Key words. Arbitration, ADR, arbitration clause, tribunal ad hoc.

Topicality. The democratization of society, business development, improving of the legal culture cause the necessity of adequate defence of the nature person’s rights and the rights of legal entities. The long period of time the society was awared of only one way of rights defence, by court. Today the resolution of civil and economic disputes is also provided by alternative to the court bodies.

The term “alternative dispute resolution” (ADR) contains the procedures of resolving disputes without formal judiciary system. One of these procedures is dispute resolution in the arbitral tribunal. The dispute which falls in jurisdiction of general or economic courts can be arbitrated.

The arbitral tribunal is entitled to adjudicate the case and deliver the final decision. There are some misunderstandings concerning such functions of the tribunal. That is why, the question arises: whether such operations of arbitral tribunal do not violate p. 1 of art. 124 of the Constitution of Ukraine. According to this article, justice in Ukraine is carried out exclusively by the courts.² The answer to this question is in the decision of the Constitutional Court of Ukraine. This decision was delivered in the case of the constitutional petition of 51 National Deputies of Ukraine concerning the conformity of the provisions of the Law of Ukraine “On Arbitral Tribunals” (hereinafter, the Law) with the Constitution of Ukraine (constitutionality). In this judgment the Constitutional Court expressed its position which is as follows: judicial decisions adopted by the courts on behalf of Ukraine are binding on the entire territory of Ukraine. However, the arbitration tribunal decides only on its own behalf. These decisions are binding only to the disputable parties. Moreover, the enforcement of tribunal’s decisions is not included in the sphere of arbitration and is the function of the competent courts and bodies of bailiff service. So, the Constutional Court of Ukraine concludes that the operations of arbitration tribunals do not violate p. 1 of art. 124 of the Constitution of Ukraine, as the arbitral tribunal does not carry out justice. Tribunal’s decisions are non-state acts which are results of the parties dispute resolution [3].

The p. 2 of art. 12 of Commercial Procedural Code of Ukraine contains a list of disputes that can not be the subject to arbitration. This list includes: disputes on invalidation of acts; disputes arising from the concluding, changing, terminating and performing of economic contracts connected with public needs; corporate disputes and others provided by law [2]. The p. 1 of art. 17 of the Civil Procedural Code of Ukraine also provides for the parties possibility to transfer the dispute to arbitration, except of cases prescribed by law. The Law states the cases in which it is impossible to transfer the dispute to arbitration. According to the p. 1 of art. 6 of this Law, cases which contain state secret; cases of disputes arising from family relationships, except of those which arising from the prenuptial  agreement; the bankruptcy cases; case of disputes concerning real estate, including land; cases of establishment of legally significant facts; labor disputes; cases of exclusive jurisdiction; cases with a non-resident of Ukraine; cases in disputes about consumer protection can not be subject to arbitration [1].

According to Art. 7 of the Law, there are two types of tribunals: permanent tribunals and tribunals ad hoc, that is, those that are formed to hear the specific case. Based on the analysis of legislation, we can observe that in Ukraine there is the way to abuse the opportunity of transfer the case to arbitration. Firstly, the ad hoc tribunals are not registered in the Ministry of Justice of Ukraine. Arbitration clause or agreement can contain the will of the parties to transfer the case to the tribunal formed ad hoc. In addition to this, the requirements to professional skills of arbitrators ad hoc are not stipulated by law. In turn, the decision of the ad hoc tribunals should be enforceable. So, we can conclude that the operations of ad hoc tribunals need to be more regulated in the legislation of Ukraine. Instead, the procedure for the formation and operation of permanent arbitration tribunals is provided by the Law.

To transfer the dispute to arbitral’s resolution, parties should include arbitration clause to the contract or enter into a separate arbitration agreement. In arbitration clause or separate agreement parties may just notice about resolution of the disputes by tribunal, or form specific tribunal, or name specific arbitrators. Arbitrators are impartial referees. They are independent. The Art. 18 of the Law indicates the list of people who can not be arbitrators. This list includes minors; people under guardianship; people without specific professional skills; people who have been convicted; people found incapable by a court; judges of courts of general jurisdiction or the Constitutional court of Ukraine.

Arbitration procedure provides for the parties the right to participate in the hearing of the case personally or through the representatives; to file the challenge; to initiate the examination; to present evidence; the defendant may present counterclaim, so parties have many procedural opportunities. The burden of proof in arbitration lies on both sides. This means that each party must prove the circumstances to which it refers as the basis of its claims and objections. Arbitrator is not entitled to collect evidence. Actually, the problem of collecting evidence during arbitration procedures is very interesting. None of all existed procedural codes shall not be applied to arbitration procedure, so the requirement of the reliability of evidence shall not apply. As A. Mikhalskiy and V. Samokhvalov points out in thier book “Tribunals in Ukraine” that the examination of witnesses during the arbitration proceedure is very relevant issue. This is primarily due to the fact that legal acts do not stipulates the criminal liability of witness in the arbitration procedure. There are doubts in truth of testimonies. One more feature of arbitration is that the procedure is not limited by time, in contrast to the procedures for handling cases in state courts. On the one hand, it is positively, as such optionality allows arbitrators investigate all circumstances in details. On the other hand, it may lead to unnecessary delays in the process [4].

