Doctrinal Issues of Introduction of the Constitutional Complaint

Abstract

The fundamental rights find their expression in the legislation by defining the degree of state interference in private autonomy. A number of factors determine the legislative function in the state as the following: the concept and functions of the law, the scope of legislative competence of the parliament, the distribution of legislative competences between the parliament and other state bodies, as well as the requirements of the legislative procedure. Under such standards, the development of consideration of constitutional complaints by the Constitutional Court lies in the plane of ensuring a state's restrained intervention in the sphere of private autonomy, provided it concerns civil and political rights. The quintessence of this approach is the separate opinion of the judge of the European Court on human rights ad hoc Stanislav Shevchuk in the case of Shmushkovich v. Ukraine. However, this approach is not suitable for social rights – here the CCU needs to study the following parameters of the quality of the law: 1) the intensity (density) of legal regulation; 2) accessibility and legal certainty of the law; 3) providing of social infrastructure (social insurance systems, organizations and activities of social protection institutions, providing of social benefits and benefits, and effective control over public finances). Failure to comply with these standards indicates a legislative omission that is nothing but an outright attack on human dignity as a fundamental constitutional value by a legislator who does not properly enforce quality legislation. This will generate inflation of the law in the form of its fragmentary concretization in regulatory acts of the executive and local public administrations, and the general courts will be overwhelmed with a series of claims related to implementation of social rights, an avalanche of which can reach the Constitutional Court of Ukraine in the form of constitutional complaints. Therefore, the currently dominant doctrine to refuse to overcome the circle of sins and gaps in legislation cannot withstand its verification at the level of achievements of the modern doctrine of constitutionalism. Constitutional Court of Ukraine should look for innovative approaches to protect human rights and freedoms in the light of constitutional values and principles. At present there have been frequent instances of rather a peculiar application of the constitutional complaint serving as a tool for resolving corporate disputes that ought to be resolved via other means of legal protection. Also, the practice of the Grand Chamber of the Constitutional Court in its decisions to not refer to legal grounds for a constitutional complaint consideration seems out of the way as well, given this is an exceptional procedure. It is the Senate to deal with complaints. At least in its decisions the Grand Chamber should at least briefly indicate the legal reasons for such a proceeding. The approved truncated normative (statutory) model of a constitutional complaint in an utterly restricted manner provides constitutional review of arbitrary decisions of the public administration bodies. Unlike other countries with a legal practice of a constitutional complaint, it is necessary to deplete judicial means for the human rights protection.