The Second Senate of the Constitutional Court of Ukraine (hereinafter referred to as the Court) at the plenary session on September 13, 2023 delivered a Judgement in the case upon the constitutional complaints of Mykola Starychenko, Serhii Harlyka, Oleksandr Petrychuk, Mariana Ostapenko, and Serhii Menchynskyi regarding the constitutionality of paragraph 3.3 of Section II “Final and Transitional Provisions” of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding Priority Measures for Prosecution Offices Reform” dated September 19, 2019 No. 113-IX (hereinafter referred to as “Law No. 113-IX”).
Subjects of the right to a constitutional complaint raised before the Court the question of the constitutionality of paragraph 3.3 of Section II “Final and Transitional Provisions” of Law No. 113-IX, according to which the remuneration of prosecutors had to be established by the Cabinet of Ministers of Ukraine by its resolution, while before this issue had been regulated by the Law.
The Court states that the new position of the prosecution office in the system of state power and the standards of independence of prosecutors, which Ukraine must adhere to as a member of the Council of Europe, require the state to ensure the protection of guarantees of the independence of prosecutors equally, as it is provided for judges.
The Court points out that legal regulation of the issue of remuneration of prosecutors by the law, and not by a by-law, constitutes a guarantee of ensuring their independence, makes it impossible for executive authorities to interfere with the activities of the prosecution office. Otherwise, it would be a violation of the principle of separation of powers.
The Court notes that the Verkhovna Rada of Ukraine had established unequal models for regulating prosecutors’ remuneration, de facto splitting them into two separate categories: one – for those who are paid remuneration in accordance with Law No. 1697-VII; and second – for those whose remuneration is defined in the by-law, i.e. a resolution of the Cabinet of Ministers of Ukraine.
Objectively, such a difference in the treatment of prosecutors who have the same legal status cannot be deemed to be justified and thus is discriminatory.
The prosecution office is institutionally installed into the system of Judiciary. The functions and legal status of the prosecution office, as enshrined in Article 1311 of the Constitution of Ukraine, as well as the status of the prosecutor and the scope of guarantees of his/her independence, established by Law No. 1697-VII, constitute a coherent system of guarantees of independence of the prosecution office as an institution in general and of an individual prosecutor in particular.
Consequently, the Verkhovna Rada of Ukraine has already created grounds for prosecutors to be confident their status (and, accordingly, in its inalienable elements), as well as the status of judges, is protected by normative acts of a higher level than by-laws). The Court observes that the simultaneous effect of normative acts at the same level on the same issues fails to meet the requirement of legal certainty as a component of the rule of law.
It follows from the reasoning given in the Court’s decision that the contested provision of Law No. 113-IX does not comply with the Constitution of Ukraine in the following respects:
- Article 6 (due to incompatibility with the principle of separation of powers);
- Article 8 (due to the creation of legal uncertainty, which is a violation of the principle of the rule of law);
- Article 24 (due to the discriminatory approach to the issue of remuneration of prosecutors);
- Article 41 (due to violation of an individual's right to property).
Judges-rapporteurs in the case are Serhiy Holovaty, Viktor Gorodovenko and Halyna Yurovska.
