Resolutions of the Plenum of the Supreme Court on Refusal to Submit a Constitutional Submission: Procedural Decisions or an Instrument of Interference with Judicial Independence?

Volodymyr Volodymyrovych Kuzmenko,

Judge of the Sixth Administrative Court of Appeal

Proper organization and stable functioning of the judiciary are fundamental conditions for ensuring fair, timely, and effective justice. The ability of courts to properly exercise their powers provides citizens with effective judicial protection and serves as a necessary condition for achieving the ultimate goal of justice.

         Quality administration of justice is impossible without ensuring the right to review a court decision, which requires thorough organization and institutional structure of the judiciary, where appellate courts play a key role. They occupy a central place in the judicial system of Ukraine, as they ensure the verification of legality, validity, and fairness of court decisions made by courts of first instance. Performing an important system-forming function in the mechanism of justice administration, appellate courts review cases both on factual and legal issues, contributing to the formation of a unified and consistent judicial practice, eliminating possible discrepancies in the application of legislation by courts of first instance. Their activity is aimed not only at correcting judicial errors but also, as noted above, at ensuring the guarantee of the constitutional right of everyone to have a court decision reviewed by a higher court. Thanks to appellate review of court decisions, an additional level of judicial protection of the rights, freedoms, and interests of individuals and legal entities is ensured, which contributes to increasing trust in justice and strengthening the principle of the rule of law in the state. Thus, they ensure a proper balance between the necessity of adhering to uniform standards of law enforcement and the independence of the judge in the process of administering justice.

          Therefore, appellate courts are an integral element of the judicial control mechanism that ensures the efficiency, fairness, and predictability of the judiciary's functioning in Ukraine.

Appellate Administrative Courts and Their Procedural Independence

          In this context, it is worth emphasizing the role of appellate administrative courts, whose task in the sphere of public-law relations is to protect the rights, freedoms, and interests of individuals, as well as the rights and interests of legal entities from violations by authorities (Part 1, Article 2 of the Code of Administrative Procedure of Ukraine, hereinafter - CAP Ukraine).

          Viewed through the prism of administrative law, administrative procedure, and rules of administrative justice, appellate administrative courts are a key link in the system of administrative justice in Ukraine, as they provide a re-examination of cases in the sphere of public-law relations and exercise control over the legality of decisions of courts of first instance. Their specificity compared to appellate courts of civil or criminal jurisdiction lies in their special subject-matter jurisdiction—they consider disputes between individuals and the state, exercising judicial control over the activities of public authorities. Therefore, the function of these courts goes beyond the traditional correction of errors of the first-instance court and is aimed at ensuring the principles of the rule of law, good governance, and accountability of state power. The Supreme Court (hereinafter - SC) has repeatedly emphasized in its practice the special importance of appellate review in administrative cases as an element of the right to a fair trial (in particular, the resolution of the United Chamber of the Administrative Court of the SC dated March 13, 2023, in case No. 440/2582/20). It has also repeatedly noted that unlike cassation review, the appellate administrative court has the authority to re-examine evidence, establish the factual circumstances of the case, and verify both the correctness of the application of law and the completeness of the clarification of the circumstances of the dispute.

          Article 315 of the CAP Ukraine enshrines the powers of the appellate administrative court. Thus, the right to annul the decision of the court of first instance and adopt a new ruling concerns the internal procedural independence of the judge, or as it is sometimes called - functional independence. Functional independence of the court is a component of the constitutional principle of judicial independence during the administration of justice under Article 129 of the Constitution of Ukraine and is organically linked to the constitutional guarantee of independence and inviolability of judges as bearers of judicial power under Article 126 of the Constitution of Ukraine (constitutional status of the judge).

          In practical terms, procedural independence of the appellate court in the mechanism of reviewing court decisions is revealed as the autonomous administration of justice by the higher court, not merely checking the correctness of the lower court's conclusions. The appellate court is empowered to independently assess the factual circumstances of the case and carry out the legal qualification of the disputed relations; it is not bound by the mandatory legal arguments of the parties or the conclusions of the first-instance court. That is, during appellate review, courts have full autonomy in choosing the legal norms regulating the disputed relations and procedural independence in making decisions—to annul, adopt a new ruling, amend the decision, or deny the administrative complaint (of course, considering the collegiality of judges' positions when adopting rulings). The appellate court is also independent of other factors that may arise in the process (prosecutors' conclusions, legal opinions, etc.).

