Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
Recibido el 09/10/22 Aceptado el 25/11/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 75 (2022), 405-430
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Prospects of Transformation of the
Institution of Constitutional Justice in the
Course of Armed Conicts
DOI: https://doi.org/10.46398/cuestpol.4075.26
Viktor Shemchuk *
Taras Khmaruk **
Olha Stohova ***
Nataliia Shamruk ****
Catherine Karmazina *****
Abstract
The objective of the article was to consider the current state and
prospects of the transformation of the institution of constitutional
justice in the course of armed conicts. Observational and
comparative methods were the main methodological tools. The
research showed that constitutional courts must apply a specic
method of judicial constitutional control during armed conicts. Most of the
complaints and appeals of the population to the constitutional courts seek
clarications on the constitutionality of the rules on social guarantees of the
military, the rights of refugees. Constitutional interpretation of legislative
provisions of the Republic of Azerbaijan, consideration of complaints of
constitutional courts of Germany and Ukraine are examples of countries’
reactions to armed conicts. The conclusions conrm the need to transform
the institution of constitutional justice, which becomes the main defender of
the constitutional system and its principles during armed conicts. In this
vein, it is urged to increase the rate of scientic capital in the judiciary to
improve the process of reform of the Constitutional Court in these dicult
conditions experienced by Ukraine.
* Doctor of Juridical Sciences, Professor of Department of Theory of Law, Constitutional and Private
Law, Faculty No.1 of the Institute for the Training of Specialists for Units of the National Police, Lviv
State University of Internal Aairs, 79000, Lviv, Ukraine. ORCID ID: https://orcid.org/0000-0001-
7969-6589
** Secretary of the Ostroh Town Council of the Rivne Region, 35800, Ostroh, Ukraine. ORCID ID: https://
orcid.org/0000-0001-8155-8724
*** PhD of Political Sciences, Associate Professor of the Department of Fundamental Jurisprudence and
Constitutional Law, Academic and Research Institute of Law, Sumy State University, 40007, Sumy,
Ukraine. ORCID ID: https://orcid.org/0000-0001-7010-556X
**** PhD of Law, Associate Professor, Department of Theory and History of State and Law, Constitutional
Law, Academy of the State Penitentiary Service, 14000, Chernihiv, Ukraine. ORCID ID: https://orcid.
org/0000-0001-9308-3754
***** PhD of Juridical Sciences, Secretary of Odessa Regional Bar Council, 65026, Odesa, Ukraine. ORCID
ID: https://orcid.org/0000-0002-6277-6889
406
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
Keywords: constitutional demand; Venice Commission; martial law;
social protection; military provocations.
Perspectivas de Transformación de la Institución de
Justicia Constitucional en el Curso de los Conictos
Armados
Resumen
El objetivo del artículo fue considerar el estado actual y las perspectivas
de la transformación de la institución de justicia constitucional en el curso de
los conictos armados. Los métodos de observación y comparación fueron
las principales herramientas metodológicas. La investigación mostró que los
tribunales constitucionales deben aplicar un método especíco de control
constitucional judicial durante los conictos armados. La mayoría de las
denuncias y recursos de la población ante los tribunales constitucionales
buscan aclaraciones sobre la constitucionalidad de las normas sobre
garantías sociales de los militares, los derechos de los refugiados. La
interpretación constitucional de las disposiciones legislativas de la
República de Azerbaiyán, la consideración de las quejas de los tribunales
constitucionales de Alemania y Ucrania son ejemplos de las reacciones
de los países a los conictos armados. En las conclusiones se conrma la
necesidad de transformar la institución de la justicia constitucional, que
se convierte en la principal defensora del sistema constitucional y sus
principios durante los conictos armados. En este orden de ideas, se insta
a aumentar la tasa de capital cientíco en el poder judicial para mejorar el
proceso de reforma de la Corte Constitucional en estas difíciles condiciones
que vive Ucrania.
Palabras clave: demanda constitucional; comisión de Venecia; ley
marcial; protección social; provocaciones militares.
Introduction
After World War II, the demand for constitutional courts as a tool
for protecting the rights and interests of society in individual states
increased along with the revival of constitutional principles. The denial of
integrity and national sovereignty by fascism prompted political forces to
constitutionally implement mechanisms that would guarantee that the past
would not repeat (Gutmann and Voigt, 2021).
407
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
The entire structure of constitutional law has arisen over the last
decades mainly from the interaction of politics and judiciary. A third tier
has been gradually added to this constitutional structure in recent years.
It entrusted such institutions as agencies and commissions with technical
and specialized tasks. They obtained advisory and control functions in
constitutionally sensitive areas, such as the regulation of democratic
standards, basic rights protection and the guarantee of legality (Repetto,
2022).
The mechanism of constitutional protection began to involve strongly
interconnected and interacting elements that formed the system. The
latter began to serve the interests of protecting the Basic Law and was
aimed at preventing and eliminating relevant violations. The institution of
constitutional protection became the key to the mechanism of constitutional
protection (Petriv, 2020). Being judicial in nature, it became a neutral
apolitical adviser who made decisions in accordance with the basic
principles enshrined in the Constitution. Constitutional justice took the
position of a traditional element of institutional design (Rabinovych, 2021).
The content of constitutional protection began to comprise both legal
and political activities. This institution took a position independent from
other bodies of the political machinery, and began to perform its own
functions and tasks for the eective functioning of this mechanism.
The constitution of most states contains both strict and formal procedural
norms, as well as principles that enshrine certain rights of citizens. Unlike
norms, these principles cannot be applied literally, but must be interpreted.
They have the same hierarchical rank, are tangent to each other, and have
the same legal sphere (Konca, 2021).
In this sense, the term “constitutional court” means a body that makes
decisions in a dened area. It is separate from the judiciary and has the nal
and exclusive right to interpret the Constitution, as well as the constitutional
validity of laws and state actions (Kłopocka-Jasińska, 2022). Constitutional
courts are often considered to be the ultimate guarantee of the protection
of democratic governance and the culture of human rights that underlies
liberal political communities (Castillo-Ortiz, 2020).
In the current conditions, the constitutional courts of many countries
have adopted a system of constitutional complaints in various models,
along with appeals and submissions. This system is the main part of the
Constitutional Court, one of its important jurisdictions (Chakim, 2019).
Any person who believes that his or her rights have been violated by the any
action or failure to act of public authorities may le a complaint.
According to international law, armed conicts are dened as organized
violence between states and/or non-state parties. It causes human deaths
and is a serious global problem being consistently wide-spread (Jolof et al.,
408
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
2022). People living in areas of armed conict suer from a wide range of
violent acts and human rights violations.
