Kyiv
December 24, 1997 Case No. 3/690-97

Members (judges) of the Constitutional Court who heard the case:

Ivan Artemovych Tymchenko – presiding judge, Volodymyr Denysovych Vozniuk, Pavlo Borysovych Yevhrafov, Mykola Ivanovych Koziubra, Mykola Ivanovych Korniyenko, Mykhaylo Vasyliovych Kostytsky, Liudmyla Fedorivna Malynnykova, Petro Fedorovych Martynenko, Oleksandr Mykolayovych Myronenko, Vitaliy Ivanovych Rozenko, Mykola Dmytrovych Savenko, Viktor Yehorovych Skomorokha, Volodymyr Pavlovych Tykhy, Liudmyla Panteliyivna Chubar, Volodymyr Mykolayovych Shapoval, Stanislav Serhiyovych Yatsenko.

Petitioners: The subject of the constitutional appeal (or appellant) was a group of national deputies of Ukraine. They were represented by national deputies of Ukraine Viktor Petrovych Bryt and Yuriy Hryhorovych Donchenko. The President was represented by the Deputy Minister of Justice of Ukraine Bronislav Stanislavovych Stychynsky, the director of the Department of Organizational Work and Employee Policy of the Presidential Administration of Ukraine. At the request of the Constitutional Court of Ukraine, Anatoliy Oleksandrovych Selivanov, the VR Secretariat’s director of relations with judicial bodies, also took part in consideration of the case as a representative of the Verkhovna Rada.

The Issues: A group of national deputies filed an appeal with the Constitutional Court in which they asserted that a series of directives issued by President Kuchma between July 1996 and January 1997 on the appointment of first deputies and deputy heads of local state (‘state’ is used here in the meaning national government) administrations was unconstitutional and that by issuing these directives, Kuchma had exceeded the bounds of his constitutional authority.

(Note: By “local state administrations” they are referring to the government agencies which represent the executive branch of government at the oblast and raion level as well as for the cities of Kyiv and Sevastopol. The powers of local state administrations are enumerated in Article 119 of the Constitution. These powers include, for example, the implementation of the Constitution and laws of Ukraine, acts of the President and Cabinet of Ministers of Ukraine as well as those of other executive branch agencies.)

The Constitutional Court’s Findings:

After hearing the report of judge L.F. Malynnykova, explanations by the representatives of the parties – V.P. Bryt, Yu.H. Donchenko, B.S. Stychynsky, Yu.Yu. Khotlubey, A.O. Selivanov, and after studying the materials of the case, the Constitutional Court of Ukraine issued the following ruling:

1.The national deputies argued that the power to appoint the first deputy and deputy heads of oblast and Kyiv local state administrations does not belong to the President. They point out that in the article of the Constitution which enumerates presidential powers (Article 106), the President is only given the authority to appoint (and dismiss) the heads of local state administrations. They add that the power to appoint first deputies, deputy heads, etc. is also not given to the President elsewhere in the Constitution. This power, the national deputies argue, belongs rather to the head of the local state administration because according to Article 118 of the Constitution, “the composition of local state administrations is formed by the heads of local state administrations.”

The President argued that the power to appoint deputy heads of local state administrations stems from executive order (or decree, Ukr. ukaz) No. 760 of August 21, 1995 which says that the head of the local administration nominates and the president appoints and dismisses deputy heads of local state administrations. (This decree was issued, of course, before the present 1996 Constitution went into effect. Laws in effect before the adoption of the Constitution are valid to the extent that they do not contradict the Constitution.)

2.The Constitutional Agreement between the President and the Verkhovna Rada established the principles for the organization and functioning of state power and local self-government in Ukraine prior to the adoption of the 1996 Constitution. The status and powers of oblast, raion, Kyiv and Sevastopol local state administrations were defined by two sets of Provisions (Ukr. Polozhennia) on these subjects that were signed by President Kuchma on August 21, 1995 in executive order No. 760. According to these Provisions, the president appointed as head of the local state administration the person who was elected to this position. The appointed head, in turn, got to nominate his first deputy and deputies who were then appointed by the president.

