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Doc. 8690
31 March 2000
Decision of the Constitutional Court of Ukraine on the constitutionality of the President’s Decree on calling an all-Ukrainian referendum on people’s initiative
Communication
Committee of Ministers
Letter from the Chairman f the Ministers’ Deputies to the President of the Assembly, dated 31 March 2000
Mr President,
At their 705th meeting, which took place yesterday, the Minister’s Deputies instructed me to inform you that the Committee of Ministers took note, with particular interest and appreciation, of a statement by the delegation of Ukraine concerning:
– the decision of the Ukrainian Constitutional Court on constitutionality of the Decree of the President of Ukraine related to the organisation of a “All-Ukrainian referendum on people’s initiative”
– and the subsequent decision taken by the President of Ukraine to comply with the Court’s ruling.
Within the Committee of Ministers, this was seen as an important development, which would be of particular interest for the Parliamentary Assembly, with a view to its forthcoming session from 3 to 7 April 2000.
The decision of the Constitutional Court was distributed to the Minister’s Deputies yesterday, at the request of the Ukrainian delegation. A copy is attached.
Yours sincerely,
(signed):
Justin Harman
In the name of Ukraine
Ruling of the Constitutional Court of Ukraine
On the case of the Constitutional Appeals of 103 and 108 People’s Deputies of Ukraine concerning the conformity (constitutionality) of the Decree of the President of Ukraine “On calling an all-Ukrainian referendum on people’s initiative” with the Constitution of Ukraine (case of the “All-Ukrainian referendum on people’s initiative”)
Kyiv Case No. 1-26/2000
27 March 2000
No. 3-pп/2000
The Constitutional Court of Ukraine consisting of the following judges of the Constitutional Court of Ukraine:
Victor Egorovych Skomorokha – Chairman,
Volodymyr Denysovych Voznyuk,
Pavlo Borysovych Evgrafov – judge–rapporteur,
Mykhailo Vasyliovych Kostytskiy,
Ludmyla Fedorivna Malynnykova,
Petro Fedorovych Martynenko,
Vasyl Ivanovych Nimchenko,
Vitaliy Ivanavych Savenko,
Mykola Fedosovych Selivon,
Ivan Artemovych Tymchenko,
Volodymyr Pavlovych Tykhiy,
Ludmyla Panteleyivna Chubar,
Volodymyr Mykolayovych Shapoval,
Stanislav Sergiyovych Yatsenko,
With the participation of the subjects of law on presenting the Constitutional Appeal of 103 and 108 People’s Deputies of Ukrain, Vasyl Fedorovych Sirenko, Olexandr Dmytrovych Kushnir, Heorhiy Korniyovych Kryuchkov, Serhiy Petrovych Holovatiy, Yuriy Anatoliyovych Karmazin, People#s Deputies of Ukraine; representatives of the President of Ukraine: Leonid Vasyliovych Pidpalov - Deputy Head of the Administration of the President of Ukraine, Bronislav Stanislavovych Stychynskiy – First Deputy Minister for Justice of Ukraine, Vladyslav Vasylyovych Nosov – permanent representataive of the President of Ukraine in the Constitutional Court of Ukraine; invited to participate in the hearing: Anatoliy Olexzandrovych Selivanov – permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine; plenipotentiary representatives of the Central Electoral Commission: Victor Volodymyrovych Alsufyev, Vasyl Ivanovych Spivak, Maryna Ivanivna Stavniychuk – members of the Central Electoral Commission, witness Volodymyr Victorovych Hryhoriev – Head of the Council of Zhytomyr Oblast organisation of the Democratic Union party, at its plenary meeting considered the case of the Constitutional Appeals of 103 and 108 People’s Deputies of Ukraine concerning the conformity with the Constitution of Ukraine (constitutionality) of the Decree of the President of Ukraine “On calling an all-Ukrainian referendum on people’s initiative” of 15 January 2000 No. 65/2000.
The ground for consideration of the case according to Articles 39 and 40 of the Law of Ukraine “On the Constitutional Court of Ukraine” is constituted by the Constitutional Appeals of the People’s Deputies of Ukraine concerning the conformity with the Constitution of Ukraine (constitutionality) of the Decree of the President of Ukraine “On calling an all-Ukrainian referendum of people’s initiative” of 15 January 2000 No. 65/2000.
