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THE PROCEDURE OF ENTRY INTO FORCE OF LEGAL ACTS THAT DETERMINE RIGHTS AND DUTIES OF CITIZENS
Author article
Vladymyr Marinich

The operation of legal act (or its particular part) starts with its entry into force. The expressions “entry into force”, “introduction into effect” or “coming into force” are applied in Ukrainian legislation to designate the aforementioned aspect. In the majority of cases all these terms are convertible.

They usually mean the same notion that is a datum of a legal act action. The aforesaid means the calendar date from which the legal force of the act begins.

Under the provisions of the Article 57 of the Constitution of Ukraine, the laws and other regulatory legal acts that determine rights and duties of citizens shall be promulgated in accordance with the law.

Therewithal, the laws and other regulatory legal acts that determine rights and duties of citizens, which are not promulgated in accordance with the law, are invalid.

In view of this, the entry into force of the legal act is directly connected with its official promulgation in accordance with the law.

The provisions of the Article 12 of the Law of Ukraine “On the Principles of Regulatory Policy in Economic Activity” dated September 11, 2003 No 1160-IV outline that regulatory acts of the Verkhovna Rada of Ukraine, President of Ukraine and Cabinet of Ministers of Ukraine, adopted on the economic activity issues, shall be promulgated in accordance with the Constitution of Ukraine and other legal acts.

As a legislative act may be deemed only the one issued by the Verkhovna Rada of Ukraine.  It follows from the fact that Ukrainian legislation does not provide delegation of legislative powers from the Verkhovna Rada of Ukraine to unparliamentarily subjects.

In addition, it is necessary to take into account the provisions of the Articles 7 and 10 of the Law of Ukraine “On Principles of the State Language Policy” dated July 03, 2012 No5029-VI.

In accordance with the provisions of the Paragraph 1 of the Article 10 of this Law, the acts of the supreme authorities of state power are adopted in the state language and are officially published in the state, Russian and other regional or minority languages.

Whereas, in accordance with the provisions of Paragraph 2 of the Article 7 of this Law, within the territory of Ukraine regional or minority languages include the following languages:

  • Russian,
  • Belorussian,
  • Bulgarian,
  • Armenian,
  • Gagauz,
  • Yiddish,
  • Crimean-Tatar,
  • Moldavian,
  • German,
  • Romaic,
  • Polish,
  • Romani,
  • Romanian,
  • Slovak,
  • Hungarian,
  • Ruthene,
  • Karaite,
  • Krimchak.

As a result, the abovementioned provisions of the law establish one of the mandatory conditions of the procedure of promulgation of the acts of the supreme authorities of state power. That is to say is the official publishing of the legal act in the state, Russian and other regional or minority languages, mentioned in the Law.

At the same time, the provisions of the Part 3 of the Article 7 of the abovementioned Law comprise a clause under which the measures, which regulate the usage of regional or minority languages, are applied on a condition. The mentioned condition states that within the territory of spread of such a language the amount of native-speakers shall be not less than 10 per cent of the total population of the territory.

In our opinion, the application of the foregoing condition in the procedure of promulgation of the acts of the supreme authorities of state power would be a mistake. This comes from the fact that the rule of promulgation of the legal act is not the act that may be performed at any moment, but it is a direct-effect provision of the Constitution of Ukraine that stipulates the conditions of entry into force of legal acts.

In addition, in accordance with the provisions of the Part 2 of the Article 10 of the Law of Ukraine “On Principles of the State Language Policy” dated July 03, 2012 No 5029-VI the acts of local authorities of state power and local authorities are adopted and published in the state language.

At the same time, the provisions of the abovementioned Article comprise a clause that states that within the territory of the spread of regional or minorities language (languages) which meet the conditions of the third paragraph of the Article 8 of this Law, acts of local agencies of state power and local authorities are adopted and published in the state language or regional or minorities languages.