As a result of examination of evidence the court delivers the decision that is declared in the end of the hearing of the arbitral tribunal.

To sum it up, arbitration is a good way to resolve civil and economic disputes. It will help you to save money, time and solve the problem in private atmosphere.

References:

• Civil Procedural Code of Ukraine: [electronic resource] / Access: http://www.wipo.int/edocs/lexdocs/laws/en/ua/ua025en.pdf.
• Commercial Procedural Code of Ukraine: [electronic resource] / Access: http://www.wipo.int/wipolex/en/text.jsp?file_id=187649.
• Decision of the Constitutional Court of Ukraine of the 10^th of January, 2008 (in the case of the constitutional petition of 51 National Deputies of Ukraine concerning the conformity of the provisions of the Law of Ukraine “On Arbitral Tribunals” with the Constitution of Ukraine (constitutionality) // The Official Journal of Ukraine. – 2008. – № 3. – P.
• Mikhalskiy A., Samokhvalov V.: [electronic resource] / Access: http://www.csi.org.ua/tretejski-sudy-v-ukrayini/

Key words: the principle, good faith, justice, reasonableness, compensation for moral harm, compensation.

Judicial practice with the regard to application of the principles of justice, good faith and reasonableness is currently demonstrating no signs of massive involvement, since the participants of legal arrangements do not always seriously perceive an effective mechanism for implementation of their rights. However, there are some examples of using references to the abovementioned criteria.

The principle of justice is used in the liabilities of sensitive nature with the further assigning of compensatory damages for moral harm to an aggrieved person. The size of punitive damage is defined by the court depending on the nature of the offense, physical or mental suffering, impairment in ability of the injured person or deprivation of an opportunity to use the ability; the degree of guilt of the person who caused moral damage, if the offense constitutes grounds for compensation; and other circumstances that are material to the case. The demands for reasonableness and justice are also taken into account when determining the amount of compensation for moral damage. The principle of justice is a key factor for the court’s decision on assigning a certain amount of compensatory damages for moral harm, which by its nature cannot be accurately calculated by the court ahead, as the judicial body defines the sum based on the principle of justice [1].

For instance, by its decision, the Judicial Chamber on Civil Cases of the Supreme Court of Ukraine reduced the amount of compensatory damages for moral harm caused to the citizen K. by the activity of the bodies of inquiry, preliminary investigation and prosecution during the process of criminal proceedings and investigative actions, from UAH 500,000 to UAH 100,000. In order to justify such a reduction, the Court referred to the need to consider the principles of reasonableness, prudence and justice when deciding on a punitive damage. The Judicial Chamber on Civil Cases of the Supreme Court of Ukraine applied this principle in a similar way when decided on reduction of the amount of compensatory damages for moral harm caused to the individual J. by prosecution bodies, from UAH 1 million to UAH 150,000 [3].

The principle of justice demands that the laws are equally applied to all: everyone gets what the law prescribes. The idea of justice influences directly every branch of the law, being reflected in its norms in diverse ways. The abovementioned principle permits to implement completely the particularities of civil law as the ones of private law, according to the provisions of which, the key factors include the equality of parties, the autonomy of will and the autonomy of property.

The principle of fulfillment in good faith of obligations has become the basis for one of the trends in the development of the judicial practice in countries with the continental legal system. This trend, aimed at filling of some gaps in the offer, is most clearly observed in relation to the concluded agreements, the clauses of which the parties have already begun to implement and even have already partially completed, but during this process, they have encountered a gap in the offer.

The process of “mastering” of the civil law on contractual obligations in good faith by judges is definitely a positive trend. The particular determining factor is the fact that the Constitutional Court of Ukraine used the reference to the principle of good faith in making the famous decision “in the case on the interest protected by law”. Thus, the concept of “the interest protected by law”, as used in the Civil Procedural Code of Ukraine, was determined by the Constitutional Court of Ukraine as a “drive for the use of specific tangible and/or intangible benefits, conditioned by the general content as a simple legitimate permit, which is objective and not directly mediated in the subjective rights, being the subject of an independent judicial protection, as well as the other means of legal protection, serving to satisfy individual and collective needs that do not contradict the Constitution, the laws of Ukraine, public interests, justice, good faith, reasonableness and other general principles of law” [5].

In fact, the Constitutional Court of Ukraine has defined by this particular decision that good faith is one of the criteria for determining whether any interest is “protected by law”, i.e. independent object of legal protection. It is difficult to overestimate the importance of this conclusion for implementation of the principle of good faith in the judicial practice. Nowadays, the courts of Ukraine, examining any dispute the object of which is an abuse of the interest protected by law, are actually obliged to analyze, based on the decision of the Constitutional Court of Ukraine, the question of whether such interest is aimed at satisfaction of individual and collective needs that, in particular, do not contradict with the principle of good faith.