These include forced displacement, gunghts, shelling, and torture. In
addition to the severe impact, it has at the individual level, political violence
also has far-reaching consequences for communities and the functioning of
government. This includes the destruction and control of public spaces, as
well as the impairment of social systems such as health services. Periods of
armed conicts can aect all vectors of social life in the state, in particular
the exercise of the rights of individuals and legal entities, as well as non-
residents (Abdiyeva, 2020).
The martial law introduced by the government temporarily limits the
human and citizen’s constitutional rights and freedoms. The security of the
state during martial law takes precedence over some constitutional rights
and freedoms of citizens (Hirsch Ballin et al., 2020). However, access
to justice in this context should remain an integral element of a modern
democratic state that relies on the rule of law (Prytyka et al., 2022).
Constitutional courts during armed conicts act as mediators that
determine proper boundaries of regulatory acts adopted in wartime in
democratic states. Relevant legal initiatives in wartime should be limited in
the exercise of the powers by the rule of law and respect for human rights
(Averyanova, 2019).
In view of the foregoing, the aim of the article was to consider the
transformation of the institution of constitutional justice in the course of
armed conicts. The aim involved the fullment of the following research
objectives:
1. summarize the main current approaches and components of
constitutional protection using the example of the European
centralized model of constitutional review;
2. identify the prospects for the transformation of the institution of
constitutional justice in the course of armed conicts on the example
of a number of countries using a centralized model of constitutional
review.
1. Literature review
The choice of the research topic correlates with the modern vectors of
the theorists’ research in dierent states. The work of Prytyka et al. (2022)
was the main tool and background for the study. The research was focused
on analysing the consequences of armed aggression against the state, the
introduction of an appropriate legal regime in such areas as the exercise
409
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
of property rights, the administration of justice, the execution of court
decisions and labour relations.
The work emphasized that the martial law regime involves the
restriction of certain constitutional rights and freedoms of individuals and
the introduction of new judicial mechanisms. The work of Petriv (2020)
also had an impact on the author’s position on the subject under research.
The author conducted a comprehensive analysis of the functioning of
the state mechanism for the protection of human and citizen rights at the
current stage of the development of the constitutional court. The focus was
made on the approaches to understanding the mechanism of protection
of human and citizen rights with the help of the Constitutional Court of
Ukraine, and analysis of current legislation on this issue.
The works of Repetto (2022) on the evolution of the Venice Commission,
various functions assigned to it, and relations with other institutional
entities were taken into account during the research. The study of the
methodological contribution that its activities can make to the creation of
the European constitutional heritage occupies a special place in the work.
In turn, the article by Kobalia (2018) examines the main features of
centralized and decentralized constitutional review in the context of the
modern constitution and state power. Particular attention should be paid
to the ndings outlined in the article by Konca (2021) on the introduction
of a monopoly on constitutional interpretation, which was considered as an
institution that harmoniously corresponds to the semantic system arising
from modern constitutions.
The article by Rabinovych (2021) on the causes of the long-term crisis
of social legitimacy of the Constitutional Court of Ukraine is also worth
special attention. The author proves the need to improve the institutional
mechanism for electing constitutional judges in case of such crisis.
The studies by Botelho (2021), Bumke and Vokuhle (2019) used in the
article emphasize the role of constitutional justice in the transition from
authoritarian regimes to democratic systems, consider the positive example
of the German constitution, the German Federal Constitutional Court
(BVerfG), and its case law.
The study of Chakim (2019), who emphasized that the constitutional
complaint is the main part of the constitutional court, was used when
shaping the author’s position. The author made a detailed comparative
analysis of the application of the constitutional complaint mechanism in
three European countries and four members of the Association of Asian
Constitutional Courts & Equivalent Institutions (AACC). Averyanova
(2019) analysed the types of conicts that can arise both within countries
and between dierent states.
410
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
The author outlined such relevant vectors as objectivity, subjectivity,
implementation in practice and indicated the need to develop a strategy
of national self-preservation in complex and uncertain conditions of
international security.
The active study of the issues selected for the research in this article
conrms that the transformation of the institution of constitutional justice
in the course of armed conicts requires special attention, and states the
lack of research in this eld. Therefore, it is urgent to carry out a study
according to new research criteria.
2. Methods
The conducted research is multi-vector and is in line with the current
realities. The research design was built in view of geopolitical world
transformations and the escalation of armed conicts (Figure 1).
Figure 1: Research design. Source: authors.
The study of the constitutional and legal mechanism of guaranteeing
human rights in the course of armed conicts involved modern methods of
cognition identied and developed by philosophy, history, sociology, state
theory and law, legal sciences and supported by legal adaptive practice.
411
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
The methodological framework of the article consisted of a system of
general philosophical, scientic and special methods. In view the specics
of the issue being studied and the research objectives, a set of methods was
used, the approbation of which made it possible to obtain substantiated
results.
The methods of observation and comparison were the main practical
tools. The observation method made it possible to draw analogies of the
implementation of the right to submit a constitutional complaint in
dierent states. This method also enabled to focus on the most promising
reformation vectors of transformations of the studied institute and the
Constitutional Courts of the selected countries. The method of comparison
was used to carry out a comparative analysis of legal regulation and law
enforcement practice in the eld of constitutional justice in Germany,
Austria, Spain, Azerbaijan, and Ukraine.
In aggregate, the mentioned methodological tools contributed to drawing
well-founded conclusions and making proposals for the improvement of
the institution of constitutional justice in Ukraine in the context of Russia’s
military aggression.
The historical method played a signicant role in studying the evolution
of the establishment of the institution of constitutional justice as such, its
gradual transformations and eectiveness at each stage. The abstraction
method was applied to study the characteristic features, functions, principles
and structure of the legal mechanism of constitutional protection.
The sociological method was used in the study of development trends of
the studied institute, as well as in establishing and revealing the factors of
its development. The semantic method was applied to reveal the meaning
of such terms as “constitutional complaint”, “constitutional and legal
mechanism”, “ensuring the rights of citizens”, etc., their scientic and
practical signicance, the possibility of transforming the terminological
framework in constitutional law.
Modelling and forecasting methods were used to nd the optimal model
of organization and functioning of the legal mechanism of constitutional
justice, as well as to determine its shortcomings that should be eliminated
to ensure a practical result and the expected eect.
The critical method, which is based on the previous methods, helped
to analyse the system of factors and trends aecting the development of
the studied institute, to identify positive and negative ones among them, as
well as to form a conceptual perspective of further measures to increase the
eectiveness of its functioning in the context of armed conicts.
In general, the research was conducted on the basis of a combination of
ontological, epistemological and axiological analysis of the constitutional
412
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
and legal mechanism of guaranteeing constitutional rights in the course of
armed conicts.
