The case of Skrypka as the epitome of the effectiveness of constitutional complaints in Ukraine

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The case of Skrypka as the epitome of the effectiveness of constitutional complaints in Ukraine

Dmytro Terletskyi

ABSTRACT

Background: The article thoroughly examines the efficacy of constitutional complaints within Ukraine, utilising the Skrypka case as a pivotal illustration. Through comprehensive scrutiny, the authors analysed factual circumstances, national legislative frameworks governing contentious legal issues, and judicial precedents pertinent to the Skrypka case. The authors' contention revolves around the primary role of a constitutional complaint in safeguarding an individual's violated constitutional rights, concurrently serving to fortify the constitutional order of the state.

INTRODUCTION

It has been over seven years since the amendments to Ukraine's Constitution regarding the judiciary came into effect. Law of Ukraine no 1401-VIII of 02 June 2016 `On Amending the Constitution of Ukraine (as to justice)' [2016] Official Gazette of Ukraine 51/1799. These changes affirmed the evolution of the constitutional jurisdiction body's status, involving a substantial review and expansion of its powers. Notably, they introduced a new legal remedy, the constitutional complaint, to the national legal framework.

During this period, the bodies of the Constitutional Court of Ukraine, namely the Grand Chamber and the Senates, have considered and issued decisions in 45 cases initiated specifically through constitutional complaints. The statistical data are provided in accordance with the information available on the official website of the Constitutional Court of Ukraine as of 30 September 2023.

Constitutional Court of Ukraine <https://ccu.gov.ua> accessed 30 September 2023. While the importance and impact of these decisions on legislative, interpretative, and law application activities are unquestionable, they require systematic analysis.

FACTS OF THE CASE

case skrypka constitutional ukraine

In 1987, Anatolii Volodymyrovych Skrypka (hereinafter “the complainant”) was drafted as a conscript for training to eliminate the consequences of the Chernobyl Nuclear Power Plant disaster. The complainant was an individual who suffered due to the Chernobyl disaster and received a pension according to the Law of Ukraine `On the Status and Social Protection of Citizens Affected by the Chernobyl Disaster' of February 1991, No. 796-XII (hereinafter `Law No 796-XII') Law of Ukraine no 796-XII of 28 February 1991 `On the Status and Social Protection of Citizens Affected by the Chernobyl Disaster' <https://zakon.rada.gov.ua/laws/show/796-12#Text> accessed 18 January 2024. as a participant in the elimination of the consequences of the Chernobyl nuclear power plant disaster.

On 3 October 2017, the parliament of Ukraine passed the Law of Ukraine `On Amending Certain Legislative Acts of Ukraine Regarding Increasing Pensions' No. 2148-VIII, which, among other things, revised the calculation of pensions for military personnel who participated in the elimination of the consequences of the Chernobyl disaster. Law of Ukraine no 2148-VIII of 03 October 2017 `On Amending Certain Legislative Acts of Ukraine Regarding Increasing Pensions' <https://zakon.rada.gov.ua/laws/show/2148-19#n24> accessed 18 January 2024.

In May 2018, the complainant filed a lawsuit against the Pension Fund Department. The Circuit Administrative Court of Sumskyi Region, by its decision of 13 June 2018, partially satisfied the claim by recognising the actions of the Pension Fund Department, refusing the complainant's request for a pension re-calculation as a participant in the liquidation of the consequences of the Chernobyl nuclear disaster in accordance with Law No. 796-XII, as unlawful. It ordered the Pension Fund Department to recalculate the disability pension in accordance with Law No. 796-XII, taking into account the respective changes, and to pay the difference between the amount due and the pension actually paid for the corresponding period. However, the demands regarding recognising actions in addressing the appeal as discriminatory were denied. Case no 818/1793/18 (Circuit Administrative Court of Sumskyi Region, 13 June 2018) <https://reyestr.court.gov.ua/Review/74724489> accessed 18 January 2024.

