Actual issues of non-application of the law by the court due to its contradiction with the Constitution of Ukraine

The article clarifies the actual issues of non-application of the law by the court on the grounds of its contradiction with the Constitution of Ukraine, in particular: the historical evolution of the legislative regulation of the possibility of non-application of the norms of the law on the grounds of their contradiction with the Constitution; peculiarities of modern regulation of this issue and key problems that arise in practice; proposals for improving legislation and judicial practice. It was concluded that one of the most typical forms of direct application of the provisions of the Constitution, along with the possibility of applying the Constitution in the absence of legislative regulation, is the possibility of law enforcement contra legem, i.e. law enforcement contrary to the law due to its (law’s) inconsistency with the Constitution. The fundamental possibility of not applying a law that contradicts the Constitution of Ukraine directly follows from the idea of the supremacy of the Constitution of Ukraine, the recognition of its provisions as norms of direct effect, and, ultimately, from the principle of the rule of law. Another issue is that such an opportunity should have an adequate procedural form of its expression, as well as be organically combined with the activities of the body of constitutional jurisdiction, the specialized body of constitutional control - CCU. Historically, initially, Ukrainian legislation required a stay of proceedings in case of doubt about unconstitutionality, however, the legislation itself was contradictory and conflicting, which made such a stay almost impossible in practice. At the same time, there was an approach that in the absence of doubt, that is, when there is a clear certainty of the unconstitutionality of the application of contra legem, it is possible and no suspension of the proceedings is necessary. Such ideas were partially embodied in the 2017 reform, when courts in all types of proceedings, except for criminal ones, received an explicit opportunity not to apply the law, at the same time turning to the Supreme Court (assuming that the latter would later turn to the CCU). At the same time, there was the problem of motivating such a conclusion, the actual practice of appeals to the Supreme Court, the role of the Supreme Court itself (which sends relevant submissions very rarely). In addition, the experience of foreign countries proves the need for courts to interact with the constitutional court without intermediaries. In practice, significant concerns about the possibility of non-application of the law arise in the field of social rights.