DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of March 25, 2010 No. 9-rp/2010

On case on the constitutional representation of 47 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the Resolution of the Verkhovna Rada of Ukraine "About temporary procedure for appointment of judges to managerial positions and releases from these positions"

Case No. 1-32/2010

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Brintsev Vasily Dmitriyevich - the chairman,

Baulin Yury Vasilyevich,

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 - the speaker,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Nikitin Yury Ivanovich,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

considered at plenary meeting case on the constitutional representation of 47 People's Deputies of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the Resolution of the Verkhovna Rada of Ukraine "About temporary procedure for appointment of judges to managerial positions and releases from these positions" of May 30, 2007 N 1098-V (Sheets of the Verkhovna Rada of Ukraine, 2007, N 34, the Art. 455).

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 47 People's Deputies 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 Resolution of the Verkhovna Rada of Ukraine "About temporary procedure for appointment of judges to managerial positions and releases from these positions".

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

1. The person of law on the constitutional representation - 47 People's Deputies of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to recognize such which does not answer the Constitution of Ukraine (is unconstitutional), the Resolution of the Verkhovna Rada of Ukraine "About temporary procedure for appointment of judges to managerial positions and releases from these positions" of May 30, 2007 N 1098-V (daleepostanovleniye).

According to People's Deputies of Ukraine, establishment by the Verkhovna Rada of Ukraine of procedure for appointment of judges to managerial positions And release from from positions the resolution, but not the law of Ukraine, does not answer Article part two provisions 8, of Article part two 19, of Item 14 parts one of Article 92, of part one of article 131 of the Constitution of Ukraine. Authors of the petition also consider that the Resolution is accepted contrary to solutions of the Constitutional Court of Ukraine of May 16, 2007 N 1-rp/2007 on the case of release of the judge from managerial position in which to the Verkhovna Rada of Ukraine it is recommended to settle instantly in legislative procedure question of appointment of the judge to position of the chairman of justices, vice-chairman of court and release it from this position, and of December 22, 2009 N 34-rp/2009 on the case of appointment of judges to managerial positions in which the Verkhovna Rada of Ukraine shall execute instantly the Solution of the Constitutional Court of Ukraine of May 16, 2007 of N 1-rp/2007 in the specified part.

People's Deputies of Ukraine note that, having given the Resolution the Supreme council of justice the right to appoint judges to managerial positions and to exempt them from these positions, the Verkhovna Rada of Ukraine provided it additional, not stipulated in Article 131 Constitutions of Ukraine of power.

2. Resolving the question which is brought up in the constitutional representation, the Constitutional Court of Ukraine proceeds from the following.

Ukraine is the constitutional state in which the principle of supremacy of law is recognized and is effective (Article 1, part one of article 8 of the Constitution of Ukraine).

The fundamental law of Ukraine provides bases of separation of the government on legislative, executive, judicial and specifies limits of powers of public authorities, the bases and methods of their activities (Article 6, Article part two 19).

Questions of judicial system, legal proceedings, the status of judges according to the Constitution of Ukraine shall be determined only by the laws of Ukraine; adoption of the laws belongs to powers of the Verkhovna Rada of Ukraine as single regulatory authority in Ukraine (Article 75, Item 3 parts one of Article 85, Item 14 parts one of Article 92). Therefore the solution of the specified questions also is powers of this body.

Having conferred to the Verkhovna Rada of Ukraine such powers, the Fundamental Law of Ukraine obliges her to be effective not only in their borders, but also the method provided by the Constitution of Ukraine, i.e. to determine judicial system, legal proceedings, the status of judges only by adoption of the laws.

On settlement of appointment of judges to managerial positions and releases from these positions in legislative procedure noted the Constitutional Court of Ukraine in the Solution of May 16, 2007 of N 1-rp/2007 on the case of release of the judge from managerial position (the paragraph third Item 6 of motivation part, Item 3 of substantive provisions).

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