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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of February 9, 1999 No. 1-rp/99

About the constitutional appeal of the National Bank of Ukraine on official interpretation of provision of part one of article 58 of the Constitution of Ukraine (case on retroactive effect in time of the laws and other regulatory legal acts)

Case No. 1-7/99

NAME OF UKRAINE

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

Timchenko Ivan Artemyevich - the chairman,

Voznyuk Vladimir Denisovich - the judge-speaker,

Evgrafov Pavel Borisovich,

Kozyubra Nikolay Ivanovich,

Korniyenko Nikolay Ivanovich,

Malinnikova Lyudmila Fiodorovna,

Martynenko Pyotr Fedorovich,

Mironenko Alexander Nikolaevich,

Nemchenko Vasily Ivanovich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Silent Vladimir Pavlovich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

Yatsenko Stanislav Sergeyevich,

considered at plenary meeting in written hearing case on the constitutional appeal of the National Bank of Ukraine on official interpretation of provision of part one of article 58 of the Constitution of Ukraine on retroactive effect in time of the laws and other regulatory legal acts in cases when they mitigate or cancel responsibility of person.

Reason for consideration of the case according to Articles 42, 43 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional appeal of the National Bank of Ukraine about official interpretation of provision of part one of article 58 of the Constitution of Ukraine about retroactive effect in time of the laws and other regulatory legal acts.

The basis for consideration of the case according to article 94 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of ambiguous application of provisions of part one of article 58 of the Constitution of Ukraine about retroactive effect in time of the laws and other regulatory legal acts in case of application by regional managements of the National Bank of Ukraine of the Law of Ukraine "About introduction of amendments to some decrees of the Cabinet of Ministers of Ukraine concerning currency control" of June 3, 1997 N295/97-BP which cancels obligatory sale of currency receipts and responsibility of legal entities.

Having heard the judge-speaker Voznyuk V. D. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional address - the National Bank of Ukraine - asks to give official interpretation of provision of part one of article 58 of the Constitution of Ukraine which determines that the laws and other regulatory legal acts have retroactive effect in time in cases when they mitigate or cancel responsibility of person and whether this provision extends to legal entities.

Need of such interpretation is proved by the fact that regional managements of the National Bank of Ukraine ambiguously apply provision of the Law of Ukraine "About introduction of amendments to some decrees of the Cabinet of Ministers of Ukraine concerning currency control" which cancels obligatory sale of currency receipts and responsibility of legal entities (article 1 of the Law). In particular, managements impose also further penalties on legal entities for untimely sale of receipts in foreign currency which took place before input in operations of the Law stated above. It, according to the person of law on the constitutional address, contradicts the legislation as regulations of article 58 of the Constitution of Ukraine on retroactive effect of the laws in cases when they mitigate or cancel responsibility, shall extend also to legal entities.

"About system of currency control and currency exchange control" of February 19, 1993 N15-93 was determined by the decree of the Cabinet of Ministers of Ukraine that authorized banks shall sell all receipts for benefit of residents in foreign currency in the interbank foreign exchange market of Ukraine within five days from the moment of transfer of such revenues to correspondent accounts of authorized banks (Item 3 of article 4 of the Decree). For failure to carry out of these obligations according to the paragraph to the fifth Item 2 of article 16 of this Decree imposing of penalty in the amount of which was established by the National Bank of Ukraine was provided. "About temporary procedure for use of receipts in foreign currency" of February 19, 1993 N16-93 was provided by one more Decree of the Cabinet of Ministers of Ukraine obligatory sale through authorized banks in the interbank foreign exchange market of Ukraine of 50 percent of receipts in foreign currency for benefit of residents (article 1 of the Decree).

"About introduction of amendments to some decrees of the Cabinet of Ministers of Ukraine concerning currency control" the Decree of the Cabinet of Ministers of Ukraine "About temporary procedure for use of receipts in foreign currency" is acknowledged as the law of Ukraine such which ceased to be valid (article 2 of the Law). And changes were made to the Decree of the Cabinet of Ministers of Ukraine "About system of currency control and currency exchange control", in particular obligatory sale of receipts for benefit of residents in foreign currency through authorized banks in the interbank market of Ukraine and responsibility for failure to carry out of this obligation (article 1 of the Law) is cancelled.

2. In regulation of the public relations different methods of action in time of regulatory legal acts are applied. Transition from one form of regulation of the public attitudes towards another can be performed, in particular, immediately (direct action), by transition period (ultraactive form) and by retroactive effect (retroactive form).

By the conventional principle of the right the laws and other regulatory legal acts have no retroactive effect in time. This principle is established in part one of article 58 of the Constitution of Ukraine on which action of the regulatory legal act in time needs to be understood so that it begins with the moment of input of this act in action and stops with loss of force by it i.e. to event, to the fact that law or other regulatory legal act during which action they came is applied or took place.

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