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The international conference “Constitutional Control and the Processes of Democratic Transformation in Modern Society” was held in Kyiv on the occasion of the 20th anniversary of the Constitutional Court of Ukraine
On October 7, 2016 international conference “Constitutional Control and the Processes of Democratic Transformation in Modern Society” dedicated to the 20th anniversary of the Constitutional Court of Ukraine started its work.
The conference was organised by the Constitutional Court of Ukraine in co-operation with the European Commission for Democracy through Law (Venice Commission), OSCE Project Co-ordinator in Ukraine, German Foundation for International Legal Co-operation (IRZ).
The conference was dedicated to the constitutional control in democratic transformation of legal mechanisms of human rights protection, the transformation of social legislation in times of financial and economic crisis and to the problems of mutual influence in conditions of democratic development.
The conference was attended by representatives of the Council of Europe, European Union, Organisation for Security and Co-operation in Europe (OSCE), constitutional courts of Republic of Armenia, Republic of Austria, Republic of Azerbaijan, Republic of Belarus, Republic of Bulgaria, Republic of Croatia, Republic of Cyprus, Georgia, Hashemite Kingdom of Jordan, Republic of Kazakhstan, Kyrgyz Republic, Republic of Latvia, Republic of Lithuania, Republic of Macedonia, Republic of Moldova, Montenegro, Romania, Republic of Turkey, representatives of the Federalist Society for Law and Public Policy Studies of USA, state and judicial authorities of Ukraine, people's deputies of Ukraine, representatives of research bodies and academic institutions of Ukraine.
Chairman of the Constitutional Court of Ukraine Yurii Baulin opened the conference. He welcomed the participants and expressed gratitude for attending. The Court’s leader informed that the Constitutional Court of Ukraine was founded on October 16, 1996, when pursuant to the requirements of the first constitution after restoration of independence of the Ukrainian state, the parliament adopted the Law of Ukraine “On the Constitutional Court of Ukraine”. “Years have passed, the Court’s composition has changed, but, nevertheless, acting under and within its constitutional authority, the Constitutional Court of Ukraine has consistently followed the principle of “sovereignty of the individual”, which is based on natural rights and freedoms that belong to every person regardless of their political opinion, nationality, religion, nationality, gender or economic status”, said Yurii Baulin. He also noted that marking its 20th anniversary the Constitutional Court steps forward with significantly upgraded constitutional powers, since the Law of Ukraine “On Amendments to the Constitution of Ukraine” (on justice) dated June 2, 2016 came into force on September 30, 2016.
President of Ukraine Petro Poroshenko addressed the audience with welcome speech, and emphasises that constitutional amendments on justice that entered into force on September 30, 2016 are the foundation for the reform of justice and the Constitutional Court and significantly improve the protection of rights of Ukrainians.
“It is crucial that citizens have gained the right to appeal to the Constitutional Court with a constitutional complaint in case a person believes that the final court decision in his or her case does not meet the Constitution. This novation significantly increases the level of protection of citizens’ rights and freedoms,” emphasised the Head of State.
“This is a powerful additional mechanism successfully used in other countries,” Petro Poroshenko added noting that Ukrainian lawyers had thoroughly examined the experience and practice of other countries.
The President drew attention to the need for exploring the experience of the neighboring countries taking part in the conference in order to qualitatively implement the given instrument in the applicable laws that are currently being meticulously discussed by experts.
The President stressed that the reform had implemented norms that would substantially enhance the independence of the Constitutional Court – relieve it of untypical functions and expand powers.
“The Constitutional Court must strictly uphold the rule of law and the Constitution in times of reformation and implementation of vital changes. It is important to have no factionalism and backstage struggle. Definitely, there cannot be a division between judges on somebody's quota, origin, education, specialisation or on any other grounds, Petro Poroshenko is convinced.
“Every judge must be able to work professionally and fairly under the letter of the law, spirit of the law and his own conscience. This applies both to consideration of affairs and decisions crucial for the country and complaints of ordinary citizens,” he added.
