July 13, the First Senate of the Constitutional Court of Ukraine, at the public part of the plenary session, in the form of written proceedings, considered the case upon the constitutional complaint of Mykhailo Borodkin regarding the constitutionality of Article 9.1.2 of the Law of Ukraine “On the State Bureau of Investigation” of November 12, 2015, No. 794-VIII as amended (hereinafter referred to as the Law).
At the plenary session, the Judge-Rapporteur in the case, Iryna Zavhorodnia, noted that the complainant disputes the provision of the Law, according to which “The organisational structure of the State Bureau of Investigation is determined by the President of Ukraine.”
In his opinion, this provision of the Law contradicts the requirements of Articles 6, 8, 19.2, 106 (in the aspect that the scope and limits of the powers of the President of Ukraine are determined exclusively by the Constitution of Ukraine), 113.1 and 116 of the Constitution of Ukraine.
During the plenary session, the Judge-Rapporteur outlined the content of the constitutional complaint, the grounds for the initiation of constitutional proceedings in the case, and also informed about the progress of the case consideration in the courts and the complainant's justification.
As can be seen from the constitutional complaint and the case materials attached to it, M. Borodkin, being the winner of the public competition for the position of investigator of the second investigative department of the Third Directorate of the Organisation of Pre-Trial Investigations (Department for the Investigation of War Crimes) of the State Bureau of Investigation under the quota provided for by certain provisions of the Law of Ukraine “On the State Bureau of Investigation”, received a letter from the State Bureau of Investigation, in which he was informed that, in accordance with the State Bureau of Investigation orders, the position of the civil service for which he was selected and became the winner of a public competition was abolished, and therefore his appointment to such position is not possible.
According to the complainant, the process of abolishing the posts, in respect of which such a competition was held, does not create obstacles to ensuring compliance with his right to employment, since in fact the relevant posts were renamed without changing the scope of rights and duties, and therefore, at the time of the reorganisation, he must be employed as an investigator, because he has passed all the necessary competitive procedures.
M. Borodkin brought an administrative lawsuit against the State Bureau of Investigation to recognize as unlawful the inaction of the State Bureau of Investigation on the failure to make a decision on his appointment as the winner of the competition for the position of an investigator of the second investigative department of the Third Directorate of the Organisation of Pretrial Investigations (Department for the Investigation of War Crimes) of the State Bureau of Investigation for a similar position of investigator of the second investigative department of the Directorate for the Investigation of Criminal Offenses Committed by Military Servicemen, of the Main Investigative Directorate of the State Bureau of Investigation and the obligation to appoint him to the position of investigator as the winner of the competition for a similar position.
Based on the results of the consideration of his case, the Odesa District Administrative Court, by its decision of February 16, 2021, refused to satisfy the claims of M. Borodkin.
The Fifth Administrative Court of Appeal, by its decision of May 14, 2021, canceled the decision of the Odesa District Administrative Court of February 16, 2021 and adopted a new decision, in which the complainant's claim was partially satisfied.
The Supreme Court, within the board of judges of the Administrative Court of Cassation, by its decision of September 15, 2021, canceled the decision of the Fifth Administrative Court of Appeal of May 14, 2021 and upheld the decision of the Odessa District Administrative Court of February 16, 2021.
The complainant believes that as a result of the application of the impugned provision of the Law in the final court decision, his rights were violated, in particular, those determined by Article 32 of the Constitution of Ukraine, that no one may be subjected to interference in his/her private life, except as provided for by the Constitution of Ukraine, as well as Article 43 of the Constitution of Ukraine, according to which everyone has the right to work, which includes the opportunity to earn a living by work that he/she freely chooses or freely agrees to; the state creates conditions for the full exercise by citizens of the right to work, guarantees equal opportunities in choosing a profession and labor activity.
The Judge-Rapporteur informed that to ensure the full and objective consideration of the case, requests had been sent to state and research institutions regarding the issues raised in the constitutional complaint.
Having examined the case files at the public part of the plenary session, the First Senate proceeded to the in-camera part for a decision.
The public part of the plenary session is available on the Court’s official website under the heading “Archive of video broadcasts of the sessions”.