October 25, 2023
On October 25, at the public part of the plenary session, the Second Senate commenced to deliberate the case upon the constitutional complaint of Oleh Koretskyi in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Serhiy Holovaty, informed that the subject of the right to a constitutional complaint appealed to the Constitutional Court of Ukraine to verify the constitutionality of subparagraph “c” of paragraph 3.106 of Section II “Final and Transitional Provisions” of the Law of Ukraine “On Amendments to the Customs Code of Ukraine and Some Other Legislative Acts of Ukraine in view of the Implementation of Administrative Reform” dated January 14, 2020 No. 440-IX (hereinafter referred to as “Law No. 440”).
The judge-rapporteur informed that the Second Board of Judges of the Second Senate initiated constitutional proceedings in this case regarding the constitutionality of only the second sentence of subparagraph 3 of paragraph “c” of paragraph 3.106 of Section II “Final and Transitional Provisions” of Law No. 440 and refused to initiate constitutional proceedings regarding constitutionality of paragraphs 1, 2, sentences 1, 3, paragraph 3, paragraphs 4-7 of subparagraph “c” of paragraph 3.106 of Section II “Final and Transitional Provisions” of Law No. 440 based on Article 62.4 of the Law of Ukraine “On the Constitutional Court of Ukraine” on the inadmissibility of the constitutional complaint.
In the second sentence of subparagraph 3 of paragraph “c” of paragraph 3.106 of Section II “Final and Transitional Provisions” of Law No. 440, which amended Article 87 of the Law of Ukraine “On Public Service” and regarding which constitutional proceedings have been initiated in this case, the following is established: “The subject of appointment or the head of the public service may offer a public servant any vacant public service position in the same state body (if available)”.
From the content of the constitutional complaint and the documents and materials attached to it, it follows that Oleh Koretskyi was dismissed from the position he held in the public service due to reductions in view of a change in the staff list with the termination of public service.
The applicant appealed to the District Administrative Court of the city of Kyiv with a lawsuit in which, in particular, he asked to declare the order to dismiss him from his position as unfair and cancel it and reinstate him in the position he held, or reinstate him in an equivalent position. The court rejected the applicant's claim. The Sixth Appeal Administrative Court rejected the applicant's appeal; the decision of the District Administrative Court of the city of Kyiv remained unchanged.
The Board of Judges of the Administrative Court of Cassation rejected Oleh Koretskyi's appeal, and the decision of the District Administrative Court of Kyiv and the decision of the Sixth Administrative Court of Appeal remained unchanged.
Referring to its jurisprudence, the Supreme Court, in particular, stated that “the word “may” used in Article 87.3 of the Law of Ukraine “On Public Service” in the wording of Law No. 440-IX means that the subject of appointment or the head of the public service is not entrusted with the obligation to employ the workers who are released. The decision of whether or not to offer a vacant position to a public servant was left by the legislator to the discretion of the subject of the appointment”.
Justifying his position regarding the inconsistency of the contested provisions of Law No. 440 with Article 8 of the Constitution of Ukraine, the applicant asserts that subparagraph “c” of paragraph 3.106 of Section II “Final and Transitional Provisions” of Law No. 440 does not include criteria by which the subject of appointment should have been guided in issues regarding providing or not providing a public servant, who has been notified about dismissal in view of the reduction of his public service position as a result of a change in the staff list, an offer to take another public service position, and therefore the subject of the appointment is given wide discretion without any restrictions.
In order to substantiate the inconsistency of the disputed provisions of Law No. 440 with Articles 19, 22, 43 of the Constitution of Ukraine, he notes that from May 1, 2016 to September 24, 2019, the wording of Article 87.3 of the Law of Ukraine “On Public Service” was in effect, according to which the dismissal of a public servant “is allowed only if the public servant cannot be transferred to another position in accordance with his qualifications or if he refuses such a transfer”.
In this way, according to the applicant, public servants were protected from arbitrary and unfair dismissals, and the actions of the employer were clearly defined.
To confirm his opinion regarding the unconstitutionality of the contested provisions of Law No. 440, the author of the petition refers, in particular, to the decision of the Constitutional Court of Ukraine, the judgment of the European Court of Human Rights and documents of the Committee of Ministers of the Council of Europe.
After examining the case materials in the public part of the plenary session, the Court proceeded to the in-camera part for a decision.
The Permanent Representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Maksym Dyrdin attended the public part of the plenary session.
The plenary session is available on the official website of the Court in the section “Archive of Video Broadcasts of Sessions”.