Case records of the court indicate that the subjects of contractual relations refer more and more to the corresponding principle. For example, in one of the cassation appeals the appellant stated that “the defendant did not fulfill the terms of the contract in good faith and violated the principle of good faith enshrined in Article 509, paragraph 3 of the Civil Code of Ukraine”. Having no legitimate grounds for realization of his right under the contract and provided the proper and conscientious fulfillment of obligations by the appellant, the defendant, with no reason and in bad faith, applied to the appellant the operational and economic sanctions in the form of prohibition to provide air services. The fraudulent actions of the defendant resulted in material damage caused to the appellant in the form of lost revenue from unsold tickets. In another case, the defendant referred to the fact that the appellant violated the principle of good faith by not fulfilling the terms of the subcontract with a third party simply because the defendant did not allow the appellant to enter the premises rented by the defendant. Meanwhile, if the appellant had acted in good faith, he would have had every reason to execute a subcontract, since there were other properly equipped facilities in his possession [4].

Application of the criteria of reasonableness is explained by the fact that the smaller and the less abstract is the description of a certain action or rule in the text of the law or the contract, the more general becomes its use for ascertaining whether it corresponds to the permitted models or proper behavior patterns. The analysis of civil legislation proves that in most cases specific actions are related to the demand for reasonableness: sales of goods at reasonable prices, reasonable periods for fulfillment of obligations.

The principle of reasonableness is also taken into account in civil proceedings. For example, Ukrainian Mobile Communications JSC filed a lawsuit against C. to the court on debt enforcement and contractual penalties under the contract, citing that, in breach of the contract for cellular communications services signed by both parties, the woman-defendant was in default with payment for services received owing to the company UAH 118.09. Moreover, in accordance with the paragraph 1.2 of the supplementary agreement to the Contract, the appellant requested the defendant to recover the contractual penalties in the amount of UAH 3.65 for each day remaining until the expiration of the principal contract, starting from the date of its dissolution, the amount of the total payment equaling to UAH 1,536.65.

The court of the first instance rejected the claim. The appellate decision reversed the decision of the first instance and then, the appellate court made a new judgment, according to which the claim was upheld in part. The defendant recovered to the appellant the penalties for services rendered being estimated to UAH 118.09 and UAH 110 of penalties for failure to fulfill obligations of the contract. The decision of the Supreme Court of Ukraine stated the dismissal of the cassation appeal, but affirmed the appellate court decision [2]. Therefore, the amount of penalties can be reduced by a decision of the court if it significantly exceeds the amount of caused damages. That is to say, deciding on a claim, the courts first took into account the principle of reasonableness, which included an objective assessment of the situation of the defendant and an unaffected consideration of the provisions of the Civil Code of Ukraine.

The principle of reasonableness is also taken into account in civil disputes and in arbitration courts. For instance, the “Bank” filed a claim to the Standing Independent Arbitration Court under the Ukrainian public organization “League of legal protection of the consumers’ interests” to recover from the borrower the amounts owed of the loans: the principal amount of the loan being UAH 503.20; the unpaid credit-use interest – UAH 35.89; the penalties charged for outstanding loan and late interest repayment – UAH 9,543.46, accrued during the period of 12 months at a rate of 6.5% for each day of the late payment, of the total debt for the entire period of delay. The total amounts owed of the loans were estimated to UAH 10,082.55 [6]. By its decision, the Arbitration Court declared the use of the principle of reasonableness as possible, considering the financial situation of the defendant and based on the analysis of other evidence and circumstances of the cases. The Arbitration Court made the decision upon the pretext that if the due penalties were excessively large compared to the losses of the creditor, the court might have reduced the amount of the penalty.

Application of the principle of reasonableness in judicial practice helps avoid unnecessary and unjustified losses not only of the participants of civil relation, but also of the economic activities. It should be mentioned that in addition to indication of an intelligent person, a recourse to the principle of reasonableness is also applied when determining the timeframes and the amount of compensation for damage. For instance, in the light of the jurisprudence of the European Court of Human Rights, the category of “reasonableness” is usually used in combination with the word “timeframe”, given that the European Convention for the Protection of Human Rights and Fundamental Freedoms enshrined the right equal to all persons to be tried within a reasonable time.

Therefore, providing the study on civil legislation and judicial practice, we come to the conclusion that the principles of good faith, justice and reasonableness are essential for making decisions in disputes that involve assignment of a compensation for damages caused. Both the courts and the disputing parties may invoke these principles (collectively or individually) in order to use them as an argument for raising or reducing the amount of the compensation.