In this case, the Article 10 of the mentioned Law includes the reference to the part three of the Article 8 of this Law as to the provisions, which regulate the conditions of determining the regional or minority language that appears to be rather incorrect, since the provisions of the mentioned Article 8 do not define these terms.

Whereas, the conditions of determining the language as a regional or minority language is defined by the provisions of the Part 3 of the Article 7 of the foregoing Law. These conditions have been described previously.

Thereby, the abovementioned provisions of the law also establish one of the obligatory conditions of the promulgation of such regulatory acts as acts of the local authorities of state power and local authorities. That is the promulgation of the mentioned acts in the state language as well as in the regional or minority languages that are defined in the mentioned law observing the condition under which the amount of native-speakers within the territory of the jurisdiction of the mentioned authorities shall be not less than 10 per cent of the total population of its territory.

Whereas, in accordance with the provisions of the Articles 1 and 4 of the Law of Ukraine “On the specific procedure of the local government in some areas of Donetsk and Lugansk regions” dated September 16, 2014, the state guarantees the appliance of Russian and other languages in the media and creates opportunities for usage of such languages in the activity of state and local authorities, judicial proceedings, economic and social activities, cultural activities and other areas of public life during three years starting from the date of the adoption of this Law.

Although it is not stated explicitly in the Law that all regional or minority languages, which are determined by the Article 7 of the Law of Ukraine “On Principles of the State Language Policy” dated July 03, 2012 No 5029-VI, have the same status within the particular areas of Donetsk and Lugansk regions, it may be assumed that the forgoing languages may be considered as regional or minority languages within the particular area of Donetsk and Lugansk regions. Consequently, the promulgation of acts of the local authorities of state power and local authorities within the abovementioned area shall be provided in the state language, as well as in regional or minority languages, specified in this Law.

Nowadays it is problematic to define the regional or minority languages in the other regions of Ukraine. We are unable to comment on this, but we may state that the issue of the regional or minority languages needs to be taken into consideration when it comes to the entering into force of the legal acts.

As a result, we may conclude, that in order to enter into force the legal act shall be promulgated under the prescribed procedure in the state language and in the prescribed for this act regional or minority language. 

 

We consider that the procedure of the promulgation and entry into force of legal acts should be determined by a certain document. It would be convenient, well organized and more accessible for ordinary people. For example, it may be the Law of Ukraine “On Access to Public Information” dated January 13, 2011 No 2939-VI.

However, the mentioned Law (namely, Articles 13 - 15 of the Law) determines only disposers of information and their responsibilities for the official promulgation of such information. On the other hand, the Law does not provide instructions for the procedure of the publication of information.

Thus, up to date, the procedure of the official promulgation and entry into force of legal acts is regulated by various legislative acts as follows.

 

The Laws and other regulatory legal acts of the Verkhovna Rada of Ukraine.

In accordance with the provisions of the Article 139 of the Law of Ukraine «On the Rules of Procedure of the Verkhovna Rada of Ukraine» dated February 10, 2010 No 1861-VI, the laws and other acts of the Verkhovna Rada of Ukraine shall be promulgated in the following printed publicity materials:

  • "Holos Ukrayiny",
  • "Vidomosti Verkhovnoyi Rady Ukrayiny".

Therefore, the publication of regulatory legal acts of the Verkhovna Rada of Ukraine in the abovementioned materials in a state language and local language and language of minority, which are prescribed for the act, will be considered as the official promulgation.

In addition, there is a decree of the President of Ukraine dated June 10, 1997 No 503/97, issued by the President of Ukraine, as the guarantor of the Constitution of Ukraine (for the fulfillment of the provisions of the Article 102 of the Constitution). In accordance with the abovementioned decree, the printed publicity materials, in which the acts of the Verkhovna Rada of Ukraine may be promulgated in a state language, are the following ones:

  • “Ofitsiynyy visnyk Ukrayiny”,
  • “Uryadovyy kuryer”.
  • “Holos Ukrayiny”,
  • “Vidomosti Verkhovnoyi Rady Ukrayiny”.