3. Results
European countries adopted a centralized model of constitutional
control. It is based on Hans Kelsen’s concept of a constitutional court
— a body specially created to exercise the power to invalidate laws that
contradict the constitution. In this case, only one institution in the country,
which is the constitutional court, can declare the law unconstitutional.
There are signicant dierences among the “Kelsenian” constitutional
courts in the European Union related to the competence granted to such
courts. The scope of authority can be very large.
The Federal Constitutional Court of Germany can be an example here,
as it is a role model for similar institutions established in other countries.
Powers can also be quite narrow, as in the case of the Constitutional Council
of France.
The European Commission for Democracy through Law, better known
as the Venice Commission, is the Council of Europe’s consultative body on
constitutional matters. The role of the Venice Commission is to provide
legal advice to its member states. It provides assistance in bringing legal and
institutional structures in line with European standards and international
experience in the eld of democracy, human rights and the rule of law.
The Venice Commission developed a Rule of Law Checklist, which
included ve benchmarks (Council of Europe, 2016). The legality if the rst
criterion, which means the supremacy of the law and the commitment of
the public authorities to comply with it. Public authorities must respect
both national and international law, and they shall implement and enforce
it.
The second criterion is legal certainty, which is characterized by the
simplicity of legislation, court decisions, the predictability of the law,
the principle of non-retroactive application of law, compliance with
the principle of res judicata. The third and fourth benchmarks are the
prevention of abuse of power, the principle of equality before the law and
non-discrimination.
The fth criterion is access to justice: the judiciary must be independent
and impartial, and all citizens must have the right to a fair trial. The Checklist
also includes a recommendation for states that exercise constitutional
justice and for state authorities to adopt legislation in accordance with
the decision of the Constitutional Court. It is also obligatory to implement
the decision of the Constitutional Court when it rules that the legislation
violates the Constitution.
413
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
The Constitutional Courts of the European Union are part of a European
and global association of courts intended to ensure the rule of law and
guarantee human rights. This network includes constitutional courts of
other countries and such European courts as the European Court of Human
Rights (ECHR) and the European Court of Justice.
Cooperation was institutionalized within the framework of the
Conference of European Constitutional Courts and the World Conference on
Constitutional Justice. The latter is the result of the unication of linguistic
or regional groups. It includes the Conference of European Constitutional
Courts, the Association of Asian Constitutional Courts (AACC), the Ibero-
American Conference on Constitutional Justice.
The aim is to strengthen the cooperation of members by organizing
regular congresses, participation in regional conferences, seminars,
exchange of experience and case law.
The experience of constitutional justice bodies gives grounds to state
that constitutional control can be carried out in dierent forms through
dierent procedures at the request of dierent entities. Constitutional
judges are usually reputable lawyers, often appointed by the national
parliament, in some cases — by the executive bodies or judiciary.
This reects the dual — judicial and political — nature of the courts. The
decentralized model of constitutional review is characterized by a specic
form of control — by ordinary courts in the course of judicial review. The
judiciary has the right to suspend the application of certain legal norms if
they contradict constitutional rights. A special case of constitutional review
is an abstract review of laws, which is a typical form of a centralized model
of constitutional justice.
In this model, the constitutional review includes material and procedural
components. The constitutional review can be divided into ex-ante
(preventive) and ex-post (repressive) in temporal terms. The preventive
review checks the compatibility of laws before publishing.
Ex-ante review can usually be initiated at the request of a narrow group
of government bodies (for example, the President, the Cabinet of Ministers,
the Speaker of the Parliamentary Chamber or a group of parliamentarians).
The review is exercised in the course of a complex law-making process.
The Constitutional Court is eectively involved in this process, which has
the opportunity to express its opinion on the constitutionality of the law
being created.
Repressive review is more often exercised ex post, when a particular act
begins to create legal consequences. The essential scope of ex-post review
is much wider and goes beyond the basic legislation. A fairly large group of
entities can initiate consideration of disputed issues in the Constitutional
Court after the entry of a particular regulatory document into force.
414
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
These may be opposition parliamentarians, representatives of the
executive and judicial authorities, ocials of local self-government bodies,
the general prosecutor, the ombudsman, state auditors, trade unions and
religious associations. In turn, the list of objects of constitutional review is
quite variable (Figure 2).
So, constitutional courts have both judicial and political inuence. When
the Constitutional Court recognizes a particular act unconstitutional, it is
able to invalidate the act, thus removing it from the legal system. Sometimes
the court expresses its position on how to interpret a regulatory provision
in order to leave it in the constitutional eld. In this case, a constitutionally
acceptable interpretation shall be adopted.
A very important activity of the Constitutional Court is related to the
complaint led by the applicant. A constitutional complaint enables persons
whose rights and freedoms have been violated to apply for protection directly
to the Constitutional Court. Such violations are usually caused by the action
of a public authority (or its failure to act). A constitutional complaint is both
a special and an auxiliary measure. For example, the Constitutional Court
of Austria (Verfassungsgerichtshoft) is entitled to consider complaints
about laws, decrees, international treaties and administrative actions. But
it is not entitled to consider a constitutional complaint against the actions
of the judiciary (Verfassungsgerichtshofgesetz, 1953).
Figure 2: List of objects of constitutional review (grouped by the author).
415
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
A constitutional complaint in Germany is considered a model for
other European countries. The Federal Constitutional Court of Germany
(Bundesverfassungsgericht) in entitled to consider constitutional
complaints related to the actions of public authorities. This includes
complaints about the constitutionality of a law, an administrative act and
even a court decision (Bundesverfassungsgerichtsgesetz, 1951).
The Constitutional Court of Spain (Tribunal Constitucional de España)
also has the power to consider constitutional complaints known as recurso
de amparo (individual appeals for protection). They seek constitutional
protection of fundamental rights from parliamentary, governmental
and administrative decisions, as well as judicial decisions (Legislación
Consolidada, 1979). A variety of systems for submitting constitutional
complaints, especially in Austria, Germany and Spain, evidence the
eectiveness of the protection of fundamental rights.
In Asia, the Association of Asian Constitutional Courts (AACC) and
similar institutions provides an opportunity for AACC members to regularly
exchange ideas and share experiences in constitutional justice.
The AACC members have adopted dierent models of a system of
constitutional justice. For example, Azerbaijan has the authority to consider
constitutional complaints. Article 34(1) of the Law on the Constitutional
Court of Azerbaijan (Law of the Republic of Azerbaijan, 2003) reads that
a complaint with the Constitutional Court may be led by any person
who claims that his or her fundamental rights have been violated by a
regulatory legal act of the legislative and executive authorities or an act of a
municipality and the court.
The Constitutional Court can consider individual complaints against
court decisions in the following cases: if the court failed to apply a regulatory
legal act that should have been applied; if the court applied a regulatory legal
act that should not have been applied; and if the court failed to properly
interpret the regulatory legal act.
