Commentary to the judgment of the Constitutional Court of Ukraine, adopted July 16, 2019 no. 9-r/2019
The article analyzes the judgment of the Constitutional Court of Ukraine, which ruled that the Law on the condemnation of communist and national socialist totalitarian regimes and the prohibition of the propaganda of their symbols complies with the provisions of the Constitution. A general description of the socio-political and intra-judicial atmosphere in which this decision was adopted is given. The conclusion is made that under the circumstances of global instability, constitutional judiciary in Ukraine had to turn to the historical arguments, sometimes exploiting these arguments. In this regard, several procedural issues are identified that arise in the context of the legitimacy of such kind of argumentation in court’s judgments. The key role of the judge rapporteur in the preparation of the draft of the final judgment subsequently adopted by a majority in the Court is emphasized. The author carries out a detailed analysis of the argumentation of the final judgment, sequentially picking the motives that guided the Court in formulating the relevant conclusions. The conclusion is drawn about a peculiar crisis of historical consciousness, which can characterize both the transitional society as a whole and the particular professional group. An analysis is being made of the judgment adopted by the Court with respect to its compliance with the European standards on the limitations of political activities. In particular, the author comes to the conclusion that while reviewing the constitutionality of this law, the Court tried to use the proportionality test, which traditionally takes place in cases involving the restriction of rights and freedoms. Nevertheless, having highlighted the legitimate aim of adopting the law and focusing most of the motivation to it, the Court actually neglected other elements of this test, first of all, the clarification of the proportionality of the restrictions introduced. In addition, the author raises the question of the procedural status of information of a historical nature, to which the constitutional court refers in its decisions. It is proposed to consider historical facts, in relation to which there is a certain consensus in science, as generally accepted and, as a result, not requiring special proof. In the cases where there is no such consensus, the constitutional court has the right to appoint an examination in order to secure the opinion of an expert historian.
About the author:
Oleksandr Yevsieiev – Candidate of Sciences (Ph.D.) in Law, Associate Professor, Higher School of Economics, Moscow, Russia
Yevsieiev O. (2019) Kak Konstitutsionnyy Sud Ukrainy “sudit” Istoriyu: Kommentariy k Resheniyu Konstitutsionnogo Suda Ukrainy ot 16 iyulya 2019 goda No. 9-r/2019 [How the Constitutional Court of Ukraine “judges” History. Commentary to the judgment of the Constitutional Court of Ukraine, adopted July 16, 2019 no. 9-r/2019]. Sravnitel’noe konstitutsionnoe obozrenie, vol. 28, no. 6, pp. 121–136. (In Russian).
Blokhin P.D., Kryazhkova O.N. (2014) Kak zashсhitit’ svoi prava v Konstitutsionnom Sude: prakticheskoe rukovodstvo po obrashcheniyu s zhaloboy v Konstitutsionnyy Sud Rossii [How to defend your rights in the Constitutional Court: Practical Guide on Complaining to the Constitutional Court of Russia]. Moscow: Institut prava i publichnoy politiki. (In Russian).
Kolisnik V. (2008) Polіtichna kul’tura ukrains’koy ehlіti v kontekstі spriynyattya skladnikh ehtapіv vіtchiznyanoy іstorii [The political culture of the Ukrainian elite in the context of perception of the difficult stages of Ukrainian history]. In: Polіtichna kul’tura suspіl’stva: dzherela, vplivi, stereotipi [The political culture of the society: sources, influences, stereotypes], Khar’kov: Natsional’nyy yuridicheskiy universitet imeni Yaroslava Mudrogo, pp. 169–172. (In Ukrainian).
Kolіsnik V. (2017) Masova konstitutsіyna svіdomіst’ і superechlivі uyavlennya pro Golodomor v umovakh poshirennya postpravdi [The mass constitutional consciousness and the conflicting views on the Holodomor under the conditions of Post-Truth]. Vіsnik Konstitutsіynogo Sudu Ukraini, no. 5, pp. 79–85. (In Ukrainian).
Kovler A.I. (2019) Evropeyskaya Konventsiya v mezhdunarodnoy sisteme zashchity prav cheloveka [The European Convention under the international system of the human rights protection], Moscow: Norma, Infra-M. (In Russian).
Pyrlik G. (2019) Sem’ kilometrov documentov. Kak v Ukraine znakomyatsya s materialami o repressirovannykh rodstvennikakh [Seven kilometers of documents. How in Ukraine they get acquainted with the materials on the repressed relatives]. OpenDemocracy. Russkaya versiya. Available at: https://www.opendemocracy.net/ru/seven-kilometers-memory/ (accessed 08.11.2019). (In Russian).
Schlesinger A. (1992) Tsikly amerikanskoy istorii [The cycles of American history], Moscow: Progress. (In Russian).
Tumanov V.A. (1956) Zapreshchenie Kommunisticheskoy partii Germanii – antinarodnyy nezakonnyy akt [The ban on the Communist party of Germany as anti-people and illegal act], Moscow: Znanie. (In Russian).
Wilson R.A. (2011) Writing History in International Criminal Trials, New York: Cambridge University Press.
Yevsieiev O.P. (2013) Psikhologiya konstitutsionnogo sudoproizvodstva [The psychology of the constitutional justice], Khar’kov: Urait. (In Russian).
Yevsieiev O.P. (2014) Verkhovnyy Sud Soedinennogo Korolevstva: stanovlenie [The Supreme Court of the United Kingdom: becoming], Khar’kov: Urait. (In Russian).
Yevsieiev O. (2019) Nezakonnoe obogashchenie: vzglyad s Zhilyanskoy: Kommentariy k Resheniyu Konstitutsionnogo Suda Ukrainy ot 26 fevralya 2019 goda № 1-r/2019 [Illegal enrichment: perspectives from Zhylianskaya. Commentary to the decision no. 1-r/2019 of the Constitutional Court of Ukraine from February 26, 2019]. Sravnitel’noe konstitutsionnoe obozrenie, no. 3, pp. 127–140. (In Russian).
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