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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 4, 2009 No. 13-rp/2009

On case on the constitutional representation of the Kiev city council of rather official interpretation of provisions of parts one, the second article 141 of the Constitution of Ukraine

Case No. 1-12/2009

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman, the speaker,

Baulin Yury Vasilyevich,

Brintsev Vasily Dmitriyevich,

Vdovichenko Sergey Leonidovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Nikitin Yury Ivanovich,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

with the assistance of representatives of the person of law on the constitutional representation Pavlik Vitaly Andreevich, Zadorozhnoy Irina Alekseevna, the Representative of the President of Ukraine in the Constitutional Court of Ukraine Stavniychuk Marina Ivanovna, the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Selivanov Anatoly Aleksandrovich, representatives of the Verkhovna Rada of Ukraine Klyuchkovsky Yury Bogdanovich, Piedmont Sergey Petrovich

considered at plenary meeting case on the constitutional representation of the Kiev city council of rather official interpretation of provisions of parts one, the second article 141 of the Constitution of Ukraine of June 28, 1996 (In? домост? Verkhovno ї For the sake of Ukra§ni, 1996, N 30, Art. 141; 2005, N 2, Art. 44).

The constitutional representation of the Kiev city council became reason for consideration of the case according to articles 39, of 41 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 of provisions of parts one, the second article 141 of the Constitution of Ukraine.

Having heard the judge-speaker Strizhak A. A., explanations Pavlik V. A., Zadorozhna I. O., Stavniychuk. And., Selivanova A. O., Klyuchkovsky Yu. B., Piedmont S.P. and having researched materials of the constitutional representation, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - the Kiev city council - brought up question of rather official interpretation of provisions of parts one, the second article 141 of the Constitution of Ukraine with the purpose to find out:

- whether deputies of local councils and rural, settlement, city chairmen of power for the identical five-year and four-year term provided by parts one, the second article 141 of the Constitution of Ukraine find if they are elected on the regular, early, repeated, intermediate or first local elections;

- whether provisions of paragraph two of part two of article 14 of the Law of Ukraine "About elections of deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local councils and rural, settlement, city chairmen" of April 6, 2004 N 1667-IV can be applied (further the Law) in case of purpose of local elections if constitutionally certain term of office of deputies of local councils, the rural, settlement, city chairman for the objective reasons does not match with the term of carrying out regular elections of People's Deputies of Ukraine.

According to the person of law on the constitutional representation need for official interpretation of the specified provisions arose because the Fundamental Law of Ukraine does not distinguish elections to public authorities and local government bodies in aspect of terms of office of their deputies depending on type of elections and does not establish requirements concerning timing of elections to the Verkhovna Rada of Ukraine and local councils. However according to part two of article 14 of the Law the term of carrying out the regular local elections depends on the term of elections to the Verkhovna Rada of Ukraine. The legislation of Ukraine provides carrying out the regular, early, repeated, intermediate, first local elections therefore terms of appointment and elections of People's Deputies of Ukraine and deputies of local councils, rural, settlement, city chairmen can not match.

2. The line items concerning subject of the constitutional representation were stated by the President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, Committee of the Verkhovna Rada of Ukraine concerning the state construction and local self-government, scientists of National legal academy of Ukraine of Yaroslav the Wise, the Odessa national legal academy, the Lviv national university of Iván Franco, National university "Kiyevo-Mogilyansky Academy", Research institution of the state construction and local self-government of Academy of legal sciences of Ukraine and specialists of the Center of political and legal reforms.

3. Constitutional court of Ukraine, resolving the questions which are brought up in the constitutional representation proceeds from the following.

Ukraine according to the Fundamental Law of Ukraine is the democratic state (Article 1), the carrier of sovereignty and the single source of the power in Ukraine is the people which perform the power directly and through public authorities and local government bodies (Article part two 5), citizens have the right to participate in administration of state affairs, in All-Ukrainian and local referenda, to choose and be freely elected to public authorities and local government bodies (Article part one 38).

Representative local government bodies are rural, settlement, city, district, regional council which forming happens by results of national declaration of will which is performed through elections that according to article 69 of the Constitution of Ukraine is one of forms of direct democracy. At the same time declaration of will of the people is provided by fixing at the constitutional level of terms of realization of powers with the elected persons.

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