A CONSTITUTIONAL COMPLAINT SUBJECT AND CONSEQUENCES OF ITS SATISFACTION IN UKRAINE AND POLAND: THE COMPARATIVE LEGAL ANALYSIS

Abstract

There are a range of problems which indicate a necessity to change an approach to a legal regulation of some components of a constitutional complaint institution in Ukraine. In this regard, it is necessary to determine the main approaches to the constitutional complaint institution reform, taking into account a positive experience of the Republic of Poland as this country has the rather broad subject of constitutional complaint and has settled the retroactive effect of its Constitutional Tribunal decisions.

The purpose of the study is to determine the types of legal acts that may be the subject of constitutional complaints in Ukraine and Poland, as well as the features of the restoration of complainants’ rights after constitutional review. The main methods used by the author are deduction, analogy, dogmatic and comparative law methods.

We have analyzed the Constitutional Tribunal practice and the relevant legislation of Polan and established many differences between the Polish and Ukrainian approaches to the implementation of the normative model of constitutional complaint.

We agreed with the statement that Ukraine should amend her procedural codes (administrative, commercial and civil) in order to exclude the condition that the decision of a court of general jurisdiction must not be executed in order to resume the court proceeding on the basis of a Constitutional Court decision. In addition, we believe that Ukraine needs to enshrine at the legislative level the provision on the retroactivity of the Constitutional Court decisions, expand the subject of a constitutional complaint at least to the list specified in paragraph 1 of Article 150 of the Constitution of Ukraine. Hereafter, taking into account the experience of Poland, it is necessary to consider the supplementing the subject of a constitutional complaint with acts of local government bodies if they have been applied by a court in the relevant dispute and violate constitutional rights of the complainant.