The Kharkiv Administrative Court of Appeal, by its judgment of 17 October 2018, overturned the decision of the Circuit Administrative Court of Sumskyi Region and denied the plaintiff's claims. The appellate court stated that the plaintiff did not meet all the criteria that would entitle him to a pension recalculation under Law No. 796-XII with the relevant amendments taken into account. Specifically, because the plaintiff participated in the elimination of the consequences of the Chernobyl disaster during military training and not during actual military service, he did not acquire the right to have his pension recalculated in accordance with Law No. 796-XII with the relevant amendments taken into account. Case no 818/1793/18 (Kharkiv Administrative Court of Appeal, 17 October 2018) <https://reyestr.court.gov.ua/Review/77159099> accessed 18 January 2024.

The Supreme Court (in the composition of the panel of judges of the Cassation Administrative Court) denied the opening of cassation proceedings on the appellant's cassation complaint by its order of 23 November 2018. Case no 818/1793/18 (Administrative Court of Cassation of the Supreme Court, 23 November 2018) <https://reyestr.court.gov.ua/Review/78077171> accessed 18 January 2024.

The complainant argued that according to these provisions, the legal regulations regarding the calculation of disability pensions do not apply to servicemen among the conscripts called up for military training to eliminate the consequences of the Chernobyl disaster. As a result, they receive a pension “three times lower than conscript soldiers,” which violates their constitutional rights. Legal Summary of the Secretariat of the Constitutional Court of Ukraine no 21/630 of 30 January 2019 on the Constitutional Complaint of AV Skrypka <https://ccu.gov.ua/sites/default/files/docs/ m_s_1_p2_2019_0.rar> accessed 18 January 2024.

On 25 April 2019, the Constitutional Court of Ukraine declared that the provision denying the complainant the pension recalculation was unconstitutional. Case no 3-14/2019(402/19, 1737/19), Decision no 1-р(П)/2019 (Constitutional Court of Ukraine, 25 April 2019) [2019] Official Gazette of Ukraine 42/1468. Decision No. 1-р(П)/2019 was issued under constitutional complaints filed by the complainant and Oleksiy Yakovych Bobyr, consolidated into a single constitutional proceeding. Order no 6-уп(П)/2019 (Second Senate of the Constitutional Court of Ukraine, 15 April 2019) <https://ccu.gov.ua/sites/default/files/docs/m_s_1_p2_2019_0.rar> accessed 18 January 2024.

On 6 May 2019, the complainant appealed to the appellate court with a motion to review the decision of the Kharkiv Administrative Court of Appeal of 17 October 2018 under exceptional circumstances. The basis for this motion was rooted in the Constitutional Court of Ukraine's decision on 25 April 2019, No. 1-р(П)/2019, rendered after the consideration of constitutional complaints filed by the applicant and Oleksiy Yakovych Bobyr.

The Second Administrative Court of Appeal, by its judgment of 27 August 2019, revoked the judgment of the Kharkiv Administrative Court of Appeal and partially granted the motion for review under exceptional circumstances. The court ordered the Pension Fund Department to recalculate the disability pension for the complainant under Law No. 796-XII, taking into account the decision of the Constitutional Court of Ukraine of 25 April 2019 No. 1-р(П)/2019. The Second Administrative Court of Appeal noted that the right to a pension recalculation according to Article 59, part 3 of Law No. 796-XII has been recognised for the complainant since the date of the Constitutional Court of Ukraine's decision of 25 April 2019 No. 1-р(П)/2019.п

In September 2019, the complainant appealed to the Supreme Court with a cassation complaint against the judgment of the Second Administrative Court of Appeal. In the complaint, the complainant requested the annulment of this judgment and the issuance of a new judgment, fully satisfying the request for a review of the decision of the Kharkiv Administrative Court of Appeal under exceptional circumstances. The complainant argued that the judgment of the Second Administrative Court of Appeal contradicts the Decision of the Constitutional Court of Ukraine of 25 April 2019 No. 1-р(П)/2019 and renders the request for a review of the court decision under exceptional circumstances ineffective.

