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Human rights in Ukraine 2011. CONSTITUTIONAL PROCESS IN UKRAINE: 2011 — EARLY 2012. CURRENT TRENDS AND SUMMARY

22.03.2012

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The constitutional process in Ukraine in 2011 had signs of peaceful evolutionary process; however, strategically it fell under the influence of the idea of the Constitutional Assembly of Ukraine, which would lead to significant renewal of the Fundamental Law of Ukraine; it had been articulated by the first President of Ukraine Leonid Kravchuk early in 2010. In 2011, the initiative of L. Kravchuk was backed up by current President of Ukraine Viktor Yanukovych, which signed the Decree “The question of formation and organization of the Constitutional Assembly” on January 25, 2012, No. 31/2012.

This move of the President was met with mixed feelings of the public and experts, because 100 members of the Constitutional Assembly working on a voluntary basis are not likely to draft a new Constitution of Ukraine form the technical and juridical point of view. The political opposition suspected the authorities of an attempt to use the Assembly and legitimize the constitutional reform only in the formal sense, and therefore refused to join the “professional-civil” forum. However, in our opinion, the steps of Kyiv officialdom aiming at renewal of the Constitution should not be underestimated, as they are justified by the evidence of the critical attitude of the Ukrainian state and society to the current Fundamental Law.

As early as in 1996, current Chairman of the Central Election Commission (CEC) of Ukraine and the constitutional law professor V. Shapoval said, the Ukrainian Constitution of 1996 was developed and adopted as the fundamental law of the state rather than of the civil society (as it should be). Therefore, from the very outset its regulatory potential was limited in time and space. The Constitution of Ukraine proved to be appropriate as a Fundamental law for the transit period. However, during 16 years of intensive use, it has almost exhausted its inherent positive regulatory properties. The 1996 Constitution was designed for post-totalitarian state and society; however, it is proved to be functionally deficient under conditions of broader political freedom, economic market and increasing activity of civil society.

No wonder, the structural weaknesses of the Constitution became evident in the domain of law enforcement, which may be exemplified with “resonance” judgments of the Constitutional Court of Ukraine on the interpretation of articles and provisions of the Fundamental Law in 2011 and early 2012. In order to explain this thesis, we have chosen typical decisions of the Constitutional Court of Ukraine of October 20, 2011; December 26, 2011; January 20, 2012; and January 25, 2012. The political and legal commentaries will tally up the expert opinion on strategy for the constitutional process in Ukraine.

The political and legal commentary on the Constitutional Court Judgment
in response to the constitutional submission from the Security Service of Ukraine concerning an official interpretation of the provisions of part three of Article 62
of the Constitution of Ukraine from October 20, 2012

The reason for the submission of the Security Service of Ukraine, as noted by the Constitutional Court (hereinafter the Court), was the need to obtain an official interpretation of Article 62 of the Constitution of Ukraine (1996) stating that “the prosecution cannot be based on the evidences obtained illegally.”

The legal entity entitled to constitutional submission substantiated the practical need for an official interpretation of this provision by ambiguous court practice in evaluating the admissibility of evidence in criminal cases. In his opinion, the evidences submitted by any person pursuant to Article 66 of the Criminal Procedure Code do not meet admissibility requirements, if they are obtained with the help of violations related to the unlawful limitation of fundamental rights and freedoms, as well as violations resulting from activity having formal signs of investigation and search operations carried out by persons who were not officially authorized to perform them. According to the legal entity entitled to constitutional submission, the agencies of inquiry, pre-trial investigation and judicial agencies and their officers have no right to admit factual data as evidence in a criminal case, if they are received illegally in the light of the provisions of Article 62 of the Constitution of Ukraine.

Having reviewed the petition, the Constitutional Court of Ukraine has concluded that the collection, verification and evaluation of evidence are possible only in the manner prescribed by law in detail. According to Article 65 of the Criminal Procedure Code, the evidence in a criminal case are factual data, on the basis of which, in accordance with the established procedure, the examining body, investigator and court determine the presence or absence of a socially dangerous act, culpability of the person, who committed the act, and other circumstances relevant to solving the case. These data are established with the help of the testimony of a witness, victim, suspect, accused, expert conclusion, material evidence, protocols of investigative and judicial actions, protocols with relevant annexes compiled by the authorities as a result of search operations and other documents. This list of subjects that can submit evidence is defined in special legislation.

Furthermore, as the Court noted, only the evidence that was obtained in accordance with criminal procedure can be recognized and used as admissible evidence in a criminal case. Therefore, the verification of evidence on their admissibility should be considered a guarantee of rights and freedoms of citizens in the criminal process and a means to facilitate the adoption of legal and equitable judgment in the case. The analysis of the provisions of Article 62 of the Constitution of Ukraine about the fact that “an accusation shall not be based on illegally obtained evidence” substantiated the conclusion of the court that the imputation of a crime cannot be justified by illegally obtained factual data, namely: 1) in violation of constitutional rights and freedoms of citizens, 2) in violation of the legal rules of procedure, means and sources of factual data compiled by a person without specific authorization for investigation and search operations.

The Court emphasized that the investigation and search operations may be conducted only by legally defined public authorities and their officers which are supposed to act only on the basis of and within the credentials and in the manner envisaged by the Constitution and legislation of Ukraine (part two of Article 19 of the Fundamental Law of Ukraine). That is the investigation and search operations or the use of means to obtain factual data shall be exclusively subject to the rights and freedoms of citizens in legally prescribed circumstances and according to the procedure and only by persons or units which are specifically authorized to perform investigation and search operations. The violation by the persons authorized to carry out investigation and search operations of the laws of Ukraine while obtaining factual data should be considered as grounds for declaring the evidence collected in such manner inadmissible. We can but agree with the latter statement.