Bibliography

1. Bakalinska, O.O. (2011), Osoblyvosti zastosuvannia katehoriji spravedlyvosti v tsyvilnomu pravi i protsesi Ukrainy [Peculiarities of application of the category of justice in civil law and litigation of Ukraine] // Yurydychni nauky, 2011. – No. 3. – pp.39.
2. Belkin, M.L. and Belkina, Yu.L. (2009), Zastosuvannia pryntsypu rozumnosti v hospodarskykh ta tsyvilnykh sporakh [Application of the principle of reasonableness in commercial and civil disputes] // Bulletin of economic justice, 2009. – No. 1. – pp.101.
3. Otradnova, O.O. (2007), Realizatsiya pryntsypu spravedlyvosti u tsyvilno-pravovyh zoboviazanniakh iz zavdannia nedohovirnoi shkody [Realization of the justice’s principle in civil commitments from the task of the uncontractual damage] // Yurydychni nauky, 2007. – No. 74. – pp.122.
4. Pavlenko, D. G. (2009), Sudova praktyka zastosuvannia pryntsypu dobrosovisnosti u vyrishenni dohovirnykh sporiv [Application of the Principle of Good Faith in Judicial Practice related to Contractual Obligations] // Legal Journal “Justinian”, 2009. – No. 12.
5. Decision of the Constitutional Court of Ukraine No. 18-rp/2004 dated December 1, 2004 (the case on the interest protected by law) // The Bulletin of the Constitutional Court of Ukraine. – Kyiv. – No. 6. – 2006. – pp.6-16
6. Civil proceedings: Judicial practice in civil cases. – Kyiv: LLC In Jure Publishing House, 2008. – No. 1 (7). – pp. 10-11.

Key words: regulatory legal act, subordinate legislation, normativity, legal force, creation of subordinate regulatory acts, norm of law, legal validity.

The regulatory legal acts are issued by the competent authorities in a form prescribed by the law. The regulatory act is an official document holding legally relevant information. In addition, any legislative act should contain strictly defined reference details demonstrating its relevance to the corresponding type of legislative instruments, for instance, distinguishing whether the particular act is a law or a resolution, as well as determining when and by whom it was adopted, when it entered into force, when it was signed etc.

As a whole, the full set of normative acts builds a legislative system in a generalized sense, when in the restricted sense of the word it is just a set of laws. According to the legal force criterion, the regulatory legal acts are divided into two groups: laws and regulations (or primary and subordinate legislation).

Subordinate legislation is a part of the general system of law sources in Ukraine, bearing major attributes and representing basic principles inherent in this system. Along with the principle of the rule of law, the strict hierarchy of the law sources is one of the most important system characteristics. The corresponding subordination of laws and regulations ensures their coherence, being one of the preconditions for implementation of the law. The hierarchy of the law sources means that they are subordinated in such a way that the sources of subordinated entities are derived from the supreme authorities and neither can contradict the later, nor amend or repeal them.

However, in practice, there are repeated cases of direct violations of provisions of the law, bypassing the laws or undesirable duplications of the regulatory acts. There are also instances of issuing subordinate acts in order to support very specific, unilateral administrative decisions protecting exclusively institutional interests. Therefore, it is necessary to study these acts, which are related primarily and directly to the analysis of the issues associated with the implementation process of the rule of law.

Such feature as subordination (“being delegated”) is inherent in most normative acts issued in Ukraine and is characteristic of law-making activities of the authorized entities. Nevertheless, the consistency of the legal regulation of social relations is primarily provided by the legislative instruments, expressing the goodwill of the State to adopt, amend or repeal legal norms.

A subordinate regulatory legal act is an act that is issued in conformity with the law and under the law to specify the legal regulations and their interpretation, or to establish the primary rules [4].

Subordinate feature of the normative legal acts does not imply they are less legally binding. However, their legal validity is not as universal and supreme as the laws are. At the same time, laws and regulations occupy an important place in the overall normative system as they ensure implementation of the laws by legal regulation of the whole complex of social relations.

Subordinate regulations are distinguished according to their legal validity, which depends on the position and competence of the state agencies issuing the acts, as well as nature and functions of these acts. The act issued by a lower state authority should not only “accord with the law”, but also “comply with” all the regulatory enactments of the supreme state bodies. For example, the acts of the Ministry of Education must not only comply with the Law on Education, but also with the normative acts issued by the President, the Cabinet of Ministers, the Ministry of Finance [1].

There is an objective need in creation of subordinate legislation, and even small countries with long democratic traditions are not capable of existence without such practice. The reason is that:

1) executive authorities simply cannot function without regulatory powers;

2) a legislator is unable to foresee and regulate the entire set of many different social relations, which depend on the urban environment and time period, for those who are in need;

3) in comparison with the laws, bylaw regulations can respond much quicker to changes in the object of legal regulation and, therefore, allow to address with fewer losses most of the gaps in the law, which are associated with its amendment by a legislator;

4) any attempt to avoid secondary legislation in the legal regulation could not only cause an excessive burden on the legislative bodies and, therefore, a slowdown in the discussion and adoption of laws, but also affect the quality of the legislative process in general [3].

Subordinate acts provide a detailed application of the law and, thus, regulate the procedure of its implementation; they also specify the mechanism of its action, which has already been defined by the law, establish quantitative indices, norms and rapidly changing quotas, contain solutions to some specific matters, including those of procedural and enforcement nature. Meanwhile, in any lawful state, it is not allowed to repeal, amend or terminate a law by issuing a bylaw act. Sometimes, the subordinate acts settle the relations that are not regulated by any law. Obviously, the difference between the objects of legal control of the laws and regulations is not so much about qualitative indices, but more about quantitative measures of universality, importance and necessity of the elements constituting these relations.

