International experts: constitutional complaint allow citizens to influence processes in the country, but such mechanism requires a functional judicial system


Kyiv, December 17, 2015. Ukraine has actively discussed the possibility to introduce constitutional complaint. This judicial mechanism will allow a citizen to go directly to the Constitutional Court if he has grounds to believe a law violates his rights. Heads of the Constitutional Courts of Lithuania, Georgia and Moldova outlined international experience on this question during a discussion at Ukraine Crisis Media Center. “The Verkhovna Rada, President and the government have these authorities at present, which makes it a political issue. If citizens have these powers, the Constitutional Court will be accessible to the people,” said the head of the Constitutional Court of Georgia and member of the Venice Commission George Papuashvili. He said that even people without Georgian citizenship and legal entities are entitled to file constitutional complaints in his country.

According to the head of the Constitutional Court of Lithuania Dainius Zalimas, Lithuania is waiting for Ukraine to accept this model, as it will become an additional incentive to remember that the Parliament of Lithuania has already approved this concept, but its implementation was frozen for economic reasons. Moreover, indirect application is popular in Lithuania: Lithuanian courts may and are obliged to respond directly to the Constitutional Court if the case involves a law which may contradict the Constitution. This does not require approval of higher authorities. Nevertheless, it remains to the discretion of a judge and not a claimant. Zalimas is convinced that “Lithuania is going to consider this issue again soon.”

European experts comment that the possibility to file a constitutional complaint creates a kind of a ‘filter’ prior to filing an application to the European Court of Human Rights. According to the Head of the Constitutional Court of Moldova Alexandru Tanase, it supports strengthening of democratic institutions, as a citizen may have more substantial influence on the processes in his country. Nevertheless, sometimes this mechanism is perceived in Moldova as too radical. “In order to vest the Constitutional Court with a competence to change court decisions, we need to have functional judicial system. The idea that a small number of judges of a constitutional court may correct the mistakes of all the courts of general jurisdiction is an illusion,” explained Tanase. He is also sure that it would be possible to return to this issue when the courts are producing high-quality proceedings.

Speaking of the necessity to build trust to the judiciary in Ukraine, Zalimas mentioned that constitutional reform needs to be real and help reinstate trust not only in the judiciary, but in politicians too. “They must learn to live in compliance with the Constitution, not adjust it for their needs,” he said. The Head of the Constitutional Court of Ukraine of Lithuania also drew attention to high-quality communication of court decisions and implementation of these decisions.

Moreover, experts discussed the Batumi process and creation of the Association of the Constitutional courts of Ukraine, Moldova, Lithuania and Georgia at the briefing. While the Association of the Constitutional courts was created to exchange experience in decisions on similar cases, the Batumi process aims to unite judicial communities of west European countries in condemnation of Russia’s actions. The main goal was to draw Europe’s attention to the fact that the Constitutional Court of the Russian Federation, approving the annexation of Crimea, thus violated the very principle of the rule of law. It does not deserve a membership in the European conference of Constitutional courts. “Russia’s Constitutional court is a group of people who participated in an international crime. Being highly qualified lawyers, they were fully aware of it,” added Zalimas.