On April 10, 2024, the Second Senate of the Constitutional Court of Ukraine, during public part of the plenary session in the form of written proceedings, commenced the consideration of the case concerning the constitutional complaint of Eduard Dudkevych.
During the plenary session, the judge-rapporteur in the case, Oleh Pervomaiskyi, outlined the main content of the constitutional complaint and the applicant's arguments. In particular, the judge noted that Eduard Dudkevych appealed to 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”), according to which Article 119.3 of the Labour Code of Ukraine (hereinafter, “the Code”) was amended, namely the words “the place of work, position and average earnings are preserved” were replaced by the words “the place of work and position are preserved” with Articles 17.5, 21, 22.1, 22.3, 46.1 of the Constitution of Ukraine
According to the author of the application, the disputed provision of the Law “cancels the right of mobilised servicemen to retain their average earnings at their place of work, thereby narrowing the existing right to retain it”, “narrows and violates the right of mobilised servicemen to social protection”, therefore contradicts the provisions of Articles 22, 17.5, 46.1 of the Constitution of Ukraine.
From the content of the constitutional complaint and the materials attached to it, it is clear that Eduard Dudkevych was in public service at the Department of the State Migration Service of Ukraine in Chernivtsi region (hereinafter, “the Department”) as the head of the division for foreigners and stateless persons. By an order dated May 10, 2022, the Department released him from work for the period of his military service from May 11, 2022, with the preservation of his place of work, position and average earnings.
Due to the entry into force of the Law, the Department amended the order dated May 10, 2022 with the order dated July 19, 2022, paragraph 1 of which reads as follows: “To release E.V. Dudkevych from work for the period of military service from May 11, 2022 until the day of actual discharge from military service with retention of his place of work and position for this period.”
In August 2022, the applicant filed an administrative claim with the court, in which, inter alia, he requested that the actions of the Department to stop paying his average earnings until the day of his actual discharge from military service be declared unlawful.
The first instance and appellate courts dismissed the claim. The Supreme Court upheld the court decisions.
The judge-rapporteur informed that cases on the same issues were pending before the Constitutional Court and noted that in the course of preparing the case for consideration, inquiries were sent to clarify the positions on the issues raised in the constitutional complaint.
After examining the case file in the public part of the plenary session, the Second Senate proceeded to the in-camera part of the plenary session.
In addition, the Court also considered the statement of the Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court of Ukraine Maksym Dyrdin to change the form of constitutional proceedings from written to oral and to refer the case to the Grand Chamber of the Court and dismissed it.
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”.