The legal literature has several references to the subordinate acts: “adopted in execution of the law,” “adopted within the limits of authority granted by law”, “adopted under the law”. However, one formulation is the same for all of the subordinate acts: “on the basis of and in execution of the law,” all the other formulations derive from this one and are not specific in application for various law-making subjects. It is inadvisable to split the formulation “on the basis of and in execution of the law” into two separate parts because it is the whole of its components that provides us with a comprehensive view of what the subordinate legislation is, the purpose of such acts and their place in the system of legal sources [2].

The formulation “on the basis of and in execution of the law” derives from such concepts as the supreme legal force and the right of the priority. The supreme legal force reflects the inalterability of the law and other acts’ mandatory compliance with the specific law. The priority of the law is explained by the fact that it serves as the basis for the activities of rule makers, as well as for public bodies and direct authority of the People. The formulations about subordinate legislation demonstrate that subordinate acts must not only comply with the laws, but also with the other acts that have a relatively greater legal force. However, the basic requirement for the subordinate acts is their primary compliance with the laws. Otherwise, the very notion of subordinate legislation loses its meaning. Each subordinate act, directly or indirectly – through the acts of the supreme legal force, which must also comply with the general formulation of subordinate legislation – shall not contradict the acts of a relatively greater legal force.

The second part of the formulation – “in execution of the law” – is conditioned by the fact that through the general rule the law regulates the most important, typical and stable relations, when the subordinate acts manage relations that are more specific and change often. State legislative activity aims at securing basic legal principles and the most common legal norms. Subordinate acts make it possible to cover a large scope of details and particularities, which are not usually addressed in the main law. The rule of law (if not formulated casuistically) is a type of the general rule that should definitely be specified in other subordinate (to this particular norm) rules. It is often impossible to apply this particular norm directly to a specific life event. It requires further specification in compliance with other norms, which are general as well, but provide more details on the matter.

Specification and concretization of the norms of law may be demonstrated by both setting specific standards and adopting new regulatory enactments, and in some cases, even by adopting systems of such acts. Concretization of the statutory provisions in the subordinate acts provides an opportunity to consider the development of relations regulated and to make amendments within the limits of the law.

Subordinate rule making often provides examples of the contradictory concretization of constitutional and other types of legal provisions. Subordinate acts sometimes contain direct violations of the law or simply “bypass” its provisions. Such cases of “concretization” not only do not guarantee implementation of the norms of law, but also usually distort their social and legal content, provoke a decline in the prestige of the law and legality, damage the quality of legal education. Since similar cases of violations and distortion of the content are quite common and the corresponding damages or losses are constantly growing, it is very important to understand specific causes of breaches of the laws and distortion of legal consciousness of their authors, as well as to explore the mechanism for ensuring the legality of subordinate acts and the effectiveness of forms of constitutional control [2].

Considering the formulation “in execution of the law”, we should emphasize the fact that subordinate legislation constitutes an integral part of the system of legal sources in Ukraine, bearing its major characteristics and particularities. This system can be schematically represented in the following way: the Constitution is the Center of the System. Regulatory acts are radially arranged around the Center, providing specification and concretization of the constitutional provisions. As a rule, such acts reflect constitutional precepts, further developing and specifying them. Most acts of the first level take the form of laws. Then, further from the Center and following the acts specifying provisions of the Constitution, there are acts that could be called the acts of concretization and specification, as they mainly provide specifications and particularities of certain provisions of particular laws. It is at this specific level that the majority of acts become the subordinate acts.

Therefore, the main task of subordinate legislation is to serve as the instrument specifying the law and regulating the process of implementation of the law. It is not accurate to qualify subordinate legislation as simple adoption of the subordinate acts in direct compliance with other legal provisions. The law can directly prescribe the adoption of such normative acts; the law can contain a side reference to the requirement for adoption of a subordinate act by the authorized entity. The Labor Code of Ukraine stipulates the adoption of internal work regulations by the owner or other authorized entity upon consultation and in coordination with trade union committees of the enterprise, institution or organization.

Bibliography

1. Kelman, M.S. and Murashin, O.G. (2011), Zahalna teoriya prava (zi skhemamy, krossvordamy, testamy): pidruchnyk [General theory of Law (with schemes, crosswords, tests): Textbook / M.S. Kelman] – Kyiv, Ukraine: Kondor, 2011. – 553 p.
2. Kovalska, V.V. (2008), Poniattia, oznaky ta znachennia normatyvno–pravovoho aktu MVS Ukrainy [The concept, features and value of the normative legal act of the MIA of Ukraine] // Forum Prava. – 2008.- No. – pp.237-242
3. Kolodij, A.M. and Olijnyk, A.Yu. (2007), Derzhavne budivnytstvo i mistseve samovriaduvannia v Ukraini [The state construction and local government in Ukraine / A.M. Kolodij] – Kyiv, Ukraine: Yurinkom Inter, 2007. – 564 p.
4. Kopiejchykov, V.V. (2000), Zahalna teoriya derzhavy i prava: Navchalnyj posibnyk [General theory of State and Law: Textbook / ed. V.V. Kopiejchykov] – Kyiv, Ukraine: Yurinkom Inter, 2000. – 320 p.