On the other hand, the Constitutional Court noted that the factual data on the commitment of a crime or preparation for it can be obtained not only as a result of investigation and search operations conducted by specifically authorized persons, but also accidentally or purposefully fixed by physical entities who made private photos, films, video and audio recordings. Moreover, the Court accentuated that while assessing as evidence in a criminal case the factual data containing information about a crime or preparation for it one should take into consideration initiatory or situational (random) nature of actions of private individuals or legal entities, as well as task of fixation by them of these data.

As a result, the Court arrived at a principal conclusion that any things or documents (factual data) submitted by physical or legal entity do not meet the requirements of admissibility of evidence if they were obtained in violation of human rights and fundamental freedoms of a person and citizen, or if they were received as a result of targeted investigation and search operations, to which these persons were not officially entitled. That is the Constitutional Court expressed its belief that the provisions of Article 62 of the Constitution of Ukraine that “an accusation shall not be based on illegally obtained evidence” should be understood to mean that the imputation of a crime cannot be based on factual data obtained: 1) as a result of investigation and search operations of authorized persons, but in violation of constitutional guarantees of rights and freedoms of citizens; 2) with the breach of the procedure of their collection established by law; 3) as a result of targeted investigation and search operations by private (unauthorized for such actions) individuals.

The judicial disposition of the Court, pursuant to Articles 147, 150, 153 of the Constitution of Ukraine, Articles 51, 63, 65, 67, 69, 95 of the Law of Ukraine “On the Constitutional Court of Ukraine” maintains that obtaining evidence in criminal proceedings as a result of investigation and search operations cannot be carried out illegally and incrimination cannot be based on factual data obtained as a result of investigation and search operations by authorized persons without compliance with constitutional provisions or in violation of procedure established by law. Moreover, one cannot consider as evidence in criminal proceedings the factual data obtained with the help of targeted collection and fixation using measures prescribed by the Law of Ukraine “On investigation and search operations” by a person not entitled to carry out such activity.

The human rights community regards the last words of the judgment as a direct allusion to the security service Major M. Melnychenko, because his actions correspond to the concept of amateur investigation and search operations (secret taping of talks, unauthorized installation of recording equipment in the office of the President of Ukraine, etc.) carried out by technically competent person, thought not specifically authorized.

As a result, the Constitutional Court created a legal mechanism to combat all — real and only potentially possible — Melnychenkos. It greatly facilitated the counselor’s job in the case of untouchable top-brass accused. However, maybe in this case, the Court, maintaining law and order, stood up for rather abstract principle, than the real interests of civil society. Let us imagine a situation: a decent man sitting in the park sees a woman leaving a stroller with a baby at the entrance to the bank, institution or office. Then this same man sees that a man comes to the stroller and tries to grab a baby and put it into the trunk of his car… If now our observer starts videorecording the scene (cell-phone, etc.), he (as determined by the Constitutional Court) will carry out unauthorized targeted investigation and search operations. Therefore, his record will not be attached as evidence in the case…

That is the court carried to the point of absurdity the ideal, “clinically pure” and therefore unrealistic model of amateur fighting crime in Ukraine: the minute a person sees or hears that some VIP commits an offense, s/he should stop overhearing (look in that direction) the offender, call the prosecutor’s office, the Security Service or militia, identify her/himself, give her/his address, and explain the essence of the case… Then the situational (for the Court believes that targeting only harms) fighter-volunteer combating crime has to peacefully wait for the summons from the district department of the MIA, prosecutor’s office, or court. Well, it is a kind of a useful solution for the country in which hundreds of thousands of people were exterminated by the representatives of the government without any investigation and trial.

From the procedural point of view the Constitutional Court decision is approximately as follows: one should persecute the crime in such strict accordance with the law, that it makes this rule a “crime.” Not coincidentally, philosopher H. Spenser considered criminal any law which surpassed moral requirements of the average individual. From a political point of view this decision of the Court is complementary to Kuchma. In an ethical sense, it is infantile, black and white, utopian and poorly coordinated with the requirements of common sense…

The political and legal commentary on the Constitutional Court of Ukraine
Judgement in response to a constitutional submission
from the Zhashkiv District Council (Cherkasy Oblast)
asking for an official interpretation of Article 32 §1, Article 34 §2
of the Constitution of 20 January 2012

It should be noted that from the legal point of view the judgement in question is relatively simple. The Constitutional Court resorted to the simple method of “political syllogism”. It first considered how protected private information about the average Ukrainian citizen is according to Ukrainian (constitutional) legislation. Then it drew the conclusion that public officials and people working in the central authorities and bodies of local self-government are a kind of the same, of ordinary Ukrainian citizens. From then on it was quite simple: if public officials are the same as those who are not public officials, then they need to have the same level of protection of their private life from outside interference as do ordinary Ukrainian citizens. From the outside, all smooth sailing ahead.

Why can this syllogism be considered “political”? Because it is admissible precisely in the political sense. It is a demonstration of Ukrainian political disingenuousness. In the legal sense such a “syllogism” is clearly unacceptable. Public officials and civil servants are protected from external intrusion with respect to information to a different extent from ordinary Ukrainian citizens. That is the case but elsewhere … in Europe, in the West. In Ukraine however they are … “simply people” At least this is the view to which the esteemed Constitutional Court directs us.

