The Constitutional Court of Ukraine delivered the Decision No. 11-r(II)/2024 dated December 18, 2024 in the case upon the constitutional complaint of Bohdan Panchenko regarding the compliance of Article 51.1.9, subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of the Law of Ukraine “On the Prosecution Office” No. 1697–VII dated October 14, 2014 (regarding constitutional guarantees of the prosecutor's independence) with the Constitution of Ukraine (constitutionality) and:
– declared subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of the Law of Ukraine “On the Prosecution Office” No. 1697–VII dated October 14, 2014, as amended, as compliant with the Constitution of Ukraine (constitutional);
– declared Article 51.1.9 of the Law of Ukraine “On the Prosecution Office” No. 1697–VII dated October 14, 2014, as amended, as inconsistent with the Constitution of Ukraine (unconstitutional);
– closed the constitutional proceedings in the case concerning the compliance of subparagraphs “a”, “b” and passage 5 of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of the Law of Ukraine “On the Prosecution Office” No. 1697–VII dated October 14, 2014, as amended, on the basis of Article 62.4 of the Law of Ukraine “On the Constitutional Court of Ukraine” – inadmissibility of the constitutional complaint with the Constitution of Ukraine (constitutionality).
The author of the constitutional complaint appealed to the Constitutional Court of Ukraine to verify the compliance of Article 51.1.9, subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of the Law of Ukraine “On the Prosecution Office” No. 1697–VII dated October 14, 2014, as amended, (hereinafter, “Law No. 1697”) with Articles 22.3, 32.1, 43.1, 43.6, 58.1 of the Constitution of Ukraine (constitutionality).
According to Article 51.1.9 of Law No. 1697, a prosecutor is dismissed from office in the event of “liquidation or reorganization of the prosecution office in which the prosecutor holds a position, or in the event of a reduction in the number of prosecutors in the prosecution office”.
In accordance with subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697:
„1) as prosecutors of local prosecution offices shall be appointed:
a) persons who have no experience of work in the prosecution offices – provided they successfully pass the testing and undergo further internship for up to one year. Such persons shall be subject to the requirements of Articles 27.1, 27.5 of this Law, except for the requirement to have work experience in the field of law;
b) persons who have experience in prosecutorial activity but are not employed in the prosecution offices as of the date of entry into force of this Law – provided they successfully pass the testing;
c) prosecutors working in city, district, interdistrict, or district in cities prosecution offices as of the date of entry into force of this Law – provided they successfully pass the testing.
Testing and internship are conducted in accordance with the procedure approved by the Prosecutor General of Ukraine.”
Having examined the content of the constitutional complaint and the case file, the Constitutional Court of Ukraine found that the Supreme Court in its ruling dated April 13, 2023, which is the final court decision in the case of Bohdan Panchenko, applied Article 51.1.9 and subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697. The provisions of subparagraphs “a”, “b” and passage 5 of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697 were not applied in the court decision.
Thus, the subject of constitutional review in this constitutional proceeding is Article 51.1.9, subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697.
In resolving the issue of compliance of Article 51.1.9, subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697 with the Constitution of Ukraine (constitutionality), the Constitutional Court of Ukraine proceeds from the following.
According to the Constitution of Ukraine, the principle of the rule of law is recognised and effective in Ukraine; The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it; the norms of the Constitution of Ukraine are norms of direct effect (Article 8); state power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power; bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine (Article 6); bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine (Article 19.2).
Pursuant to Article 1311 of the Fundamental Law of Ukraine, the prosecution office exercises public prosecution in the court, organisation and procedural leadership during pre-trial investigation, decision of other matters in criminal proceeding in accordance with the law, supervision of undercover and other investigative and search activities of law enforcement agencies, representation of interests of the State in the court in exceptional cases and under procedure prescribed by law (part one); the organisation and procedure of the prosecution office are determined by law (part two).