In our opinion, the application of the decree of the President of Ukraine dated June 10, 1997 No 503/97 is incoract in terms of the promulgation of the regulatory legal acts of the Verkhovna Rada of Ukraine. It comes from the fact that the presidential decrees are not a piece of legislation. However, so far the overall opinion is that the foregoing procedure is acceptable. This aspect is not appropriately resolved for today therefore it is not commented in this article. Although, the issue of the presidential decrees is problematic and may lead to a conflict of interests of the people and the state.

Whereas, the provisions of the Article 94 of the Constitution of Ukraine establish that the Ukrainian laws come into force in ten days after the official promulgation, unless otherwise is provided by the acts. In any case laws may not come into force before the day of their publication in the printed official publicity materials.

Wherein, in accordance with the provisions of the Article 138 of the Law of Ukraine «On the Rules of Procedure of the Verkhovna Rada of Ukraine» dated February 10, 2010 No 1861-VI, other regulatory legal acts of the Verkhovna Rada of Ukraine come into force from the moment of the official promulgation.

In addition, the term of entry into force of the law of Ukraine or other regulatory legal acts of the Verkhovna Rada of Ukraine is calculated from the date of the earliest publication in one of the mentioned newspapers.

Furthermore, it is necessary to consider the fact that, in accordance with the provisions of the Article 2 of the Customs Code of Ukraine, the regulatory legal acts of the Verkhovna Rada of Ukraine, adopted on customs issues, come into force in 45 days after their official promulgation, unless otherwise is provided by the acts. In any case laws may not come into force before the day of their publication in the printed publicity materials.

2. The Decrees and other regulatory legal acts of the President of Ukraine.

Nowadays, there are no legal acts which regulate the procedure of the official promulgation of the Decrees of the President of Ukraine. That is why their legitimacy is questionable.

At the same time, there is the Decree of the President of Ukraine dated June 10, 1997 No 503/97 issued by the President of Ukraine, as the guarantor of the Constitution of Ukraine (to fulfill the provisions of the Article 102 of the Constitution). In accordance with this Decree the official promulgation shall be provided in the state language and only in the following printed publicity materials:

  • “Ofitsiynyy visnyk Ukrayiny”,
  • “Uryadovyy kuryer”,
  • “Ofitsiynyy visnyk Prezydenta Ukrayiny”.

Nowadays, the procedure of the official promulgation of regulatory legal acts of the President of Ukraine in regional and minorities languages is not determined at all.

In addition, in accordance with this Decree the legal acts of the President of Ukraine come into force in ten days from the date of their official promulgation unless otherwise is provided by the legal act. But they shall not come into force before the day of their publication in the publicity printing materials. Moreover, if regulatory legal acts of the President of Ukraine are published in any of the abovementioned printed publicity materials, they come into force with immediate effect after their first publication.

We suppose that the application of this presidential decree dated June 10, 1997 No 503/97 in questions of official promulgation of regulatory legal acts of the President of Ukraine, is incorrect without adoption of the relevant law, because the Decrees of the President of Ukraine are not legal acts. However, there exists a popular opinion that this procedure is acceptable. The mentioned aspect is a problem which may lead to a conflict of interest between the people and the state. This question is unsettled and we may not comment it.

Furthermore, it is necessary to consider the fact that, in accordance with the provisions of the Article 2 of the Customs Code of Ukraine, normative legal acts of the state governmental authorities, adopted on customs issues, come into force in 45 days after the official promulgation, unless otherwise is provided by the acts. In any case legal acts shall not come into force before the day of their publication in the printed publicity materials.

3. Resolutions and other regulatory legal acts of the Cabinet of Ministers of Ukraine.

In accordance with the Article 52 of the Law of Ukraine "On the Cabinet of Ministers of Ukraine " dated February 27, 2014 for No 794 the official promulgation of Resolutions of the Cabinet of Ministers of Ukraine may be published in the following publicity printed materials:

  • “Ofitsiynyy visnyk Ukrayiny”,
  • “Uryadovyy kuryer”.