In its Judgement, the Court writes: “A systematic analysis of the provisions of Article 24 §§1, 2 and Article 32 §1 gives grounds for considering that enjoyment of the right to inviolability of personal and family life is guaranteed to each person regardless of their gender, political, financial, social, language or other characteristics, as well as the status of a public person, including a civil servant, State or civic figure, who plays a certain role in the political, economic, social, cultural or other sphere of State or public life” (my highlighting — VR) In fact, however, Article 24 §2 of the Constitution says nothing of the sort. We quote it in full: “There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics”

Ukraine’s Constitutional Court has thus resorted to an unacceptably broad interpretation of the principle that discrimination shall be prohibited well-known in European legislation. A typical Slavonic trick as the Marquis de Custine would have said.

In fact, in giving an official interpretation of Article 32 §1, Article 34 §§2, 3 of the Constitution regarding what should be understood as information about the personal and family life of public officials and civil servants (whether such information is confidential information about a person), whether the collection, storage, use and dissemination of information about a public person constitutes intrusion in their personal and family life (which is prohibited except in cases envisaged by the Constitution), the following needed to be taken into consideration.

1. An interpretation of the above-mentioned constitutional articles should first and foremost be based on the general designation of the Constitution as the source which safeguards the principle of the rule of law in Ukraine. This entails an understanding that a Constitution in its legal form consolidates a liberal-democratic political regime which — in the majority of cases — leads to an enhanced level of social dynamic. Modern legal thinking views the Constitution as a functionally special law providing the legal framework for ensuring the interests of civil society as a whole.

2. A modern Constitution envisages the safeguarding of individual freedom, the election of leaders and the right of the people to control the course of State and public matters. In its extended view this means the awareness of all those engaged in application of the law that those wielding political power should act in strict compliance with universal organic principles, and that citizens should consciously elect those in charge at State and local self-government level so that they carry out what the people consider correct, and not what they themselves want.

3. One of the main ideas on which constitutionalism is based is that the authorities should act only within the limits defined and permitted them by free citizens. For this reason the Constitution is accepted as being the main legal document not so much of the State, as much as of civil society, the free public as such. In conditions of constitutionalism it is not the State that should teach citizens about proper behaviour, but citizens should indicate to the authorities what would be a beneficial direction for their activities. Otherwise citizens would risk getting, under the guise of a Constitution, merely a means for reducing the standards of their civil-political and personal freedom.

4. A modern Constitution is concerned that the State in its activities should not excessively restrict citizens even where this concerns issues of national security. After all in conditions of democracy and the rule of law a potential factor for the flourishing of civil society and its members is the guarantee of their political liberty and freedom of information. These are regarding as natural and inalienable as understood by John Locke. Thus new constitutional standards automatically envisage protection of freedom in receiving and disseminating information, freedom of thought and expression.

5. Effectively all constitutional norms should be assessed from the vantage point of fundamental, strategic rules for the existence of a free society. For example, the star of political philosophy in the XX century, John Rawls saw a constitution as being a collection of rules for fair procedure, a form of incorporation of liberties with the help of which citizens have the opportunity to fully carry out their life’s purpose. Here the most important of the constitutional tasks he considered to be the consolidation and safeguarding of intellectual freedom as the precondition for society’s political maturity, a factor in its self-awareness.

6. Nowadays virtually all constitutionalists recognize the main purpose of a constitution as being to restrict State power with this entailing the establishment of transparent and clear principles for any activities by the authorities. Thus constitutionalism is the direct rejection of repressive elements in the relations between civil society and the authorities. Freedom of though, expression, freedom to receive and disseminate information logically fall into the realm of law free of political or administrative control. Clearly the free seeking and dissemination of information is the guarantee of freedom of thought, conscience, expression, of the press and the media as a whole.

7. The free dissemination of information envisages freedom to search for information and freedom to use it. Clearly there are certain restrictions regarding the legal status of engaged in information activities and their objects of interest. For example, confidential and secret information fall under legal protection. That these categories of information have a special legal regime envisaged by current legislation is self-evident.

8. The problem however is that confidential information is only a part of information on restricted access, and information on restricted access can be disseminated if it is of public need, that is, it is the subject of public interest and the right of the public to know the information outweighs the potential damage from its dissemination (Article 29 §1 of the Law on Information).

9. Furthermore, information about infringements of human rights and civil liberties, about the unlawful actions of the authorities or bodies of local self-government, as well as their public officials and civil servants, cannot be classified as information on restricted access (Article 21 §§4, 5 of the Law on Information). If we bear in mind that unlawful actions by public officials and civil servants can also be carried out in the sphere of private and family life, it follows that the sphere of privacy of public officials and civil servants of the authorities and bodies of local self-government is not absolutely protected from external intrusion It is self-evident, for example, that Ukrainian voters have the right to know about the criminal, sexual mania or tyrannical tendencies of those they may elect.

10. In addition, income declarations of the following people and members of their family are also not classified as information on restricted access: those standing for office or holding electoral office in bodies of power; those holding a first or second category post as civil servant or official of a body of local self-government (Article 6 §6 of the Law on Access to Public Information).

11. It should also be noted that in the sphere of jurisdiction of the European Court of Human Rights the principle has long been in force that the scope of information which can be restricted about a public official is considerably narrower than that for a private individual (Lingens v. Austria, 1986). In that case the European Court stated that public figures should show considerably more tolerance of interest regarding various aspects of their life from journalists and the public as a whole.

Nor is this approach specific to Europe. Article 32 of the South African Constitution (1996) states that each person has the right to any information held by the State, as well as to any information which is held by any other person if that information is needed for the exercising or protection of any subjective civil rights (Article 32 §1.a, b). Thus one of the most important rights envisaged by the current Constitution of South Africa is the right of free access to any information deriving from the State or individuals and needed for the protection or exercising of civil rights and liberties.

