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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of October 20, 2009 No. 27-rp/2009

On case on the constitutional representation of the President of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the Order of the Cabinet of Ministers of Ukraine "About cancellation of the order of the SSU"

Case No. 1-42/2009

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

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,

Lilak Dmitry Dmitriyevich,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Nikitin Yury Ivanovich,

Ovcharenko Vyacheslav Andreevich,

Stetsyuk Pyotr Bogdanovich - the speaker,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

N 443-p considered at plenary meeting case on constitutional provision of the President of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the Order of the Cabinet of Ministers of Ukraine "About cancellation of the order of the SSU" of April 22, 2009 (The Official Bulletin of Ukraine, 2009, N 32, the Art. 1083).

Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of the President of Ukraine.

The basis for consideration of the case according to article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine" is statement of the person of law on the constitutional idea of illegality of the Order of the Cabinet of Ministers of Ukraine "About cancellation of the order of the SSU" of April 22, 2009 N 443-p.

Having heard the judge-speaker Stetsyuk of the Item B. and having researched case papers, the Constitutional Court of Ukraine established:

1. The president of Ukraine the Decree "About Stop of Action of the Order of the Cabinet of Ministers of Ukraine of April 22, 2009 N 443-p" of May 6, 2009 N 296 according to Item 15 parts one of article 106 of the Constitution of Ukraine stopped action of the Order of the Cabinet of Ministers of Ukraine "About cancellation of the order of the SSU" of April 22, 2009 N 443-p (further - the Order) and appealed to the Constitutional Court of Ukraine with the petition to recognize it such which does not answer the Constitution of Ukraine (is unconstitutional).

According to the person of law on the constitutional representation the Cabinet of Ministers of Ukraine, having published the Order which repealed the order of the Security Service of Ukraine of July 26, 2008 N 589, overstepped the bounds of the powers as the Security Service of Ukraine is the state law enforcement agency of special purpose which ensures state security of Ukraine but does not treat the central executive bodies. In confirmation of the line item the author of the petition refers to separate provisions of the laws of Ukraine "About bases of homeland security of Ukraine", "About the Security Service of Ukraine", and also to the solution of the Constitutional Court of Ukraine of June 19, 2001 of N 9-rp/2001 in the matter of relatively years of service of scientific work and of November 11, 2008 N 25-rp/2008 on the case of land auctions.

2. The line items concerning subject of the constitutional representation stated the Cabinet of Ministers of Ukraine, the Secretariat of the President of Ukraine, the Representative of the Verkhovna Rada of Ukraine for human rights, the Security Service of Ukraine.

3. Constitutional court of Ukraine, resolving the questions raised in the constitutional representation, proceeds from the following.

3.1. Ukraine is sovereign and independent, democratic, the social, constitutional state in which the person, his life and health, honor and advantage, immunity and safety are recognized the supreme social value, and human rights and freedoms and their guarantees determine content and orientation of activities of the state; the state answers to the person for the activities, and approval and providing human rights and freedoms is its main debt (Articles 1, 3 Constitutions of Ukraine).

Protection of sovereignty and territorial integrity of Ukraine, ensuring its economic and information security are the most important functions of the state, case of all Ukrainian people; defense of Ukraine, protection of its sovereignty, territorial integrity and immunity are assigned to the Armed Forces of Ukraine, and ensuring state security and protection of frontier of Ukraine are assigned to the corresponding military forming and law enforcement agencies of the state which organization and procedure for activities are determined by the law; The Armed Forces of Ukraine and other military forming can be used by nobody for restriction of the rights and freedoms of citizens (part one, the second, third, fourth article 17 of the Constitution of Ukraine).

Homeland security is security of important interests of man and citizen, society and state with which are provided stable development of society, timely identification, prevention and neutralization of real and potential hazards to national interests which the vital material, intellectual and cultural wealth of the Ukrainian people as the carrier of sovereignty and the single source of the power in Ukraine, the determining requirements of society and the state which realization guarantees the state sovereignty of Ukraine and its progressive development is (paragraphs two, third article 1 of the Law of Ukraine "About bases of homeland security of Ukraine").

3.2. Proceeding from systems analysis of provisions of the Fundamental Law of Ukraine the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine are given the appropriate constitutional authority in the field of homeland security (the paragraph of the sixth of subitem 2.1 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine of February 25, 2009 to N 5-rp/2009 in the matter of relatively compliance of the Constitution of Ukraine (constitutionality) of the Presidential decree of Ukraine "About some questions of implementation of management in spheres of homeland security and defense").

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