Internal problems of Ukraine: what is the most important, who is to blame and what to do

PART ІІІ

Continuation, you can find the first part of the article HERE and HERE.

We note once again: the legal norm of Part 2 of Article 22 of the Law of Ukraine "On the Constitutional Court of Ukraine" dated 06.03.1992 clearly defined the diametrically opposite - that unconstitutional acts are recognized as invalid, and therefore inactive, as having no legal force, from the moment of their introduction into action.

Such and only such a legal consequence of the illegality of acts can occur in a legal state with such a high level of constitutional consolidation of the principles of the rule of law, as in Ukraine - and no other.

Given the principles of the rule of law established by the Constitution of Ukraine, illegal acts from the moment of their issuance are without alternative illegitimate, null and void, inactive, such that they have no legal force, are not subject to execution, and in case of their application, do not generate legal consequences.

These are imperative prescriptions of the Basic Law of Ukraine, which can be interpreted only as follows: either the Constitution and the principles of the rule of law - or illegal, unconstitutional acts of the authorities.

The "Ukrainian political elite" chose the second. It disregarded the Constitution of Ukraine and by the legal position of the CCU dated 27.12.1997 "gave" any illegal acts of the authorities under its control a higher legal force than the legal force of the Constitution and the principles of the rule of law established by it.

Instead of becoming a body of constitutional control of compliance with the principles of the rule of law, the new CCU became the main instrument of suppressing the operation of the principles of the rule of law.

Therefore, as a result of the implementation of all the above-mentioned criminal actions, "crowned" by the clearly and grossly illegal official interpretation of the CCU dated 24.12.1997 of part two of Article 152 of the Constitution of Ukraine, the "elite" carried out nothing more than a latent constitutional coup.

The grossly illegal legal position of the CCU dated 24.12.1997 clearly indicated to all authorities, including the courts, that the totalitarian "principle of the supremacy of the act of the authority" should operate in Ukraine "officially recognized", "legitimized" by the Constitutional Court of Ukraine - and not prescribed in the Constitution of Ukraine’ principles of the rule of law.

"Issuing as many illegal acts as you want - they will be considered valid and active until the CCU declares them invalid.

And CCU may never do this!

But even if the CCU recognizes the act as unconstitutional and it loses its validity, then nothing terrible will happen: all the arbitrariness that was previously carried out and all the loot will be considered legal!

Because the "elite" CCU considers unconstitutional acts to have legal force from the moment of their adoption until the moment they are recognized as unconstitutional, as they were in force during that period - despite the fact that they are illegal!" - this is the essence of this criminal official interpretation given to the "elite" by the CCU created and improved by it.

In fact, part two of Article 152 of the Constitution of Ukraine does not establish anything similar to what is known to be unlawfully formulated by the CCU in the decision N8 of 12.24.1997.

The norm of part two of Article 152 of the Constitution of Ukraine regarding recognition of an act as unconstitutional is purely declarative - since the CCU only reveals the objective nullity of an unconstitutional act. An unconstitutional act becomes invalid not as a result and, accordingly, not from the moment of the adoption of a decision (conclusion) of the CCU regarding the unconstitutionality of the act, but as a result of and from the moment of a conflict between this act and the Constitution, with the principles of the rule of law, i.e. from the moment of the act's issuance.

In terms of invalidation of an unconstitutional act, this norm can generally be called "accounting" - since the recognition of an act as unconstitutional "automatically" entails the exclusion of such an act from the registers of physically existing, that is, valid acts - full stop.

Accordingly, there is no question of any "reverse effect in time", "retroactivity" of the decision of the CCU, which "elite jurists" like to talk about, and there cannot be - the decision of the CCU to recognize an act as unconstitutional performs its "regulatory" function only at the moment of its acquisition of legal force, it is purely declarative, the CCU did not have and does not have any law-making powers to "endow" unconstitutional acts with legal force in the past or in the future - since the Constitution of Ukraine does not grant the CCU such powers.

