Separate Opinion of Constitutional Court of Ukraine Judge Vasyl Lemak Regarding the Methodology for Assessing the Constitutionality of Human Rights Restrictions on the Example of Customs Legislation.
The judge proposes a new algorithm for assessing the constitutionality of state interference in human rights:
- First, it is necessary to check whether the essence (core) of the right has been violated
- If the essence of the right has not been violated – evaluate the proportionality of the restriction
- Investigate the legitimate purpose of the restriction and its connection with constitutional values
Key positions of the judge:
- The concept of ‘prescribed by law’ is not limited to laws of Ukraine, but also includes other normative acts issued on the basis of law
- Systemic and massive restrictions on rights can be established exclusively by laws of Ukraine
- When assessing constitutionality, it is important to consider not only formal requirements, but also the quality of the law – its accessibility, precision, and predictability