Key words: the Republic of Poland, the Ombudsman, the Constitution of Poland, the authority, human rights issues.

The building of the most appropriate model of constitutional status of ombudsman in Ukraine requires the comprehensive analysis of the legal status of Ombudsman in the neighboring countries. Those countries use familiar legal system and have similar national and cultural features. One of such states is the Republic of Poland which is the growing leader in the East Europe. However, it should be noted that not all features of the Ombudsman activities and status in Poland have to be implemented in Ukraine. That is why the Ukrainian scientists have to study the legal status of Polish Ombudsman in the best way.

Poland was the first country in the post-socialist camp which introduced the institution of ombudsman – Spokesman of Civil Rights (hereinafter, Spokesman) or “Rzecznik praw obywatelskich” which operates from the 15^th of July, 1987. It should be noted that the Polish legislator equates the “civil rights” and the “fundamental rights and freedoms”. That is why the Polish Ombudsman should be perceived as a body designed to protect the full range of the constitutional rights of Polish citizens not just civil ones in the narrow sense of the word as it can be mistakenly seemed based solely on the title of this institution.

The Spokesman is the parliamentary Ombudsman as far as he/she is elected by the Parliament. The right to nominate Spokesman for discussion and for the subsequent election belongs to the Head of the Polish Parliament or 35 deputies. Except of the abovementioned, the candidature of Spokesman has to be agreed with the Senate (the upper House of the Polish Parliament) [2].

The Spokesman directly accepts complaints from citizens. Though the Ombudsman is the authority of the unitary state, Polish legislation allows to found up specialized Ombudsmen (specialized in the children’s rights, women’s ones, sexual and ethnic minorities rights, etc). Apart from this, regional ombudsmen may be set up in Poland who should operate at the same level of regions as the administrative courts do.

The Spokesman is endowed with mandatory powers. The bodies to which the Spokesman appeal with recommendations regarding the violation of human rights must take appropriate measures in 30 days. Otherwise, the Spokesman gets the right to appeal to the higher authorities with a demand to use coercive means to carry out his/her recommendations.

The Spokesman reads out the annual report about his/her activities during the year at the meetings of Parliament. Besides, the Spokesman obtains the authority to form the Bureau of Spokesman to facilitate the preparation to cases. The Bureau consists of three members appointed by the Spokesman. One of the members must be a representative of the armed forces.

It is worth noting that the Spokesman owns equal, direct and absolutely unlimited access to any and all persons legally staying in Poland. The legislator did not set any special conditions for the realization of the humans right to appeal to the Spokesman such as the requirement of prior recourse to other legal remedies, etc.

In his/her activities the Spokesman is governed not only by the Constitution and laws of the Republic of Poland, international legal instruments, but also by the principles of fairness and feasibility. A vivid illustration of their application is fighting with bureaucracy in state agencies and local governments as far as this tendency does not violate human rights but violates the principle of expediency because of difficult access to governmental bodies of citizens [3; p. 27].

In case of violations, the Spokesman has a wide range of impacts including:

1. Appeal with providing recommendations to those who breaches someone’s rights.
2. Appeal to the higher authorities demanding to force hierarchically subordinated bodies to adopt the proposed measures.
3. The requirement to start criminal case and participation there in the same rights as the public prosecutor has.
4. Demanding to start the administrative proceedings.
5. The requirement to punish (whom?) or, alternatively, to cancel the decision.
6. Appeal to the body of the constitutional control for the clarification of the constitutionality of certain existing legal acts [3; p. 28].

As we see, the Spokesman does not have the right to initiate the criminal or administrative proceedings as, for example, the ombudsman in Sweden can, but may require these actions from relevant authorities. Taking into consideration the already mentioned principle of imperativeness of the Polish Ombudsman’s demands, such procedures are almost identical. In addition, the Spokesman can initiate the constitutional control proceeding.

It should be noted that the practice of the Polish Ombudsman shows tend to abandon the use of peremptory powers and apply the alternative (i.e. “Soft”) leverage. For this purpose the Spokesman produced a number of fundamental principles of its interaction with other state authorities, in particular the principle of “non-antagonism”: taking the least stringent measures from the beginning of the case and the intensification of effects only when necessary.

The Ombudsman in Poland has a great level of legitimacy and therefore – the society trust in Poland. Only for the first two years of the Spokesman existence (from 1988 till 1990) he received about 100 thousand applications and about 80% of them were complaints. In Poland third a year the official organ of the Spokesman – Bulletin of the Parliamentary Ombudsman – is published which shows the most important acts issued by the Polish Ombudsman, profile cases, submission to the authority of constitutional jurisdiction and so on. In addition, Poland has developed a practice of monthly press conferences of the Ombudsman [5; p. 28]. Undoubtedly, the high level of legitimacy of the Spokesman promotes the growth of its effectiveness.

The Ombudsman in Poland is a very significant legal institute. It is a body designed for conducting the parliamentary control over the governmental institutions dealing with human rights issues. The Ombudsman in Poland obtains the power to force the relevant authorities to initiate the criminal and administrative proceedings, to appeal to the Constitutional Court of Poland in order to check the constitutionality of the particular law.