There is not a single word about the legal force of a legal act, that is, about its activity/validity, in part two of Article 152 of the Constitution of Ukraine. The definition of which act has legal force and, accordingly, is active, is imperatively and succinctly established by the norm of part two of Article 8 of the Constitution of Ukraine: only that act that is adopted on the basis of the Constitution of Ukraine and corresponds to it, i.e. that corresponds to the principles of the rule of law imperatively established by the Constitution of Ukraine - and no other.

Despite this, according to the "Doctrine of Arbitrariness", the CCU by its legal position of 24.12.1997 supposedly "granted" the decision of the CCU retroactive force - and even one that exceeds the legal force of the Constitution of Ukraine.

This is certainly a complete delusion, this «legal position» of the CCU, nevertheless, due to the arbitrariness of the Ukrainian "elite", it is an active "legal" doctrine in Ukraine, although it is known to be illegal.

In the world, there are various doctrinal theories and forms of legal consequences of decisions of constitutional courts on the unconstitutionality of normative legal acts. The following are generally recognized: ex nunc ("from this moment"; the act is recognized as unconstitutional from the moment the decision of the constitutional court is announced and is effective in advance); ex tunc ("since then"; the act is recognized as null and void from the moment of its adoption); pro futuro ("for the future"; the constitutional court postpones the loss of validity of an act).

The possibility of applying one or another form of legal consequences of recognizing legal acts as unconstitutional depends entirely on the specifics of the legislation of each state.

There is no ideal legislation anywhere in the world, no legislation is characterized by complete legal certainty.

Moreover, the situation with legal certainty, including in the legal system of the EU, which Ukraine seems to focus on as a model of the rule of law, is quite difficult, and is often even more complicated due to new acts and interpretations of various EU bodies and institutions.

A big problem is the recognition in the EU legal system in certain cases of the legal force of illegal acts for reasons such as "protecting citizens' trust in the law", "ensuring the stability of the law", "the possibility of destabilizing the legal order in the state", etc. - and even "the risk of serious economic consequences ". This certainly does not in any way stimulate authorities to raise the legal level of acts, and creates conditions for arbitrariness.

In established democracies, the problems of imperfect legislation are usually overcome in the interests of society and man thanks to properly functioning systems of checks and balances and the high legal culture of the elites. In Ukraine, where neither the first, nor the second, nor the third existed and exists, all the problems of the legislation are used exclusively for illegal and anti-people purposes.

This is despite the fact that Ukrainian legislation, if properly interpreted, completely excludes legal uncertainty, and in terms of establishing the principles of the rule of law, it can be called the closest to ideal. Since the announcement of the goal of building a legal state on 16.07.1990, the anti-totalitarian constitutional reforms of 1990-1991, the adoption of the law "On CCU" dated 03.06.1992, which defined the principles of the rule of law as the cornerstones of the state-legal system of Ukraine, in the aspect of applying one or another forms of legal consequences of recognizing acts as unconstitutional, the legislation of Ukraine had no alternative: the invalidity of illegal acts is a direct consequence of their non-compliance with the norms of higher legal force, the principles of the rule of law and arises ipso jure ("by virtue of the law") from the moment of the adoption of the act.

That is, the occurrence of any other form of legal consequences of illegality of the acts, including according to the decisions of the CCU regarding the unconstitutionality of legal acts, except ex tunc, is impossible in Ukraine - as this would be a direct and gross disregard of the Constitution of Ukraine, a constitutional coup, the overthrow of the constitutional system of Ukraine.

The consequences of the illegality of acts in 1991-1997 in accordance with the norms and principles of the Constitution of Ukraine and part 2 of Article 22 of the Law of Ukraine "On the Constitutional Court of Ukraine" dated 06/03/1992 were to occur exclusively ex tunc, and precisely because the "elite" arbitrarily suppressed the principles of supremacy rights by applying the "principle of supremacy of illegal acts of authorities", they did not occur.

To be continued...