SOME ISSUES OF COMPENSATION BY THE STATE FOR THE DAMAGE CAUSED BY THE ACTS AND ACTIONS DECLARED UNCONSTITUTIONAL: CIVIL LAW ASPECT

Abstract

In the article, with due regard for the achievements of constitutional and civil law, the author examines the current issues of compensation by the State for damage caused by acts and actions recognized as unconstitutional by the Constitutional Court of Ukraine. The need to raise this issue is caused by the fact that, pursuant to Part 3 of Article 152 of the Constitution of Ukraine, material or moral damage caused to individuals or legal entities by acts and actions declared unconstitutional must be compensated by the State in accordance with the procedure established by law. As a result, in theory and practice there is no unified approach to the possibility of applying the relevant provisions of the Civil Code of Ukraine to legal relations arising from compensation for damage caused by unconstitutional acts and actions, which determine, in accordance with Article 56 of the Fundamental Law of Ukraine legal principles of compensation for damage caused by illegal decisions, actions or inaction of state authorities, their officials and service personnel in the exercise of their powers. The article provides a scientific and critical assessment of the assertions that the relevant provisions of the Civil Code of Ukraine cannot be extended to the relations arising in connection with compensation for damage caused by unconstitutional acts and actions. The author concludes that the provision of Part 3 of Article 152 of the Constitution, according to which the damage caused to individuals or legal entities by acts and actions recognized as unconstitutional should be compensated by the State “in accordance with the procedure established by law”, should be understood as a reservation that such issues should be resolved exclusively at the legislative level, and not at the subordinate legislation level. At present, such law is the Civil Code of Ukraine, the provisions of which should also apply to cases of compensation for damage caused by acts and actions recognized as unconstitutional, which does not exclude the possibility of determining certain specifics of compensation for such damage. However, such peculiarities should be determined by amending the Civil Code of Ukraine and other legislative acts, and not by adopting a separate special law. At the same time, the establishment of such peculiarities should be based on the general principles of civil legislation.