April 3, 2024
On April 3, 2024, at the public part of the plenary session, the First Senate commenced the deliberation of the case upon the constitutional complaint of Oleksandr Petrychuk in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Viktor Kychun, informed that the applicant appealed to the Constitutional Court of Ukraine to verify the conformity of Article 361. 5. 1 of the Code of Administrative Procedure of Ukraine (hereinafter, “the Code”) with the Constitution of Ukraine.
This provision stipulates that the grounds for reviewing court decisions under exceptional circumstances are “established by the Constitutional Court of Ukraine unconstitutionality (constitutionality) of the law, other legal act or their individual provision, applied (not applied) by the court when deciding the case, if the court's decision has not yet been executed.”
As may be seen from the content of the constitutional complaint and the materials attached to it, in February 2021, the applicant filed a lawsuit with the Chernivtsi Regional Prosecutor's Office, in which he requested to declare the inaction of this body as unlawful, which consisted of not accruing and not paying his salary since July 2015 in the manner and in the amounts enshrined by Article 81 of the Law of Ukraine “On the Prosecution Office” and to oblige the defendant to accrue and pay his salary in accordance with the same Article of the Law.
Following the deliberation of the dispute by the courts of the Ukrainian judicial system, the Supreme Court, by its Resolution dated December 1, 2022 overturned the decisions of the courts of first and appeal instances and delivered a new decision dismissing the claim in full.
In October 2023, Oleksandr Petrychuk filed an application with the Supreme Court for a review under exceptional circumstances of the respective Resolution of the Supreme Court on the grounds set out in Article 361.5.1 of the Code. In substantiating his application, he referred to the Decision of the Constitutional Court of Ukraine No. 8-r(II)/2023, delivered on September 13, 2023 in the case upon his constitutional complaint and the constitutional complaints of other persons, by which the Court declared unconstitutional the second sentence of passage 3 of paragraph 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 the Reform of Prosecution Office” No. 113–IX dated September 19, 2019 (hereinafter, “Law No. 113”) and declared as such that ceased to be effective from the date of this Decision delivery.
In addition, the Supreme Court, while dismissing Oleksandr Petrychuk's application for review of the resolution dated December 1, 2022 under exceptional circumstances, noted, in particular, that this resolution is “a court decision that dismissed the claims, and accordingly, this court decision is not subject to enforcement, and therefore [...] may not be reviewed under exceptional circumstances”. In addition, the Supreme Court stated that the provisions of Law No. 113, declared unconstitutional, cease to be effective from the date of the Constitutional Court's decision delivery and are relevant for the resolution of subsequent (future) cases and may not be the basis for reviewing (changing) the legal position of the court in a dispute in which a final court decision has been delivered.
Thus, according to the author of the petition, Article 361.5.1 of the Code in the wording “if the court decision has not yet been executed” deprives persons “to whom unconstitutional provisions of law have been applied, the right to review the court decision under exceptional circumstances, if such a court decision has already been executed or does not establish enforcement, or when the person has been rejected in satisfaction of the claim.”
The judge-rapporteur also informed that he had sent inquiries to the bodies of state power and a number of academic institutions to clarify the positions regarding the issues raised in the constitutional complaint.
After examining the case files 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”.