The President’s executive order of July 27, 1996 “On the Procedure for Reviewing Questions Connected with the Appointment of Heads and Deputy Heads of Oblast, Kyiv and Sevastopol city and heads of raion State Administrations” contained no clear information about the powers for appointing the mentioned officials.

3.Based on the preceding, the Court ruled that the Constitution gives the President, upon receiving nominations from the Cabinet of Ministers, the power to appoint heads of local state administrations and to dismiss them from their posts. The Constitution does not, the Court said, give the President the power to appoint first deputies and deputy heads of local state administrations.

4.The powers established by presidential decree No. 760 with regard to appointing first deputies and deputy heads of local state administrations are not among the powers given to the president by the Constitution. The portion of the “Provisions” that were approved by this decree relating to the appointment of the above officials are, therefore, unconstitutional.

According to the Constitution, any law, legal act or provision thereof that is found unconstitutional loses its validity on the day that the Constitutional Court issues a ruling concerning its unconstitutionality. Conversely, any law or legal act is considered legally valid (in force) until the Constitutional Court rules that it is unconstitutional. The Court said, therefore, that it may choose not to apply (Ukr. mozhe ne poshyriuvaty) the finding of unconstitutionality to those legal relations which arose because of the disputed actions taken by the president.

(Although it does not specifically say so until the Resolution section, the Court means that it may choose NOT to overturn any appointments of first deputies or deputy heads made by the President between July 1996 and January 1997 because during that time the laws or legal acts under which he made those appointments were technically in effect. This action (or inaction) would certainly be consistent with one of the Court’s main principles, namely, that its decisions are not retroactive. This principle forbids the adoption of ex post facto laws, that is, laws that have an effect on something that has already happened. The principle of “non-retroactivity,” for example, explains why the Court ruled (in a controversial decision) that a minority group of parliamentarians who refused to take an oath of loyalty to Ukraine could retain their seats. In that case, the Court said that because the requirement for taking an oath of loyalty was only established by the 1996 Constitution, it could not be applied to parliamentarians who were elected before the Constitution was adopted. (For more information, see “Decision of the Constitutional Court of Ukraine in the matter of Oleksandr Leonidovych Barabash’s petition for an official interpretation of part five of Article 94 and of Article 160 of the Constitution of Ukraine [The case concerning the entry into force of the Constitution of Ukraine]” in the Visnyk Konstytutsiynoho Sudu Ukrainy no. 2, 1997.))

Resolutions:

1. Part one of paragraph eleven of the “Provisions” of decree no. 760 on oblast, Kyiv and Sevastopol city state administrations and on raion and raion-level state administrations in the cities of Kyiv and Sevastopol signed by President Kuchma on August 21, 1995 is deemed unconstitutional with regard to the President of Ukraine’s power to appoint first deputies and deputies of city state administrations.

2. The portion of the Provisions cited in Resolution 1 become invalid on the day the Constitutional Court of Ukraine adopts the present decision concerning their unconstitutionality.

3. This decision of the Constitutional Court does not apply to those “legal relations,” that is, appointments, made by the President of Ukraine of first deputies and deputy heads of oblast and Kyiv city state administrations before the Constitutional Court found the relevant portions of the “Provisions” (decree No. 760) to be unconstitutional. It appears, therefore, that there is no legal basis on which to challenge the appointment of those officials who were appointed to office under this decree before the Court’s ruling.

4. Implementation of this decision of the Constitutional Court of Ukraine is mandatory on the territory of Ukraine, final and without appeal.

The decision of the Constitutional Court of Ukraine shall be published in the “Herald of the Constitutional Court of Ukraine” as well as in other official publications of Ukraine.

Summary by Victor Lychyk