         The Dilemma of "Law Application Limits" and "Assessment of Its Constitutionality"

          Ukraine belongs to a legal system that has adopted a centralized form of constitutional control with a separate constitutional jurisdiction body—the Constitutional Court of Ukraine (hereinafter - CCU). Currently, the Constitution of Ukraine defines the sole body authorized to submit to the CCU within the judiciary—the Supreme Court. The Law of Ukraine "On the Judiciary and the Status of Judges of Ukraine" in Article 46 specifies this in the person of the collective body—the Plenum of the Supreme Court. Procedural legislation of Ukraine, in turn, establishes a special mechanism of incidental constitutional control (in a specific case): after issuing a decision on the merits, the court applies to the Supreme Court with a motion to submit to the CCU the relevant submission through the procedure of preliminary constitutional filtering in the form of the Plenum's authority to submit or adopt a resolution on the absence of reasonable grounds for submission.

          For courts of administrative jurisdiction, the authority to apply the norms of the Constitution of Ukraine as directly applicable norms is of particular importance. This importance is directly related to the activity of administrative courts, which is the most widespread among the powers of courts of all jurisdictions and consists in resolving the dilemma of "law application limits" and "assessment of its constitutionality." This is due to the somewhat blurred division of subject-matter competence between administrative courts and the CCU in resolving, for example, disputes about the illegality of subordinate normative legal acts, with a number of criteria that courts, primarily appellate administrative courts, must consider when reviewing decisions of courts of first instance that applied norms of the Constitution of Ukraine as directly applicable norms.

           Regarding the analysis, study, and choice of the legal norm to be applied in the case, the Ukrainian legislator has effectively introduced an element of diffuse constitutional control, which means that an ordinary court cannot annul a law for all subjects of law but may refuse to apply it in a particular case, properly motivating its inconsistency with the Basic Law of Ukraine. Meanwhile, the law remains in force until the CCU adopts a decision, and this circumstance is key to understanding the nature of the Ukrainian model. The court does not exercise abstract control over the constitutionality of laws; its activity is limited to resolving a specific dispute and protecting the rights of a particular person.

           When directly applying a norm of the Constitution of Ukraine in a case, not a norm of the law, the court only allows non-application of the law norm due to its conviction of its inconsistency with the Basic Law of Ukraine; however, in such a case, it is never about recognizing such a law norm as unconstitutional (and thus annulled). Therefore, the consequence of such control is not the loss of legal force of the law but only its non-application in certain legal relations. Meanwhile, the CCU, exercising its constitutional powers, directly applies the provisions of the Constitution of Ukraine in each case. By adopting Resolution No. 11-p/2021 dated November 30, 2021, the CCU essentially confirmed that it is guided by the "supremacy of the Constitution" (and thus the "direct effect" of its norms) also when resolving organizational issues of its internal activity.

          Thus, today, especially in the activity of administrative courts, one can speak of a kind of "limited diffuse control" that combines features of the American and European models: on the one hand, the court gains the ability to independently assess the constitutionality of a law, and on the other hand, the final decision on the fate of the law remains with the CCU.

           In this regard, we highlight such an element of procedural independence of a judge (panel of judges)—independence in the constitutional-legal understanding of the content of the legal norm in the process of their own intellectual-volitional activity during case consideration. The court has the powers to interpret the law in light of constitutional values; apply the Constitution of Ukraine as a directly applicable act; not apply the law in cases defined by Part 4, Article 7 of the CAP Ukraine with the initiative of constitutional control through mechanisms defined by legislation.

