Weekly analytics for 2 — 8 August

Legal terminology is gradually being brought into line with the Constitution of Ukraine

Event

On August 3, 2023, Law of Ukraine № 3022-IX “On Amendments to Certain Legislative Acts of Ukraine on Simplification of Access to Free Legal Aid” entered into force, which provides for replacement of references to the phrase “legal aid” (pravova dopomoha) in all conjugations with the phrase “legal aid” (pravnycha dopomoha).

These changes were adopted to implement the provisions of the Constitution of Ukraine, the current version of which was revised in 2016. According to Art. 59 and Art. 131-2, the right to legal aid (pravnycha dopomoha) and the procedure for its implementation were changed; namely, the wording “legal aid” (pravova dopomoha) was replaced with “legal aid” (pravnycha dopomoha).

CPLR’s assessment

The term “legal aid” (pravnycha dopomoha) is more intrinsic to the Ukrainian language; thus, this is a positive step towards the development of Ukrainian legal terminology, ridding it of the negative influence of Russian language, and returning to the strength of linguistic traditions.

At the same time, the legal terminology used in the Constitution of Ukraine since 2016has not been fully implemented in the legislation. For example, the Constitution refers the functions of the prosecutor’s office relating to “supporting public prosecution in court” (Article 131-1), while the relevant Law still mentions “supporting state prosecution in court”; the Constitution speaks of “legal professions” (Article 130), while the relevant legislation provides for “juridical education” (lawyer’s profession, provision of juridical services, etc.); the Constitution refers to the prosecutor’s office “supervision of undercover and other investigative and search actions of law and order agencies”, while the legislation mostly uses the term “law enforcement agencies” (rarely – “law and order agencies”).

Furthermore, there are ongoing discussions in the professional environment regarding the need to update some of the legal terminology. Among the well-known examples are the replacement of “human rights” (prava liudyny) with “human rights” (liudski prava); “rule of law” (verkhovenstvo prava) with “rule of law” (pravovladdia); “fundamental rights and freedoms” (osnovopolozhni prava i svobody) to “fundamental rights and freedoms” (zasadnychi prava i svobody), etc. The justifications for most of these proposals are based on the peculiarities of word formation and grammatical traditions of the Ukrainian language. Moreover, legal semantics affects legal relations in society, as it has to do not with the simple usage of words, but with providing substantive content to legal institutions in question. For example, if “state prosecution” demonstrates the affiliation of the prosecutor’s office to the state, as if it were a subsidiary body of executive power, then the term “public prosecution” refers to public prosecution for criminal offenses, which is a common cause of the society (in the cases of private prosecution, this function can be transferred to the victim in certain cases specified by law) and, ultimately, an element of justice and the judicial branch of power per se. According to legal semantics, the attitude towards the prosecutor’s office changes in this case, which has a positive impact on the effectiveness of its activities.

Conclusion. First of all, the legislation is gradually being brought into line with the Constitution of Ukraine which, according to the hierarchy of legal norms, has the highest legal force. At the same time, a significant portion of the terminology remains inconsistent with the Constitution or contains a number of contradictions at the level of laws, and especially regulations. From a practical point of view, this has to do no with a simple change in the usage of terms, but with a real impact on the effectiveness of legal institutions, since according to legal semantics, the use of words – among others – determines their meaning.