Statement by the President of the Supreme Court Valentyna Danishevska at the International Online Conference on the Occasion of the 24th Anniversary of the Constitution of Ukraine

On the eve of the Constitution Day we would like to share a statement made by the SC President Valentyna Danishevska at the International Online Conference “Mutual Achievements of the European Commission for Democracy through Law (Venice Commission) and Bodies of Constitutional Justice and the Problems of Interpretation in Constitutional Adjudication” organized by the Constitutional Court of Ukraine together with the European Commission for Democracy through Law (Venice Commission) with the support of the OSCE Project Co-ordinator in Ukraine on the occasion of the 24^th anniversary of the Constitution of Ukraine and the 30^th anniversary of the Venice Commission.

“First of all I would like to express my gratitude to the organizers of the event for the opportunity to participate in the conference and to speak on the suggested topic. Also, I want to express my sincere congratulations to the representatives of the Venice Commission present here on the occasion of its 30^th anniversary.

Taking this opportunity, I would like to point out that the work of the Venice Commission is crucial for the observance of the Rule of Law principle in Ukraine, especially for the development of the judiciary and reestablishment of the guarantees of its independence. The opinions of the Venice Commission are of paramount importance for this and other issues of legal interpretation. For three decades these opinions have been a powerful and almost undeniable signpost for the development of law and certainly for its interpretation – in a manner which corresponds to the rule of law.

Besides, functioning of the institution ensures the interstate consensus and the common comprehension of European standards of human rights.

I would also like to add one point to the list which you, Mr. Holovatyi, have announced, that is celebration of the 70^th anniversary of the European Convention on Human Rights and Fundamental Freedoms. There is no doubt I suppose that it was the Convention which changed the history of Ukrainian justice.

This brings me straight to the topic of my report. Every country issues a law in its national legal language. A legal language is a form of a national literary language.

At the same time, it is known that polysemy is an integral feature of any language. Hence, it is impossible to achieve absolute clarity and unambiguity of a law (even if it is a purpose). Thus, one cannot achieve absolute legal certainty.

Mankind has invented artificial languages, for example, programming languages, which are entirely unambiguous. Meanwhile, no country writes its laws in artificial languages, and it is not by chance.

When adopting a law, it is impossible to anticipate all changes that may take place in the society and consequently in the understanding of the law. Often, we cannot even imagine all life situations which will fall within the scope of a legal provision. Moreover, one cannot imagine new life circumstances that may arise in future in advance, particularly considering rapid development of the mankind.

Yet, amending a law is a long and complex process. A law is known to reflect the relations which have been established in the society but not the ones to appear in future.

Therefore, abstractness, polysemy of a law often serves as an instrument due to which practice (primarily judicial one) is able to quickly adapt the law in its invariable verbal form to both specific life situations and changes taking place in the society.

History offers us a multitude of examples when a provision expressed in an invariable verbal form with time starts to change its influence on the behavior, which is not what the legislator meant. For instance, there is a well-known provision of the United States Declaration of Independence which is interpreted nowadays as “all people are created equal”, but at the time of its adoption it was understood literally “all men are created equal”. Then this was about white men.

Such examples show that a certain degree of a law ambiguity cannot be treated as its disadvantage because such ambiguity appears to be a tool for the development of law. On the other hand, complete incomprehensibility and vagueness of a law make it impossible to use. Hence, there is a dialectical contradiction between legal certainty and the development of law. That is why one should strike a balance, the so-called golden mean.

So, there is a need for some sound degree of legal certainty, not more, hence, there is a need for some sound degree of a possibility to interpret laws. 

The European Convention on Human Rights and Fundamental Freedoms could be a good illustration. Inter alia, the general nature of the Convention provisions is not regarded as a flaw. Conversely, provisions of the Convention, which may seem “unclear and vague” for somebody, enable the European Court of Human Rights to use it as “a living instrument”. The abstractness of the Convention provisions enables the ECHR to adapt its practice according to the needs of the present.

Therefore, the days are long gone when a famous quote by Montesquieu about a judge who is “no more than the mouth that pronounces the words of the law” was considered literally correct. At the Age of Enlightenment, undoubtedly, such point of view had a positive effect on the process of separation of powers. However, attempts to make the idea absolute, numerous efforts to deprive judges of the opportunity to interpret law independently, which were made in the XVIII century in Prussia, France, Austria, Russia, failed, since a judge has never been and will never become a simple mechanical device for the use of law, a logical machine that automatically makes a decision.