It should be noted that the proceedings in Austria, Germany, Spain
and Azerbaijan have certain dierences in terms of the time limit for
ling a complaint to the Constitutional Court. The vector variability of
constitutional complaints of the studied states is shown in Table 1.
416
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
Table 1. Variable indicators of ling constitutional complaints in Austria,
Germany, Spain and Azerbaijan (summarized by the author).
Object of a
constitutional
complaint
The subject of a
constitutional
complaint
Temporal
limitations
Austria
complaints against
laws, decrees,
international
treaties and
administrative
actions
any person who
claims that he
or she has been
directly harmed by
a violation of his or
her rights
a complaint against
an administrative
decision shall be
led within six
weeks upon its
delivery
Germany
complaints
regarding
constitutionality
of the law,
administrative act
and court decision
any person who
claims that one
of his or her
fundamental rights
has been violated by
the government
a complaint
against judicial
and administrative
decisions shall be
led within one
month
Spain
complaint against
decisions of
the parliament,
government and
administrative
decisions, court
decisions
any individual or
legal person, as
well as the Public
Defender and
the Prosecutor’s
Oce — in case of
violation of rights
or inconsistency of
the law
deadlines for ling a
complaint: 30 days
(amparo against
court decisions),
20 days (appeals
against state or
administrative
decisions)
Azerbaijan
complaint against
a regulatory legal
act of the legislative
and executive
authorities, an act
of the municipality
and the court
any person who
claims that his/her
rights have been
violated
a complaint shall
be led within six
months from the
date of entry into
force of the decision
of the court of
last resort, entry
into force of the
regulatory legal
act/ or in case of
violation of the
applicant’s right to
appeal to the court
- within 3 months
from the date of
violation of rights
The period of armed conicts is characterized by discrepancies in the
understanding of the constitutionality of adopted legal acts. They may
be related to the information uncertainty. There are discrepancies in the
possible legal consequences of wartime-specic adopted regulations. There
are also discrepancies about the proper limits of constitutional exceptions
relating to, for example, the competence of military jurisdiction, treatment-
related issues in times of armed conict.
417
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
There may be typical discrepancies over the appropriate way to
balance conicting principles, such as discipline, with the duty to protect
human rights when the law violates them. In this case, constitutional
review embodies the perspective through which relevant courts seek to
nd long-term solutions that go beyond the current military conict. The
Constitutional Courts use objective and acceptable constitutional principles
in their decisions to resolve the issues.
A constitutional complaint regarding the deportation of a Romanian
citizen is pending before the Federal Constitutional Court of Germany
(Bundesverfassungsgericht, 2022). The decision of the Administrative
Court of Halle dated 18 May 2022 provides for the possibility of adequate
(further) treatment of the applicant’s mental illness in Romania even
without taking into account the current situation in Romania after the start
of the war in Ukraine.
The court makes its decision despite the medically proven re-
traumatization that will almost certainly occur in the event of deportation.
As a result, the Federal Constitutional Court of Germany ruled that the
Federal Oce for Migration and Refugees is prohibited from deporting
the applicant to Romania before making a decision on the constitutional
complaint.
It was noted that any inconvenience associated with the applicant’s stay
in the federal territory, which is extended for a particular period, has less
impact. The need to carefully determine the impact of the displacement of
refugees caused by the war in Ukraine on the reception and treatment of
other groups of refugees in the host countries was also pointed out.
The states consider the system of social protection of servicemen as a
component in the structure of social protection of the population. Moreover,
states take into account the peculiarities determined by the specics of the
work of servicemen, the ultimate goal of which is a special kind of service
— ensuring security.
In the current context of frequent occurrence of armed conicts,
the state focus on strengthening social protection of servicemen. This
requires a qualitatively new attitude to the problem of implementing the
guarantees established for servicemen by law, the need to improve their
social status. For example, the Constitutional Court of Azerbaijan considers
court appeals and carries out constitutional interpretation of the necessary
legal provisions of the relevant laws. Some provisions of the laws of the
Republic of Azerbaijan “On Pensions of Servicemen” and “On Occupational
Pensions” were interpreted from the perspective of their application over
time (Constitutional Court of the Republic of Azerbaijan, 2014).
The clarication concerned servicemen who received the right to a
lifetime pension for long service on preferential terms. Some provisions of
418
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
the Law of the Republic of Azerbaijan “On the Status of Servicemen” and
the Regulation “On Military Service” were claried (Constitutional Court of
the Republic of Azerbaijan, 2014).
The clarication was made on the right to receive, determining the
amount and procedures for payment of compensation for unused regular
leave by servicemen transferred to the reserve and discharged. Some
provisions of the Law of the Republic of Azerbaijan “On Compulsory State
Personal Insurance for Servicemen” were also claried (Constitutional
Court of the Republic of Azerbaijan, 2014).
The clarication concerned the increase of the amount of one-time
insurance for servicemen and the obligation to pay the insurance amount
provided in the legislation for servicemen, dead, missing, and wounded
before the Law “On the Armed Forces of the Republic of Azerbaijan”
dated 20 May 1997 came into force. In addition to the social protection of
servicemen, special attention was paid to the interpretation of acquiring
the status of servicemen. Some provisions of Article 333 of the Criminal
Code of the Republic of Azerbaijan were claried (Constitutional Court of
the Republic of Azerbaijan, 2001).
The clarication related to the absence of the composition of a crime
as a result of unauthorized absence from the republican muster point or
evasion of military service after passing a medical examination. It also
concerned issues of the constitutionality of holding persons who have
the status of servicemen for voluntarily leaving a military unit or place of
service criminally liable.
The appeal of the constitutional court in the form of a statement can also
be an example of the activity of this court in the course of armed conicts.
In October 2020, the Constitutional Court of the Republic of Azerbaijan
addressed a statement to all the Constitutional Courts of the world within
the framework of the World Conference on Constitutional Justice, the
Conference of European Constitutional Courts, as well as the Association
of Asian Constitutional Courts and equivalent institutions (Constitutional
Court of the Republic of Azerbaijan, 2020).
The statement emphasized that Armenia’s military provocations
against Azerbaijan have become regular. The statement also referred to
the occupation of the Nagorno-Karabakh region and seven neighbouring
regions of Azerbaijan by the Armenian army. It was noted that many towns
and villages were completely destroyed, and the local population underwent
ethnic cleansing as a result of this occupation. There were 613 peaceful
Azerbaijanis killed, including 63 children, 106 women, and 70 old people.
