On Wednesday, February 7, 2024, the Second Senate considered the case upon the constitutional complaint of Bohdan Panchenko in the public part of the plenary session in the form of written proceedings.
During the plenary session, judge-rapporteur in the case, Oleh Pervomaiskyi, informed that the applicant appealed to the Constitutional Court of Ukraine to verify the compliance of Article 51.1.9, paragraph 5-1.1 of Chapter XIII “Transitional Provisions” of the Law of Ukraine “On the Prosecution Office” No. 1697-VII dated October 14, 2014, as amended (hereinafter - the Law) with Articles 22.3, 32.1, 43.1 and 43.6, 58.1 of the Constitution of Ukraine.
According to Article 51.1.9 of the Law, a prosecutor shall be dismissed from office in case of “liquidation or reorganization of the prosecution office in which the prosecutor holds a position, or in case of reduction of the number of prosecutors in the prosecution office”.
According to paragraph 5-1.1 of Chapter XIII “Transitional Provisions” of the Law, in particular, prosecutors working in city, district, interdistrict, and district prosecution offices as of the date of entry into force of this Law shall be appointed as prosecutors of local prosecution offices, provided that they successfully pass the test.
From the constitutional complaint and the materials attached, it appears that the applicant, Bohdan Panchenko, worked in the prosecution office of Zaporizhzhia region. By the order of the regional prosecutor, after unsuccessful testing, Bohdan Panchenko was dismissed from his position and from the prosecution office in view of the reduction of staff in accordance with Article 40.1.1 of the Labour Code of Ukraine and on the basis of the relevant order.
Disagreeing with this decision, the applicant appealed this order in the courts of first instance, appellate, and cassation instances. However, following the examination by the courts of his claims, he was not reinstated to the position.
The author of the motion asserts that the application of the disputed provisions of the Law has led to a violation of his right to work, the right to protection against unlawful dismissal, as well as the right to respect for private life. Bohdan Panchenko contends that the legislative expansion of the grounds for the dismissal of prosecutors from their positions has resulted in unjustified interference with his prosecutorial functions, narrowed his existing rights, and violated the constitutional principle of the non-retroactivity of the law in time.
The judge-rapporteur informed that the cases on the same issues are pending 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 considering the case file in the public part of the plenary session, the Second Senate proceeded to the in-camera part for a decision.
The video 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”.