Thus, the publication of the Resolutions of the Cabinet of Ministers of Ukraine in these printed publicity materials in the state language and in the regional and minorities languages is considered as their official promulgation.

Whereas, in accordance with the provisions of this article, other regulatory legal acts of the Cabinet of Ministers of Ukraine (instead of Resolutions) shall be officially promulgated on the official website of the Cabinet of Ministers of Ukraine.

However, there is no law which may determine the position of official web-site of the Cabinet of Ministers of Ukraine.

Also, there is no legal confirmation of the person’s possibility to has access to the web-site of the Cabinet of Ministers of Ukraine. This aspect makes the promulgation more difficult.

In accordance with the Law of Ukraine “On the Cabinet of Ministers of Ukraine” dated February 27, 2014 No 794 the legal acts of the Cabinet of Ministers of Ukraine come into force from the moment of their adoption, unless otherwise is provided by the acts.  

Whereas, acts of the Cabinet of  Ministers of Ukraine which determine the rights and obligations of citizens shall not come into force before the day of their publication in the printed publicity materials.

In addition, if regulatory legal acts of the Cabinet of Ministers of Ukraine are published in any of the abovementioned and determined by law printed publicity materials, they shall come into force with immediate effect after such a publication.

Furthermore, it is necessary to consider the fact that in accordance with the provisions of the Article 2 of the Customs Code of Ukraine normative legal acts of the Cabinet of Ministers of Ukraine, adopted on customs issues, shall come into force in 45 days after the official promulgation, unless otherwise is provided by the acts. In any case such acts shall not come into force before the day of their publication in the printed publicity materials.

4. The regulatory acts adopted by the National Bank of Ukraine, National council of Ukraine on television and broadcasting, other state authorities, the central executive authorities, the public specialized authorities and the organizations, non-commercial self-regulating organizations which perform administration and management of specific types of obligatory national social assurance, as well as  by their officials.

In accordance with the provisions of the Article 12 of the Law of Ukraine " On the Principles of Regulatory Policy in Economic Activity " dated September 11, 2003 No 1160-IV the regulatory acts of the abovementioned authorities, which are adopted in the sphere of economic activity, shall be promulgated in ten days after their state registration or in the same term after their adoption and signing (if the state registration is not required) in the following publicity printed materials:

  • “Ofitsiynyy visnyk Ukrayiny”,
  • “Uryadovyy kuryer”.

Thus, the publication of the abovementioned regulatory acts in these printed materials in the state language and the regional and minority languages is considered as their official promulgation.

Unfortunately, in the other fields of activity, there are no laws which would regulate the procedure of the official promulgation of similar regulatory legal acts.

At the same time, there is the decree of the President of Ukraine dated December 13, 1996 No 1207/96 issued by the President of Ukraine, as the guarantor of the Constitution of Ukraine (to fulfill the provisions of the Article 102 of the Constitution). In accordance with this Decree the official promulgation of the legal acts of the Ministries and other central executive authorities, which are registered by the Ministry of Justice of Ukraine may be promulgated in the following printed publicity materials:

  • “Ofitsiynyy visnyk Ukrayiny”.

We suppose that application of this Decree of the President of Ukraine in the questions of the official promulgation of regulatory legal acts of the abovementioned authorities, not only in the spheres of economic activity but in other ones, without adoption of the relevant law is incorrect, because the Decrees of the President of Ukraine are not legal acts. However, nowadays there exists a popular opinion that this procedure is acceptable. The abovementioned aspect is a problem which may lead to a conflict of interest between the people and the state. This question is unsettled so we do not comment it.

Whereas, in accordance with the provisions of the Article 57 of the Constitution of Ukraine, these regulatory legal acts shall not come into force before the day of their publication in the printed publicity materials.

Furthermore, it is necessary to consider the fact that, in accordance with the provisions of the Article 2 of the Customs Code of Ukraine, normative acts of the central government authorities, adopted on customs issues, shall come into force in 45 days after being released to public, unless otherwise is provided by the acts. In any case these acts shall not come into force before the day of their publication in the printed publicity materials.

