PROBLEMS OF DEVELOPMENT OF DOCTRINE OF RULE OF LAW IN DECISIONS OF THE CONSTITUTIONAL COURT OF UKRAINE DURING 1997–2016

Abstract

The purpose of the article is a critical analysis of legal positions in practice of the first 20 years of work of the Constitutional Court of Ukraine (hereinafter referred to as the CCU), which deals with the attempts of this body to give a vision of the content and structure of the rule of law. The methodology of the article is a systematic approach, a method of comparison, a formal-logical method. As a result, the doctrine is characterized by unclear, lack of a unified approach and criteria for inclusion of certain phenomena in the list of components of the rule of law. Most of the above decisions of the CCU deal with such a component of the rule of law as justice and, in particular, its form in the form of proportionality. The most detailed element of the rule of law in the decisions of the CCU is the requirement of legal certainty, including the principle of prohibition of retroactive operation of the law in time and respect for res judicata. The next element of the rule of law is the right of a person to a fair trial, in particular, the requirement of the compulsory presence of judicial control over the limitation of human rights. In the decisions of the CCU there is a mechanical approach, under which all new elements are regularly added to the content of the rule of law, without explaining the criteria of such addition and without determining the place and role of the new element among those already available. If in CCU's decisions continue to dominate the "inclusive," and "flexible," idea of the rule of law, it will only lead to the fact that the practical meaning of article 8, part 1, of the Constitution will gradually disappear, and this category will finally "dissolve" and de facto become superfluous.