On October 18, 2023, at the public part of the plenary session in the form of written proceedings, the First Senate deliberated the case upon the constitutional complaint of Oksana Tykhovska.
As noted by the judge-rapporteur in the case Viktor Kryvenko, the applicant appealed to the Constitutional Court of Ukraine to verify the constitutionality of Article 87.3.1.2 of the Law of Ukraine “On Public Service” No. 889-VIII dated December 10, 2015 (hereinafter referred to as “Law No. 889 as amended by 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” No. 440-IX dated January 14, 2020 (hereinafter referred to as “Law No. 440”).
The disputed provision, which has lost its effect, but continues to be applied to legal relations that arose during its validity, established that “the subject of appointment or the head of public service can offer a public servant any vacant public service position in the same state body (if available)".
It follows from the content of the constitutional complaint and the materials attached to it that Oksana Tykhovska was dismissed from her position in view of the liquidation of the state body with the termination of public service. Disagreeing with the dismissal order, the applicant appealed to the court of first instance with a claim to cancel this order and reinstate her in her position. The court refused to satisfy her claims, noting in the decision that according to the current legislation at the time of dismissal, the subject of appointment or the head of the public service may, but is not obliged to offer the public servant any vacant public service position in the same state body (if available).
At the same time, the court of appeal agreed with the applicant's claims, annulled the decision of the court of first instance and adopted a new one, stating that the dismissal took place in violation of the procedure established by law, in particular, in terms of compliance with Oksana Tykhovska's warning about the subsequent dismissal from the public service in view of the liquidation. The court did not examine the question of the obligation to offer a vacant position in the same state body.
The Supreme Court did not agree with the position of the court of appeal, which cancelled the decision of the court of appeal and upheld the decision of the court of first instance. In its ruling, the Supreme Court noted in particular that the word “may” used in the disputed legislative provision means that the subject of appointment or the head of the public service is not obliged to employ the employees who are released. The decision of whether to offer a public servant a vacant position or not was left to the discretion of the subject of appointment by the legislator.
According to the applicant, the contested provision of Law No. 889 as amended by Law No. 440 violates the principle of legal certainty, led to the narrowing of the content and scope of her constitutional rights to work and access to public service, and deprived her of protection against unfair dismissal.
The judge-rapporteur informed that in order to ensure a full deliberation of the case, preparation of the necessary materials and conclusions on the issues raised in the constitutional complaint, requests were sent to scientific institutions, as well as to the Verkhovna Rada of Ukraine and the President of Ukraine. He also noted that several cases on the same issue are pending before the Court.
After examining the case materials in the public part of the plenary session, the First Senate proceeded to the in-camera part for a decision.
Oksana Tykhovska, subject of the right to a constitutional complaint, attended the public part of the plenary session.
The public part of the plenary session is available on the official website of the Court in the section Archives of Video Broadcasts of Sessions.