            Correct application of legal norms by courts in such cases is always carried out at the intersection of: 1) ensuring the principle of the rule of law, 2) subject matter of administrative jurisdiction, 3) limits of judicial discretion, and 4) substantive exercise—factual intermediate constitutional control within ordinary judicial activity, since courts, especially those reviewing decisions of lower courts, must consider that:

         - the court, in particular the first instance, did not apply a law which it considered contrary to the Constitution of Ukraine and applied norms of the Constitution of Ukraine as directly applicable norms;

         - subsequently, this court fully complied with the provisions of Part 4, Article 7 of the CAP Ukraine, namely, after issuing the decision in the case, it applied "to the Supreme Court to resolve the issue of submitting to the Constitutional Court of Ukraine a submission regarding the constitutionality of a law or other legal act within the jurisdiction of the Constitutional Court of Ukraine," as required by the second paragraph of this article;

        - simultaneously, the parties appealed this decision to the appellate court, and possibly further to the cassation instance;

         - and the Plenum of the Supreme Court, with all judges as members of the Plenum who at that time do not exercise procedural powers but perform special functions to promote unity of judicial practice, in an extraprocedural manner adopted a resolution on the absence of reasonable grounds for submitting to the CCU the relevant constitutional submission.

     The Problem of Procedural Independence of the Higher Court's Case Circumstances During Examination

        Despite the tenth year of applying procedural codes in the new edition, the problem of correct application by courts of the norms of the Basic Law of Ukraine and the procedure for assessing by higher courts the conclusions of lower courts about the inconsistency of laws with the Constitution of Ukraine in a specific case, considering all the above multidimensional phenomena and integrating them into a whole, remains unresolved by the judicial system at a level that could be characterized by stability and ensure unity of law enforcement.

          Practical application of the above powers of administrative appellate courts requires further development of unified approaches by the Supreme Court, since the lack of unity in law enforcement destabilizes not only their activity but also the activity of all judges of Ukraine in administering justice, especially when resolving social disputes by appellate administrative courts.

          Let us try to look at this problem through the prism of the correlation between: court independence; the mechanism of constitutional control exercised by the authorized body—the Supreme Court; the court's duty to apply the norms of the Constitution as directly applicable norms; and the limits of influence of the Plenum's resolutions on the activity of lower courts.

          When reviewing a court decision, the appellate court as a higher court immediately faces a dilemma—if the law is discriminatory and/or contradicts the Constitution of Ukraine (according to the lower court judge's conviction), it must make a decision in which:

         - apply the law and violate the rights of the person;

         - refuse to apply the law, partially assuming the functions of the CCU,

           - and decide for itself whether to consider the Plenum of the Supreme Court's resolution on the absence of reasonable grounds for submission to the CCU (if it has already been adopted).

          In such cases, an important issue for courts is ensuring their procedural independence, especially when the Plenum of the Supreme Court adopts a resolution on the absence of reasonable grounds for submitting a constitutional submission.

Can the Plenum of the Supreme Court's Refusal "Close" the Court's Question of the Law's Constitutionality?

           The issue of the impact of the Plenum of the Supreme Court's resolutions on refusal to apply to the CCU on the further activity of courts considering specific cases is one of the least studied.

            At first glance, if the Plenum's resolution on refusal has been adopted, it may seem that since a conclusion has been made about the absence of reasonable grounds for a constitutional submission, the question of the constitutionality of the relevant law is effectively resolved.

           However, such an approach would contradict the very nature of judicial power and the principle of judicial independence. Delving into the nature of procedural independence of judges, procedural actions of courts in connection with the extraprocedural functions of the Supreme Court, relying on the provisions of Articles 6, 18, 124, 126, 129 of the Constitution of Ukraine, Article 6 of the Law of Ukraine "On the Judiciary and the Status of Judges," Article 7 of the CAP Ukraine, according to which a judge during the administration of justice is independent and guided by the supremacy of law, we believe that the Plenum's resolution on the absence of reasonable grounds for submitting a constitutional submission to the CCU does not have binding significance for the appellate court, is not a source of law, and does not have a preclusive effect on the court considering the case. Analysis of individual Plenum resolutions shows that the vast majority are typically formulated, maximally concise in content, and elements of reasoning usually rely on their own law enforcement practice with a brief conclusion of reasonable grounds for the Supreme Court's submission to the CCU.

