June 13, 2024
On June 13, 2024, at the public part of the plenary session, the Grand Chamber proceeded with the deliberation of the case upon the constitutional complaint of Roman Karpenko in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Viktor Kychun, outlined the content of the constitutional complaint and the complainant's arguments.
The judge noted that Roman Karpenko had filed a complaint with the Constitutional Court of Ukraine to verify the compliance of paragraph 1.17 of Section I of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Optimisation of Labour Relations” No. 2352-IX dated July 1, 2022 (hereinafter, the “Law”), which amended of Article 119.3 of the Labour Code of Ukraine (hereinafter, the “Code”), namely the provision “the place of work, position and average earnings are preserved” was replaced by “the place of work and position are preserved”.
In accordance with Article 119.3 of the Code, “employees called up for regular military service, military service by conscription of officers, military service by conscription during mobilisation, for a special period, military service by conscription of persons from among reservists during a special period or enlisted for military service under a contract [...] during the special period for the term until its expiry or until the day of actual dismissal shall retain their place of work and position at the enterprise, institution or organisation [...]. Such employees are paid remuneration at the expense of the State Budget of Ukraine in accordance with the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families”.
As it can be seen from the content of the constitutional complaint and the materials attached to it, Roman Karpenko has been in an employment relationship with Pokrovske Mine Management PrJSC (hereinafter, the “Company”) since May 2017 and until now. In March 2022, he was called up for military service. Until July 2022, the Company, with which he has an employment relationship, paid him his average salary based on Article 119.3 of the Code as amended until July 19, 2022. However, due to legislative changes, by order of the Company's CEO, employees who were dismissed from work pursuant of Article 119.3 of the Code, including Roman Karpenko, were excluded from receiving their average salary, but retained their jobs and positions.
Disagreeing with this, Roman Karpenko filed a lawsuit to declare unlawful and cancel the Company’s order to terminate payments of average earnings for the entire period of dismissal. The courts dismissed his lawsuit.
In the claimant’s opinion, the amendments introduced by the Law “did not set a limit on the average earnings for the period of martial law, but excluded the preservation of average earnings altogether”. He notes that such changes occurred after his call-up for military service, and at the time of his call-up he was confident and counted on the fact that during this period he would be paid the average salary guaranteed by the Constitution and laws of Ukraine at the place of work where he worked at the time of his call-up.
The author of the petition also notes that the priority and unconditional increase of guarantees for military personnel is enshrined in Article 17 of the Constitution of Ukraine and believes that the interests of employers cannot be put above defense and social justice.
During the plenary session, the judge-rapporteur informed that in order to ensure a full and objective deliberation of the case, he had sent inquiries to the Ministry of Veterans Affairs of Ukraine, the Ministry of Social Policy of Ukraine, the Chairman of the Verkhovna Rada of Ukraine and a number of scientific institutions and higher education institutions to express their positions on the issues raised in the constitutional complaint.
In addition, the judge-rapporteur noted that he would take into account the request of the Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court of Ukraine Maksym Dyrdin to send additional letters of inquiry to a number of relevant ministries.
He also informed that the Second Senate is deliberating a number of cases upon constitutional complaints of citizens in which the subject of constitutional review is the same issues, and sees grounds for combining constitutional complaints into one constitutional proceeding.
After examining the case files in the public part of the plenary session, the Grand Chamber proceeded to the in-camera part of the plenary session to deliver their decision.
The public part of the plenary session was attended by the Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court of Ukraine Maksym Dyrdin and the Representative of the President of Ukraine to the Constitutional Court of Ukraine Serhii Dembovskyi.
The video recording of the plenary session is available on the official website of the Constitutional Court of Ukraine in the Section “Archive of video broadcasts of the sessions”.