On 18 February 2000, the Board of Judges on Constitutional Appeals and appeals of the Constitutional Court of Ukraine decided in accordance with Article 58 of the Law of Ukraine “On the Constitutional Court of Ukraine” to unite the above-mentioned Constitutional Appeals into one constitutional case concerning the conformity with the Constitution of Ukraine (constitutionality) of the Decree of the President of Ukraine “On calling an all-Ukrainian referendum on people’s initiative”.
The ground for consideration of the case is the existence of controversial issues concerning the conformity with the Constitution of Ukraine (constitutionality) of the Decree of the President of Ukraine “On calling an all-Ukrainian referendum on people’s initiative” of 15 January 2000.
Having heard judges-rapporteurs, P.B. Evgrafov and M.I. Kornienko, the explanations of V.F. Sirenko, O.D. Kushnir, G.K. Kryuchkov, S.P. Holovatiy, Y.A. Karmazin, L.V. Pidpalov, B.S. Stychynskiy, V.V. Nosov, A.O. Selivanov, M.I. Stavniychuk, V.V. Alsufyev, V.V. Hryhoriev, and having analysed the materials of the case, the Constitutional Court of Ukraine.
Determined
1, The Decree of the President of Ukraine “On calling the all-Ukrainian referendum on people’s initiative” No. 65/2000 of 15 January 2000 (hereafter – Decree) issued on the request of more than 3 million citizens of Ukraine, duly registered by the Central Electoral Commission in its Protocol of 15 January 2000 “On general results of collecting the signatures of citizens of Ukraine under the request of designating the all-Ukrainian referendum on people’s initiative”. The objective of this referendum is to ascertain the position of citizens of Ukraine on a number of pressing issues, as well as to introduce in this connection corresponding amendments to the Constitution of Ukraine.
According to the Decree (Article 1), the all-Ukrainian referendum on people’s initiative is to be held on Sunday, 16 April 2000. The questions submitted to the referendum are the following (Article 2):
1. “Are you in favour of expressing no confidence in the Vekhovna Rada of Ukraine (XIVth convocation) and of introducing a corresponding amendment to the second part of Article 90 of the Constitution of Ukraine with the following content:“
“and also in the case of a vote of no confidence in the Verkhovan Rada of Ukraine expressed at an all-Ukrainian referendum the President of Ukraine is empowered to dissolve the Verkhovna Rada of Ukraine”?2.
2. “Do you support the proposal to complete Article 90 of the Constitution of Ukraine with a new third part with the following content:“
“The President of Ukraine can suspend the powers of the Verkhovna Rada of Ukraine if the Verkhovna Rada of Ukraine fails to form a stable and operational majority in one month or if it fails to adopt the state budget of Ukraine prepared and submitted in due form by the Cabinet of Ministers of Ukraine in three months, that could be considered as an additional reason for the dissolution of the Verkhovna Rada of Ukraine, with a corresponding amendment to paragraph 8 part one of Article 106 of the Constitution of Ukraine:“
“and in other cases as established in the Constitution of Ukraine”.3.
3. “Do you agree with the necessity to limit the immunity of the People’s Deputies of Ukraine and to delete paragraph three of Article 80 of the Constitution of Ukraine which reads:“
“People’s Deputies of Ukraine cannot be held criminally liable, detained or arrested without the consent of the Verkhovna Rada of Ukraine”?4.
4. “Do you agree to reduce the number of People’s Deputies of Ukraine from 450 to 300 and to replace, in this context, in the first part of Article 76 the words “four hundred and fifty” with “three hundred”, and to make corresponding changes in the legislation on elections?”5.
5. Do you agree that it is necessary to create a two-chamber parliament, where one of the chambers would represent interests of the Ukrainian regions, and to introduce the corresponding changes to the Constitution of Ukraine and the legislation on elections?”
6. “Do you agree that the Constitution of Ukraine shall be adopted through an all-Ukrainian referendum?”Th
The Decree (Articles 3, 4, 5, 6, 7) also determines the form of the ballot-paper for secret voting at the all-Ukrainian referendum on people’s initiative and gives corresponding instructions to the Cabinet of Ministers of Ukraine and the Central Electoral Commission as to financing and holding of the referendum, as well as to the central bodies of the executive power, the Council of Ministers of the Autonomous Republic of the Crimea, the local state administrations.