            At the same time, these resolutions do not contain proper reasoning confirming the constitutional nature of the law about which the lower court has a conclusion (conviction) of its inconsistency with the Constitution of Ukraine. Without establishing the constitutional content of the law under review, the Plenum's resolutions simultaneously do not refute or eliminate the lower court's conclusion (conviction) about the inconsistency of the specific law with the Constitution of Ukraine, nor do they justify the absence of the need to apply the norms of the Constitution of Ukraine as directly applicable norms.

            In the refusal resolution, the Plenum of the Supreme Court does not elaborate detailed conclusions regarding legal situations, as this preliminary constitutional control formally folds the entire constitutional-legal problem in a specific case fixed in the decision or resolution issued by lower courts and effectively leaves the legal situation to the discretion of the judge who will review a similar case in the future. This thesis is confirmed, for example, by the analysis of previous conclusions on submissions on the Supreme Court's website. Detailed legal conclusions can be seen in cases where reasonable grounds for submission are established at the stage of preliminary preparation of the document for the Plenum of the Supreme Court. Regarding resolutions—no thorough studies have been observed, possibly because recent legislative innovations indeed require constitutional control by the judiciary, and the Supreme Court has increasingly submitted constitutional submissions citing arguments on constitutional defects of laws' content. At the same time, it is also likely that the preliminary legal conclusion posted on the website about the absence of reasonable grounds for submission to the CCU may become a certain legal argument (essentially a hint) for one or the other party in the case during possible further cassation appeal of the decision in which such a law was applied, or for other persons as potential participants in judicial disputes in similar future cases. In judicial activity, this may be regarded as interference in justice—disclosing elements of a legal position in advance, not during case review, which contradicts the principle of independence and impartiality of the judge (court) during the administration of justice.

          The Plenum of the Supreme Court does not exercise constitutional control but is only a collegial body performing preliminary constitutional control, and these processes are not interchangeable. The Plenum's resolutions on refusal to apply to the CCU are not decisions on the constitutionality of the law on the merits. Such a decision only means that at a certain moment the majority of the Plenum members did not see sufficient grounds to initiate constitutional proceedings.

          Thus, the Plenum's resolutions only record the position of the Supreme Court's collegial body during the non-administration of justice about the absence of grounds for submitting the relevant constitutional submission.

           That is why giving such resolutions preclusive effect would create a serious constitutional problem. If an appellate or cassation court judge is forced to abandon their own assessment of the law solely because the Plenum of the Supreme Court previously did not support submission to the CCU, this would mean a de facto substitution of the independent court's judicial discretion by the administrative decision of a collegial body.

           In this case, a dangerous situation arises where the judge's independence is limited not by law or the Constitution of Ukraine but by the extraprocedural position of a body that does not administer justice but promotes unity of judicial practice. Formally, the judge remains independent, but in fact receives a signal about what the result of their constitutional analysis of a specific legal problem in the case should be. Such an approach is difficult to reconcile with Article 129 of the Constitution of Ukraine, according to which a judge during the administration of justice is independent and guided by the supremacy of law.

           We believe that the mere fact of the Plenum's adoption of a refusal resolution does not deprive the appellate administrative court of the right when considering a case to:

           - consider the law as contradicting the Constitution of Ukraine;

           - apply the Constitution of Ukraine as a directly applicable norm;

           - reinitiate the issue of constitutionality in another case;

           - present its own reasons regarding constitutional defects of the relevant law. When resolving the dispute on the merits during case review (when the Plenum of the Supreme Court previously refused to apply to the CCU), the appellate court is not obliged to mechanically reproduce the Plenum's position. On the contrary, the court must independently assess the arguments, verify the law's compliance with the Constitution of Ukraine, and provide its own motivation. This is the real procedural (functional) independence of the judge (court) during the administration of justice. Another approach, as noted above, would mean substituting independent judicial discretion with the administrative decision of the Plenum of the Supreme Court, which contradicts Part 1 of Article 129 of the Constitution of Ukraine.

