Constitutionalists from Ukraine, Latvia, Lithuania and Poland discussed urgent issues of the bodies of constitutional jurisdiction

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Constitutionalists from Ukraine, Latvia, Lithuania and Poland discussed urgent issues of the bodies of constitutional jurisdiction

 

On July 14 - 15, 2014 delegations of the bodies of the constitutional jurisdiction headed by the President of the Constitutional Court of the Republic of Latvia Aldis Laviņš, President of the Constitutional Court of the Republic of Lithuania Dainius Žalimas and President of the Constitutional Tribunal of the Republic of Poland Andrzej Rzepliński visited Ukraine.  

During the visit a series of official events took place, including talks of the European constitutionalists with the Chairman of the Constitutional Court of Ukraine Yurii Baulin, meeting with the President of Ukraine PetroPoroshenko, Chairman of the Verkhovna Rada of Ukraine OleksandrTurchynov, Chairman of the Supreme Court of Ukraine Yaroslav Romaniuk, Prosecutor General of Ukraine Vitalii Yarema, First Deputy Minister of Justice of Ukraine Inna Yemelyanova.

Furthermore, much attention was paid to scientific and practical part of the programme. The Constitutional Court of Ukraine organised a round table with participation of the Presidents and judges of the bodies of constitutional jurisdiction from Ukraine, Latvia, Lithuania and Poland.

During the round table the participants discussed the observance of the principle of the social state during reduction of social expenditures because of the financial crisis. The Chairman of the Constitutional Court of Ukraine noted that this problem was rather crucial for the Constitutional Court of Ukraine in the light of the Law of Ukraine "On prevention of financial disaster and creating conditions for economic growth in Ukraine", adopted in March 2014 which implies significant restriction of social benefits and guarantees. Yurri Baulin stressed that the Court has to resolve serious issues related to the problems caused by this law.

Chairman of the Constitutional Court of Ukraine informed that in terms of steady foreign policy of Ukraine aimed at integration with the EU, co-operation between European constitutional courts and the European Court of Human Rights is extremely important, including obtaining advisory opinions of the ECHR on fundamental issues concerning interpretation or application of rights and freedoms. He also offered colleagues to speak on conflicting issue concerning constitutional courts' revision of their previous legal positions. It is a difficult theoretical and practical problem, yet we are facing it, said Yurii Baulin.

Presidents of the bodies of constitutional jurisdiction of Latvia, Lithuania and Poland expressed general opinion that the issues raised for discussion are important for all countries participating in the round table. I hope we have a good opportunity to exchange ideas, experience as it is a method without which we can not do today, the President of the Constitutional Court of Latvia Aldis Laviņš noted.

His colleague from Lithuania Dainius Žalimas stressed that such round table taking place in a difficult time for Ukraine is a demonstration of solidarity of the constitutionalists from four countries and a common duty to support the Ukrainian partners and to share mutual experiences.

President of the Constitutional Tribunal of Poland Andrzej Rzeplińskiadded that the current situation in Ukraine is very important not only for itsneighbours, but also for all European countries. By signing the Association Agreement with the EU, Ukraine has made an important step in order to develop within the legal system, which is ruled only by the power of law and nothing else, said Andrzej Rzepliński. He emphasised the importance of the Constitutional Court of Ukraine in adapting national legislation of Ukraine to EU standards. The constitutional reform is also important, but it needs quiet work without emotions caused by the war in the east, said Andrzej Rzepliński. He believes that the round table will be the first step to further close co-operation of the constitutionalists from Ukraine, Latvia, Lithuania and Polandwithin a quadrilateral dialogue in Kiev.

Judge of the Constitutional Court of Ukraine Mykhailo Hultai noted the symbolic nature of the event, presenting his research on reducing social expenditures of the state in the period of economic and political crisis. He admitted that from the standpoint of the constitutional law the principle of the social state involves primarily the necessity to ensure citizens' social and economic rights under the Constitution. He cited the legal position of the Constitutional Court of Ukraine, which in one of its decisions stated that the level of state guarantees to the right to social protection shall comply with the Constitution of Ukraine and the purpose and means of changing the mechanism of calculation of social assistance – with the principles of proportionality and fairness.

