Конституційна юстиція в умовах сучасної трансформації права

Abstract

CONSTITUTIONAL JUSTICE IN THE CONDITIONS OF MODERN TRANSFORMATION OF LAW ABSTRACT. Due to the long-standing dominance of legal positivism, in which the law was reduced to state will and coercion, there are still problems in Ukraine with the introduction of effective constitutional justice. Modern constitutionalism is the antithesis of voluntarism in law, as it aims to limit power and is filled with value parameters in law, including human dignity, freedom and equality. The article considers the modern development of constitutional justice on the background of transformations in law. In the first part, through the prism of legal pluralism and constitutionalism, the peculiarities of the models and nature of constitutional justice as a sui generis court are revealed. The second part of the paper will highlight the relationship between constitutional justice and the constituent power of the people. The third part is devoted to the issue of democratic legitimization of constitutional justice in the light of the dilemma of juristocracy and the supremacy of parliament. Problems of ensuring the effectiveness of the constitutional complaint are the subject of analysis of the fourth part. Fifth, the features of the binding force of decisions of the constitutional justice in the light of respect for human rights and the efficiency of justice are revealed. Bodies of constitutional justice do not stand above other institutions of power – they are equal in the system of separation of powers. Their main task is to protect the constitution through judicial means within the framework of the rule of law and due process. At the heart of ensuring constitutional order are the activities of independent bodies of constitutional justice (depending on the model - constitutional courts or councils, supreme courts), which through legal means ensure the separation of powers and protection of human rights. The constitutional composition in transitional democracies should consider constitutional justice as a stabilizing institution in ensuring a balance in the distribution of powers and ensuring uniform legal approaches in the interpretation of fundamental principles and protection of human rights. Specialized bodies of constitutional justice are sui generis courts, which are independent of political institutions and, based on the rule of law and due process, ensure the supremacy of the constitution as a set of fundamental values and principles of national law, ensuring limited governance and protection of human rights. Effective guarantees of the independence of the constitutional judiciary are an appropriate guarantee for resolving disputes over powers between constitutional authorities and relieving tensions in the event of conflicts between them through legal means. The Constitutional Court of Ukraine must act on the basis of the rule of law and ensure proper legal reasoning of its decisions in view of its democratic legitimacy in the constitutional composition of public power as an independent arbiter in the system of separation of powers. Recognition of constitutional complaints as admissible requires proper legal argumentation as the basis for democratic legitimization of constitutional justice. The availability and effectiveness of legal protection through a constitutional complaint is due to the peculiarities of a holistic, dynamic interpretation of the Constitution and constitutionalconformist interpretation of laws, which is the basis of legal reasoning of the decisions of the CCU. The review of judgments on the basis of a decision of the Constitutional Court on constitutional complaints is based on the positive obligation of the state to protect human rights and restore them in case of harm. KEYWORDS: constitutional complaint; constitutional justice; constitutional justice bodies decisions; constitutional order; constitutionalism; due process of law; rule of law.