The President emphasised that he would submit the draft law on the Constitutional Court of Ukraine for consideration by the Verkhovna Rada immediately after its finalisation and discussion. “I am not interested in the delay of this process,” said Petro Poroshenko.
The Head of State is hopeful that the implementation of novations would facilitate the restoration of justice and judicial authority. “Now, when ordinary citizens have the right to appeal to the Constitutional Court, the Court has a chance to strengthen its authority in the eyes of both experts and society. Professionalism of judges and legal flawlessness of their decisions will become guarantors of independence of the Constitutional Court and restoration of public trust,” he said.
Petro Poroshenko emphasised that judges of the Constitutional Court – both current and those who come to court soon – are responsible for strengthening the role of the court for the protection of constitutional rights and freedoms.
“Positions expressed by the Constitutional Court in its decisions, should influence the development of law in the country, to form legal culture and be professional guidelines of practitioners and scholars and lawyers”, he said.
President of the European Commission for Democracy through Law (Venice Commission) Gianni Buquicchio also addressed the participants. He congratulated the Constitutional Court of Ukraine on the 20th anniversary and emphasised that the task of the Court was not easy, because the court in the course of its operation faced to many difficulties.
Ukraine is now at the stage of changes and their implementation should be carried out in full compliance with the principles of judicial independence, noted Gianni Buquicchio.
After the welcome speeches, special postal cancellation ceremony on the occasion of the 20th anniversary of the Constitutional Court of Ukraine was held with participation of the President of Ukraine Petro Poroshenko, Chairman of the Constitutional Court of Ukraine Yurii Baulin, President of the European Commission for Democracy through Law (Venice Commission) Gianni Buquicchio and Deputy Director of the Ukrposhta Oleksandra Pertsovska.
The first session of the conference was chaired by judge of the Constitutional Court of Ukraine, professor Stanislav Shevchuk.
Participants focused on the processes of introduction and establishment of a system of legal protection of human rights especially in transitive societies, i.e. societies that either have already passed the stage of democratic transit (transition from authoritarianism to democracy), or are still at this stage. Participants tried to find out conditions, characteristics and factors that are affecting on changing of the system of human rights protection on the new constitutional principles and to establish the role and importance of constitutional jurisdiction at this stage of democratic development of modern societies.
Director of German Foundation for International Legal Co-operation (IRZ) Veronika Keller-Engels, National Legal Advisor of the OSCE Project Co-ordinator in Ukraine, member of the Constitutional Commission Oleksandr Vodyannikov and Chairman of the Union of Lawyers of Ukraine Sviatoslav Piskun welcomed the participants of the Forum.
During this meeting reports were presented by Vice-President of the Constitutional Court of the Republic of Austria Brigitte Bierlein (“Constitutional Control and Democratic Transformation of Legal Mechanisms of Human Rights Protection”), President of the Supreme Court of the Republic of Cyprus Myron-Michael Nicolatos (“Constitutional Control and the Processes of Democratic Transformation in Modern Society”), President of the Constitutional Court of Montenegro Desanka Lopičić (“State Governed by Rule of Law and Constitutional Judiciary in Montenegro”), President of the Constitutional Court of Georgia (2006-2016) George Papuashvili (“Constitutional Control and Democratic Transformation of Legal Mechanisms of Human Rights Protection”).
Vice-President of the Constitutional Court of the Republic of Austria Brigitte Bierlein thanked for the invitation to participate in the international conference and on behalf of the President of the Constitutional Court of Austria Gerhart Holzinger congratulated the Constitutional Court of Ukraine on the anniversary.
In her report Brigitte Bierlein focused on the history of the formation of constitutional justice in Europe, stressed that the Constitutional Court of Austria has almost centenary history. She also highlighted the issues of expansion of public access to judicial institutions in the country and stressed that strengthening cooperation and dialogue between the constitutional courts of different countries is very important.
Brigitte Bierlein noted, that the Constitutional Court of Austria has been maintaining fruitful relations with the Constitutional Court of Ukraine for many years and expressed confidence that these relations will stay the same in the future.
