CMS Ukraine (operates through two offices: CMS Cameron McKenna Nabarro Olswang and CMS Reich-Rohrwig Hainz)
As the next step of the judicial reform in Ukraine, the new Law On Constitutional Court of Ukraine (the “Law”) was adopted by the Ukrainian Parliament on 13 July 2017 and became effective on 03 August 2017.
The Law implements significant changes to the system of the constitutional jurisdiction in Ukraine, including, inter alia, changes to both the organizational structure of the Constitutional Court and the constitutional proceedings.
New organizational structure and procedural aspects
The new Constitutional Court of Ukraine will have the Grand Chamber, two Senates and six Panels in its structure.
Generally, the Grand Chamber will have the authority in all types of cases under particular procedures. The Panels will be responsible for admission of cases for the review by the Constitutional Court. The Senates will have the authority to review constitutional complaints.
The Law specifically prescribes that the proceedings before the Constitutional Court should be mainly in writing and establishes that the general duration of such proceedings is six months. At the same time, one- month term is established for certain types of cases (e.g., review of constitutionality of draft laws aimed at amending the Constitution of Ukraine, etc.).
The Law also allows submission to the Constitutional Court of amicus curiae in particular matters to be reviewed by the Grand Chamber and the Senate. It would be within discretion of the Court, however, whether to accept such submissions.
The changes in competence
The power to provide official interpretation of the laws of Ukraine is excluded from the competence of the Constitutional Court leaving it competent to officially interpret the Constitution of Ukraine.
At the same time, the Law adds to the competence of the Constitutional Court the power to review the constitutionality of questions to be submitted for the referendum organized on the people’s initiative, and to review the conformity of acts of the Parliament of Autonomous Republic of Crimea with the Constitution of Ukraine and the laws of Ukraine.
One more change introduced by the Law is that Individuals and legal entities are now allowed to apply to the Constitutional Court only by way of submission of a constitutional complaint in a particular case.
Introduction of constitutional complaint
The Law introduces the institute of the constitutional complaint to the Ukrainian legislation.
An individual or a legal entity can apply to the Constitutional Court with the constitutional complaint. In such complaint, the respective individual/legal entity can question constitutionality of the legal rule applied in the final court decision against such individual/legal entity in a particular case.
Generally, the constitutional complaint can be submitted during three months following issuance of the effective and final court decision in the applicant’s case, provided that such decision was issued not earlier than 30 September 2016. At the same time, during the next three months (i.e., three months following the date when the Law entered into effect), it is allowed to submit constitutional complaints with regard to the effective and final court decisions issued after 30 September 2016 but before this Law entered into effect.
If the constitutional complaint is supported by the Constitutional Court and the involved legal rule is ruled unconstitutional, the applicant will gain a right to apply to the court having issued an adverse decision seeking reconsideration of the case.
Finally, the Law introduced the institute of a special counselor. Such counselor (e.g., a retired judge of the constitutional court of a foreign state) will provide general expert support to the Constitutional Court in the proceedings commenced upon constitutional complaints, including by way of preparation of amicus curiae for the Senate and the Grand Chamber. The special counselor will provide the Constitutional Court with his/her expert support until 01 January 2020.
To summarize all mentioned, we believe that this new piece of legislation will have a positive influence on the Ukrainian judicial system in general and will allow businesses to better protect their rights and interests by challenging defective legal rules (if any) applicable to particular matters as unconstitutional.
Law №6427-д On Constitutional Court of Ukraine adopted on 13 July 2017.