REFERENCES:

1. Baglai M. The Constitutional law of foreign countries / M. Baglay. – M .: NORMA, 2004 – 380 p.
2. Constitution of Poland: [electronic resource] / Constitution of Poland. – access: http://www.sejm.gov.pl/prawo/konst/rosyjski/kon1.htm.
3. Martseliak О. The functions of the Ombudsman / O. Martselyak // Law and Security. – 2003. – № 2’4 – P. 61-66 .
4. Martseliak O. The Status of the Polish Ombudsman / O. Martselyak // Law and Security. – 2003. – № 2’2 – P. 25-29.
5. Naulik N. Ombudsman in Ukraine and Poland (comparative research): Ph. D. thesis / N. Naulik. – K., 2007. – 28 p.
6. Rud M. Ombudsman as guarantor of the human rights and freedoms / M. Rud // Law and Practice. – 2007. – № 9. – P. 8-11.
7. Shapoval V. Constitutional law in foreign countries / V. Shapoval. – K.: High School, 1997. – 338 p.

Key words: constitution, legislative veto, constituent power, the Decision of the Constitutional Court of Ukraine, legislative power, dissenting opinion.

The constitution is a key means of state power limitation. From this point of view it is quite obvious that the issue of the amendments to the basic law is especially relevant in the light of the contemporary constitutionalism.

At the present stage of the legal science development the institute of the legislative veto is a subject of the research of the numerous Ukrainian scientists including V. Shapoval, N. Zhuk, F. Venislavskiy, Y. Todyka, V. Danilov. The problems of the application of the presidential veto to constitutional laws is seen primarily in the context of the presidential power features/ Therefore, this institution clearly needs the further research.

As a general rule, the President does not have the authority to apply the veto to the laws amending the Constitution (constitutional laws). Another approach is introduced only in a few countries: the Republic of Azerbaijan, Georgia, Belarus, Lithuania, Armenia and Turkey. The absence of the right to veto the constitutional laws stems from the legal nature of the constitutional laws which are constituent acts, not the legislature. Therefore, the constitutional laws shall not be subject to the presidential veto. This rule is the consequence of one of the basic principles of law: the people is the sole source of power. Furthermore, the people do not authorize the president to block his acts. In addition, the constitutions of all states provide the distinct procedure for consideration and adoption of the laws amending the Constitution. Constitutional laws, as a general rule, do not require a signature of the Chairman of Parliament and of the President for their promulgation. They come into force immediately after their adoption and become an integral part of the Constitution. With this in mind, the best way of the presidential veto regulation is an absolute veto of the President of the Republic of Azerbaijan concerning the constitutional laws, which can not be overridden by the parliament. “If the President of the Republic of Azerbaijan does not sign constitutional laws, they do not come into force” (the Art. 123 of the Constitution of the Republic of Azerbaijan) [2]. The President of Belarus may not only apply veto to the constitutional laws, but this veto is overcome in another, more severe way than in the case of ordinary law (at least three-fourths of the constitutional composition of both chambers of parliament while for ordinary laws two-thirds of the Parliament is enough) [1]. Such examples show the obvious presidential prerogative in the process of amending the constitution in the abovementioned states which forms a significant imbalance of powers and lays the risks to its deepening.

The states which provide the possibility of application of the presidentional veto to the constitutional laws stipulate a special procedure of their re-examination and approval. For example, in Lithuania the three-fifths of the votes of the constitutional composition of the parliament are required to overcome a veto applied to the constitutional law, while for ordinary laws – merely the majority of the members of the Seimas (Ch. 2 of the Art. 69 of the Constitution of the Republic of Lithuania) [5]. In Georgia the President’s veto on the law amending the Constitution shall be overcome by the two thirds of the constitutional composition of the parliament (Ch. 4 of the Art. 68 of the Constitution of Georgia) [3]. In Turkey the presidential veto applied to the constitutional law shall be overridden by the parliament composed at least of two thirds. In such a case the President obtains the right to nominate that law to the referendum as it is stated in the Ch. 6 of the Art. 104 of the Constitution of Turkey [6]. However, the law amending the Constitution of Armenia after its re-approval by two thirds of the parliament obliges the President to nominate it to a national referendum, in accordance with the requirements of the Ch. 5 of the Art. 111 of the Constitution of the Republic of Armenia [8].