By its order of 7 October 2019, the Supreme Court initiated cassation proceedings based on the complainant's cassation appeal. Case no В/851/5/19 (Second Administrative Court of Appeal, 27 August 2019) <https://reyestr.court.gov.ua/Review/83942090> accessed 18 January 2024. Case no 818/1793/18 (Administrative Court of Cassation of the Supreme Court, 07 October 2019) <https://reyestr.court.gov.ua/Review/84805145> accessed 18 January 2024. On 7 July 2023, the Supreme Court, sitting as the Joint Chamber of the Administrative Court of Cassation, annulled the judgment of the Second Administrative Court of Appeal of 27 August 2019 and rejected the request for a review of the decision of the Kharkiv Administrative Court of Appeal under exceptional circumstances. The judgment of the Kharkiv Administrative Court of Appeal of 17 October 2018 has been upheld. Case no 818/1793/18 (Joint Chamber of the Administrative Court of Cassation of the Supreme Court, 07 July 2023) <https://reyestr.court.gov.ua/Review/112096007> accessed 18 January 2024.

LEGAL FRAMEWORK AND THEORETICAL ANALYSIS

As mentioned, the introduction of the constitutional complaint in Ukraine was a consequence of the constitutional reform regarding justice in 2016. Article 55 of the Constitution of Ukraine was amended with a new part, according to which everyone shall be guaranteed the right to lodge a constitutional complaint to the Constitutional Court of Ukraine on grounds defined in this Constitution and under the procedure prescribed by law. Furthermore, the Constitution of Ukraine has been enriched with a new article, Article 151-1, stipulating that the Constitutional Court of Ukraine decides on conformity to the Constitution of Ukraine (constitutionality) of a law of Ukraine upon constitutional complaint of a person alleging that the law of Ukraine applied in the final court decision in his or her case contradicts the Constitution of Ukraine. A constitutional complaint may be lodged after exhaustion of all other domestic legal remedies. Prior to that, throughout the Constitutional Court of Ukraine's twenty-year activity, individuals and legal entities were not granted the right to address issues of conformity to the Constitution of Ukraine through any legal means. The only available avenue for them until 30 September 2016 - the effective date of the amendments to the Constitution of Ukraine Constitution of Ukraine no 254 k/96-BP of 28 June 1996 <https://zakon.rada.gov.ua/laws/show/ 254K/96-Bp#Text> accessed 18 January 2024. - was the form of appeal (constitutional appeal), allowing them to petition only for the official interpretation of the Constitution and statutes. Although the exercise of the right to a constitutional appeal was affected by its ambiguous application, primarily by the courts, decisions of the Constitutional Court of Ukraine on these appeals did not influence final judicial decisions. This is because the official interpretation of the Constitution and statutes provided by the Constitutional Court of Ukraine has never been acknowledged as a basis for the review of final court decisions by procedural legislation.

The introduced form of constitutional complaint in Ukraine allows the resolution of issues solely concerning the constitutionality of a statute (a law of Ukraine). Therefore, it should be classified as a normative complaint. Moreover, it is justifiable to argue that this represents a unique constitutional complaint for which there are currently no equivalents. This is because the subject of constitutional adjudication initiated through a constitutional complaint excludes individual legal acts, including final court decisions, as well as sub-legislative normative legal acts. This rationale supports categorising the introduced constitutional complaint in Ukraine as specifically statutory rather than normative. SV Riznyk, Constitutionality of Legal Acts: Essence, Evaluation Methodology and Providing System in Ukraine (Ivan Franko National University of Lviv 2020) 416-7.

Another notable aspect introduced by the constitutional complaint is the acknowledgement, as outlined in the Law of Ukraine `On the Constitutional Court of Ukraine', Law of Ukraine no 2136-VIII of 13 July 2017 `On the Constitutional Court of Ukraine' <https://zakon.rada.gov.ua/laws/show/en/2136-19#Text> accessed 18 January 2024. of the rights of individuals, regardless of their citizenship status, and private legal entities to lodge constitutional complaints. However, this right is not recognised for legal entities of public law, which includes those established by the executive decree of the President of Ukraine, a state authority, an authority of the Autonomous Republic of Crimea, or a local self-government body.

