26 April 2023
On Wednesday, 26 April, in the public part of the plenary session in the form of written proceedings, the First Senate examined the case upon the constitutional complaint of Oleksandr Petrychuk regarding the constitutionality of a separate provision of paragraph three of clause 3 of Section II "Final and Transitional Provisions" of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Priority Measures for the Reform of the Prosecution Service" No. 113-IX dated 19 September 2019 (hereinafter - the Law).
During the plenary session, the judge-rapporteur in the case, Viktor Kolisnyk, informed that the subject of the right to constitutional complaint, Oleksandr Petrychuk, had filed a complaint with the Constitutional Court of Ukraine to check for compliance with Article 8.1, 22.2, 22.3, 41.1., 41.2, 41.3, 43.1, 43.2, 48, 64.1, paragraph 14 of Article 92, paragraph two of Article 131-1 of the Constitution of Ukraine, paragraph three of clause 3 of Section II of the “Final and Transitional Provisions” of the Law in the part of remuneration of employees of the prosecutor's office in accordance with the resolution of the Cabinet of Ministers of Ukraine.
According to paragraph three of clause 3 of Section II of the “Final and Transitional Provisions” of the Law, "prosecutors and heads of regional, local and military prosecutor's offices, prosecutors and heads of structural units of the Prosecutor General's Office of Ukraine shall retain the respective legal status they had before the entry into force of this Law when performing prosecutorial functions until the day of their dismissal or transfer to the Office of the Prosecutor General, regional prosecutor's office, district prosecutor's office. For the said period, remuneration of employees of the Prosecutor General's Office of Ukraine, regional prosecutor's offices, local prosecutor's offices, military prosecutor's offices shall be paid in accordance with the resolution of the Cabinet of Ministers of Ukraine establishing remuneration of employees of the prosecution authorities."
According to the judge-rapporteur, the complainant believes that the lack of funds in the State Budget of Ukraine could not be a reason for failure to fulfil the obligations set out in the Law, and by empowering the Cabinet of Ministers of Ukraine to establish the procedure and amount of prosecutors' salaries, the legislator made the latter dependent on the government, which encroaches on the procedure of administration of justice in Ukraine, of which the prosecutor's office is an integral part.
The judge also informed that several cases upon constitutional complaints of citizens and a constitutional petition of 50 MPs on the same issue or interrelated issues are pending the Court. The Court will consider the issue of combining this case into one constitutional proceedings with other cases concerning the same issue at one of its sessions.
The First Senate examined the case files in the public part and proceeded to the in-camera part of the plenary session.
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 other citizens.
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On the same day, at the public part of the plenary session, the First Senate considered the case upon the constitutional complaint of Mariana Ostapenko regarding the constitutionality of a separate provision of paragraph three of clause 3 of Section II "Final and Transitional Provisions" of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Priority Measures for the Reform of the Prosecutor's Office" of 19 September 2019 No. 113-IX (hereinafter - the Law) in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Viktor Kolisnyk, reported that the subject of right to constitutional complaint, Mariana Ostapenko, had filed a petition with the Constitutional Court of Ukraine to check the compliance of the paragraph two of Article 131-1 of the Constitution of Ukraine with the provision of the paragraph three of clase 3 of Section II "Final and Transitional Provisions" of the Law regarding remuneration of employees of the prosecutor's office in accordance with the resolution of the Cabinet of Ministers of Ukraine.
Pursuant to paragraph three of clause 3 of Section II of the “Final and Transitional Provisions” of the Law, "prosecutors and heads of regional, local and military prosecutor's offices, prosecutors and heads of structural units of the Prosecutor General's Office of Ukraine shall retain the respective legal status they had before the entry into force of this Law when performing prosecutorial functions until the day of their dismissal or transfer to the Office of the Prosecutor General, regional prosecutor's office, district prosecutor's office. For the said period, remuneration of employees of the Prosecutor General's Office of Ukraine, regional prosecutor's offices, local prosecutor's offices, military prosecutor's offices shall be paid in accordance with the resolution of the Cabinet of Ministers of Ukraine establishing remuneration of employees of the prosecution authorities."
The complainant believes that by transferring to the Cabinet of Ministers of Ukraine the power to set remuneration for employees of the prosecution authorities, the Law introduced a different regulatory framework for the remuneration of prosecutors from that provided for in Article 81 of the Law of Ukraine "On the Prosecution Service" No. 1697-VII. It also notes that until a person is dismissed in accordance with the procedure established by law, remuneration for the performance of the same work must be the same for persons who have passed the certification and for persons awaiting its passage and results, or who continue to have employment relations with the prosecution authorities and perform the work entrusted to them.
The First Senate examined the case materials in the public part of the session and proceeded to the in-camera part of the plenary session to make a decision.
The session was attended by the subject of the right to constitutional complaint, Mariana Ostapenko, and the Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court of Ukraine, Maksym Dyrdin.
The public part of the plenary session is available on the official website of the Court in the section "Archive of video broadcasts of the Court".
