1 March 2023
The Constitutional Court of Ukraine has declared paragraph 6 of Section II "Final and Transitional Provisions" of the Law of Ukraine "On Amending Some Legislative Acts of Ukraine on Priority Measures for the Reform of the Prosecution Bodies" of 19 September 2019 No. 113-IX, which regulates the relationship of warning prosecutors of possible future dismissal to be unconstitutional.
On Wednesday, 1 March 2023, at a plenary session, the Second Senate of the Constitutional Court of Ukraine delivered a Decision in the case upon the constitutional complaint of Serhii Vasylenko regarding the compliance of paragraph 6 of Section II "Final and Transitional Provisions" of the Law of Ukraine "On Amending Some Legislative Acts of Ukraine on Priority Measures for the Reform of the Prosecution Bodies " dated 19 September 2019 No. 113-IX (hereinafter – the Law No. 113). with the Constitution of Ukraine (constitutionality).
Pursuant to the said provision of the Law No. 113, "from the date of entry into force of this Law, all prosecutors of the Prosecutor’s General Office of Ukraine, regional prosecution offices, local prosecution offices, military prosecution offices shall be deemed to have been personally warned in due manner of possible future dismissal from office on the basis of clause 9 of Article 51.1 of the Law of Ukraine "On the Prosecution Office".
S.Vasylenko had been working in the prosecution bodies since 1998. By the order of 4 November 2019, the Prosecutor General dismissed him from his position on the basis of Article 9 of the Law No. 1697 and sub-clause 1 of clause 19 of Section II "Final and Transitional Provisions" of the Law No. 113 (failure of the prosecutor of the prosecution office to submit an application to the Prosecutor General for transfer to the regional prosecution office and the intention to undergo certification in this regard within the established time limit). Considering this order to be unlawful, the complainant, challenged it in court.
Having exhausted all domestic remedies, he appealed to the Constitutional Court of Ukraine. The author of the constitutional complaint filed a petition to check the disputed provision of the Law No. 113 for compliance with the Constitution of Ukraine, as he believes it violates a number of articles of the Basic Law of Ukraine
In adopting the decision in this case, the Constitutional Court of Ukraine took into account its own legal positions, international acts and the case-law of the European Court of Human Rights, and was guided primarily by the fact that the constitutional order in Ukraine is based on a number of the constitutional principles, in particular the principles of democracy, the rule of law, and the separation of state power.
The Constitutional Court of Ukraine emphasised that since 30 September 2016, according to Article 1311 of the Constitution of Ukraine, the prosecution office has institutionally been an element of the general system of justice, which requires the state to ensure the independence of the prosecution status.
The Decision states that "the provision by the state of adequate guarantees against unlawful dismissal of a prosecutor whose activities are related to the functioning of the justice system is not only an element of the status of a prosecutor, but also one of the prerequisites for the realisation of the constitutional right to judicial protection".
In one of its decisions, the Constitutional Court of Ukraine, when addressing a similar constitutional issue, noted that "the Verkhovna Rada of Ukraine, by adopting laws that are regulatory acts, cannot dismiss an individual employee or certain categories of employees and notify them of possible future dismissal. Dismissal of a person is possible on the basis of an individual act of law, not a law, and the Verkhovna Rada of Ukraine does not have the authority to adopt it."
The Constitutional Court of Ukraine considers that although the disputed order cannot be considered an individual act of law, by which S.Vasylenko was dismissed from the position of prosecutor, it still has signs of an act of law enforcement, since it states that the subject of the right to constitutional complaint and all other prosecutors "from the date of entry into force of this Law <...> are considered to be personally warned in due manner of possible future dismissal from office".
Since the Constitution of Ukraine does not contain a provision empowering the Parliament to adopt law enforcement acts in the procedure of dismissal of S. Vasylenko, another specific prosecutor or all prosecutors from their positions, in particular by means of personal warning of the prosecutor by a law of possible future dismissal, there are grounds to believe that the challenged provision of the Law No. 113 was adopted by the Verkhovna Rada of Ukraine beyond its constitutional powers.
The Constitutional Court of Ukraine also assessed the compliance of the challenged provision of the Law No. 113 with the principle of the rule of law.
One of the requirements of the rule of law is the requirement of legal certainty, which consists, in particular, in the clarity and comprehensiveness of legal provisions, the predictability of their content and the possible consequences of the application or other form of implementation of these legal provisions.
The use of the phrase "possible future dismissal" in the disputed provision of the Law No. 113 has led to contradictions in its content, since the subject of the right to constitutional complaint and any other prosecutor from the moment the disputed provision of the Law No. 113 came into force (25 September 2019) could consider that this provision was either a notice of future inevitable dismissal from the position of prosecutor or that the dismissal could not be applied in the future and count on further staying in the position of prosecutor under certain conditions.
Thus, the subject of the right to constitutional complaint and any other prosecutor in regard to whom the disputed provision of the Law No. 113 applied could not clearly understand its content, foresee the legal consequences of its application, and plan their further actions.
The Constitutional Court of Ukraine concluded that the disputed provision of the Law No. 113 contains both certain features of an act of law enforcement, i.e. an individual act of law addressed to a prosecutor who is warned "about possible future dismissal from office", and features of an impersonal regulatory rule that does not contain any personal data.
Thus, the challenged provision of the Law No. 113 cannot be considered to be "law" in a state governed by the rule of law, and the Court declared it inconsistent with the Constitution of Ukraine.
The judge-rapporteur in this case is Oleh Pervomaiskyi.
The text of the Decision and its summary will be published on the official website of the Constitutional Court of Ukraine on 2 March 2023.