2. The subjects of law on the Constitutional Appeal – 103 and 108 People’s Deputies of Ukraine – called upon the Constitutional Court of Ukraine to rule that the Decree is not in the conformity with the Constitution of Ukraine, in particular, with the provisions of its Articles 8, 19, 72, 85, 92, 147, paragraph 1 of Chapter XV “Transitional provisions”.
It is stressed in the Constitutional Appeals of People’s Deputies of Ukraine, in the statements of representatives of the subjects of law on the Constitutional Appeal that the Decree is not in the conformity with the Constitution of Ukraine because:
–ac cording to Article 19 of the Constitution of Ukraine, bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine. An all-Ukrainian referendum called on people’s initiative, as distinct from an all-Ukrainian referendum called on the request of citizens of Ukraine, envisaged by Article 13 of the Law of Ukraine “On all-Ukrainian and local referendums”, is a principally new type of referendum; its organisation and procedure are not established by the mentioned law and, thus holding of such a referendum is impossible;–
–an all-Ukrainian referendum on people’s initiative cannot directly introduce amendments to the Constitution of Ukraine, as it would contradict its Chapter XIII “Introducing amendments to the Constitution of Ukraine”;–
–th e Constitution of Ukraine does not have provisions about consultative referendums. However, the issues that constitute a subject-matter of a consultative referendum are formulated in paragraphs 5 and 6 of Article 2 of the Decree, while the provisions of paragraphs 1, 2, 3, 4 of the same article are a subject-matter of a binding (imperative) referendum;–
–th e questions which, according to the Decree, are to be included in the ballot-papers do not comply with the requirements for holding referendums, as some of them cover two and more separate questions and, therefore, can substantially influence free expression of the citizens’ will during voting.3.
3. The letters sent by the President of Ukraine to the Constitutional Court of Ukraine, as well as the comments of the representatives of the President of Ukraine present an opposite position as to the essence of an all-Ukrainian referendum on people’s initiative. In particular, the main points of this position are as follows:
–th e Constitution of Ukraine does not establish a new type of a referendum, but only empowers the President of Ukraine to call an all-Ukrainian referendum on people’s initiative. This prerogative previously belonged to the Verkhovna Rada of Ukraine according to the Law of Ukraine “On all-Ukrainian and local referendums” of 3 July 1991;–
–co nduct of an all-Ukrainian referendum on people’s initiative is guaranteed by Article 72 of the Constitution of Ukraine. To designate this referendum is a constitutional duty of the President of Ukraine as head of state and guarantor of the observance of the Constitution of Ukraine and human and citizens’ rights and freedoms (Article 102, paragraph 6 of Article 106 of the Constitution of Ukraine);–
–th e Constitution of Ukraine, the Law of Ukraine “On the Central Electoral Commission”, the Law of Ukraine “On all-Ukrainian and local referendums” in the part that does not contradict the Constitution of Ukraine, other laws constitute a sufficient legal basis for the conduct of an all-Ukrainian referendum on people’s initiative;–
–th e right to determine and to change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the state, its bodies or officials. That is why a subject-matter of an all-Ukrainian referendum on people’s initiative can be any issue, except those mentioned in Article 74 of the Constitution of Ukraine;–
–th e questions referred to in paragraphs 5 and 6, Article 2 of the Decree related to establishing a two-chamber parliament in Ukraine and to the procedure of adopting the Constitution of Ukraine, can be implemented in the new Constitution of Ukraine, which shall be adopted by an all-Ukrainian referendum.4.
4. In resolving this dispute the Constitutional Court of Ukraine proceeds from the following.
4.1 An all-Ukrainian referendum is a form of expression of the people’s will (Article 69 of the Constitution of Ukraine). It is designated by the Verkhovna Rada of Ukraine or the President of Ukraine in accordance with their authority established by the constitution (part 1 of Article 72 of the Constitution of Ukraine). In particular, the Verkhovna Rada of Ukraine designates an all-Ukrainian referendum on issues of altering the territory of Ukraine (Article 73, paragraph 2 of the first part of Article 85); the President of Ukraine – on issues regarding amendments to the Constitution of Ukraine in accordance with Article 156 of the Constitution of Ukraine (paragraph 6 of Article 106). A referendum shall not be permitted in regard to draft laws on issues of taxes, the budget and amnesty (Article 74 of the Constitution of Ukraine).
