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SOLUTION OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 24, 2020 No. 6-r (II)/2020

On case on the constitutional claims of Karjakin Eduard Sergeyevich, limited liability company "What Coal of Ukraine trading house concerning compliance of the Constitution of Ukraine (constitutionality) of provision of part one of article 79 of the Law of Ukraine "About banks and banking activity"

Case No. 3-318/2018(4301/18, 1349/19)

The second senate of the Constitutional Court of Ukraine as a part of judges:

Golovaty Sergey Petrovich - the chairman,

Gorodovenko Victor Valentinovich - the speaker,

Kasminin Alexander Vladimirovich,

Lemak Vasily Vasilyevich,

Moysik Vladimir Romanovich,

May Day Oleg Alekseevich,

Yurovskaya Galina Valentinovna,

the What Coal of Ukraine trading house concerning compliance of the Constitution of Ukraine (constitutionality) of provision of part one of article 79 of the Law of Ukraine "About banks and banking activity" of December 7, 2000 No. 2121-III considered at plenary meeting case on the constitutional claims of Karjakin Eduard Sergeyevich, limited liability company "(Sheets of the Verkhovna Rada of Ukraine, 2001, Art. No. 5-6, 30) with changes.

Having heard the judge-speaker Gorodovenko V. V. and having researched case papers, the Constitutional Court of Ukraine

established:

1. Karjakin E. S., What Coal of Ukraine Trading House Appealed to the Constitutional Court of Ukraine with Petitions to Check for Compliance of the Constitution of Ukraine (Constitutionality) of Provision of Part One of Article 79 of the Law of Ukraine " about Banks and Banking Activity " of December 7, 2000 No. 2121-III with Changes (Further — the Law No. 2121) according to Which the Bank or Other Persons Who Are Covered by Supervising Activities of the National Bank of Ukraine Have the Right to Appeal in Court in the Procedure for the Decision, Action Established by the Legislation or Divergence of the National Bank of Ukraine or Its Officials limited liability company.

Karjakin E. S., referring to Articles 3, 24 Constitutions of Ukraine, considers what provisions of part one of article 79 of the Law No. 2121 grants the right to appeal decisions, actions or divergence of the National Bank of Ukraine or its officials "to other persons who are covered by supervising activities of the National Bank of Ukraine" that is only to those shareholders of bank who are owners of essential participation in bank (in particular, owning 10 and more percent of shares of the authorized capital of the legal entity) than deprives of it as shareholder of bank of such right as it has smaller from specified by percent of shares, and violates the right to appeal guaranteed to everyone by article 55 of the Constitution of Ukraine in court of decisions, actions or divergence of public authorities, local government bodies, official and officials.

The limited liability company "What Coal of Ukraine trading house considers that, "granting the right to appeal of decisions of the NBU in court, except bank, only to persons having at least than 10% of participation in authorized capital stock of bank, part one of article 79 of the Law No. 2121 contradicts the principle of legal equality and breaks the constitutional prohibition on discrimination on the basis of property status, Article parts one established by regulations 21, of parts one, the second article 24 of the Constitution of Ukraine" and also that "provision of part one of article 79 of the Law No. 2121, which deprives of shareholders who own less than 10% of participation in structure of property of bank (in particular, Society as the owner of 9,9982 of % of bank shares), opportunities to appeal the decision of the NBU in court to protect the property rights and legitimate interests, contradicts Article part three provisions 8, of parts one, the fourth Article 41, of parts one, the second article 55 of the Constitution of Ukraine and actually limits such shareholders in right of access to court".

2. During consideration the Constitutional Court of Ukraine of case to the Law No. 2121 made changes by the Law of Ukraine "About modification of some legal acts of Ukraine concerning enhancement of mechanisms of banking regulation" of May 13, 2020 No. 590-IX which became effective on May 23, 2020. After introduction of these changes article 79 of the Law No. 2121 was reworded as follows, in particular, its first part by which "the bank or other persons who are covered by supervising activities of the National Bank of Ukraine have the right to appeal in court in the procedure for the decision, action established by the legislation or divergence of the National Bank of Ukraine or its official and officials".

The constitutional court of Ukraine considers that introduction of the specified changes does not influence essence of the challenged provision of article 79 of the Law No. 2121 in aspect of the questions which are brought up in the constitutional claims.

3. Resolving the questions which are brought up in the constitutional claims, the Constitutional Court of Ukraine proceeds from the following.

3.1. The constitution of Ukraine determines that Ukraine is the democratic, constitutional state (Article 1); human rights and freedoms and their guarantees determine content and orientation of activities of the state; the state answers to the person for the activities; approval and providing human rights and freedoms is the main obligation of the state (Article part two 3); in Ukraine the principle of supremacy of law is recognized and is effective; regulations of the Constitution of Ukraine are regulations of direct action; appeal to the court for protection of constitutional rights and freedoms of man and citizen directly based on the Constitution of Ukraine is guaranteed (parts one, third Articles 8); citizens have equal constitutional rights and freedoms and are equal before the law; there cannot be privileges or restrictions on signs of race, skin color, political, religious and other convictions, floor, ethnic and social origin, property condition, the place of residence, on language or other signs (part

first, second Articles 24).

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