5. The regulatory acts adopted by local executive authorities, territorial authorities of the central executive bodies and by their public servants.

In accordance with the provisions of the Article 12 of the Law of Ukraine “On the Principles of Regulatory Policy in Economic Activity” dated September 11, 2003 No 1160-IV the specified regulatory acts adopted in the sphere of economic activity shall be promulgated in the publicity printing materials, determined by the Cabinet of Ministers of Ukraine, within a ten-day term after their state registration or in the same time after their adoption and signing (if the state registration is not required).

Nowadays, the Cabinet of Ministers of Ukraine does not determine the publication media in which the official promulgation of the regulatory acts in the sphere of economic activity adopted by the local executive bodies, territorial authorities of the central executive bodies and their public servants may be performed.

Also, there are no Ukrainian legal acts, which determine the procedure of entry into force of regulatory legal acts in other fields of activity.

In turn, in accordance with the Decree of the President of Ukraine dated October 3, 1992 No 493/92, the acts adopted by local executive bodies, territorial authorities of the central executive authorities and by their public servants, come into force in ten days after their state registration.

However, we suppose that the execution of this Decree in the questions of the official promulgation of regulatory legal acts of the local executive authorities, territorial authorities of the central executive bodies and their public servants, without the adoption of the relevant law is incorrect, because the Decrees of the President of Ukraine are not the legal acts. However, nowadays there exists a popular opinion that this procedure is acceptable. The abovementioned issue is a problem which may lead to a conflict of interest between the people and the state. This question is unsettled for today so we do not comment it.

6. The regulatory acts adopted by the local self-governmental authorities and public servants of such authorities.

The provisions of the Article 12 of the Law of Ukraine “On the Principles of Regulatory Policy in Economic Activity” dated September 11, 2003 No 1160-VI outline that the regulatory acts adopted in the sphere of economic activity shall be officially promulgated in the printed publicity materials of the relevant councils or in the case of their absence in local printed publicity materials, defined by these authorities and public servants, within ten days after their adoption and signing.

Thus, the procedure of the official promulgation of the legal acts adopted by the authorities and public servants of local self-governments is directly regulated by the Communities Councils.

For example, the provisions of the Article 37 of the Decision of the Local Council of  Kyiv “On the regulations of the Local Council of Kyiv” dated  July 14, 2011 No 383/5770 outline that the official promulgation of the regulatory legal acts of the Local Council of Kyiv shall be carried out in the newspaper "Khreschatyk."

Unfortunately, nowadays there are no laws adopted in other spheres that would regulate the procedure of the official promulgation of such legal acts.

7. The acts of the Constitutional Court of Ukraine.

The provisions of the Article 67 of the Law of Ukraine “On the Constitutional Court of Ukraine” dated 16 October, 1996 No 422/96-ВР outline that the decisions and findings of the Constitutional Court of Ukraine along with the individual opinion of the judges of the Constitutional Court of Ukraine shall be published in the "Visnyk Konstytutsiynogo Sudu Ukrayiny" and in the other printed publicity materials of Ukraine.

Consequently, the official publication of the decisions and findings of the Constitutional Court of Ukraine is considered to be an official promulgation if it is provided in all these printed publicity materials of Ukraine, namely:

  • “Visnyk Konstytutsiynogo Sudu Ukrayiny”,
  • "Ofitsiynyy visnyk Ukrayiny ",
  • "Uryadovyy kuryer ".
  • "Holos Ukrayiny ",
  • "Vidomosti Verkhovnoyi Rady Ukrayiny"
  • “Ofitsiynyy visnyk Prezydenta Ukrayiny”.

 

At the same time, the provisions of the Article 73 of the Law of Ukraine “On the Constitutional Court of Ukraine” date October 16, 1996 No 422/96-ВР outline that the decisions and findings of the Constitutional Court of Ukraine shall enter into force from the date of their adoption.