The question of the possibility of the presidential veto’s application to the laws amending the Constitution of Ukraine was not regulated in the text of the basic law edited from 1996 but found its legal interpretation in the Decision of the Constitutional Court of Ukraine of the 11^th of March, 2003 (in the case of the constitutional petition of 73 deputies about the constitutionality of the presidential veto applied to the Law of Ukraine “On Amendments to the Art. 98 of the Constitution of Ukraine”). The Constitutional Court of Ukraine rendered that application of the presidential veto on the law amending the Constitution of Ukraine. In the reasoning of this decision the only body of constitutional jurisdiction in Ukraine was governed by the fact that the basic law does not contain warnings regarding the impossibility of the application of the presidential veto to the certain categories of laws. The court also took into consideration that Chapter XIII of the Constitution of Ukraine which regulates the procedure of amending the Constitution of Ukraine does not provide a distinct procedure for the signing and promulgation of such kind of laws [11]. The judge of the Constitutional Court of Ukraine, V. Shapoval set out in his dissenting opinion regarding the abovementioned decision of the Constitutional Court of Ukraine that the only body of constitutional jurisdiction in Ukraine made casual interpretation of the Constitution of Ukraine without examining the legal nature of the legal act on amending the Constitution of Ukraine [10]. This position was confirmed by the judge of the Constitutional Court of Ukraine, M. Savenko. M. Savenko stated in his dissenting opinion regarding the same decision of the Constitutional Court of Ukraine that the law amending the Constitution of Ukraine is not identical to any other law adopted by the Verkhovna Rada of Ukraine on the implementation of its mandate as the sole legislative body [9]. The constitutional law is the form of constituent power. Adopting the law on amendments to the Constitution of Ukraine, the Verkhovna Rada of Ukraine acts as a constituent authority. Apart from this, constitutional laws are adopted by a qualified majority of two thirds of the constitutional composition of the parliament, so the application of the veto to such acts makes no sense because the same number of votes are needed to overcome the veto according to the Ch. 4 of the Art. 94 of the Constitution of Ukraine [9].

Applying the veto to the Law of Ukraine “On Amendments to the Constitution of Ukraine”, the President of Ukraine referred to its unconstitutionality. However, the Constitutional Court of Ukraine carries out the statutory preliminary constitutional control of the law amending the Constitution of Ukraine which is prerequisite for further consideration and approval of this law by the Verkhovna Rada of Ukraine. Accordingly, using the right of veto to the law on the grounds of its unconstitutionality, the President of Ukraine blatantly ignored the opinion of the only body of the constitutional jurisdiction in Ukraine, thereby violating the provisions of legislation by which decisions and opinions of the Constitutional Court of Ukraine are binding for the President of Ukraine. M. Savenko is convinced that the presidential ability to veto laws amending the Constitution on the grounds of unconstitutionality casts doubts on the feasibility of the compulsory preliminary constitutional control over such laws carrying out by the Constitutional Court of Ukraine.

The contemporary version of the Constitution of Ukraine (Ch. 30 of the Art. 106) clearly stipulates the inability to use the legislative veto to the laws amending the Constitution of Ukraine [7]. This constitutional requirement corresponds to the fundamental legal principle according to which the adoption of the constitution and amendments to it is the form of the constituent power, not the legislature. The President of Ukraine is the body that is not authorized for implementation of functions of constituent power. The constitutional ban on the return laws of Ukraine on amendments to the Constitution of Ukraine for reconsideration by the Verkhovna Rada of Ukraine is one of the guarantees of the principle according to which the people is the only source of power in Ukraine.

REFERENCES:

1. The Constitution of the Republic of Belarus: [electronic resource] / Access: http://www.president.gov.by/press19329.html#doc.
2. The Constitution of the Republic of Azerbaijan: [electronic resource] / Access: http://ru.president.az/azerbaijan/constitution.
3. The Constitution of Georgia: [electronic resource] / Access: http://worldconstitutions.ru/archives/130/2.
4. The Constitution of Kazakhstan: [electronic resource] / Access: http://www.constitution.kz/razdel4/.
5. The Constitution of the Republic of Lithuania: [electronic resource] / Access: http://lib.rada.gov.ua/LibRada/static/LIBRARY/catalog/law/lit_konst1.htm#гл6.
6. The Constitution of Turkey: [electronic resource] / Access: http://worldconstitutions.ru/archives/84/5.
7. The Constitution of Ukraine // Vidomosti of the Verkhovna Rada of Ukraine. – 1996. – №30. – 141 p.
8. The National Meeting of the Republic of Armenia: [electronic resource] / Access: http://www.parliament.am/parliament.php?id=constitution&lang=rus#8.
9. Dissenting opinion of the Judge of the Constitutional Court of Ukraine M. Savenko concerning the Decision of the Constitutional Court of Ukraine of the 11^th of March, 2003 (in the case of the constitutional petition of 73 deputies about the constitutionality of the presidential veto applied to the Law of Ukraine “On Amendments to Art. 98 of the Constitution of Ukraine”) // Official bulletin of Ukraine. – 2003. – № 16. – P. 710.
10. Dissenting opinion of the Judge of the Constitutional Court of Ukraine V. Shapoval concerning the Decision of the Constitutional Court of Ukraine of the 11^th of March, 2003 (in the case of the constitutional petition of 73 deputies about the constitutionality of the presidential veto applied to the Law of Ukraine “On Amendments to Art. 98 of the Constitution of Ukraine”) // Official bulletin of Ukraine. – 2003. – № 16. – P. 718.
11. Decision of the Constitutional Court of Ukraine of the 11^th of March, 2003 (in the case of the constitutional petition of 73 deputies about the constitutionality of the presidential veto applied to the Law of Ukraine “On Amendments to Art. 98 of the Constitution of Ukraine”) // The Official Journal of Ukraine. – 2003. – № 16. – P. 710.