DETERMINATION OF THE CONSTITUTIONAL COURT OF UKRAINE

of October 4, 2007 No. 54-v/2007

About refusal in opening of the constitutional proceeedings according to the constitutional address of the citizen Nesterenko Mikhail Nikolaevich on official interpretation of provisions of article 16 of the Law of Ukraine "About property", Articles 21, 22, 23, 24, Article parts two 28, article 44 of the Code about scrap and family of Ukraine

Case No. 2-39/2007

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Strizhak Andrey Andreevich - the chairman, the judge-speaker,

Brintsev Vasily Dmitriyevich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Kamp Vladimir Mikhaylovich,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

N697-XII considered question of opening of the constitutional proceeedings according to the constitutional address of the citizen Nesterenko M. M. about official interpretation of provisions of article 16 of the Law of Ukraine "About property" of February 7, 1991 (In? домост? Verkhovno ї For the sake of USSR, 1991, N 20, the Art. 249), Articles 21, 22, 23, 24, Article parts two 28, article 44 of the Code about scrap and family of Ukraine of June 20, 1969.

Having heard the judge-speaker Strizhak A. A. and having considered case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional address is the citizen Nesterenko M. M. - appealed to the Constitutional Court of Ukraine with the petition to give official interpretation of provisions of article 16 of the Law of Ukraine "About property" (further - the Law), Articles 21, of 22, of 23, of 24, to Article part two 28, of article 44 of the Code about scrap and family of Ukraine (further - the Code) by determination of procedure by spouses of the right to joint property.

According to the person of law on the constitutional address to time of consideration of civil case in the claim Nesterenko M. M. to Nesterenko T. M. about recognition invalid gift agreements of the apartment took place the fact of ambiguous application by courts of the called provisions of the Law and Code that led to violation of its constitutional rights guaranteed by part one of Article 51 and part four of article 41 of the Constitution of Ukraine.

In confirmation of ambiguous application of the specified provisions of the Code and Law the author of the petition provides the decision of Okhtyrsky district court of the Sumy region, determination and the resolution of the Sumy regional court, the decision of local court of the Trostyanetsky district of the Sumy region, determination of Appeal Court of the Sumy region, determination of the Supreme Court of Ukraine.

2. The third board of judges of the Constitutional Court of Ukraine Determination of September 12, 2007 refused opening of the constitutional production on this case based on Item 3 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine" not jurisdiction to the Constitutional Court of Ukraine of the questions which are brought up in the constitutional address.

3. Resolving issue of opening of the constitutional proceeedings, the Constitutional Court of Ukraine proceeds from the following.

In the constitutional address the question of official interpretation of provisions of article 16 of the Law which ceased to be valid with adoption of law of Ukraine "About modification and recognition such which voided some legal acts of Ukraine in connection with adoption of the Civil code of Ukraine" of April 27, 2007 N997-V, provisions of Articles 21, 22, 23, 24, Article parts two 28, article 44 of the Code which voided since January 1, 2004 owing to enforcement of the Family code of Ukraine of January 10, 2002 is brought up.

According to part one of article 150 of the Constitution of Ukraine, item 4 of Article 13, article 42 of the Law of Ukraine "About the Constitutional Court of Ukraine" decision making of rather official interpretation only of current laws of Ukraine belongs to powers of the Constitutional Court of Ukraine. Objectively there were bases which are specified not jurisdiction to the Constitutional Court of Ukraine of the questions which are brought up in the constitutional address as its jurisdiction does not extend to regulatory legal acts which voided (The solution of the Constitutional Court of Ukraine of November 14, 2001 by N15-rp/2001).

According to Item 3 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine" not jurisdiction to the Constitutional Court of Ukraine of the questions which are brought up in the constitutional address is the basis for refusal in opening of the constitutional proceeedings.

Considering stated and being guided by Articles 147, 150 Constitutions of Ukraine, Articles 13, of 42, of 45, 50 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. Refuse opening of the constitutional proceeedings behind the constitutional address of the citizen Nesterenko Mikhail Nikolaevich on official interpretation of provisions of article 16 of the Law of Ukraine "About property" of February 7, 1991 to N697-XII, Articles 21, of 22, of 23, of 24, of Article part two 28, of article 44 of the Code about scrap and family of Ukraine of June 20, 1969 based on Item 3 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine" - not jurisdiction to the Constitutional Court of Ukraine of the questions which are brought up in the constitutional address.

2. Determination of the Constitutional Court of Ukraine is final.

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