SOME ISSUES OF LEGISLATIVE ENFORCEMENT FOR THE CONSTITUTIONAL RIGHT OF INDIVIDUALS TO JUDICIAL PROTECTION IN THE SPHERE OF PUBLIC-LAW RELATIONS

Abstract

This article, based on an analysis of the provisions of the Constitution of Ukraine, international treaties that form part of Ukraine’s national legislation, the Code of Administrative Procedure of Ukraine, and other relevant laws governing administrative proceedings, identifies the main problems in ensuring legislative support for the constitutional right of individuals to judicial protection within the sphere of public-law relations. The analysis substantiates the conclusion that the constitutional right of an individual to judicial protection is not absolute. Consequently, the procedure for its implementation must be determined by law. Such laws should develop the relevant provisions of the Constitution of Ukraine rather than alter the substance of this right. Any restrictions on this right may be established only in cases expressly provided for by the Constitution of Ukraine. Furthermore, the article presents a retrospective analysis of the Ukrainian legislation amending both the Code of Administrative Procedure and the Constitution of Ukraine. The results of this analysis indicate a tendency toward narrowing the content and scope of the constitutional right to judicial protection—not only at the legislative but also at the constitutional level. The article also identifies the main legislative directions that restrict this right in ways that undermine its essence. In particular, these directions include: the legislative establishment of special procedures for appealing and annulling decisions of certain public authorities, where the possibility of such procedures is not provided for in the Constitution; the introduction of an excessively broad range of public authorities whose acts cannot be suspended or whose obligation to perform specific actions cannot be imposed by court order; the establishment of a wide category of judicial decisions that are not subject to cassation appeal. It is argued that one of the significant factors hindering the effective realization of the right to judicial protection is the presence, in Ukrainian legislation governing the administration of justice, of numerous provisions that fail to meet the requirements of legal certainty. Legal certainty is a fundamental element of the rule of law, as enshrined in Part 1 of Article 8 of the Constitution of Ukraine.