Besides, 1,275 people were taken hostage, the fate of 150 of them,
including 68 women and 26 children, is unknown. It was brought to the
notice of the constitutional courts that the decisions and resolutions adopted
419
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
by the UN, the Council of Europe, the OSCE, the European Union and other
international organizations openly conrmed that Nagorno-Karabakh is an
integral part of Azerbaijan. In 1993, the UN Security Council adopted four
resolutions (882, 853, 874, 884) on the immediate Armenian troop pull-
out from the occupied territories of Azerbaijan.
The Constitutional Court noted that Armenia has not executed these
resolutions. It was also emphasized that the Strasbourg Court stated in the
Decision of the European Court of Human Rights dated 16 June 2015 in the
case of “Chiragiv et al. v. Armenia” that the processes in Nagorno-Karabakh
were carried out under the control of Armenia.
The situation described above can become a direct example for the law
enforcement practice on the territory of Ukraine. This is a constitutional,
social and democratic state, which aims to unite with the European and
international community. The Constitutional Court of Ukraine relies in
its actions on European standards established by European institutions.
The Court regularly refers to the Report of the Venice Commission on the
Rule of Law (Council of Europe, 2011) and builds its reasoning upon the
instruments included in the Rule of Law Checklist (Council of Europe,
2016).
The Constitutional Court of Ukraine also regularly addresses the Venice
Commission regarding advisory opinions of amicus curiae. It is impossible
to implement this direction without measures related to the development
of an eective mechanism for the protection of the Constitution of Ukraine
(Verkhovna Rada of Ukraine, 1996).
The political and legal reforms carried out in the state were reected
in the functioning of the institution of constitutional justice. In Ukraine,
this role is assigned to the Constitutional Court of Ukraine as the only
representative of constitutional jurisdiction in the state (Verkhovna Rada
of Ukraine, 2017).
The procedure for electing the Constitutional Court of Ukraine, its
composition, term of oce, principles and legal framework of activity are
determined. The Court can be appealed in the form of a constitutional
submission, a constitutional appeal from state bodies, such as, for example,
the President of Ukraine, the required number of people’s deputies.
Citizens of Ukraine, foreigners, stateless persons, and legal entities can le
a constitutional complaint.
It should be noted that the institution of constitutional complaint
appeared in Ukraine after the 2016 judicial reform. In 2021, the
Constitutional Court of Ukraine adopted 609 acts, including 10 decisions
on submissions and complaints, issued 165 resolutions on refusal to
open constitutional proceedings in a case and 6 resolutions on closing
constitutional proceedings (Constitutional Court of Ukraine, 2022).
420
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
In June 2022, Ukraine became a candidate for EU membership, having
proved the European opportunities for Ukraine. From 1996 to June 2022,
the Venice Commission prepared 96 opinions for Ukraine regarding the
state of the reform process (Constitutional Court of Ukraine, 2022). In this
context, special emphasis is placed on achieving complete independence
of the judicial system, which is especially relevant in the period of
reconstruction and restoration of Ukraine after the end of the military
conict. In December 2020 and March 2021, the Venice Commission also
presented opinions related to the Constitutional Court reform.
The need to adopt legislative acts on the selection of judges of the
Constitutional Court in accordance with the recommendations of the Venice
Commission occupied a special place. The relevant legislation should be
adopted by the end of 2022.
The Constitutional Court of Ukraine determined the rule of law to be a
mechanism for exercising control over the use of state power and protecting
people from the arbitrariness of the authorities (Constitutional Court of
Ukraine, 2019). In the wartime, constitutional justice directs maximum
eorts to understand the specics of the implementation of constitutional
provisions, in particular, on the protection of human rights and the activities
of the state and judicial authorities during the wartime.
Making amendments to the Law of Ukraine “On Social and Legal
Protection of Military Men and Members of Their Families” (Verkhovna
Rada of Ukraine, 2022) on granting and paying one-time monetary support
is an example of the eective work of the Constitutional Court of Ukraine.
Decision of the Constitutional Court No. 1-р(II)/2022 (Constitutional Court
of Ukraine, 2022) in the case on the constitutional complaint of Polishchuk
was the reason for the preparation of this draft law.
In Decision No. 12-r/2018 dated 18 December 2018, the Constitutional
Court of Ukraine provided that citizens of Ukraine who defend the
Motherland perform constitutionally signicant functions. The court
emphasized that the Armed Forces of Ukraine and other military formations
play the main role in the defence of Ukraine during the armed aggression
of the Russian Federation, therefore the social protection of servicemen
should be improved.
Therefore, limitation of the payment of a one-time cash benet in a
larger amount if a higher group of disability (or a higher percentage of the
loss of working capacity) is established to two years only is unjustied. In
this way, fair social guarantees were established for servicemen, conscripts
and reservists, who have the right to one-time cash benet.
The war with the Russian Federation required the creation of the National
Council for the Recovery of Ukraine from the War. The development of
the constitutional justice occupies a special place in the Draft Plan for the
421
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
Recovery of Ukraine developed by this Council (National Council for the
Recovery of Ukraine from the War, 2022). The fundamental problem of
reforming the institution of constitutional justice during the martial law
in Ukraine is the low level of regulation and the lack of real practice of the
Constitutional Court (National Council for the Recovery of Ukraine from
the War, 2022).
The Draft Plan also mentions problems in the procedure for appointing,
dismissing and bringing to disciplinary liability judges of the Constitutional
Court of Ukraine. There are problems with monitoring the compliance
with anti-corruption legislation, constitutional proceedings and the legal
organization of the Constitutional Court’s activities. These problems,
including the ght against non-compliance with professional ethics
standards and tolerance of corruption, were also reected in the Strategy
for the Development of the Judiciary and Constitutional Justice for 2021-
2023 (President of Ukraine, 2021).
The priority goals and deadlines for their achievement set on the basis
of the problems outlined in the Draft Plan for the Recovery of Ukraine
(National Council for the Recovery of Ukraine from the War, 2022) were
determined and agreed upon (Figure 3).
In Ukraine, preparations for the development of legal initiatives are
being made in order to implement the corresponding plan. Their purpose is
to improve the work of the Constitutional Court during the war and in the
post-war period. Special attention was paid to regulating the communication
policy, improving the presentation of information about the activities of the
Constitutional Court on its ocial website.
Figure 3: Priority goals of the development of the constitutional justice in
Ukraine in the course of armed conict. Source: authors.
422
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
4. Discussion
It can be stated that the protection of the Constitution is a special legal
and political activity with its special purpose and content. The creation of
constitutional courts after World War II was determined by the inability of
the legislature to protect people’s rights. It was characterized by the lack
of eective constitutional justice systems and distrust of ordinary courts,
which were too deferential to the former authoritarian regime (Botelho,
2021). Constitutional justice has become the territory of the merging of
power lines of the political and legal space, being the territory of the battle
for the signicance of the Basic Law.
