October 2, 2024
On October 2, 2024, the First Senate of the Constitutional Court of Ukraine (hereinafter, the “Court”) at its plenary session delivered the Decision in the case upon constitutional complaints of Oksana Tymoshenkova and Volodymyr Tymoshenkov on the constitutionality of paragraph 19.6 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 September 19, 2019 (hereinafter, “Law No. 113”) (regarding the dismissal during the period of temporary incapacity for work).
Under paragraph 19.6 of Section II “Final and Transitional Provisions” of Law No. 113, “a prosecutor’s being on sick leave due to temporary incapacity for work, on vacation or on a business journey to the National Prosecution Academy of Ukraine to participate in its work on a permanent basis shall not be an obstacle to his/her dismissal from the office of a prosecutor in accordance with this paragraph”.
The subjects of the right to a constitutional complaint, Oksana Tymoshenkova and Volodymyr Tymoshenkov, were dismissed from the offices of prosecutors during the period of their temporary incapacity for work (sick leave). The subject of constitutional review in this case is an individual provision of Law No. 113 on the observance of constitutional rights and guarantees of the subjects of the right to a constitutional complaint in case of dismissal during their temporary incapacity for work (sick leave).
In the Decision, the Court stated that the general legal principles and guarantees of labour relations by Ukrainian citizens are enshrined in the Labour Code of Ukraine, which prohibits dismissal of an employee at the initiative of the employer during the period of temporary incapacity for work of the employee; it also sets out an exhaustive list of cases when dismissal during this period is possible.
The Court notes that the guarantee against dismissal during the period of temporary incapacity for work established by the Code applies exclusively to cases of dismissal at the initiative of the employer, when the consent or expression of the employee’s will is not required.
The Court also concluded that international standards for the protection of employees’ labour rights contain reservations against the use of temporary incapacity for work as a ground for dismissal.
According to Article 16.3 of the Law of Ukraine “On the Prosecution Service” No. 1697 dated October 14, 2014 (hereinafter, “Law No. 1697”), a prosecutor is appointed for an indefinite term and may be dismissed from office, his/her powers in office may be terminated only on the grounds and in the manner prescribed by law. The issue of dismissal of a prosecutor, termination and suspension of his/her powers in office is envisaged by Section VII “Dismissal of a Prosecutor from Office, Termination, Suspension of his/her Powers in Office” of Law No. 1697.
At the same time, by defining additional grounds for dismissal of prosecutors in paragraph 19 of Section II “Final and Transitional Provisions” of Law No. 113, regulatory framework for dismissal that differs from the one established by Section VII “Dismissal of a Prosecutor from Office, Termination, Suspension of his/her Powers in Office” Law No. 1697 (lex specialis) was introduced.
This resulted in a situation where prosecutors who were dismissed from office under Article 51.1.9 of Law No. 1697 were covered by guarantees prohibiting dismissal during the period of temporary incapacity for work, while other prosecutors were dismissed while on sick leave due to temporary incapacity for work under Article 51.1.9 of Law No. 1697 in the event of one of the circumstances specified in paragraph 19 of Section II “Final and Transitional Provisions” of Law No. 113. This normative regulation allows for non-uniform application of special guarantees for the dismissal of prosecutors during the period of their temporary incapacity for work.
The Court stipulates that in the event of dismissal, a prosecutor is subject only to those general guarantees of labour law (lex generalis) which are not covered by the provisions of the special law (lex specialis). Since the special law does not provide for any exceptions to the dismissal of prosecutors during the period of their temporary incapacity for work, in the event of dismissal of such persons, the imperative prohibition on dismissal during the period of temporary incapacity for work, which is a component of the constitutional right of everyone to work and to keep their job during a special period (sick leave), should be observed.
Thus, Law No. 113 narrowed the scope of rights and special guarantees for prosecutors to retain their jobs during their temporary incapacity for work, which is inconsistent with Articles 22.2, 22.3 of the Constitution of Ukraine.
The Court concluded that paragraph 19.6 of Section II “Final and Transitional Provisions” of Law No. 113, in the part according to which the prosecutor’s stay on sick leave due to temporary incapacity for work is not an obstacle to his/her dismissal from the office of prosecutor in accordance with this paragraph, contradicts Articles 43.1, 43.2, 43.6 of the Constitution of Ukraine.
The Court finds that there is non-uniform legal regulation at the legislative level of the procedure for dismissal of prosecutors during their temporary incapacity for work, which does not meet the requirement of legal certainty as part of the rule of law principle, and, therefore, contradicts Article 8.1 of the Constitution of Ukraine.
Paragraph 19.6 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 September 19, 2019, in which the prosecutor’s stay on sick leave due to temporary incapacity for work is not an obstacle to his/her dismissal from the office of prosecutor in accordance with this paragraph is declared unconstitutional, shall cease to be effective from the date of delivery of this Decision by the Constitutional Court of Ukraine.
At the same time, the Court closed the constitutional proceedings on the constitutionality of paragraph 19.6 of Section II “Final and Transitional Provisions” of Law No. 113, in the part according to which “a prosecutor’s being on leave or on a business trip to the National Prosecution Academy of Ukraine to participate in its work on a permanent basis shall not be an obstacle to his/her dismissal from the office of a prosecutor in accordance with this paragraph”, under Article 62.4 of the Law of Ukraine “On the Constitutional Court of Ukraine” – inadmissibility of the constitutional complaint.
The judges-rapporteurs in this case are Viktor Kychun and Oleksandr Petryshyn.
The text of the Decision will be published on the Court's official website on October 3, 2024.