If we bear in mind the fact that civil rights embrace the personal and political rights, the broad scope for the regulatory potential of the given article becomes clear. In order to exercise their electoral rights, each citizen aware of their purpose has the right and must know as much as possible about significant circumstances in the life of a person standing for office as deputy, mayor, judge, President, etc.

In general the principle of transparency, openness regarding life circumstances (including private) of public officials is universally recognized. For example, Article 39 §6 of Brazil’s Constitution (1988) states that executive, legislative and judicial branches of power must publish on an annual basis the size of their pecuniary expenditure and remuneration for all public positions and posts.

It is well-known also that the size of pay and other remuneration of judges of the US Supreme Court (unlike the size of pay of judges of Ukraine’s Supreme and Constitutional Court), senators, members of the US Congress House of Representatives, as well as the President of the United States are on open access and regularly updated on official State websites.

12. In its Judgement in the Case of Weber v. Switzerland (1990), the European Court of Human Rights also noted that there is no need to avoid disclosure of private information if this has taken on a public nature and has thus ceased to be confidential. Then in the Judgement in the Case of Leander v. Sweden (1987), the European Court observed that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others (for example, journalists, etc — VR) wish or may be willing to impart to him

13. As for American experience, in the Judgement of the US Supreme Court in the Case of Hustler Magazine v. Falwell (1988) the court ruled that excessive and exaggerated press attention to the lives of public figures cannot force the basis of law suits for moral compensation except where such information contained overtly false statements about facts, and where it was published with direct “bad intent”. In general there are considerable restrictions on defence of the private life of public figures in America.

In 1972 the US Supreme Court ruled that if those on the hunt for news stories are not protected from court proceedings, journalism swiftly turns into a meaningless exercise. For example, modern American laws do not waive journalists’ liability for intrusion on the private property of a public figure, however it is considered that punishment for actions of such a kind should in no way undermine the availing atmosphere in the country of freedom of speech and press freedom.

14. With regard to Ukraine, it is worth noting that Ukraine is a post-totalitarian State, and therefore especially vulnerable to regression, to any quasi-censorship restrictions regarding freedom of information, opinion and expression.

One can also not ignore the fact that the election of people holding power by the population takes place on the principle of personal sympathies or antipathy with regard to the candidates. If that is so, then it is manifestly the right of the public to have considerably more information about public figures than is envisaged by traditional considerations of protection of their privacy of information.

In general, in their Judgement, the Constitutional Court did not so much serve the official regime, as throw yet another dry twig in the vehement discussion regarding its unethical and undemocratic nature. There has long been a critical mass of cultured and educated people in Ukraine who can recognize and identify legal manipulation and distinguish the letter of the law (Ukrainian and European) from its legal content. One can imagine that the only public conclusion from such a precedent will be a further fall in the rating of those in power (already virtually electoral rating). This is a dubious service given the date for the parliamentary elections… Furthermore, the crucial question yet again arises of whose priorities the Constitutional Court is defending. The classic answer (from the point of view of the doctrine of organic constitutionalism) is that it stands for the defence of civil society. The real and pragmatic answer is that it is defending the interests of the ruling elite, the political establishment.

The political and legal commentary on the Constitutional Court of Ukraine
Judgement in the case of constitutional petition of 49 People’s Deputies of Ukraine,
53 People’s Deputies of Ukraine and 56 People’s Deputies of Ukraine concerning
the conformity of the Constitution of Ukraine (constitutionality) of paragraph 4
of Part VII “Final Regulations” with the Law of Ukraine
“On the State Budget of Ukraine for 2011”
dated December 26, 2011

The subject of submission in this case consisted in the belief of people’s deputies of Ukraine that the limitation imposed by paragraph 4 of Section VII “Final Provisions” of the Law of Ukraine “On State Budget of Ukraine for 2011” on the realization of Articles 39, 50, 51, 52, 54 of the Law of Ukraine “On the status and social protection of citizens affected by the Chornobyl Disaster”, Article 6 of the Law of Ukraine “On Social Protection of Children of War”, articles 14, 22, 37 and part 3 of Article 43 of the Law of Ukraine “On Pension Provision of persons released from military service, and some others” is unconstitutional. Indeed, according to the “final provisions”, the procedure and volume of the above regulation should be determined by the Cabinet of Ministers of Ukraine on the basis of financial resources of budget of the Pension Fund of Ukraine for 2011.

The people’s deputies think that the Verkhovna Rada of Ukraine empowered the Cabinet of Ministers of Ukraine to determine the procedure and size of payment of social benefits under the said laws and change the size of benefits depending on the available financial resources of the Pension Fund of Ukraine for 2011 curtailing constitutional rights of citizens to social protection.

In its disposition of the case the Constitutional Court of Ukraine concluded that “the social and economic rights stipulated by law are not absolute.” Therefore, the mechanism of realization of these rights may be changed by the state because of the inability to finance it with the help of proportional redistribution of means to maintain the balance of interests throughout the society. Moreover, these measures “may be needed to prevent or eliminate real threats to economic security of Ukraine”, which is the most important function of the state.

The Constitutional Court stated that “the principle of balanced budget” is crucial along with the principles of justice and proportionality (dimensionality) in the activities of public authorities, particularly in the preparation, adoption and implementation of the State budget for the current year. Therefore, paragraph 4, section VII, of the “Final Provisions” sets an acceptable mechanism, from the constitutional standpoint, of realization of the laws of Ukraine “About the status and social protection of citizens affected by the Chernobyl Disaster,” “On Social Protection of Children of War,” “ On pensions for persons released from military service, and some others. “

At the household level, this means that the size of social benefits in Ukraine determined by laws should be within the real possibilities of the State Budget of Ukraine for the current year. The higher revenues will mean more benefits; less income will mean lower payments. From the economic standpoint it looks quite grounded and consistent with the laws. And there is logic in it. However, in legal terms there remain insoluble contradictions.

