Issues of implementation of equality of arms principle in case of declaring the applied law unconstitutional

Abstract

The Article considers the issue of ensuring the constitutional principle of equality of litigants before the law and the court during review of the judgement in view of the exceptional circumstances after consideration of the case by the Constitutional Court. Based on the study of legal nature of such consequences of nullity of the law as pro futuro, ex nunc, ex tunc, the risks of violation of the constitutional right of a person to judicial protection shall be established. The aim of the Article is to detect the objective demonstration of the constitutional principle of equality of litigants before the law and the court. The methods of the study: system, dialectical, integrative, interdisciplinary and scientific methods applied to detect the interrelation between the constitutional principle of equality of arms and its practical demonstration in litigation process. The main results of the study. Two components affecting the efficiency of protection of such right have been established: future effect of the judgement of the Constitutional Court of Ukraine and impossibility to consider the application in view of exceptional circumstances if before appeal to the Constitutional Court of Ukraine a person’s claim was dismissed in full under the applicable laws and was further declared unconstitutional by the Constitutional Court. The erroneous legal position of the supreme court in the system of the judiciary of Ukraine was proved in terms of the impossibility of initiating proceeding in exceptional circumstances after delivery of the judgement of the Constitutional Court of Ukraine due to the fact that the person’s claim had previously been dismissed and such a judgement does not provide for its enforcement. This conclusion deprives a person of the right to a final trial at the national level in accordance with the procedure of applying to the court (Articles 8, 24, 55, paragraph 1 Part 2 of Article 129 of the Constitution of Ukraine). It is proposed to develop a special law establishing the grounds and procedure for compensation by the state of moral and financial damages caused by the law recognized as the unconstitutional one.

Keywords

• judicial proceedings, legal dispute, equality of arms, unconstitutionality of the law, exceptional circumstances