8. The international agreements of Ukraine.

In accordance with the Article 14 of the Law of Ukraine “On International Agreements of Ukraine” dated June 29, 2004 No 1906-IV the international agreements of Ukraine, which are in force, are published in Ukrainian language in the "Congregation of international agreements of Ukraine" and other printed publicity materials of Ukraine.

Subsequently, the official promulgation of the international agreements of Ukraine is their publishing in all abovementioned printed publicity materials, namely:

  • “Visnyk Konstytutsiynogo Sudu Ukrayiny”,
  • “Ofitsiynyy visnyk Ukrayiny”,
  • “Uryadovyy kuryer”.
  • “Holos Ukrayiny”,
  • “Vidomosti Verkhovnoyi Rady Ukrayiny”,
  • “Ofitsiynyy visnyk Prezydenta Ukrayiny”.

In accordance with the Article 14 of the Law of Ukraine “On International Agreements of Ukraine” dated June 29, 2004 No 1906-IV the international agreements of Ukraine shall enter into force for Ukraine after providing the consent to be bound by international agreement in accordance with this Law as and when provided by the agreement or in any other way that is agreed upon by the parties.

Whereas, in accordance with the provisions of the Article 8 of the Law, the consent to be bound by international agreement shall be effected by the signing, ratification, approval, acceptance or accession to the agreement.

In addition, the provisions of the Article 9 of the Law establish a list of international treaties, which are the subjects to ratification and the ratification procedure itself, which is carried out by passing a law on ratification of international agreement.

Moreover, in accordance with the Article 12 of the Law of Ukraine “On International Agreements of Ukraine” dated June 29, 2004 No 1906-IV, international agreements shall be approved by the President of Ukraine or the Cabinet of Ministers of Ukraine. This procedure is applied if the agreements are not subjects to ratification and correspond with the list that is specified in the Article.

In accordance with the Article 13 of the Law of Ukraine “On International Agreements of Ukraine” dated June 29, 2004 No 1906-IV Ukraine may accede to international agreements or accept the mentioned ones if the agreements are not subjects to ratification and correspond with the list that is specified in the Article.

The accession to international agreements or the adoption of the mentioned ones shall take place in certain cases, which are specified in this article, in the form of the adoption of the Laws of Ukraine, Decrees of the President of Ukraine and Resolutions of the Cabinet of Ministers of Ukraine.    

The entry into force of international agreements for the population of Ukraine occurs after the entry into force of the Act of Ukraine on its ratification, approval, acceptance or accession to the agreement. The mentioned acts enter into force under the general procedure, which is determined for the Laws of Ukraine, Decrees of the President of Ukraine and Resolutions of the Cabinet of Ministers of Ukraine and has been already described.

 

In addition to the issue of the release of the regulatory legal acts to the public through publication in the printed publicity materials.

It is necessary to pay attention to the fact that the publication in the printed publicity materials of the regulatory legal acts assumes the further purchase of such publications by residents. The mentioned fact means that people should carry out additional material expenses.

At the same time, the provisions of the Article 57 of the Constitution of Ukraine do not establish the residents’ obligation to carry out additional material expenses in order to get information concerning new regulatory legal acts or changes to the existing ones.

Whereas, in accordance with the Articles 13 – 15 of the Law of Ukraine “On Access to Public Information” dated January 13, 2011 No 2939-VI the state authorities, which adopt regulatory legal acts are the disposers of such information and they are responsible for the promulgation of such information.

Taking into account the fact that regulatory legal acts are issued by public authorities and primarily only public authorities, which have issued it, know about the existence of the act, we consider that the authorities, which have issued the act, are obliged to promulgate such acts.

Thereby, the residents (at least, the citizens of Ukraine) do not have to carry out additional material expenses in order to get information concerning the issued regulatory legal acts.

The authority, which has issued the act, is obliged to promulgate this regulatory legal act.

 

Managing Partner of the Law Firm "FOX" Volodymyr Marinich