Indeed, the functional purpose of a constitutional complaint transcends the singular protection of constitutional rights and should be construed in a broader context - as a mechanism essential for upholding the constitutional order within the state. This role includes the affirmation of fundamental values and principles, such as holding the state accountable for its actions, preventing the curtailment of existing rights and freedoms during the enactment or amendment of laws, and ensuring their alignment with the Constitution of Ukraine. The profound implications stemming from the Constitutional Court of Ukraine's rulings on constitutional complaints, including these significant aspects, are unequivocal. However, the dual functional role of a constitutional complaint in legal regulation, while crucial, should not diminish its primary purpose - namely, serving as a legal instrument to safeguard the specific constitutional rights of a person. As “the subject of any constitutional complaint involves both private and public interests. ,.,” Mykhailo Savchyn, `Doctrinal Issues of Introduction of the Constitutional Complaint in Ukraine' (2018) 12 Law of Ukraine 50, doi:10.33498/louu-2018-12-039. it pertains to both the public and private rights of a specific person.

This conclusion is entirely consistent with (1) the conditions of admissibility of a constitutional complaint According to Article 77 (1) of the Law of Ukraine `On the Constitutional Court of Ukraine' a constitutional complaint shall be deemed as admissible subject to its compliance with Articles 55 and 56 of this Law and where: 1) all domestic legal remedies have been exhausted (subject to the availability of a legally valid judicial judgment delivered on appeal, or, where the law provides for cassation appeal, - of a judicial judgment delivered on cassation); 2) Not more than three months have passed from the effective date of a final judicial judgment that applies the law of Ukraine (specific provisions thereof). and (2) the legislatively recognised right to appeal to the court with a request for a review of a court decision due to the established unconstitutionality of the law of Ukraine applied by the court in the case's resolution.

The existing procedural legislation (Art. 361, pt. 5, s. 1 of the Code of Administrative Procedure of Ukraine; Code of Administrative Procedure of Ukraine no 2747-IV of 06 July 2005 <https://zakon.rada.gov.ua/ laws/show/2747-15#Text> accessed 18 January 2024. Art. 320, pt. 3, s. 1 of the Commercial Procedure Code of Ukraine; Commercial Procedure Code of Ukraine no 1798-XII of 6 November 1991 (as amended by Law no 2147-VIII of 03 October 2017) <https://zakon.rada.gov.ua/laws/show/1798-12#Text> accessed 18 January 2024. Art. 423, pt. 3, s. 1 of the Civil Procedure Code of Ukraine; Civil Procedure Code of Ukraine no 1618-IV of 18 March 2004 (as amended by Law no 2147-VIII of 03 October 2017) <https://zakon.rada.gov.ua/laws/show/1618-15#Text> accessed 18 January 2024. Art. 459, pt. 3, s. 1 of the Criminal Procedure Code of Ukraine Criminal Procedure Code of Ukraine no 4651-VI of 13 April 2012 (as amended by Law no 2147-VIII of 03 October 2017) <https://zakon.rada.gov.ua/laws/show/4651-17#Text> accessed 18 January 2024.) recognises the court's application of an unconstitutional law of Ukraine in a case as a valid basis for the review of final court decisions under exceptional circumstances. This review is admissible in all cases except those falling under criminal proceedings, contingent upon the condition that the final court decision remains unexecuted. The Criminal Procedure Code of Ukraine, which does not contain such a provision, constitutes the sole exception to this rule. In other words, the possibility of reviewing legally binding court decisions in criminal proceedings is not contingent upon their execution.

Implementing the exceptional circumstances mechanism for reviewing court decisions and establishing the determined unconstitutionality of a legal act or its specific provision following the 2017 procedural reform is entirely justified. “The purpose of the exceptional circumstances mechanism is to facilitate the reconsideration of court decisions rendered with significant violations that substantially impacted the case's outcome. ... Consequently, the mechanism for reviewing court decisions under exceptional circumstances is designed to rectify errors committed by the state, rather than by the judiciary.” A Yezerov, `Unconstitutionality of the Law as a Basis for Review of Court Decisions in Exceptional Circumstances in Administrative Proceedings' (2020) 3 Bulletin of the Constitutional Court of Ukraine 118-9.