In this case, the constitutionality of public authority acts became the
subject of consideration, while the logic of political appropriateness began
to conict with the logic of nding a fair balance of interests (Rabinovych,
2021).
It was proved that the Constitutional Court is usually considered as a
special body. It has the powers of constitutional supervision or the powers
to invalidate legislative acts of the parliament and other acts of public
authorities, which are recognized to be contrary to the constitution. So, the
Constitutional Court has become the main defender of the constitutional
system and its principles in most democracies (Baraník, 2018).
It can be stated that the explicit (usually written) manifestation of the
will of political power, which secures an exclusive constitutional space for
the court, determined the formation of the institution of centralized control.
The centralized model of constitutional review is the best mechanism of
action from the perspective of modern constitutions, as well as the systemic
and meaningful implementation of the protection of fundamental human
rights (Kobalia, 2018). It is appropriate to consider constitutional courts
as judicial-type bodies that have a monopoly on the evaluation of the
constitutionality of legislation in the political system (Castillo-Ortiz, 2020).
The conrmation that the transfer of a constitutional problem to
the Constitutional Court depends on the activity and qualication of the
subjects initiating the process is unconditional. The implementation of the
decision of the Constitutional Court on unconstitutionality also requires
cooperation between the court and other bodies responsible for the adoption
and application of the law (Kłopocka-Jasińska, 2022).
It is stated that the protection and observance of human rights is the basis
of any constitutional system, which usually includes restrictions imposed to
ensure the reasonable exercise of these rights by all members of society.
The extent to which Constitutional Courts can support the exercise of
constitutional rights by overturning laws that impose excessive restrictions
on such rights, among other things, becomes extremely important in times
of armed conicts (Dinokopila and Kgoboge, 2021).
423
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
There is no doubt that the constitutional review exercised by the
Constitutional Courts is the standard for the implementation of the right to
a fair trial (Bumke and Vokuhle, 2019). A fairly new view of the substance
and content of the method of judicial constitutional review is being formed
in the course of armed conicts, especially in the eld of control over the
enforcement of acts of public authorities during the martial law (Verkhovna
Rada of Ukraine, 2022).
The principle of proportionality, which is fundamental in determining
the limits of human rights, is undoubtedly one of the components of
the criterion “respect for human rights”. This which must be taken into
account when limiting rights during armed conicts. This basic principle
is manifested in a proportional and reasonable relationship between the
goal of limiting particular human rights and the means that the state uses
to limit it (Slinko et al., 2022).
The aim of the Constitutional Courts during armed conicts is to
prevent unlawful legislative norms that directly contradict the Constitution.
Amendments to the Law of Ukraine “On Social and Legal Protection of
Military Men and Members of Their Families” are positive. They nalize
the previous provisions of the articles and provide the possibility of
implementing additional guarantees of social protection for servicemen,
conscripts and reservists (Panlova, 2022).
In this regard, the eective interconnection of all branches of
government both for the purpose of eective support of servicemen and for
the implementation of the planned defence tactics of the state is relevant
in the context of the protection of territorial integrity and sovereignty
(Verkhovna Rada of Ukraine, 2022).
It can be concluded that it is necessary to introduce a transparent
procedure for the competitive selection of all candidates for the position of
judge of the Constitutional Court of Ukraine in order to improve the process
of reforming the Constitutional Court of Ukraine, especially in the course
of an armed conict. Moreover, professionalism in constitutional law and
solid moral reputation should be the basis of verication (Rabinovych,
2021).
According to the researcher, it is necessary to increase the share of science
capital in the composition of the Court through the application of relevant
professional quotas. It is very important to involve reputable international
experts in the tender commission in the course of armed conicts.
Conclusions
The constitutional review means that the Constitutional Courts
can invalidate unconstitutional legal provisions or overturn other
424
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
unconstitutional acts of public authorities. Compared to general legal
activities, the aim of constitutional review is to protect the sovereignty
of the people, the political system of the nation, the legal foundations of
the state, and the inviolable values of society. It provides preventive and
retrospective judicial review of disputed norms in the centralized model of
constitutional review, when the Constitutional Court is separated from the
ordinary ones.
The armed conicts and forced migration make both the military and
the civilian population face serious challenges related to changed living
conditions. As a result, people incur serious adverse health consequences.
The result is more careful attention to the constitutional clarication
of social protection norms. Clarications are also needed regarding the
understanding of the status of a serviceman, certain requirements during
military service.
Damage to the population is one of the most important results of
armed conicts. Persons who died or were seriously injured directly as a
result of hostilities can be considered as losses. The latter also include the
aected population, whose constitutional rights were violated by imposed
legislative restrictions, or by the inconsistency of the legal provisions,
which were in force during the period of martial law, with the constitution.
In these dicult conditions, the Constitutional Courts shall protect the
constitution, fundamental rights, while arbitrating between levels and
bodies of government.
Along with such forms of appeal to the Constitutional Court as a
constitutional submission and a constitutional appeal, a constitutional
complaint becomes more important in the course of armed conicts.
This is one of the legal mechanisms that strengthens the guarantees of
protection of human rights against any actions of the state and all branches
of government that violate their rights. Constitutional courts in many
countries have adopted a system of constitutional complaints in various
models.
The interpretation of the legislative provisions of the Republic of
Azerbaijan regarding the constitutional rights of servicemen and the
consideration of complaints by the constitutional courts of Germany and
Ukraine during the armed conict regarding social guarantees and health
protection are examples of countries that are impacted by armed conicts
directly or indirectly during and after the armed conict.
The armed aggression of the Russian Federation against Ukraine
aggravated a number of unresolved issues in the eld of constitutional
justice. The lack of regulation and practical experience regarding the
functioning of the Constitutional Court of Ukraine under martial law
was distinctive for the Constitutional Court of Ukraine during the armed
conict.
425
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
This situation requires the urgent reform of the institution of
constitutional justice. Improving the process of reforming the Constitutional
Court in these dicult conditions requires the increased share of science
capital in the composition of the court through the application of appropriate
professional quotas.
The fullment of the tasks that Ukraine sets before the Constitutional
Court will enable an urgent response to the public demand for justice
and will improve the work of the Constitutional Court. The vector of the
author’s further research will be the activities of the reformed institution of
constitutional justice in Ukraine.
Bibliographic References
ABDIYEVA, Gunel. 2020. “Securing human rights during armed conicts” In:
Juridical Sciences and Education. No. 62, pp. 6-14.
AVERYANOVA, Nina. 2019. “Features of the armed conict in Ukraine” In:
Ukrainian studies almanac. No. 25. https://doi.org/10.17721/2520-
2626/2019.25.1. Consultation date: 22/07/2022.
