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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of October 17, 2002 No. 16-rp/2002

On case on the constitutional representation of the Ministry of Economy and European Integration of Ukraine of rather official interpretation of separate provisions of part one of article 120 of the Constitution of Ukraine (case on combination of office activities of heads of executive bodies)

Case No. 1-4/2002

NAME OF UKRAINE

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

Victor Egorovich's buffoons - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Ivashchenko Vladimir Ivanovich,

Kozyubra Nikolay Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Mironenko Alexander Nikolaevich,

Nemchenko Vasily Ivanovich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Selivon Nikolay Fedosovich,

Timchenko Ivan Artemyevich - the judge-speaker,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

considered at plenary meeting case on the constitutional representation of the Ministry of Economics of Ukraine (for the period of consideration of the case - the Ministry of Economy and European Integration of Ukraine) rather official interpretation of separate provisions of part one of article 120 of the Constitution of Ukraine.

The constitutional representation of the Ministry of Economy and European Integration of Ukraine of rather official interpretation of separate provisions of part one of article 120 of the Constitution of Ukraine became reason for consideration of the case according to article 39 of the Law of Ukraine "About the Constitutional Court of Ukraine".

The basis for consideration of the case according to article 93 of the Law of Ukraine "About the Constitutional Court of Ukraine" is practical need for explanation, official interpretation of provisions of part one of article 120 of the Constitution of Ukraine concerning managerial right central and local executive bodies to combine the office activities with other work and to be part of governing body or supervising council of the company which sets as the profit earning purpose.

Having heard the judge-speaker Timchenko I. A. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - the Ministry of Economy and European Integration of Ukraine - appealed to the Constitutional Court of Ukraine with the written petition to give official interpretation of separate provisions of part one of article 120 of the Constitution of Ukraine.

In the constitutional representation it is specified that proceeding from provisions of part one of article 120 of the Constitution of Ukraine heads central and local executive bodies have no right to combine the office activities with other work, except teaching, scientific and creative in off-duty hours, and to be part of governing body or supervising council of the company which provides profit earning.

Referring to practice of forming of supervising councils of open joint stock companies which are created based on the companies of state-owned property, the person of law on the constitutional provision claims that representatives of founders of societies also are part of such councils. By founders of open joint stock companies from the state, it is noted in representation, the ministries and other executive bodies are, authorized to manage property of such companies. The structure of supervising councils of open joint stock companies is approved by the Ministry of Economy and European Integration of Ukraine, the Ministry of Finance of Ukraine and Fund of state-owned property of Ukraine.

Considering stated, the Ministry of Economy and European Integration of Ukraine puts question of official interpretation of provision of part one of article 120 of the Constitution of Ukraine concerning what heads central and local executive bodies as representatives of founders (the first heads, their deputies, heads of structural divisions of the specified bodies) "have no right to combine the activities with work in supervising councils", i.e. to be part of supervising council of the company that provides profit earning.

2. The constitutional court of Ukraine by consideration of question of official interpretation of the specified provision of part one of article 120 of the Constitution of Ukraine proceeded from systems analysis of relevant provisions of the Fundamental Law of Ukraine, in particular Articles 92, of 114, of 115, of 118, 120 and others, its literal interpretation.

Under the Constitution of Ukraine (Article 114) as his members enter into structure of the Cabinet of Ministers of Ukraine the Prime Minister of Ukraine, the First vice-Prime Minister, three vice-Prime Ministers, and also ministers. All of them are officials who according to part one of article 120 of the Constitution of Ukraine have no right to be part of governing body or supervising council of the company which provides profit earning.

The constitutional court of Ukraine came to conclusion that the term "head" central or local executive body which contains in part one of article 120 of the Constitution of Ukraine means the official of executive body which set of the qualifying signs determines the status of the head.

Specific state powers of authority of executive and administrative nature of such official in the field of the executive authority which according to the Constitution and the laws of Ukraine are provided to it by relevant organs of the government (distribution of obligations between the deputies belong to these signs; order material and financial values; management and area of work of executive body and its device; solution of personnel problems; signing of legal acts of executive body; representative office of executive body in the relations with citizens, other state bodies, the companies, organizations and the organizations of all patterns of ownership and so forth).

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