April 12, 2023
On Wednesday, April 12, 2023, the Second Senate at the public part of the plenary session in the form of written proceedings deliberated the case upon the constitutional complaint of Serhii Palatov regarding the constitutionality of Article 87.3.1.2 of the Law of Ukraine “On Public Service” dated December 10, 2015 No. 889-VIII (hereinafter referred to as “Law No. 889”) in the wording 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”).
During the plenary session, Oleh Pervomayskyi explained the content of the constitutional complaint and the applicant's reasoning.
In particular, the judge noted that Serhii Palatov was dismissed from the office of director of the territorial administration of the State Bureau of Investigation, located in the city of Khmelnytskyi, in view of the reduction of the public service position as a result of a change in the staff list with the termination of public service. Considering the dismissal order illegal and violating his rights, he appealed to the courts, which rejected the claim.
The applicant appealed to the Constitutional Court of Ukraine with a request to verify the conformity of Article 87.3.1.2 of Law No. 889 as amended by Law No. 440, which establishes that “the subject of appointment or the head of the public service may offer a public servant any a vacant public service position in the same state body (upon availability)” with the Constitution of Ukraine.
According to the author of the complaint, the contested provision does not comply with a number of norms of the Constitution of Ukraine. He notes that “the decision of whether to offer a public servant a vacant position or not is left to the discretion of the subject of appointment by the legislator. At the same time, the grounds by which the subject of appointment should be guided when making a decision to offer or not to offer vacant positions are absent in the Law, from its content it is unclear on what basis the subject of appointment offers vacant positions to public servants or decides not to offer them. Therefore, the specified norm of the Law is uncertain”.
Moreover, he believes that the amendments introduced by Law No. 440 to Law No. 889 narrowed the content and scope of his constitutional rights to work, as well as deprived him of protection against illegal dismissal.
The judge-rapporteur reported that several cases related to the same issue are pending in the First Senate.
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 public part of the plenary session was attended by the subject of the right to a constitutional complaint, Serhii Palatov, and the Permanent Representative of the Verkhovna Rada of Ukraine at the Constitutional Court of Ukraine, Maksym Dyrdin, and is available on the official website of the Constitutional Court of Ukraine in the section “Archives of Video Broadcasts of Sessions”.