The Constitution of Ukraine also envisages holding an all-Ukrainian referendum on people’s initiative which is designated by the President of Ukraine on the request of no less than three million citizens of Ukraine who have the right to vote, on the condition that the signatures in favour of designating the referendum have been collected in no less than two-thirds of the oblasts, with no less than 100 000 signatures in each oblast (part 2 of Article 72, paragraph 6 of Article 106).
In view of the provisions of Article 8 of the Constitution of Ukraine as to the direct effect of its norms, the Constitutional Court of Ukraine has arrived at a conclusion that part 2 of Article 72 of the Constitution of Ukraine establishes the primary and principally important legal basis for the conduct of an all-Ukrainian referendum on people’s initiative. This referendum can beheld according to the legislation in force. Therefore, the provision of Articles 1, 3, 4, 5, 6 and 7 of the Decree of the President of Ukraine “On calling the all-Ukrainian referendum on people’s initiative” No. 65/2000 of 15 January 2000, are in conformity with the Constitution of Ukraine.
4.2 According to the Constitution of Ukraine, the bearer of the sovereignty and the only source of power in Ukraine is the people. The people exercises power directly and through bodies of state power and bodies of local self-government. The right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the state, its bodies or officials (Article 5).
Introducing of amendments to the Constitution of Ukraine falls within the powers of the Verkhovna Rada of Ukraine, exercised within the limits and by the procedure envisaged by Chapter XIII of the Constitution of Ukraine (paragraph 1 of the part 1 of Article 85 of the Constitution of Ukraine). In accordance with Article 156 of the Constitution of Ukraine, a draft law on introducing amendments to Chapter 1 “General Principles”, Chapter III “Elections. Referendum” and Chapter XIII “Introducing amendments to the Constitution of Ukraine” is submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and is approved by an all-Ukrainian referendum designated by the President of Ukraine.
A draft law on introducing amendments to the Constitution of Ukraine is considered by the Verkhovna Rada of Ukraine upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of the draft law with the requirements of Articles 157 and 158 of the Constitution of Ukraine.
Proceeding from systemic analysis of the Constitution of Ukraine as integral document which has the highest legal force (part 2 of Article 8 of the Constitution of Ukraine), the Constitutional Court of Ukraine has arrived at the following conclusion: the realisation of the will of the people as the bearer of the sovereignty and the only source of power in Ukraine to amend the constitution, according to the Constitution of Ukraine, requires belanced actions of the President of Ukraine People’s Deputies of Ukraine, the Verkhovna Rada of Ukraine.
The Constitution of Ukraine shall not be changed, if amendments envisage the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine (Article 157 of the Constitution of Ukraine). In this context, the Constitutional Court of Ukraine qualifies as groundless the opinion expressed by the participants in the Constitutional Appeal according to which neither the Central Electoral Commission, nor the President of Ukraine, nor other state bodies have the authority to analyse the issues proposed by the initiative groups of citizens for an all-Ukrainian referendum on people’s initiative.
4.3 Having analysed the issues proposed to be included into ballot-papers for secret vote at an all-Ukrainian referendum on people’s initiative on 16 April 2000, the Constitutional Court of Ukraine concludes that the questions proposed by initiative groups of citizens and formulated in paragraphs 2, 3, 4 and 5 of Article 2 of the Decree, according to the Constitution of Ukraine, can be submitted to the nation-wide vote.
Proceeding from the provisions of Articles 69 and 72 of the Constitution of Ukraine, the Constitutional Court of Ukraine maintains that if the questions formulated in paragraphs 2, 3, 4 and 5 of Article 2 of the Decree are approved by an all-Ukrainian referendum on people’s initiative, the corresponding bodies of state power are obliged to consider these questions and take relevant decisions, in accordance with the procedures established by the Constitution of Ukraine, in particular, by its Chapter XIII “Introducing amendments to the Constitution”, and by the laws of Ukraine.
4.4 The questions formulated in paragraph 1 “Are you in favour of expressing no confidence in the Verkhovna Rada of Ukraine” (XIVth convocation) and of introducing a corresponding amendment to the second part of Article 90 of the Constitution of Ukraine with the following content:
“and also in the case of a vote of no confidence in the Verkhovna Rada of Ukraine expressed at an all-Ukrainian referendum the President of Ukraine is empowered to dissolve the Verkhovna Rada of Ukraine?” and in paragraph 6 (“Do you agree that the Constitution of Ukraine shall be adopted through an all-Ukrainian referendum?”) of Article 2 of the Decree contradict the Constitution of Ukraine, as:1.
