [Text] monograph/M. Hultai. - X.: Law, 2013. - 424 p.
6. O. Luchterhandt, The role and independence of the constitutional court in a state
governed by the rule of law [Text]/O. Luchterhandt, The Role of the Constitutional
Court in the Implementation of Citizens' Constitutional Rights and Freedoms: Conf.,
September 22, 2009. - Minsk: Amalfeia, 2010. - p. 32-33.

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

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