The speaker stressed that social protection, observance of human social rights is closely connected with the principle of social state. He pointed out that the Constitutional Court of Ukraine during its activity has adopted 39 decisions, which dealt with observance of social rights such as the right to work, social security, housing, health care, education. However, since the crisis of 2008, the Verkhovna Rada of Ukraine has been adopting laws that change the social legislation, and after the events of February 2014 the Cabinet of Ministers of Ukraine decided to cut down budget savings, while reducing the number of benefits and social guarantees for seniour officials as well as for ordinary citizens. Thus, the Constitutional Court of Ukraine received a number of constitutional appeals concerning the conditions and size of payments of state aid to the families with children, social protection of certain categories of citizens, including the victims of the Chornobyl disaster, pensions of military personnel.

Social policy should be understood by ordinary people and should be intended primarily for them. Of course, the judges of the Constitutional Court of Ukraine understand that the economic and financial problems facing Ukraine should be resolved not by cutting, narrowing or suspension of social guarantees, but other ways, not at the expense of ordinary citizens of Ukraine, concluded Mykhailo Hultai.

In turn, foreign participants noted that their countries also have to solve similar problems. In particular, Dainius Žalimas admitted that inLithuania during the crisis revision of social standards downward the main thing is the principle of constitutionality of the process. In this case it is necessary to take into account criteria such as need, proportionality, non-discrimination and temporary reduction of social standards. Reduction of social benefits can be allowed, but it must be done so that the situation is viewed in complex, taking into account all the circumstances without violation of the Constitution.

As Andrzej Rzepliński informed on this occasion, the Constitutional Tribunal of the Republic of Poland in view of the economic crisis of 2008 decided on permissible limits of the reduction of social guarantees, but it has no authority to determine and guarantee the size of social benefits, as this is the exclusive competence of the Parliament and the Government. The task of the Constitutional Tribunal of the Republic ofPoland is to ensure that the social standards did not drop below the minimum, determined in the Constitution. The position of the Constitutional Tribunal is only to provide genuine right to social security, said Andrzej Rzepliński.

Constructive exchange of experience took place on the application of the ECHR case-law by the constitutional courts. According to YuriiBaulin, the Constitutional Court of Ukraine applies the case-law of the Court in Strasbourg, focusing on those cases where Ukraine appears. According to Aldis Laviņš, Latvia shares similar approach. The Constitutional Court of the Republic of Latvia examines all ECHR cases, irrespective of the state against which they are adopted. The main thing is to have the same problems and legal positions.

he Judge of the Constitutional Court of Ukraine Stanislav Shevchuk also expressed his view on this issue. In his opinion, understanding of the rights and freedoms is a common problem for the post-Sovietcountries, that is why the Constitutional Court of Ukraine should take into account in its decisions the legal positions of the constitutional courts from Latvia, Lithuania and Poland.

An interesting discussion arose around the revision of the previous legal positions by the constitutional courts. Yurii Baulin pointed out that this issue causes criticism against the constitutionalists. But the question appears if there are changes in the life, legislation, if there are difficulties and crises, then is it necessary to stand firm on the fact that earlier was pronounced in a happy life, said Chairman of the Constitutional Court of Ukraine.

In this regard, Dainius Žalimas noted that in Lithuania they specially summarise and examine the jurisprudence of the Constitutional Court, but still there have not been a case of the revision or abolition of the Court’s legal position. We have established the doctrine of re-interpreting of the decisions of the Constitutional Court of the Republic ofLithuania, but it has never been used since it was not needed. We should define clear grounds to deviate from the previous position, added President of the Constitutional Court of the Republic of Lithuania.

The roundtable was attended by Judges of the Constitutional Court of Ukraine Serhii Vdovichenko, Oleksandr Kasminin, Oleksandr Lytvynov, Mykola Melnyk, Serhii Sas, Oleh Serheichuk, Ihor Slidenko, PetroStetsiuk, Oleksandr Tupytskyi, Natalia Shaptala, Viktor Shyshkin, former Judge of the Constitutional Court of Ukraine Mykhailo Kolos, Justice of the Constitutional Court of the Republic of Lithuania Vytas Milius, Justice of the Constitutional Tribunal of the Republic of Poland Leon Kieres, representatives of the Secretariats of the constitutional courts, officials of the diplomatic missions accredited in Ukraine.

In conclusion, the participants of the round table expressed satisfaction with the results of their communication and reiterated their common desire to continue co-operation for the improvement of constitutional justice, protection of citizens' rights and freedoms and strengthening their countries.

Developed with the support of OSCE Project Co-ordinator in Ukraine
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