DISSENTING OPINION OF THE JUDGE OF THE CONSTITUTIONAL COURT OF UKRAINE AS A GUARANTEE OF THE INDEPENDENCE PRINCIPLE: PRO ET CONTRA

Authors

  • Iryna Levandovska National Aviation University

Keywords:

separate opinion of the judge of the Constitutional Court of Ukraine, principle of independence, constitutional proceedings

Abstract

The purpose of scientific article is to research the dissenting opinion of a judge of the Constitutional Court of Ukraine as a guarantee of the principle of independence. Methods: methods of induction, generalization and synthesis were used to achieve the goal. Results: was made analysis of the advantages and disadvantages of the separate opinion of a judge of the Constitutional Court of Ukraine as a guarantee of the principle of independence in modern legal realities. Discussion: in modern political and legal realities, the Constitutional Court of Ukraine, as a body of constitutional control, plays an important role in the mechanism of legitimation of state power and ensuring the rule of law and human rights. In order to be able to properly perform its functions and administer constitutional justice, it is important to ensure the non-political status of this body and enforcement of guarantees of its independence, which are ensured by the independence of its members.

One of the main principles of constitutional justice in Ukraine is its independence, which is directly related to the independence of its members. The enforcement of the principles, as is well known, provided by guarantees, which in turn provide for a certain procedure. In Ukraine, among such guarantees, stands out a separate opinion of a judge of the Constitutional Court of Ukraine. It is noteworthy that in the last five years, almost every decision of the Constitutional Court of Ukraine is taken together with separate opinions. Despite some theoretical developments in this area, the issue of a separate opinion of the judge of the Constitutional Court is poorly studied and needs to be studied more carefully. Such practice has not gone unnoticed and has repeatedly caused public discussions and debates, where both arguments «for» and «against» have been put forward.

The principle of independence in collegial constitutional bodies is considered in a broad and narrow sense. In the broad sense, it is the independence of the body from any external influence and observance of democratic principles in its activities, in other words, its institutional guarantees that do not directly affect its members, and in the narrow sense - the independence of its members, their loyalty to justice and their own professionalism, dignity, that is, individual guarantees that directly affect the independence of the body as a whole. These two components are in a symbiotic relationship and are considered by us as part and whole in their dialectical unity.

The article analyzes the advantages and disadvantages of the fact that a separate opinion is a guarantee of independence for a member of the constitutional review body, which showed that in Ukrainian political and legal realities should not consider a separate opinion of the judge of the Constitutional Court as a guarantee of independence. To date, this guarantee poses significant threats to the body’s institutional independence, as it puts direct pressure on its members. The article analyzes the advantages and disadvantages of the fact that a separate opinion is a guarantee of independence for a member of the constitutional review body, which showed that in Ukrainian political and legal realities should not consider a separate opinion of a CCU judge as a guarantee of independence.

To date, this guarantee poses significant threats to the body’s institutional independence, as it puts direct pressure on its members. In this formulation of the question, the arguments "for" lose all meaning.

Author Biography

Iryna Levandovska, National Aviation University

graduate student

References

Law D.S. (2019, October 17). Judicial independence. Encyclopedia Britannica. URL: https://www.britannica.com/topic/judicial-independence

Бондаренко Б. Гарантії незалежності суддів Конституційного Суду України. Український часопис конституційного права. 2017. № 3(4). С. 60-65.

Laffranque J. (2003). Dissenting Opinions and Judicial Independence. Juridica International, VIII, 162-172. URL: https://www.juridicainternational.eu/ public/ pdf/ ji_2003_1_162.pdf

Kelemen K. (2013). Dissenting Opinions in Constitutional Courts. German Law Journal, 14(8), 1345-1371. URL: https://poseidon01.ssrn.com/ de-livery.php? DOI: https://doi.org/10.1017/ S2071832200002297

Raffaelli R. (2012). Dissenting Opinions in the Supreme Courts of the Member States. European Parliament, p. 53. URL: https://www.europarl. europa.eu/document/activities/cont/201304/ 20130423ATT64963/20130423ATT64963EN.pdf

Šimáčková K. (2021). Dissenting Opinions in Constitutional Courts: A Means of Protecting Judicial Independence and Legitimising Decisions. Seminar Room (Human Rights Building, Strasbourg) and KUDO Interpretation into English and French, 1-5. URL: https://echr.coe.int/Documents/ Intervention_20210415_Simackova_Rule_of_Law_ENG.pdf

Grimm D. «A View from Europe: Courts under political pressure»: [Jurist and scholar Dieter Grimm LL.M. ‘65 speaks at Harvard Law School]. URL: https://today.law.harvard.edu/courts-under-political-pressure/

References

Law D.S. (2019, October 17). Judicial independence. Encyclopedia Britannica. URL: https://www.britannica.com/topic/judicial-independence

Bondarenko B. (2017). Guarantees of independence of judges of the Constitutional Court of Ukraine. Ukrainian journal of constitutional law, 5(8), 60-65 [in Ukranian].

Laffranque, J. (2003). Dissenting Opinions and Judicial Independence. Juridica International, VIII, 162-172. URL: https://www.juridicainterna-tional.eu/ public/ pdf/ ji_2003_1_162.pdf

Kelemen K. (2013). Dissenting Opinions in Constitutional Courts. German Law Journal, 14(8), 1345-1371. URL: https://poseidon01.ssrn.com/ delivery.php?

Raffaelli R. (2012). Dissenting Opinions in the Supreme Courts of the Member States. European Parliament, p. 53. URL: https://www. europarl.europa.eu/document/ activities/cont/201304/ 20130423ATT64963/20130423ATT64963EN.pdf

Šimáčková K. (2021). Dissenting Opinions in Constitutional Courts: A Means of Protecting Judicial Independence and Legitimising Decisions. Seminar Room (Human Rights Building, Strasbourg) and KUDO Interpretation into English and French, 1-5. URL: https://echr.coe.int/Documents/ Intervention_20210415_ Simackova_ Rule_of_ Law_ENG.pdf

Grimm D. «A View from Europe: Courts under political pressure»: [Jurist and scholar Dieter Grimm LL.M. ‘65 speaks at Harvard Law School]. URL: https://today.law.harvard.edu/courts-under-political-pressure/

Published

2021-09-30

How to Cite

Levandovska І. (2021). DISSENTING OPINION OF THE JUDGE OF THE CONSTITUTIONAL COURT OF UKRAINE AS A GUARANTEE OF THE INDEPENDENCE PRINCIPLE: PRO ET CONTRA. Scientific Works of National Aviation University. Series: Law Journal "Air and Space Law&Quot;, 3(60), 97–102. Retrieved from https://jrnl.nau.edu.ua/index.php/UV/article/view/15959

Issue

Section

CONSTITUTIONAL AND ADMINISTRATIVE LAW