October 2, 2024
On October 2, 2024, the First Senate deliberated the case upon the constitutional complaint of Iryna Vasylieva at the public part of the plenary session in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Olga Sovgyria, stated that the applicant had appealed to the Constitutional Court of Ukraine to verify the compliance of an individual provision of Article 361.5.1 of the Code of Administrative Procedure of Ukraine (hereinafter, the “Code”) with the Constitution of Ukraine in terms of the wording “provided that the court decision has not yet been executed”.
In accordance with Article 361.5.1 of the Code, the grounds for reviewing court decisions under exceptional circumstances are “the unconstitutionality (constitutionality) of a law, other legal act or their individual provision applied (not applied) by the court in resolving the case, as established by the Constitutional Court of Ukraine, provided that the court decision has not yet been executed”.
From the content of the constitutional complaint and the materials attached to it, it appears that in 2019, Iryna Vasylieva was dismissed from the position of prosecutor under Article 51.1.9 of the Law of Ukraine “On the Prosecution Service”, whereby “a prosecutor is dismissed from the position in case of liquidation or reorganisation of a prosecution office in which the prosecutor holds the position, or in case of reduction of the number of prosecutors in a prosecution office”.
During 2019-2022, the applicant disputed her dismissal in the courts of the judicial system.
By its Decision No. 1-r(II)/2023 dated March 1, 2023, the Constitutional Court of Ukraine declared unconstitutional the provision 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, which stipulated that “from the date of entry into force of this Law, all prosecutors of the Prosecutor General’s Office of Ukraine, regional prosecution offices, local prosecution offices, military prosecution offices shall be deemed to have been personally warned in due course of possible future dismissal from office subject to Article 51.1.9 of the Law of Ukraine “On the Prosecution Service”.
Due to the delivery of this Decision, Iryna Vasylieva appealed to the court to review of the court decision in her case umder exceptional circumstances.
The Khmelnytskyi District Administrative Court, by its ruling dated April 25, 2023, upheld by the decision of the Seventh Administrative Court of Appeal dated March 13, 2024, dismissed Iryna Vasylieva’s claims.
By its ruling dated May 2, 2024, the Supreme Court refused to initiate cassation proceedings upon the cassation appeal of Iryna Vasylieva, stating that the court decision in her case was not subject to enforcement, and therefore – within the meaning of Article 361.5.1 of the Code – could not be reviewed under exceptional circumstances.
According to the applicant, the individual provision of Article 361.5.1 of the Code is discriminatory, depriving her of the right to review a court decision under exceptional circumstances.
The judge also noted that the Second Senate and the Grand Chamber of the Court are deliberating the cases on the same issue.
Having examined the case file in the public part of the plenary session, the Court proceeded to the in-camera part for a decision.
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”.
