Problems of the Principle of Equality in the Protection of Human Rights (Based on Practice of the Constitutional Court of Ukraine)

Correct solution of cases concerning the application of the constitutional principle of equality in constitutional justice requires reliance on theoretically grounded methodic of application of this principle. However, the practice of constitutional justice of the respective category of cases shows that the required consistency, clarity and uniqueness in this matter has not been reached yet. In the Soviet and post-Soviet law principle of legal equality has been the subject of attention of such researchers as S. B odnar, I. Volhovska, M. Kozyuk, H. M altsev, V. Nersesyants, N. Onishenko, S. Pohrebnyak, I. Polhovska, P. Rabinovych, V. C hetvernin, S. Shevchuk and others. Some scientists also paid attention to the principle of proportionality (D. D edov, I. K resina, S. Pohrebnyak, Y. Romanyuk, including its interrelation with equality (S. Rabinovych). A number of general theoretical, philosophical and legal issues arising from the connection of principles of equality marked higher with the principle of proportionality in the legal positions of the Constitutional Court are still not disclosed. That’s why the aim of the proposed research is systematic analysis of methodology for assessing the constitutionality of legal acts used by the Constitutional Court of Ukraine during their examination of observance of principle of equality; with special attention paid to the interrelation between the principles of equality and proportionality and the problems associated with the use of the latest in the constitutional justice in Ukraine. The authors justified the conclusion that insufficient worked out of methodology of application of test for discrimination in constitutional justice of Ukraine conditioned by a certain lack of theoretical reflection on problems of restrictions on rights and freedoms. Link to the objective reasonableness of established differences as the basis for the conclusion of non-discrimination can be considered sufficient argument only if the concept of objective differences conditionality would cover social justice and proportionality. In this context the principle of proportionality is a conceptual tool for monitoring the fairness of legal distribution of social benefits, or actually of the social justice. Without the application of the proportionality test material constitutional review over compliance with the principles of equality and non-discrimination is not possible. In view of this, answer to the question of compliance with established regulations restrictions rights socially important aim of such restrictions must be stated in the reasoning part of any decision of the Constitutional Court of Ukraine, concerninig the compliance of the principle of equality.