1. The Constitution of Ukraine in force does not provide for expressing no confidence at an all-Ukrainian referendum, including that called on people’s initiative, of the Verkhovna Rada of Ukraine or any other constitutional bodies of state power as a possible ground for suspending their authority. Therefore, the submission of the issue of no confidence of the Verkhovna Rada of Ukraine to an all-Ukrainian referendum in the Basic Law of Ukraine in the absence of the above-mentioned provision would be a violation of the constitutional principle which envisages that state bodies exercise their powers within the limits established by the Constitution of Ukraine, as well as rule of law in Ukraine.
Taking into consideration the fact that the question of no confidence of the Verkhovna Rada of Ukraine (XIVth convocation) formulated in paragraph 1 of Article 2 of the Decree is inseparably linked to the proposal of introducing a corresponding amendment to the Constitution of Ukraine, the Constitutional Court of Ukraine concludes that the provisions of paragraph 1 of Article 2 of the Decree does not completely conform with the Constitution of Ukraine.
2. Assigning the right to determine and change the constitutional order in Ukraine exclusively to the people, the Basic Law of Ukraine has established a definite and strict procedure to amend the Constitution of Ukraine.
The question formulated in paragraph 6 of Article 2 of the Decree is submitted to an all-Ukrainian referendum without ascertaining the people’s will as to the necessity of adopting the new Constitution of Ukraine and, thus, challenges the validity of the Basic Law of Ukraine. It may weaken the foundations of the constitutional order of Ukraine, of the rights and freedoms of the individual and citizen, established by the Constitution of Ukraine.
Proceeding from the above the Constitutional Court of Ukraine maintains that the questions formulated in paragraphs 1 and 6 of Article 2 of the Decree are to be qualified as not corresponding to the Constitution of Ukraine (unconstitutional).
On the basis of the above, and guided by Articles 147, 150 and 152 of the Constitution of Ukraine, Articles 51, 61, 70 and 81 of the Law of Ukraine “On the Constitutional Court of Ukraine”, the Constitutional Court of Ukraine:
rules:
1. To recognise as in conformity with the Constitution of Ukraine (constitutional) the provisions of Article 1, paragraphs 2, 3, 4 and 5 of Article 2, Articles 3, 4, 5, 6 and 7 of the Decree of the President of Ukraine “On calling the all-Ukrainian referendum on people’s initiative” of 15 January 2000, No. 65./2000.
If approved by an all-Ukrainian referendum on people’s initiative, the questions formulated in paragraphs 2, 3, 4 and 5 of Article 2 of the Decree of the President of Ukraine “On calling he all-Ukrainian referendum on people’s initiative” are binding for consideration and taking decisions according to the procedure established by the Constitution of Ukraine, in particular, by its Chapter XIII “Introducing amendments to the Constitution of Ukraine”, and by the laws of Ukraine.
2. To recognise as not corresponding tot he Constitution of Ukraine (non-constitutional) the following provisions of the Decree of the President of Ukraine “On calling the all-Ukrainian referendum on people’s initiative” of 15 January 2000, No. 65/2000;
1. paragraph 1 of Article 2 of the Decree with the questions: “Are you in favour of expressing no confidence of the Verkhovna Rada of Ukraine” (XIV the convocation) and of introducing a corresponding amendment to the second part of Article 90 of the Constitution of Ukraine with the following content: “and also in the case of a vote of no confidence in the Verkhovna Rada of Ukraine expressed at an all-Ukrainian referendum the President of Ukraine in empowered to dissolve the Verkhovna Rada of Ukraine?”;
2. paragraph 6 of Article 2 of the Decree, with the questions: “Do you agree that the Constitution of Ukraine shall be adopted through an all-Ukrainian referendum?”
3. The provisions of the Decree of the President of Ukraine “On calling the all-Ukrainian referendum on people’s initiative”, which are recognised as non-constitutional, become null and void since the day of approval of the ruling by the Constitutional Court of Ukraine.
4. To confer the responsibility of the implementation of this ruling upon the President of Ukraine, the Verkhovna Rada of Ukraine, the Central Electoral Commission.
5. This ruling of the Constitutional Court of Ukraine is obligatory on the territory of Ukraine, final and cannot be appealed against.
This ruling of the Constitutional Court of Ukraine is to be published in “The bulletin of the Constitutional Court of Ukraine” and in other official sources of Ukraine.
The judges of the Constitutional Court of Ukraine