Конституційне закріплення принципу взаємодії гілок влади: досвід України і зарубіжних країн

The article explains the constitutional consolidation of the principle of interaction between branches of power based on the experience of Ukraine and foreign countries. The principle of separation of powers is traditional for constitutional law. Sometimes it may be a matter of separation of functions (Monaco), separation of branches of power (Kosovo). Often we will not find special norms that would fix the principle of separation of powers, but at the same time the status and logic of the traditional three branches of power: legislative, executive and judicial are present (USA, Canada, Italy, Spain, etc.). A number of countries simply fix the principle of separation of powers (Mexico, Macedonia). In general, it happens that the branches are simply listed without special emphasis on the principle of separation of powers (Turkey). In foreign countries, the principle of interaction (cooperation) between branches of power is directly fixed only in Moldova and Croatia. In all other countries we can see more indirect hints of such interaction, indicating balance, interdependence, equilibrium (Serbia, Montenegro, Estonia, Poland, Portugal). The interaction of branches of power can be carried out within the framework of a system of checks and balances. At the same time, in addition to interaction, there is an opposite concept of state-legal conflicts or constitutional conflicts, which is not something unusual for the functioning of public power and it is necessary to have certain optimal mechanisms for their resolution, and cooperation as such (if it is also carried out in an extra-constitutional manner or contradicts the general political logic of the legitimacy of institutions) cannot help here. In the context of Ukraine, we have the practice of the Constitutional Court of Ukraine, in which it refers to the need for interaction between the branches of government (CCU decision No. 17-rp/2004 of November 18, 2004 and decision No. 4-rp/2008 of April 1, 2008). At the same time, the Constitutional Court of Ukraine emphasizes the need for the exercise of powers by government bodies precisely within the framework of the Constitution and laws (Article 6, Part 2, Article 19 of the Constitution of Ukraine). That is why interaction in an extra-constitutional and illegal manner, at a minimum, is not a subject of constitutional law, and at a maximum, may even be qualified in some cases as an offense. There are also proposals to directly enshrine the principle of interaction between the branches of government in the Constitution of Ukraine, but due to the existence of the legal positions of the Constitutional Court of Ukraine on this issue and the insignificant foreign experience of such an enshrinement, we do not think this idea is worth mandatory implementation.

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