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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of December 1, 2004 No. 19-rp/2004

On the case of the constitutional idea of the Supreme Court of Ukraine of official interpretation of provisions of parts one, the second article 126 of the Constitution of Ukraine and part two of article 13 of the Law of Ukraine "About the status of judges" (case on independence of judges as constituting their status)

Case No. 1-1/2004

NAME OF UKRAINE

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

Selivon Nikolay Fedosovich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich - the judge-speaker,

Ivashchenko Vladimir Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Mironenko Alexander Nikolaevich,

Wheaten Valeria Grigoryevna,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

with the assistance of the representative of the person of law on the constitutional representation Krivenko Victor Vasilyevich - the judge of the Supreme Court of Ukraine, the chairman of the board of judges of Ukraine; recruited in consideration of the case: Nosov Vladislav Vasilyevich - the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine, Selivanov Anatoly Aleksandrovich - the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine, Poltavts Yury Pavlovich, Varfolomeyeva Tatyana Viktorovna - members of the High Council of Justice, Ostrovskaya Maria Anatolyevna - the head of legal department of the secretariat of the Supreme council of justice; representatives: The Cabinet of Ministers of Ukraine - Gorbunova Lidiya Nikolaevna, the deputy minister of justice of Ukraine; Public judicial administration of Ukrainykostitsky Vasily Vasilyevich, First Deputy Chairman of Public judicial administration of Ukraine; The Ministries of Justice of Ukraine - Yemelyanova Inna Ivanovna, the director of the department of the legislation on justice, criminal and procedural law and about the administrative responsibility (positions of participants of the constitutional production are specified time of oral consideration of the case),

considered at plenary meeting case on official interpretation of provisions of parts one, the second article 126 of the Constitution of Ukraine and part two of article 13 of the Law of Ukraine "About the status of judges" of December 15, 1992 N 2862-XII (In? домост? Verkhovno ї For the sake of Ukra§ni, 1993, N 8, the Art. 56) in edition of the Law of Ukraine "About modification of article 13 of the Law of Ukraine "About the status of judges" of October 8, 1999 N 1145-XIV (In? домост? Verkhovno ї For the sake of Ukra§ni, 1999, N 50, the Art. 434) concerning guarantees of independence and immunity of judges.

The constitutional representation of the Supreme Court of Ukraine became reason for consideration of the case according to articles 39, of 41 Law of Ukraine "About the Constitutional Court of Ukraine".

Having heard the judge-speaker Evgrafov of the Item B., Krivenko V. V., Selivanov A. O. explanation., Poltavtsa Yu. P., Varfolomeyeva T. V., Ostrava M. A., Nosov V. V., Gorbunova L. G., Kostitsky V. V., Yemelyanova I. I. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - the Supreme Court of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to give official interpretation of provisions of parts one, the second article 126 of the Constitution of Ukraine and part two of article 13 of the Law of Ukraine "About the status of judges" (further - the Law) in edition of the Law of Ukraine "About modification of article 13 of the Law of Ukraine "About the status of judges" of October 8, 1999 (further - the Law of 1999) concerning guarantees of independence and immunity of judges.

The Supreme Court of Ukraine considers, that acceptance of new edition of part two of article 13 of the Law which provisions are not approved with provisions of parts one, the second article 126 of the Constitution of Ukraine "The Verkhovna Rada of Ukraine actually ignored the fundamental principle of justice - independence of judges that considerably narrows the existing guarantees of their immunity and at the same time expands possibilities of foreign influence on them".

In the constitutional representation it is specified that the activities of judges connected with check of correctness of the decisions made by executive bodies, law enforcement agencies which competence permission of questions about criminal or the administrative responsibility of citizens enters. Involvement of judges to such responsibility in general procedure without their status and importance of the state functions which are carried out by them can do big harm to interests of society.

Independence and immunity of judges, is emphasized in the constitutional representation, is not their personal privilege, and has public nature and directed first of all to free accomplishment by the judge of the professional obligations in justice implementation.

2. In the letter to the Constitutional Court of Ukraine the President of Ukraine specified that new edition of part two of article 13 of the Law literally reproduces provision of part three of article 126 of the Constitution of Ukraine according to which the judge cannot without the consent of the Verkhovna Rada of Ukraine be detained or arrested before removal of conviction by court. Proceeding from it the part two of article 13 of the Law, according to the President of Ukraine, does not contradict the Constitution of Ukraine.

The president of Ukraine does not agree with line item of the Supreme Court of Ukraine concerning features of consideration of criminal cases concerning judges and attraction them to the administrative responsibility, referring respectively to provision of part five of article 13 of the Law and Solution of the Constitutional Court of Ukraine of April 10, 2003 N 7-rp/2003 (case on guarantee of activities of the People's Deputy of Ukraine).

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