According to modern ideas, interpretation given by courts in the course of application of the law is a manifestation of judicial law-making. According to famous American scientist and draftsman Karl Llewellyn, “the fact that no one knows what a law means until courts interpret it is a juridical truism”.

In this, law-making role is characteristic of courts both in common law countries and continental law countries. Indeed, the courts in the countries with a continental law system cannot create new provisions of law (except from filling the gaps) or amend the texts of law provisions.

At the same time, we cannot equate the concept of “law-making” with the concept of “making a law”. If we accept that law works in a similar way as it is “carried out”, that is how and to which extent it will be adhered to (let’s say law as “law in action”), then we can make a conclusion that a legal provision shouldn’t be narrowed down to its verbal form (expressed in the text of a law), but its interpretation should be included as well. So, the meaning of the concept of “law-making” should include the interpretation of a law. 

Courts enjoy a significant level of discretion in interpretation of laws. It is known that there is even an interpretation means called “contra legem” that is in accordance with the spirit of the law but contrary to its wording.

A judge, especially a high-ranking one, understands that contents of any law are limited by certain scope. Therefore, a judge’s decision cannot result from speculative conclusions but must be based on the subjective ideas which in the judge’s opinion the law points out.

This is a so-called conception of an intelligent legislator: the judge should not rely only on true intentions of the legislator who adopted the law in the past (moreover, the true intentions of 450 deputies are unlikely to define) but to interpret a law in a way it could be understood by an imaginary intelligent legislator in case he adopted the law today.

When adjudicating disputes, courts apply not only laws but the Constitution as well since its provisions are directly applicable. At the same time applying the provision is impossible without clarification of its contents. Since such clarification is in fact interpretation, when courts adjudicate disputes, they also interpret the Constitution.

At the same time according to Article 147 of the Constitution, official interpretation of the Constitution is carried out by the Constitutional Court of Ukraine. It is easy to spot the difference between legal effects of the Constitution interpretation exercised by courts and the Constitutional Court of Ukraine. The interpretation of the Constitution which is provided by courts in the course of the trial is not official and binding for all. It is applied only to the case parties.

If such an interpretation is provided by the Supreme Court, it must be taken into account by courts of first instance and appeals courts when adjudicating other similar cases, but the courts can deviate from the SC conclusions having substantiated their position. It is an important mechanism which on one hand ensures the constitutional principle of inadmissibility of influence on a judge, ensures a judge’s right to make his/her own decisions by conviction, on the other hand – ensures the development of law by courts of first instance.

In contrast, when adjudicating a case involving interpretation of the Constitution, the Constitutional Court of Ukraine (CCU) provides an official interpretation. It is binding for all. In other words, further the provision of the Constitution officially interpreted by the CCU is applied exclusively along with the official interpretation provided by the CCU. Thus, the text of the Constitution is practically complemented by the operative part of the judgment of the CCU which contains an official interpretation.

Official interpretation of the laws of Ukraine is out of CCU jurisdiction. However, when adjudicating other cases, such as verifying the constitutionality of laws of Ukraine, the CCU provides the interpretation of these laws, which is unofficial. This is because any application of law is impossible without figuring out the scope of an appropriate provision, and this is actually an interpretation.

The mechanism of unofficial interpretation of laws during the adjudication of such cases by the CCU is similar to the one which is carried out during the adjudication of disputes by courts.

It appears that in the process of interpreting laws both the CCU and courts should strive for such interpretation of laws which would comply with the Constitution, if such interpretation is possible. It guarantees stability and sustainability of legislature and public trust. Only when such interpretation is impossible, the CCU and courts should draw conclusions about the unconstitutionality of the law.

The key principle for resolving disputes over interpretation must be the rule of law. The mechanism of constitutional control is one of the tools used to achieve the rule of law and promote a strategic vector of the state development according to the principle.

In the second half of the XX and at the beginning of the XXI century, search for the right approach to resolving the interpretation conflict is taking place in the context of globalization which pushes the national judiciary if not to take into account but at least study legal approaches implemented in other countries or in practice of supranational bodies.

It should be taken only in a positive way, since harmonization of legal approaches promotes consensus in state-building and law-making processes, promotes an identical legal platform which means mutual exchange of achievements between states and consequently their more dynamic development.

In the recent practice of constitutional, supreme courts, the European Court of Human Rights, the Court of Justice of the European Union, we have noticed that when these courts deal with complicated cases, they study each other’s practice. What promotes such exchange of achievements is the network of supreme courts of the Council of Europe and, undoubtedly, implementation of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms.  

I think the enhancement of such collaboration will determine the future since the best approach to resolving the interpretation conflicts is their resolving in the context of reaching a European consensus.”