Name of Ukraine
of December 20, 2018 No. 13-r/2018
On case on the constitutional representation of the Representative of the Verkhovna Rada of Ukraine on human rights concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of the sixth offer of part one of article 13 of the Law of Ukraine "About mental health services"
Case No. 1-170/2018(1114/18)
Big chamber of the Constitutional Court of Ukraine as a part of judges:
Shevchuk Stanislav Vladimirovich - the chairman,
Golovaty Sergey Petrovich,
Gorodovenko Victor Valentinovich,
Gultaya Mikhail Miroslavovich,
Zavgorodney Irina Nikolaevna,
Zaporozhets Mikhail Petrovich,
Kasminin Alexander Vladimirovich,
Kolesnik Victor Pavlovich,
Krivenko Victor Vasilyevich,
Lemak Vasily Vasilyevich,
Litvinov Alexander Nikolaevich,
Melnik Nikolay Ivanovich,
Moysik Vladimir Romanovich,
May Day Oleg Alekseevich,
Sasa of Sergey Vladimirovich,
Slidenk Igor Dmitriyevich,
Tupitsky Alexander Nikolaevich - the speaker,
Shaptala Natalya Konstantinovna,
considered at plenary meeting case on the constitutional representation of the Representative of the Verkhovna Rada of Ukraine on human rights concerning compliance of the Constitution of Ukraine (constitutionality) of provisions of the sixth offer of part one of article 13 of the Law of Ukraine "About mental health services" of February 22, 2000 No. 1489-III (Sheets of the Verkhovna Rada of Ukraine, 2000, No. 19, the Art. 143) with changes.
Having heard the judge-speaker Tupitsky A. M. and having researched case papers, the Constitutional Court of Ukraine established:
1. The person of law on the constitutional representation is the Representative of the Verkhovna Rada of Ukraine for human rights - appealed to the Constitutional Court of Ukraine with the petition to recognize not answering to the Constitution of Ukraine (are unconstitutional), provisions of the sixth offer of part one of article 13 of the Law of Ukraine "About mental health services" of February 22, 2000 No. 1489-III with changes (further - the Law), which provide that person recognized in the procedure established by the law incapacitated on condition of the health is not capable to express request or to provide the informed written consent, is hospitalized in organizations on rendering mental health services according to the decision (consent) of guardianship and custody body which is made no later than 24 hours from the moment of the appeal to this body of the legal representative of the specified person and can be appealed according to the law, including in court.
According to the author of the petition, the procedure for hospitalization of the specified incapacitated persons without the judgment deprives of these persons of the constitutional guarantees of protection of their rights and freedoms established by Articles 29, 55 Fundamental Laws of Ukraine. The representative of the Verkhovna Rada of Ukraine for human rights also considers that parliament the Law of Ukraine "About modification of some legal acts of Ukraine concerning provision of mental health services" of November 14, 2017 No. 2205-VIII (further - the Law No. 2205) made changes in part one of article 13 of the Law which contradict legal line item of the Constitutional Court of Ukraine stated in its Decision of June 1, 2016 to No. 2-rp/2016, and thus went beyond the powers and violated requirements of part two of Article 8, of part two of article 150 of the Constitution of Ukraine in edition of June 28, 1996.
2. Resolving the question raised in the constitutional representation, the Constitutional Court of Ukraine proceeds from the following.
2.1. In Ukraine the principle of supremacy of law is recognized and is effective; The Constitution of Ukraine has the highest legal force, the laws and other regulatory legal acts are adopted on the basis of the Constitution of Ukraine and shall correspond to it (parts one, the second Article 8 of the Fundamental Law of Ukraine).
By the constitution of Ukraine it is determined that the decisions and the conclusions accepted by the Constitutional Court of Ukraine are obligatory, final and cannot be challenged (Article 151-2); the laws and other acts according to the solution of the Constitutional Court of Ukraine are recognized unconstitutional completely or separate part if they do not correspond to the Constitution of Ukraine or if the procedure of their consideration, acceptance or their introduction established by the Constitution of Ukraine in force (Article part one 152) was violated.
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