How the Constitutional Court of Ukraine “judges” History

The article analyzes the judgment of the Constitutional Court of Ukraine, which ruled that the Law on the condemnation of communist and national socialist totalitarian regimes and the prohibition of the propaganda of their symbols complies with the provisions of the Constitution. A general description of the socio-political and intra-judicial atmosphere in which this decision was adopted is given. The conclusion is made that under the circumstances of global instability, constitutional judiciary in Ukraine had to turn to the historical arguments, sometimes exploiting these arguments. In this regard, several procedural issues are identified that arise in the context of the legitimacy of such kind of argumentation in court’s judgments. The key role of the judge rapporteur in the preparation of the draft of the final judgment subsequently adopted by a majority in the Court is emphasized. The author carries out a detailed analysis of the argumentation of the final judgment, sequentially picking the motives that guided the Court in formulating the relevant conclusions. The conclusion is drawn about a peculiar crisis of historical consciousness, which can characterize both the transitional society as a whole and the particular professional group. An analysis is being made of the judgment adopted by the Court with respect to its compliance with the European standards on the limitations of political activities. In particular, the author comes to the conclusion that while reviewing the constitutionality of this law, the Court tried to use the proportionality test, which traditionally takes place in cases involving the restriction of rights and freedoms. Nevertheless, having highlighted the legitimate aim of adopting the law and focusing most of the motivation to it, the Court actually neglected other elements of this test, first of all, the clarification of the proportionality of the restrictions introduced. In addition, the author raises the question of the procedural status of information of a historical nature, to which the constitutional court refers in its decisions. It is proposed to consider historical facts, in relation to which there is a certain consensus in science, as generally accepted and, as a result, not requiring special proof. In the cases where there is no such consensus, the constitutional court has the right to appoint an examination in order to secure the opinion of an expert historian.

About the author: Oleksandr Yevsieiev – Candidate of Sciences (Ph.D.) in Law, Associate Professor, Higher School of Economics, Moscow, Russia.

Citation: Yevsieiev O. (2019) Kak Konstitutsionnyy Sud Ukrainy “sudit” Istoriyu: Kommentariy k Resheniyu Konstitutsionnogo Suda Ukrainy ot 16 iyulya 2019 goda No. 9-r/2019 [How the Constitutional Court of Ukraine “judges” History. Commentary to the judgment of the Constitutional Court of Ukraine, adopted July 16, 2019 no. 9-r/2019]. Sravnitel'noe konstitutsionnoe obozrenie, vol. 28, no. 6, pp. 121–136. (In Russian).

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