The thing is that the socio-economic rights in the current Constitution of Ukraine have been formatted not according to the model of International Covenant on Economic, Social and Cultural Rights (1966), where they act as rights-principles, rights-guidelines or rights-programs, but according to the model of socio-economic rights of the typical Stalinist socialist constitution.

As stated in Article 2 of the International Covenant on Economic, Social and Cultural Rights (1966), “each State participating in the present Covenant undertakes to individually and through international assistance and cooperation, especially economic and technical, to employ to the maximum its available resources to gradually ensure full realization of rights envisaged in the Covenant by all appropriate means, including the legislative measures.” Obviously, if the Constitution of Ukraine in 1996 had contained such formulations, the ruling of the Constitutional Court from December 20, 2011 would have perfectly interpreted their content.

However, in reality the social and economic rights in the Constitution of Ukraine were formulated peremptorily and imperatively. They did not correspond with the available financial and material resources of the state and should be carried out in full directly on the basis of constitutional provisions that had the highest legal force and were inalienable, inviolable and allowed the direct legal defense (Article 8, 9, 21 of the Constitution of Ukraine, 1996). That is the Constitutional Court of Ukraine has once again become hostage to political utopia that has no prospects of survival, but still remains in the status of the Fundamental Law of the great European nation. Until this situation is not radically changed, the constitutional antinomies will remain automatically programmed in Ukraine.

Interestingly, the specific wordings of the Constitutional Court are subconsciously provocative, galling, and inconvenient for the Ukrainian state apparatus. For example, the Decision refers to the principle of “proportional redistribution of funds to maintain the balance of public interest.” After reading it, one would like to ask the authors of the current State Budget of Ukraine: why our budget salary bracket makes 1:40 while in USA it is 1:5, and in Western Europe 1: 4? Why in Ukraine, where the principle of “proportional redistribution” allegedly dominates, an MP receives a salary, which is 6-8 times the salary of the surgeon of the highest category, while in Germany the wages of parliamentarian are one and a half times less than the wages of the same surgeon?

It is not clear also why, according to the principles of proportionality, the salary of Ukrainian MP or minister is 5-6 times bigger than the salary of university professors and why employees of the Supreme Court of the Constitutional and the Prosecutor General of Ukraine get luxury apartments for free, although, based on Article 47 of Constitution of Ukraine, free housing in the country should be provided only for the “citizens who need social protection”? However, the theme of socio-economic rights and related social benefits was soon continued in the Decision of the Constitutional Court of January 25, 2012.

The political and legal commentary on the Constitutional Court of Ukraine Judgement on the constitutional submission of the Pension Fund of Ukraine concerning official interpretation of Article 1 of the first, second, third paragraphs of article 95, paragraph two of Article 96, paragraphs 2, 3, 6 of Article 116, paragraph 2 of Article 124, paragraph 1 of Article 129 of the Constitution of Ukraine, paragraph 2 of Article 9 of the Code of Administrative Procedure of Ukraine in their system relationship with certain provisions of the Constitution of Ukraine dated January 25, 2012.

The Ukrainian community knows this decision very well, and its juridical essence boils down to the following. As the Constitutional Court acknowledged, “the Cabinet of Ministers of Ukraine regulates the procedure and size of social benefits and assistance to be funded from the State Budget of Ukraine.” Moreover, “while resolving cases of social protection, the courts are guided by the principle of legality,” which provides “application of laws of Ukraine by Ukrainian courts and regulations of relevant public authorities adopted on the basis, within powers and in a way stipulated by the Constitution and laws of Ukraine, including regulations of the Cabinet of Ministers of Ukraine issued within its jurisdiction.” As the Court noted, the activities of the Cabinet of Ministers should proceed from the principles of “financial capabilities of the state, which is expected to justly and impartially allocate social wealth among citizens and territorial communities and strive to balance the budget of Ukraine.”

In practice this means that the state ensuring of social security should be implemented within the planned budget expenditures, and in the case where the legislation of Ukraine provides larger social expenditures (benefits) than the current state budget can afford, the real size of benefits is determined not by legislation or judicial decision based on it, but by the real possibilities of the State Budget, or, in simpler words, by the plan of financial expenditures and revenues of the Ukrainian state.

On the face of it, this decision is based on the principles of common sense, because everyone knows that “we’d rather live within our means”, “do not live on credit,” etc., but the realistic approach triggered a series of “dissenting opinions” in the Constitutional Court of Ukraine. In particular, the Decision of the Court was accompanied by “individual opinions” of judges V. Shyshkin, D. Lylak, P. Stetsyuk, and M. Markush.

Thus, Judge V. Shyshkin criticized the narrowness of the judgment’s “philosophy”, its “endless theorization”, incorrect use of foreign precedents by the Court (of the practice of European Court of Human Rights) etc.

D. Lylak notes the incompleteness of the answers of Constitutional Court to the questions, erroneous opinion of the Court that the failure of financial backing of social-economic rights and the need to avoid “threats to economic security of Ukraine” must lead to “changes in the mechanism of accrual of social benefits and assistance.” Judge D. Lylak believes that the right of citizens to social protection may be limited only during war or emergency.