BARANÍK, Кamil. 2018. “Why Have Constitutional Courts Been so Important
for Democracy in Central Europe (And So Hated by Those in Power)?”
In: Juridiskā zinātne / Law. No. 11, pp. 77-93.
BOTELHO, Catarina. 2021. “European Constitutional Courts and Transitions
to Democracy” In: The American Journal of Comparative Law. Vol. 69,
No. 4, pp. 885-889.
BUMKE, Christian; VOKUHLE, Andreas. 2019. German Constitutional Law.
Introduction, Cases and Principles. Oxford University Press. Oxford, UK.
BUNDESVERFASSUNGSGERICHT. 2022. Resolution of July 19, 2022 - 2 BvR
961/22. Available online. In: https://www.bundesverfassungsgericht.de/
SharedDocs/Entscheidungen/DE/2022/07/rk20220719_2bvr096122.
html. Consultation date: 22/07/2022.
BUNDESVERFASSUNGSGERICHTSGESETZ. 1951. Act on the Federal
Constitutional Court. BVerfGG. 12 March 1951. Available online. In:
https://www.bundesverfassungsgericht.de/SharedDocs/Downloads/
EN/Gesetze/BVerfGG.pdf?__blob=publicationFile&v=1. Consultation
date: 22/07/2022.
CASTILLO-ORTIZ, Pablo. 2020. “The Dilemmas of Constitutional Courts and
the Case for a New Design of Kelsenian Institutions” In: Law and Philos.
Vol. 39, pp. 617–655.
426
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
CHAKIM, Lufti. 2019. “A Comparative Perspective on Constitutional Complaint:
Discussing Models, Procedures, and Decisions” In: Constitutional
Review. Vol. 5, No. 1, pp. 96-133.
CONSTITUTIONAL COURT OF THE REPUBLIC OF AZERBAIJAN. 2014.
Resolution of the Plenum of the Constitutional Court of the Republic
of Azerbaijan dated March 27, 2014. Available online. In: https://www.
constcourt.gov.az/ru/decision/841. Consultation date: 22/07/2022.
CONSTITUTIONAL COURT OF THE REPUBLIC OF AZERBAIJAN. 2014.
Resolution of the Plenum of the Constitutional Court of the Republic of
Azerbaijan dated March 28, 2014. Available online. In: https://www.
constcourt.gov.az/ru/decision/842. Consultation date: 22/07/2022.
CONSTITUTIONAL COURT OF THE REPUBLIC OF AZERBAIJAN. 2014.
Resolution of the Plenum of the Constitutional Court of the Republic of
Azerbaijan dated January 28, 2014. Available online. In: https://www.
constcourt.gov.az/ru/decision/837. Consultation date: 22/07/2022.
CONSTITUTIONAL COURT OF THE REPUBLIC OF AZERBAIJAN. 2020.
The Constitutional Court of the Azerbaijan Republic appealed to all
constitutional courts of the world with a statement. Available online.
In: https://constcourt.gov.az/ru/details/1147. Consultation date:
22/07/2022.
CONSTITUTIONAL COURT OF UKRAINE. 2022. Annual information report
of the Constitutional Court of Ukraine 2021. Approved by Resolution of
the Constitutional Court of Ukraine dated June 16, 2022 No. 13-p/2022.
Available online. In: https://ccu.gov.ua/sites/default/les/dopovid.pdf.
Consultation date: 22/07/2022.
CONSTITUTIONAL COURT OF UKRAINE. 2022a. The International
Conference “The Role of the Constitutional Court of Ukraine in the
Implementation of the State’s Strategy to Obtain the European Union
Membership” Held, June 28, 2022. Available online. In: https://
ccu.gov.ua/en/novina/international-conference-role-constitutional-
court-ukraine-implementation-states-strategy. Consultation date:
22/07/2022.
CONSTITUTIONAL COURT OF UKRAINE. 2022b. Decision of the
Constitutional Court of Ukraine No. 1-р(ІІ)/2022 of April 6,
2022. Available online. In: https://ccu.gov.ua/sites/default/les/
docs/1_r_2_2022.pdf. Consultation date: 22/07/2022.
COUNCIL OF EUROPE. 2011. Venice Commission, Report on the rule of law
CDL-AD (2011)003rev-e. Adopted by the Venice Commission at its 86th
427
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
plenary session. Venice. Available online. In: https://www.venice.coe.
int/webforms/documents/?pdf=CDL-AD(2011)003rev-e. Consultation
date: 22/07/2022.
COUNCIL OF EUROPE. 2016. Venice Commission, European Commission
for Democracy through Law. Rule of law checklist. CDL-AD (2016)007.
Adopted by the Venice Commission at its 106th Plenary Session.
Venice, 11-12 March. Available online. In: https://www.venice.coe.int/
webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e.
Consultation date: 22/07/2022.
COURT OF THE REPUBLIC OF AZERBAIJAN. 2001. Resolution of the
Constitutional Court of the Republic of Azerbaijan dated October
26, 2001. Available online. In: https://www.constcourt.gov.az/ru/
decision/464. Consultation date: 22/07/2022.
DINOKOPILA, Bonolo Ramadi; KGOBOGE, Bonno. 2021. “Customary Law and
Limitations to Constitutional Rights in Botswana” In: Nordic Journal of
Human Rights. Vol. 39, No. 3, pp. 339-357.
GUTMANN, Jerg; VOIGT, Stefan. 2021. “Militant constitutionalism: a
promising concept to make constitutional backsliding less likely?” Public
Choice. Available online. In: https://link.springer.com/article/10.1007/
s11127-021-00874-1. Consultation date: 22/07/2022.
HIRSCH BALLIN, Ernst; DIJSTELBLOEM, Huub; de GOEDE, Peter.
2020. “The Extension of the Concept of Security” In: Security in an
Interconnected World. Research for Policy. Springer. Available online.
In: https://link.springer.com/chapter/10.1007/978-3-030-37606-2_2.
Consultation date: 22/07/2022.
JOLOF, Linda; ROCCA, Patricia; MAZAHERI, Monir; EMEGWA, Leah
Okenwa; CARLSSON, Tommy. 2022. “Experiences of armed conicts
and forced migration among women from countries in the Middle
East, Balkans, and Africa: a systematic review of qualitative studies” In:
Conict and Health. Vol. 16, Art. No. 46.
KŁOPOCKA-JASIŃSKA, Мarta. 2022. “Editorial of the dossier “The role of
constitutional courts in shaping procedural fairness in criminal cases”
– Constitutionalisation of the right to a fair criminal trial as a process
inspired by constitutional courts” In: Revista Brasileira de Direito
Processual Penal. Vol. 8, No. 1, pp. 13-46.
