“Legislation should avoid prohibitions or restrictions on the exercise of each person's right to appeal in court
against decisions, actions or omissions of subjects of power” – Decision of the Constitutional Court
The Second Senate of the Constitutional Court of Ukraine adopted a Decision upon the constitutional complaints of Kariakin Eduard Serhiiovych and Eco Coal Trade House LLC regarding the compliance of the provisions of Article 79.1 of the Law of Ukraine “On Banks and Banking” dated December 7, 2000 No. 2121 ‒ III as amended (hereinafter referred to as the Law) with the Constitution of Ukraine.
By this Decision, the Court declared unconstitutional a specific provision of Article 79.1 of the Law, namely “which are covered by the supervisory activities of the National Bank of Ukraine”.
The petitioners raised the issue of reviewing the compliance with the Constitution of the provisions of Article 79.1 of the Law, according to which “a bank or other persons covered by the supervisory activities of the National Bank of Ukraine have the right to appeal in court against decisions, actions or omissions of the National Bank of Ukraine or its officials”.
During the Constitutional Court's consideration of this case, the Law was amended, and the amendments, in the opinion of the Court, did not affect the essence of the disputed provision of Article 79 of the Law in terms of issues raised in the constitutional complaints.
The Constitutional Court of Ukraine considers that guaranteeing the right of access to a court to appeal against decisions, actions or omissions of subjects of power by the provision of Article 55.2 of the Constitution of Ukraine is a requirement of the rule of law. “Such access does not automatically mean the illegality of these decisions, actions or omissions, but it is aimed at judicial review of their legality and legitimacy, which not only provides effective protection of the rights and freedoms of every person affected by the illegal activities of subjects of power, but also contributes to the maintenance of law and order in general by identifying and eliminating illegitimate manifestations in such activities”, the decision reads.
In view of the above, the Constitutional Court of Ukraine notes that the legislation should avoid prohibitions or restrictions on the exercise by each person of the right to appeal in court against decisions, actions or omissions of subjects of power, including by defining at the legislative level an exhaustive list of persons, who have the right to such an appeal, because the non-inclusion of a person in this list makes it impossible for him/her to prove in court his/her conviction in the need to protect his/her violated rights, freedoms by these decisions, actions or omissions.
The Constitutional Court points out that the provisions of Article 79.1 of the Law establish an exhaustive list of persons who have the right to appeal against decisions, actions or omissions of the National Bank of Ukraine, its officials and civil officers. In this way, access to court is not possible for persons not included in this list, in particular, the bank's shareholders who are not owners of a significant share in the bank, which discriminates against them on the basis of property. Thus, contrary to the principle of the rule of law, the right of this category of persons to access to court and further effective legal protection of their rights and legitimate interests is leveled.
In view of the above, the Constitutional Court of Ukraine held that a specific provision of Article 79.1 of the Law, namely “covered by the supervisory activities of the National Bank of Ukraine”, contradicts Article 8, paragraphs one, two of Article 24, paragraphs one and two of Article 55 of the Constitution of Ukraine.
A specific provision of Article 79.1 of the Law, declared unconstitutional, shall lose its effect from the date of adoption of this Decision by the Constitutional Court of Ukraine.
The decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.