          It is worth emphasizing that current legislation does not prohibit repeated appeals to the Supreme Court regarding the same normative act. The same norm may become the subject of numerous appeals by different courts to the CCU, similarly to other subjects also authorized to apply to the CCU (the Supreme Court, the Verkhovna Rada Commissioner for Human Rights, individuals after exhausting all national remedies through the constitutional complaint instrument). For example, regarding provisions of the Law "On Civil Service," the Plenum of the Supreme Court has repeatedly considered similar issues upon appeals of different courts and adopted resolutions refusing to apply to the CCU.

    Risk of Losing Practical Significance of the Mechanism of Applying the Norms of the Constitution of Ukraine as Directly Applicable in Courts' Activity

           If the Plenum's resolutions are given actual preclusive effect, the application of Part 4, Article 7 of the CAP Ukraine will be significantly complicated. This provision empowers each administrative court to directly assess the law's compliance with the Constitution of Ukraine and, if inconsistency is found, to apply the norms of the Constitution as directly applicable norms. The legislator deliberately placed this duty not only on the Supreme Court but on any court considering a specific case. Importantly, Part 4, Article 7 of the CAP Ukraine within two paragraphs does not contain a reservation: "except in cases where the Plenum of the Supreme Court has already refused to submit a submission on the same issue." Therefore, despite the Plenum's resolution, a lower court may again motivate the inconsistency of the law norm with the Constitution of Ukraine, apply the Constitution's norms as directly applicable, and is not deprived of the right to reapply to the Supreme Court under the rules of Part 4, Article 7 of the CAP Ukraine.

          If it is recognized that the Plenum's previous refusal automatically deprives other courts of the opportunity to reach their own conclusion about the law's inconsistency with the Constitution of Ukraine, the content of Part 4, Article 7 of the CAP Ukraine will be effectively nullified. Lower courts will become passive executors of an already formed truncated position, essentially only the conclusion in the Plenum's resolution, and the legislator's established mechanism of the Constitution of Ukraine's direct effect in courts' activity will lose practical significance.

           Ultimately, it should also be considered that constitutional assessment of a law is not static. New arguments of the parties, changes in social conditions, development of the CCU's practice, the practice of the European Court of Human Rights, or even a new composition of the court may lead to a different view of the same legal problem. That is why the issue of constitutionality cannot be considered finally resolved solely due to the Plenum's previous refusal to apply to the CCU.

           Instead of Conclusions. In a democratic rule-of-law state, the Plenum of the Supreme Court's resolutions on refusal to submit a constitutional submission should be regarded exclusively as procedural decisions regarding the Supreme Court's right as a constitutional-status body to submit constitutional submissions. They should not create any preclusive effects for courts continuing to administer justice in specific cases. The Plenum's refusal to apply to the CCU with a constitutional submission does not create a legally binding position for appellate or cassation courts regarding the constitutionality of the relevant law. Such a resolution is not a source of law and cannot replace the constitutional duty of the court to independently assess the law's compliance with the Constitution of Ukraine during case consideration or review of decisions/cases.

            If the court concludes that the law contradicts the Constitution of Ukraine, it is obliged to act in accordance with Part 4, Article 7 of the CAP Ukraine: apply the Constitution of Ukraine as a directly applicable norm and not apply the law which, in its conviction, contradicts the Basic Law of Ukraine. At the same time, the Plenum's previous refusal to submit a constitutional submission does not eliminate either the right or the duty of the court to raise the issue of constitutionality again in a new case.

           During cassation review, the Supreme Court should not be limited to referring to the Plenum's previous resolution but must conduct its own verification of arguments regarding the constitutionality of the disputed law norm. Another approach would mean effectively giving normative significance to the Plenum's resolutions, which is incompatible with the principles of judicial independence, supremacy of the Constitution of Ukraine, and direct effect of its norms, and would contribute to the risk of gradually turning the constitutional control mechanism for protecting the Constitution of Ukraine into an instrument limiting judicial independence during justice administration by courts.

          That is why the true realization of the principle of direct effect of the norms of the Constitution of Ukraine presupposes that every court (judge) retains the right and duty to independently assess the law's compliance with the Constitution of Ukraine regardless of the position previously taken by the Plenum of the Supreme Court. The Basic Law of Ukraine is an act of direct effect for all courts, not only for the highest judicial instance.

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