The effective protection of human and citizens’ rights and freedoms depends on many factors, the first of which is independence of the judiciary. “Citizens can not protect themselves if their country's judicial system is not independent,” stressed the President of the Supreme Court of the Republic of Cyprus Myron-Michael Nicolatos in his speech.
Another important factor – continued the speaker – is respect for the rule of law. He identified two principles of the rule of law, “no one can be above the law” and “all are equal before the law.”
President of the Constitutional Court of Georgia (2006-2016) George Papuashvili began his speech with greetings to the Ukrainian people and Constitutional Court of Ukraine on the 20th anniversary of its creation. This conference is very important for the exchange of legal expertise between European countries, noted G.Papuashvili.
The speaker said that in 20 years of the activity of the Constitutional Court of Georgia the Court has gained considerable experience in constitutional law, which continues to serve the basis for strengthening the rule of law in the country.
He spoke in details about the ways of restoration of the independence of Georgia and building democratic-based models of governance. “In parallel with the progress of the country the whole constitutional practice provides a legal basis and helps strengthen the democratic system in future”, concluded the speaker.
George Papuashvili dwelt upon separate constitutional issues that were the subject of consideration for the Constitutional Court of Georgia, which had a significant impact on the democratic process in Georgia, in particular concerning the electoral legislation, foreign citizens appeal to court, the right for freedom of assembly and demonstrations and othrs.
Judges of the Constitutional Court of Ukraine Victor Kryvenko and Victor Kolisnyk chaired the second session.
Participants aimed at outlining the main approaches to understanding the so-called social rights and clarify the characteristics of their implementation in the context of social functions of the state, its positive obligations and the real state of the economy at different stages of development of the society, especially in times of financial crisis, and trace the main approaches and trends in the formation of the legal positions of constitutional jurisdiction related with providing the conditions for the realisation of these rights.
Expert of the German Foundation for International Legal Co-operation (IRZ), former judge of the Federal Constitutional Court of Germany Dieter Hömig (“Constitutional Control and Protection of Human Rights during the Period of Democratic Changes”), Vice-President of the Constitutional Court of the Republic of Latvia Uldis Ķinis (“The Constitutional Complaint in the Case-Law of the Constitutional Court of the Republic of Latvia”), Member of the Constitutional Court of the Republic of Armenia, former Judge of the European Court of Human Rights Alvina Gyulumyan (“Constitutional Complaint as a Remedy for the Protection of Human Rights in the Republic of Armenia”), President of the Constitutional Court of the Republic of Macedonia Elena Gosheva (“Constitutional Control and Protection of Human Rights in the Republic of Macedonia”), Deputy Chairman of the Constitutional Court of the Republic of Belarus Olga Sergeeva (“Role of the Constitutional Court in Increasing of the Efficiency of Mechanisms of Human Rights Protection”), judge of the Constitutional Court of the Republic of Turkey Muammer Topal (“The Review of Legal Mechanisms for Protection of Human Rights”), President of the Constitutional Court of the Republic of Moldova, Acting President of the Association of Constitutional Justice of the Countries of the Baltic and Black Sea Regions (BBCJ) Alexandru Tănase (“The Exception of Unconstitutionality as an Element of a Fair Trial”), Expert of the German Foundation for International Legal Co-operation (IRZ), Scientific Researcher of Max Planck Institute for Comparative Public Law and Public International Law Matthias Hartwig (“The Constitutional Protection of Social Rights in Times of Economic Crisis”) presented their reports during the session.
During the session Olga Sergeeva underlined that at present human rights and freedoms are of particular importance that comes with a new understanding of the nature of human capabilities, their place in the core values of the democratic rule of law. She added that the compliance of human rights and freedoms, guarantees of their implementation, the state of their security is the most objective reflection of the maturity of democracy, economic security, social policy of the state. Work of the constitutional jurisdiction to ensure the supremacy of the Constitution and its direct action is aimed at achieving the main constitutional goal – democratic social legal state, the highest value of which is individual, its rights and freedoms, and higher purpose – to ensure human and citizens’ rights and freedoms.