Notwithstanding the potential imposition of considerably stricter constraints, it is unwarranted to assert that procedural legislation mandates an unconditional review of all final court decisions in which the court applied a legal act (or its provisions) subsequently deemed unconstitutional. Conversely, the conditions for initiating proceedings under exceptional circumstances are normatively circumscribed in terms of time, the scope of persons involved, and, as a general rule, reservations concerning the execution of final court decisions. In essence, reasonable safeguards are instituted to preserve a requisite balance between public and private interests. Dmytro Terletskyi, `The Effect of Decisions Passed by the Constitutional Court of Ukraine over Time: Theoretical and Practical Aspects' in M Smokovych and other (eds), Legal Consequences of Determining a Normative Act Unconstitutional for the Protection of Human Rights in Administrative Justice Process: Collection of the Workshop Materials, Kyiv, 31 July 2020 (Pravo 2020) 82; Dmytro S Terletskyi, `The Case of Skrypka as an Epitome of the Effectiveness of Constitutional Complaint in the National Legal Order' in SV Kivalov (ed), European Benchmarks for Ukraine's Development in the Context of War and Global Challenges of the 21st Century: Synergy of Scientific, Educational, and Technological Solutions: Materials of the International scientific and practical conference, Odesa, 19 May 2021 (Jurydyka 2021) vol 1, 272.

When assessing the effectiveness of a constitutional complaint, considering its legitimate purpose and primary functional role, it is essential to note that the Constitutional Court of Ukraine does not have the authority to initiate a review of the final court decision in the complainant's case or determine the question of compensation for damages caused by the application of an unconstitutional law. In this context, it is important to note that the authority vested in the Grand Chamber of the Constitutional Court of Ukraine, aimed at securing constitutional complaints to prevent irreversible consequences that may arise from the execution of final court decisions, represents an exception (though, as of September 2023, the interim order has been issued only in one case upon the constitutional complaint of A.V. Dermendzhy). `The Constitutional Court of Ukraine has Issued an Enforcement Order' (Constitutional Court of Ukraine, 16 April 2019) <https://ccu.gov.ua/novyna/konstytuciynyy-sud-ukrayiny-vydav- zabezpechuvalnyy-nakaz> accessed 18 January 2024.

The above statement does not imply that a constitutional complaint is inevitably ineffective in Ukraine as a means of legal protection for constitutional rights. Instead, the Constitutional Court of Ukraine is authorised solely to halt violations of constitutional rights by laws that, once declared unconstitutional, lose their validity and cannot be applied. It is necessary to agree with the opinion that “in essence, the Court, by its decision on the complaint, can only create conditions for the review of the court decision in the complainant's case, providing an opportunity to restore violated fundamental rights.” Yurii Barabash, `“Means for the Protection of Rights vs Legal Certainty” as a Dilemma of the Domestic Official Constitutional Doctrine in the Context of Functioning of the Institute of Individual Constitutional Complaint' (2020) 4 Ukrainian Journal of Constitutional Law 51, doi:10.30970/jcl.4.2020.2. The restoration of the complainant's previous legal status, including reconsideration of their case by the court, as well as the reinstatement of proceedings and compensation for damages, are intricately linked within the systemic and functional context of other legal methods of protecting rights. Courts of general jurisdiction can implement these remedies.

It is important to emphasise that despite the consistently high academic interest in the phenomenon of a constitutional complaint in Ukraine and a series of notable studies by well-known legal scholars, ibid 47; Yu Barabash and H Berchenko, `The Effectiveness of Individual Constitutional Complaint as a Means of Protecting the Rights of Individual in Ukraine' (2021) 5 Bulletin of the Constitutional Court of Ukraine 9; Hryhorii Berchenko, Andriy Maryniv and Serhii Fedchyshyn, `Some Issues of Constitutional Justice in Ukraine' (2021) 4(2) Access to Justice in Eastern Europe 128, doi:10.33327/AJEE-18-4.2-n000064; Viacheslav Pleskach, `Effectiveness of the Constitutional Complaint as a Domestic Remedy in the Practice of the European Court of Human Rights' (2020) 1 Ukrainian Journal of Constitutional Law 38, doi.org/10.30970/jcl.1.2020.4; Riznyk (n 16); Savchyn (n 18) 39; Yezerov (n 25) 112. there is currently no consensus within the scientific and expert community regarding the ways to address the situation that has arisen.