On Wednesday, March 27, 2024, at the public part of the plenary session, the Second Senate of the Constitutional Court of Ukraine deliberated the case upon the constitutional complaint of Pavlo Ohrodiuk in the form of written proceedings.
As noted by the Judge-rapporteur in the case, Oleh Pervomaiskyi, the applicant appealed to the Constitutional Court of Ukraine to verify the compliance of paragraph 11, passage 1 of paragraph 17, passage 1 and subparagraph 2 of paragraph 19 of Section II “Final and Transitional Provisions” of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine regarding Priority Measures for the Reform of Prosecution Office” No. 113-IX dated September 19, 2019, in the wording before introducing amendments by the Law of Ukraine “On Amendments to Section II “Final and Transitional Provisions” of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine regarding Priority Measures for the Reform of Prosecution Office” concerning certain aspects of the effect of transitional provisions” No. 1554-IX dated June 15, 2021 (hereinafter, the “Law”) with the Constitution of Ukraine (constitutionality).
According to the impugned provisions of the Law, prosecutors who, on the day this Law enters into force, hold positions in the General Prosecutor’s Office of Ukraine, regional prosecution offices, local prosecution offices, military prosecution offices, shall be dismissed from the position of prosecutor by the Prosecutor General, the head of the regional (oblast) prosecution office on the basis of Article 51.1.9 of Law of Ukraine “On the Prosecution Office”, subject to “the decision of the personnel commission on unsuccessful certification.”
The content of the constitutional complaint and the materials attached to it reveal the following.
The applicant has been serving in the prosecution bodies since 2007. The Law stipulates that prosecutors holding positions of prosecutors in the relevant prosecution bodies on the day the Law comes into force may be transferred to the prosecution bodies only if they successfully pass the certification on the basis of a relevant application (paragraph 7 of Section II “Final and Transitional Provisions”).
Pursuant to the Law, Pavlo Ohrodiuk applied for a transfer to the position of a prosecutor in the regional prosecutor's office and declared his intention to undergo a certification. He successfully passed the first two stages of the certification, but following the third stage of the certification, the relevant personnel commission decided that the applicant did not meet the requirements of professional competence and integrity, and therefore he failed the certification.
Guided by the Decision of the personnel commission, the regional prosecutor dismissed Pavlo Ohrodiuk from his position and the regional prosecution office by the Order dated August 17, 2020 under Article 51.1.9 of the Law of Ukraine “On the Prosecution Office”.
Considering the dismissal order to be unlawful and in violation of his rights, the applicant filed an administrative claim with the court against the Office of the Prosecutor General and the regional prosecution office, in which he requested, inter alia, to declare unlawful and overturn the decision of the relevant commission on his unsuccessful certification and the order of the regional prosecutor to dismiss him from his position, reinstate him in his position and recover his average earnings for the period of forced absence.
The court of first instance satisfied Pavlo Ohrodiuk's claims, and the court of appeal changed the previous decision in terms of the reasons for satisfying the claim. The Supreme Court overturned the decisions of the previous instances and adopted a new resolution dismissing the applicant's claims.
In his constitutional complaint, Pavlo Ohrodiuk argues that the disputed provisions of the Law are contrary to legal certainty, as they are not clear, predictable and capable of protecting him from the arbitrariness of the personnel commission.
The Judge-rapporteur also informed that a number of constitutional complaints are pending before the Constitutional Court of Ukraine, in which the applicants impugn the same legislative provisions.
The Second Senate examined the materials of the case in the public part of the plenary session and proceeded to the in-camera part for a decision.
The subject of the right to a constitutional complaint Pavlo Ohrodiuk attended the plenary session.
The public part of the plenary session is available at the link: „Archive of video broadcasts of sessions“.