Alexandru Tănase noted in his report that the exclusion of unconstitutionality with all its features is the most common and effective means of indirect access of citizens to the Constitutional Court. In the states with such mechanism most complaints come to the constitutional courts from the courts of first instance. He also said that any person has the right for the effective protection of the rights, freedoms and interests of the competent judicial authorities.
Matthias Hartwig dwelt upon social security, which is extremely relevant at this time, and identified "three levels of protection: dignity, equality, property". The spokesman stressed that the crisis affects the level of welfare of citizens, because the court must act as a defender of human rights during the crisis. He also noted that decisions of the constitutional court shall be independent.
On October 8, 2016 the third session of the international conference was chaired by the Chairman of the Constitutional Court of Ukraine Yurii Baulin who congratulated the audience on the Lawyer’s Day.
This day the participants of the forum considered application of the legal doctrine by constitutional jurisdiction bodies for shaping and justification of legal positions, including legal opinions related to guaranteeing the democratic constitutional order and democratic progress of modern society as well as the role of constitutional justice in the development of legal doctrine.
President of the Constitutional Court of the Republic of Lithuania, Acting President of the World Conference on Constitutional Justice (WCCJ) Dainius Žalimas (“Official Constitutional Doctrine: Concept, Significance and Main Principles of Development”), Member of the Constitutional Council of the Republic of Kazakhstan Unzila Shapak (“Constitutional Control in Conditions of Democratic Constitutionalism”), judge of the Constitutional Court of the Republic of Azerbaijan Jeyhun Garajayev (“The Implementation of the Principle of Legal Certainty through Exercise of Constitutional Control”), judge of the Constitutional Chamber of the Supreme Court of Kyrgyz Republic Cholpon Osmonova (“Protection of Citizens' Constitutional Rights in the Frames of Activity of the Constitutional Chamber of the Supreme Court of Kyrgyz Republic”), Secretary General of the Constitutional Court of the Republic of Lithuania Ingrida Danėlienė (Presentation of the 4th Congress of the World Conference on Constitutional Justice) presented their reports.
He wished victory in the struggle against Russian aggression and on the way towards European and Euro-Atlantic integration, victory at the domestic front of reforms and courage and success to the Constitutional Court of Ukraine on the way to strengthening and protection of democratic European values and the rule of law and the supremacy of the constitution.
The speaker touched upon the definition of "constitutional doctrine" which, n his opinion, has two meanings. According to the first meaning, the term “doctrine” can be understood as a concept and a theory formulated by lawyers. The second refers to the official constitutional doctrine, formulated by the institutions that conduct constitutional control.
At the same time Dainius Žalimas stressed that the official constitutional doctrine combines academic legal doctrine with the text of the constitution. Thus, the official constitutional doctrine can be defined as the result of interpretation of the constitution, which is performed by the competent institution based on academic and legal doctrine.
Cholpon Osmonova welcomed all the participants of the international conference on behalf of the Chairman of the Constitutional Chamber of the Supreme Court of Kyrgyz Republic and expressed gratitude to the organizess for the invitation to participate in this event. The judge noted that the topic of the conference is very relevant as the secure and compliance of the constitutional rights and freedoms is seen as the most important task of the state.
She also stressed that the current period of development of the legal system of Kyrgyz Republic is marked with the distinctive new stage of constitutional justice, related to the improvement of mechanisms to protect human and citizens’ rights and freedoms.
Ingrida Danėlienė spoke about preparations for the 4th Congress of the World Conference on Constitutional Justice, the organidation that promotes constitutional justice and dialogue between judges of constitutional courts globally.
This Congress coincides with another significant event for the Republic of Lithuania – the 25th anniversary of the Constitutional Court of the Republic of Lithuania, said Ingrida Danėlienė, and invited the participants of the international conference to participate in the Congress.
Presentations were followed by a discussion.
Concluding the conference, Chairman of the Constitutional Court of Ukraine Yurii Baulin thanked the participants for warm and sincere wishes to the Constitutional Court of Ukraine on the occasion of its anniversary and for their participation in the conference.
Materials of the international conference will be published in a separate volume, and next edition of the "Bulletin of the Constitutional Court of Ukraine" will be dedicated to the work of the conference.