Judge P. Stetsyuk believes that, in fact, with this interpretation the Constitutional Court “attempted to equate the Cabinet of Ministers of Ukraine with the status of the legislative body obliging the courts of general jurisdiction considering social cases to directly apply the provisions of regulations of the Government of Ukraine paying no attention to the laws as such.”

According to Judge M. Markush, the Constitutional Court made a mistake recognizing by its decision the possibility of “adjustment of social laws through by-laws bringing … the size of [social] benefits down,” which is actually “the abolition or restriction of social rights and guarantees, and, therefore, a violation of the procedure of amending the laws stipulated by the Constitution of Ukraine.” Generalizing the situation Judge M. Markush maintains that “in accordance with Articles 1 and 3 of the Constitution of Ukraine, the state cannot arbitrarily abandon the assumed financial obligations under the law.”

After reading the above, one may notice that the judges, authors of “individual opinions”, did so within their status opportunities. Their criticism is professional, well-reasoned and detailed, but also it is a kind of criticism typical of judges under oath. That is, unlike the academic community, the judges of the Constitutional Court in their professional capacity may perceive the current Constitution of Ukraine only in positive terms. For them it is not just a literary document, but the legal ideal and the source of justice, embodiment of reason and the best aspirations of the Ukrainian people.

So it should be, because if the judge does not believe in the law on which he decides, his judicial opinion is worthless. For public the words of court are the words of law… On the other hand, there are no ideal laws and constitutions. Any law is only a work of human imagination and thought, a summary of the experience, an embodiment of human aspirations for the future.

If you look at it from this perspective, you can notice the controversial nature of the Constitution of Ukraine reflected in the field of socio-economic rights. The Constitution of Ukraine has a typical set of socio-economic (“positive”, scientifically speaking) rights and freedoms, implementation of which is designed not for the free market, capitalism and freedom, but for the planned economy, state ownership and distributive economic system. The constitutional judges cannot say it frankly by virtue of their official position, but the Ukrainian society cannot get on with such paternalistic set of rights and freedoms.

This paradox is not of legal, but of a higher level. The socialist societies are willing to share everything with their citizens; however, the logic of their economic existence is counter-productive, because they lack adequate motivation and incentives. On the contrary, the market societies (USA, UK, Canada) produce and earn a lot, but “give away” very little to its members out of the market. Often they do not recognize and do not include social and economic rights as gifts of state. As for Ukraine, its constitutional system in the area of ​​economic rights is the socialist one, in the area of ​​the market it is vulgar capitalist one, and in the area of ​​policy it is hypocritical and demagogic. It is unthinkable to grant social benefits according to utopian standards under such circumstances.

Therefore there emerges a systemic contradiction. The Constitution guarantees unrealistic benefits and economic system is unable to produce and distribute these goods. On paper, the Ukrainian state draws chocolate cakes, and in the barn it stores only dried crusts in the hole-ridden sack. Obviously, people may get more money than the State budget earnings permit only through borrowings or currency issue. The latter leads to inflation and inflation to social instability and revolution, revolution to dictatorship, which nobody wants.

The journalists and younger lawyers understand it, although they go on blaming the Constitutional Court for what he had legally taken away from people … a sort of Turkish or Latin America tragicomedy… However, if the Ukrainian life is not reformed in the nearest future, the Constitutional Court will continue producing legal palliatives. This is a classic pattern: problems of the Constitution are to be corrected in a Court. The Court will make illogical decisions that allow “socialist” rights to survive in an atmosphere of chaotic capitalist priorities …

The daily routine proves that Ukraine has to change. It is no accident that in Ukraine the Constitutional Assembly and the renewal of Fundamental Law are on the agenda. Thence there is the final philosophical question. Is Ukraine ready to choose renewed constitutional principles?

Generalization

The twenty-year progress of independent Ukraine is rather modest. By UN standards, 78% of Ukraine’s population still lives below the poverty line. By anti-corruption drive Ukraine ranks 134th out of 180, by the ease of discharge of taxes 181 of 183, by the ease of processing of permits for construction 179 of 183. Moreover, in 2010 Ukraine ranked one from the bottom in Europe in terms of the well-being of its citizens. The annual revenue of a Ukrainian makes the average of $2,700 (for comparison, in Poland $28,600, in Russia $10,000, in Belarus $6,000). For Ukraine, the withdrawal from socialism became much harder, than optimistic forecasts had promised.

Such naivety in expectations and estimates could not but affect the constitutional level: the Fundamental Law adopted in 1996 turned out to be eclectic, populist and thoughtless as the then mood of the political elite. Now we understand much better that the developers of the Constitution followed the way of copying the existing regulatory models. The experts and law-makers either failed to realize the deep meaning and purpose of borrowed norms and institutions, or, understand their meaning, did not care about their implementation. As a result, it caused curiosities. In particular, the Constitution of 1996:

1) confuses the terms Ukrainian nation and Ukrainian people (Preamble, Art. 11);

2) establishes the responsibility before the God of “corporate entity”, i. e. the Verkhovna Rada of Ukraine (Preamble);

3) recognizes the individual life the highest social value (part one, Art. 3); this, in a direct effect of constitutional norms (part three, of Art. 8 of the Constitution of Ukraine), makes the society and court agree with the refusal of soldiers to keep fighting even during the war: all that he will defend in combat — reedom, independence and territorial integrity, and sovereignty of the state, etc. — in accordance with the Constitution, weighs less than his life;

4) prohibits any abuse of a child (part two, Art. 52), which makes the efforts of parents to take the child away from the sandbox against her/his will anti-constitutional;

5) frees Ukraine from any ideology (part two of Article 15.);

6) socio-economic rights are written in the Fundamental Law as full-scale juridical claims, and despite small (by European standards) size of the State budget. It seems that Ukraine is positioning itself as a social and legal state not due to the presence but due to the absence of mature political and legal consciousness.