KOBALIA, Shota. 2018. “Comparative Analysis of Centralized and Decentralized
Models of Constitutional Review: An analysis of Modern Constitution
Studies” In: Journal of Constitutional Law. Vol. 2, pp. 91-100.
428
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
KONCA, Paulina. 2021. “Creating law of interpretation: a risky or fundamental
step?” Revus, Vol. 45. Available online. In: https://journals.openedition.
org/revus/7500. Consultation date: 22/07/2022.
LAW OF THE REPUBLIC OF AZERBAIJAN. 2003. No. 561-IIQ On the
Constitutional Court (as amended and supplemented as of June 29, 2022).
Available online. In: https://continent-online.com/Document/?doc_
id=30597407#pos=0;46. Consultation date: 22/07/2022.
LEGISLACIÓN CONSOLIDADA. 1979. Organic Law 2/1979, of October 3, of the
Constitutional Court (Ley Orgánica 2/1979, de 3 de octubre, del Tribunal
Constitucional). Available online. In: https://www.boe.es/buscar/act.
php?id=BOE-A-1979-23709. Consultation date: 22/07/2022.
NATIONAL COUNCIL FOR THE RECOVERY OF UKRAINE FROM THE
WAR. 2022. Project of the Recovery Plan of Ukraine. Materials of the
working group “Justice”. Available online. In: https://www.kmu.gov.
ua/storage/app/sites/1/recoveryrada/ua/justice.pdf. Consultation date:
22/07/2022.
PANFILOVA, Daria. 2022. Amendments to the Law of Ukraine “On Social
and Legal Protection of Servicemen and Members of Their Families”
regarding the appointment and payment of one-time cash benets. UNBA
Higher School of Advocacy. Available online. In: https://www.hsa.org.
ua/blog/zminy-do-zakonu-ukrayiny-pro-sotsialnyj-i-pravovyj-zahyst-
vijskovosluzhbovtsiv-ta-chleniv-yih-simej-shhodo-pryznachennya-
i-vyplaty-odnorazovoyi-groshovoyi-dopomogy/. Consultation date:
25/09/2022.
PETRIV, Ivan. 2020. “Improvement of the state mechanism of protection of
human rights and citizens through the activity of the Constitutional
Court of Ukraine” In: Scientic Papers of the Legislation Institute of the
Verkhovna Rada of Ukraine. Vol. 3, pp. 128-135.
PRESIDENT OF UKRAINE. 2021. Decree of the President of Ukraine dated
June 11, 2021 No. 231/2021 On the Strategy for the Development of the
Justice System and Constitutional Judiciary for 2021-2023. Available
online. In: https://www.president.gov.ua/documents/2312021-39137.
Consultation date: 22/07/2022.
PRYTYKA, Yuriy; IZAROVA, Iryna; MALIARCHUK, Liubov; TEREKH, Olena.
2022. “Legal Challenges for Ukraine under Martial Law: Protection of
Civil, Property and Labour Rights, Right to a Fair Trial, and Enforcement
of Decisions” In: Access to Justice in Eastern Europe. Vol. 3, No. 15, pp.
219-238.
429
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 405-430
RABINOVYCH, Serhii. 2021. “Is it possible to depoliticize the constitutional
justice of Ukraine?” In: Ideology and Politics Journal. Vol. 2, No.
18. Available online. In: https://www.ideopol.org/wp-content/
uploads/2021/11/10.-ENG.-Rabinovych-nal.pdf. Consultation date:
22/07/2022.
REPETTO, Giorgio. 2022. “The Venice Commission and the Construction of
European Constitutional Law” In: The Italian Review of International
and Comparative Law. Vol. 1, No. 2, pp. 463-470.
SLINKO, Tetiana; LETNIANCHYN, Liobymyr; BAIRACHNA, Larisa;
TKACHENKO, Yevhenii. 2022. “The Rule of Law in the Legal Positions
of the Constitutional Court of Ukraine” In: Access to Justice in Eastern
Europe. Vol. 1, No. 13, pp. 165-177.
VERFASSUNGSGERICHTSHOFGESETZ. 1953. Constitutional Court Act.
VfGG (Verfassungsgerichtshofgesetz 1953 – VfGG). StF: BGBl. Nr.
85/1953 (WV). Available online. In: https://www.ris.bka.gv.at/
Dokumente/Erv/ERV_1953_85/ERV_1953_85.pdf. Consultation date:
22/07/2022.
VERKHOVNA RADA OF UKRAINE. 1996. Constitution of Ukraine.
Adopted at the fth session of the Verkhovna Rada of Ukraine on
June 28, 1996. Available online. In: https://zakon.rada.gov.ua/laws/
show/254%D0%BA/96-%D0%B2%D1%80#Text. Consultation date:
22/07/2022.
VERKHOVNA RADA OF UKRAINE. 2017. Law of Ukraine dated July 13, 2017,
No. 2136-VIII On the Constitutional Court of Ukraine. Available online.
In: https://zakon.rada.gov.ua/laws/show/2136-19#Text. Consultation
date: 22/07/2022.
VERKHOVNA RADA OF UKRAINE. 2019. Decision of the Constitutional Court
of Ukraine dated June 20, 2019 No. 6-р/2019 in the case based on the
constitutional submission of 62 People’s Deputies of Ukraine regarding
the compliance with the Constitution of Ukraine (constitutionality)
of the Decree of the President of Ukraine “On the early termination of
the powers of the Verkhovna Rada of Ukraine and the appointment of
extraordinary elections”. Available online. In: https://zakon.rada.gov.
ua/laws/show/v006p710-19#Text. Consultation date: 22/07/2022.
VERKHOVNA RADA OF UKRAINE. 2022. Law of Ukraine dated July 29, 2022,
No. 2489-IX On Amendments to the Law of Ukraine “On Social and Legal
Protection of Servicemen and Members of Their Families” regarding the
appointment and payment of one-time cash benets. Available online.
In: https://zakon.rada.gov.ua/laws/show/2489-20#Text. Consultation
date: 22/07/2022.
430
Viktor Shemchuk, Taras Khmaruk, Olha Stohova, Nataliia Shamruk y Catherine Karmazina
Prospects of Transformation of the Institution of Constitutional Justice in the Course of Armed Conicts
VERKHOVNA RADA OF UKRAINE. 2022. Separate opinion (concurring
opinion) of the judge of the Constitutional Court of Ukraine Lemak
V. V. dated 06.04.2022 No. na01d710-22 regarding the Decision of
the Constitutional Court of Ukraine (Second Senate) in the case of the
constitutional complaint of S. O. Polishchuk. Available online. In: https://
zakon.rada.gov.ua/laws/show/na01d710-22#Text. Consultation date:
22/07/2022.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en diciembre de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 75
