Four judges of the Constitutional Court of Ukraine – Serhiy Sas, Mykola Melnyk, Mykhailo Hultai and Ihor Slidenko – issued separate opinions to the CC conclusion on the amendments to the Constitution regarding decentralization, including regulations on special order of the local government in certain areas of Donetsk and Luhansk regions.
Judge Melnyk notes that the bill proposes to supplement the Article 18 of the Transitional Provisions of the Constitution as follows: "Features of the local self-government in parts of Donetsk and Luhansk regions shall be determined by a separate law".
Read alsoPutting Ukraine in an untenable position According to Melnyk, this creates constitutional preconditions for the existence of “permanent characteristics of the local self-government in parts of Donetsk and Luhansk regions”.
He notes that, therefore, the wording of the proposed amendment may form a constitutional basis for conservation, or foresight, of these and other provisions in an ordinary law, which go beyond the implementation of local self-government in parts of Donetsk and Luhansk regions.
"As a consequence, the risk remains that these territories can be largely removed at the legislative level from under Ukraine’s jurisdiction,” says the judge.
The judge said that with such authority and principles of relations with the central government, as provided by Minsk agreements and the Law of Ukraine ‘On special procedure of local government in certain areas of the Donetsk and Luhansk regions,’ these certain areas of Donetsk and Luhansk regions "acquire attributes of federal entities that is a threat to the unitary status of Ukraine."
Mykola Melnyk believes that the CC, while drawing up a conclusion, had to take into account “the potential threats that may arise (particularly the threat to Ukraine’s unitary status, the integrity and inviolability of its territory within the existing borders)”.
In turn, Judge Sas noted that the proposed amendment to the Article 18 of the Transitional Provisions did not define period of validity of such norm. No criteria for the legal regulation of this issue had been drafted in the amendment, either. Therefore, the provision to introduce special procedure for self-rule in some areas of the Donetsk and Luhansk regions for an indefinite period may affect the rights and freedoms of the citizens who live there (the abolition or restriction [of such rights])," said Serhiy Sas.
Judge Slidenko believes that the conclusion of the CC regarding "the absence of possible restrictions of human and citizen rights and freedoms does not go in line with the formal logic” as such conclusion was drawn on the court’s own assumptions rather than on clear scientific methodological and legal basis. Slidenko notes that the norm was proposed according to the complex of measures on the implementation of the February Minsk agreements, which are “based solely on the goodwill of the parties, the agreement is not an act of international or national law and, most likely, their essence is reduced to the category of "declaration letter of intent".
Besides, the judge notes that the said complex of measures provides for adopting legislation that must meet certain “requirements and criteria, including: linguistic self-determination; the rejection of any form of harassment; the impact of local government on the formation of the police, the judiciary and the prosecutor's offices, etc." "Obviously, putting such requirements into the legal framework will lead to their outright contradiction with the [certain] norms of the Constitution, which [already] regulate similar public relations," he said.
At the same time, as stressed by the judge, "thus, the Constitution will become a self-contradictory act, and this, in turn, will require new amendments to the Constitution."
Judge Hultai also issued a separate opinion on the conclusion of the CC, but it did not regard the issue of the peculiarities of local self-government in parts of Donetsk and Luhansk regions.
As UNIAN reported earlier, the Verkhovna Rada forwarded the draft law on amendments on decentralization of power to the Constitutional Court on July 16, in order to obtain its conclusions regarding their compliance with Articles 157 and 158 of the Constitution.
On July 31, the Constitutional Court of Ukraine has given the green light to the Verkhovna Rada's further work on decentralization, having concluded that Donbas' special 'self-rule' status is in line with the Constitution and does not violate Ukraine’s territorial integrity.