The Fundamental Law of Ukraine in 1996 was designed as a central symbol of general political and legal décor; very few people gave a thought to the viability of such constitutional norms. The Ukrainian ruling class did not understand the profoundness of the Constitution, as it can be seen even from the fact that it was not aware of political reform in 2004 as the change of the constitutional order (otherwise, someone, besides other than American judge B. Futey, might point out that Ukraine’s transition to a new form of government would need approval by referendum, according to Art. 5 of the Constitution).

Moreover, in Ukraine there was and is no deep understanding of what is universal sense and functionality of organic constitutionalism in general. It is not because of some rules or institutions, but of the false identification of the main values and strategic goal of the Fundamental Law. The majority of Ukrainian politicians and lawyers to the question of what is Constitution in the functional sense and what is its chief value, answer quoting the definition from the Soviet textbook on constitutional law. The post-Soviet nomenclature is certain that the constitution is a fundamental law that establishes the foundations of social and state system, grants rights and freedoms of citizens, regulates formation of state bodies and local governments, and foundations of their competence…

In fact, this approach is wrong, as the Soviet constitutionalism in general. The strategic error that it contains weighs upon all those politicians and lawyers, who consider the ethics of developed capitalism emotionally unjustified. Meanwhile, the content of organic constitutionalism is imbued with the spirit of acceleration of social dynamics. In structural terms it shows in the fact that any organic constitution is the main regulatory factor of establishment and maintenance of market relations, guarantor of freedom and inviolability of the individual and civil society as a whole, legal means of accelerating social interactions. And only after that it may be seen as instructions for the state apparatus, means of ensuring stability of the state system.

Obviously, in today’s world there are only two typological approaches in determining the organic constitutional design: American (with the priority of freedom) and European (with the priority of order in the sense of stability that does not deny freedom). As for everything else, it is nothing but variations above the said basic topics. It happens also that they use the term Constitution to denote documents not focusing on the market and freedom. In this case it is not a Constitution, but its external imitation or a shell.

Nowadays the division of organic constitutionalism into American (freedom, which determines the democracy) and European one (democracy, which determines freedom) has not only theoretical but also practical justification. Of course, I say what I think very important in this case, not from the position of some universal approach.

The typical cliché of European constitutionalism — democracy and freedom — why is it not a priority tandem? To my mind, because there is no such thing as an essential European constitutionalism. In terms of its internal logic and main purpose, the organic constitutionalism is freedom that preceded democracy: the state in which freedom and not democracy is a priority. The universal freedom of supply and demand creates a market in which democracy is only a political subdivision. The most important thing in this system of fundamental relationship is that market, and not democracy, enables a qualitative breakthrough in social dynamics, which we associate with organic constitutionalism. The main purpose of organic constitution is not what but how. Its mission is not material but procedural matter. The constitutions are functioning due to the activity of people and institutions. Such interaction of people and institutions is carried out in organic constitutionalism in the fastest and most effective way. It is the speed and fundamentally new relationship among active legal and physical entities that are important in constitutionalism. It brings about a legal system in which anyone can reach the horizons of the market with what s/he has without asking permission in the hierarchical structures of political and administrative power.

It does not matter on which side the actor is: supply or demand. The main thing here is the legal equality of opportunities, direct access to the opportunities and temptations, maximum simplification and shortening of social transactions. Everything here is on civil and horizontal, and not vertical administrative level. The hierarchy of power is not canceled, but recedes into the background. In organic constitutionalism it is the institutions of governance and not of the market that transform into “shadow” ones. Merely, if someone invented a computer, s/he may develop further her/his success without waiting for sanction of bureaucratic or democratic institutions. Moreover, as far as the democracy is a part of the market, the political processes may intensify significantly, e.g., the extremely fast, in terms of historical tradition, transformation of shipyard electrician or postmodern playwright into a ruler of the modern European state.

The meaning of organic constitutionalism includes both the freedom and the market, and this American-style union is amazing even today. Having visited the United States recently, Jean Baudrillard writes about American freedom with the same enthusiasm as his aristocratic predecessor Alexis-Charles-Henri Clérel de Tocqueville in 1835. According to Jean Baudrillard, Europeans are not contemporaries in the literal sense of the word, because they do not know the true freedom: not that formal freedom which they are trying to establish everywhere and in any way, but that specific, flexible, functional, active freedom which can only be seen in American society and in the minds of each and every its member.

This remark allows to emotionally reinforce the fact that, in effect, the European constitutional standards do not exist. Instead, we can speak only about the European level of constitutionalism as a measure of social dynamics, degree of effectiveness of human capital, level of individual challenges and reality of democracy. It is possible that it is because of these properties M. Hrushevsky tried to prove the appeal and suitability of American constitutional project for Ukraine.

By allowing a stylistic simplification, one could argue that the organic constitutionalism is a consequence and prerequisite of refined capitalism. And if this is true, it becomes clear why in organic constitutionalism the freedom precedes democracy but is not its product. Indeed, in the historical sense the freedom is a genetic condition of commonwealth. The true democracy can exist only in the community of politically equal and free subjects. On the other hand, the democracy has the ability to limit or even completely destroy freedom. Therefore, in organic constitutionalism it is freedom, and not democracy, is a priority object of protection and security.

Bypassing democracy at the very start, the freedom becomes the highest ideal of constitutionalism precisely because its ultimate goal is the maximum acceleration and facilitation of social interactions. In a sense, constitutionalism is informality embodied in the law. Its goal is not tranquility, but freedom, speed of most interpersonal and interinstitutional interchange. Market is a promoter of progress for which freedom stands as a truly critical factor. As a result, the strategy of organic constitution targets market without borders, social dynamics and progress. In turn, the progress is not exactly the object of parliamentarian planning.

The world, as Ludwig Wittgenstein observed at one time, “is not moving along a straight line but along a curve constantly changing its direction.” That is why the slogan of organic constitutionalism is to be in order to be. The constitutionalism does not lead to any particular material or spiritual goal; it is not a purpose, but method and means to achieve it. Progress is the measure of human success, while democracy plays a more modest role. After all, democracy is a result of numerous majority elections, but progress depends on complex and diverse factors. That is why the ethics of progress and the ethics of democracy are at issue and the former does not directly depend on the latter. Moreover, the democracy and organic constitutionalism are not inseparable, because democracy can hinder progress.

Progress embodies free (spontaneous) political, economic and cultural development. In fact, this is a total market, the effectiveness of which is determines by the number, rate and amplitude of the majority of exchanges. If constitution is the main guarantor of the market, the main purpose of the constitution should be the freedom as a condition of creativity and progress. But if organic constitution is a guarantor of freedom, on which the market and the progress depend, then, finally, the constitutionalism can be logically treated as the supremacy of impersonal rules of the game, i. e. law.

Since there cannot be two incidences of supremacy in one symbolic space, the constitutionalism or meta-law tends to subjugate democracy as well. In this sense, the organic constitutionalism appears as supremacy of free strategy of human life in general. As for the law as requirement for synthetic, artificial rules, it is an important principle of democracy, but not more than one attribute of constitutionalism. That is in organic constitutionalism the democracy is assigned a responsible, but not the most important place.

Paul-Henri d’Holbach once called the constitution a bridle for the leaders and peoples. Its fetish is not democracy, but timely recognition and acknowledgement of skills and talents. Actually, the constitution is a carte blanche of meritocracy when it comes to the political side of things. Democracy produces laws which are expected to be constitutional, that is not to impinge on the freedom of a market. And if such encroachment happens, there befalls a crisis or even death of constitutionalism.

That is the organic constitutionalism involves full-fledged market in the first place. The outcome of its work may be seen by example of modern United States. The country whose population is about 4% of the world population consumes more than half of available natural resources, embodies 21% of the global economy, produces the largest GDP in the world, provides 80–90% of global scientific discoveries and has a military budget comparable to the total military budget of the rest of the world. Of the 500 best universities in the world 169, and of the top 20–17 are located in the U.S., while there are four times more scientific workers in the scientific sector of the United States than in the European Union. Increasing the role of knowledge in business and economics, the U.S. also emphasizes the role of culture and, therefore, the fact that some cultures are more productive than the others.

All this shows that the organic constitutionalism as a legal paradigm of total market is really productive. Conversely, the lack of creative achievement and economic progress indicate the illness or absence of organic constitutionalism. The Ukrainian political elite can think what it likes but the statistics show that the Ukrainian constitutionalism is not organic yet. It simply does not contain sufficient guarantees of freedom of market relations. As for democracy, it embodies only the political segment of the market, and democracy itself is not enough for national progress.

Thus, Ukraine is at an early stage of learning of paradigm of the organic constitutionalism and consequences arising therefrom. In particular, Ukraine has no deep awareness of problematic influence that democracy exerts on creative work. Relatively recently the totalitarianism has been done with here, and therefore only authoritarianism and dictatorship are naively considered threats to national development.

In particular, in Ukraine one cannot attract people to the truly productive democracy without prior recognizing of full-scale land ownership. A person who is not allowed to freely sell / buy land or purchase weapons is not a full-grown subject of democracy. People without property, dignity and responsibility tend not to democracy, but to populism. This type of personality is not only indifferent, but also dangerous for progress.

So if Ukraine needs organic constitutionalism, it should start with resolute strengthening of guarantees of property rights and land reform. Of course, there is an alternative: the current state of Ukraine. But it does not suit neither people, nor national elite. On the other hand, people cannot create a new constitution, but elite can and must do it. Of course, drafting a new law will be justified only if in the minds of elites there the corresponding change of priorities will take place.

The United States, wrote Francis Fukuyama, succeeded by observance of the ethics of irrational, which brings about the imperative of protecting everything unpredictable and spontaneous. This imperative is important because democracy has not so creative, as selective ability. According to Giovanni Sartori, democracy can only choose from the previously created. This applies to biotechnology to the same extent as to tying a necktie. If democracy is not preceded by creativity and market, its prospects become unacceptably narrow. The citizens of Ukraine are politically free, but their progress is hampered by narrow economic market. They can choose only from what was produced by really creative communities.

Interestingly, the struggle for civil rights initiated by the U.S. Supreme Court in the 20th century is a direct consequence of the constitutional protection of freedom of conveyance. All executive power of the United States was focused on granting proper implementation of market rules. This is logical, because the U.S. president must (according to his Oath of office) “to the best of his ability to, protect and defend” the Bible of the free market, i.e. the Constitution of the United States.

The protection of the market in the united Europe provides for republicanism, inviolability of property, non-interference into creative work, and the principle of free movement of people, goods, services, and capital. These norms are fixed at both international and constitutional levels. The peculiarities of individual countries become apparent in the intensity of stimulation of market relations. As for transitional societies, they are very slow to perceive the imperatives of organic constitutionalism. Actually, it is apparent in a brief overview of a number of decisions of the Constitutional Court of Ukraine…

 

[1]  Prepared by Vsevolod Rechytsky, Constitutional Expert of the Kharkiv Human Rights Group.

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