In assessing the compliance of Article 51.1.9 of Law No. 1697, the Constitutional Court of Ukraine is primarily guided by the fact that since September 30, 2016 [the date of entry into force of the amendments introduced to the Constitution of Ukraine by the Law of Ukraine “On Amendments to the Constitution of Ukraine (regarding Justice)” No. 1401-VIII dated June 2, 2016 (hereinafter, “Law No. 1401”)], the prosecution office has become a component of the justice system, and the status and functions of prosecutors are determined by the needs of their participation in the administration of justice - observance of human and citizen's rights and freedoms both at the stage of pre-trial investigation and in court proceedings in criminal and other types of proceedings.
Ensuring the effectiveness of the prosecution office as a unified system and a component of the justice system is connected with the Prosecutor General's exercise of his/her power to organize the activities of the prosecution offices of Ukraine, in particular by liquidating or reorganizing the prosecution offices and/or changing the number of prosecutors' positions in the prosecution offices. The legitimate purpose of such organisational decisions of the Prosecutor General may be to ensure the effective exercise of the functions defined by the Constitution of Ukraine by the prosecution office in general and individual prosecutors in particular.
In view of the provisions of the Fundamental Law of Ukraine and the legal positions of the Constitutional Court of Ukraine, the guarantees of prosecutor's independence, in particular from unjustified dismissal, must be clearly and understandably defined by law.
The Constitutional Court of Ukraine proceeds from the fact that the efficiency and effectiveness of each prosecutor as an official in the prosecution system, which is at the same time a component of the justice system and a mechanism for protecting citizen's and human rights, is ensured, in particular, by the unified status of prosecutors and guarantees of their independence.
The grounds for dismissal of a prosecutor are exhaustively defined in Article 51.1 of Law No. 1697, according to which a prosecutor is dismissed from office, in particular, in the event of “liquidation or reorganization of the prosecution office in which the prosecutor holds a position, or in the event of a reduction in the number of prosecutors in the prosecution office” (paragraph 9).
The Constitutional Court of Ukraine states that the provisions of the Fundamental Law of Ukraine do not provide prosecutors with guarantees of holding office for an indefinite period of time, and therefore the law may establish grounds for dismissal of a prosecutor.
Assessing the constitutionality of Article 51.1.9 of Law No. 1697, the Constitutional Court of Ukraine proceeds from the fact that the provisions of the Constitution of Ukraine and Law No. 1697 provide the Prosecutor General, as the person heading the prosecution office, with discretionary powers, in particular, to organise the activities of the prosecution offices of Ukraine.
At the same time, in accordance with the requirements of the rule of law principle, in order to protect participants of public relations from arbitrary decisions and actions of bodies of state power, the provisions of law must clearly and understandably define the scope of any discretionary powers granted to these bodies.
According to Article 51.1.9 of Law No. 1697, the grounds for dismissal of a prosecutor from the position he or she holds in the prosecution office are not an individual act of law - a relevant personalised staff decision of the Prosecutor General in respect of a prosecutor of the Prosecutor General's Office (Article 51.2.1 of Law No. 1697) or the head of the regional prosecution office in respect of a prosecutor of the regional or district prosecution office (Article 51.2.2 of Law No. 1697), but an organizational decision of the Prosecutor General on liquidation or reorganization of the prosecution office, in which the prosecutor holds a position, or reduction of the number of prosecutor's positions in the prosecution office.
Thus, the exercise by the Prosecutor General of the power to liquidate or reorganize a prosecution office or reduce the number of prosecutors' positions in a prosecution office has not only such a legal consequence as liquidation or reorganization of a prosecution office or reduction of the number of prosecutors’ positions in a prosecution office, but also a hidden legal consequence – dismissal of a prosecutor from the position he or she holds in the relevant prosecution office.
In analyzing Article 51.1.9 of Law No. 1697, the Constitutional Court of Ukraine also takes into account the fact that its application makes possible a situation in which a prosecutor is “excluded from the staffing table” of the prosecution office, but retains the status of a prosecutor without the possibility of exercising the relevant functions, which creates legal uncertainty in legal relations and their legal consequences, in particular in terms of his or her functional duties and professional future.
Another important aspect of constitutional review is that the dismissal of a prosecutor under Article 51.1.9 of Law No. 1697 makes it possible to influence or put pressure on the independence of a prosecutor, as a prosecutor may be dismissed not only as a result of his or her decisions, actions or inactions, but also because of a decision to liquidate or reorganize the prosecution office or to reduce the number of prosecutors in the prosecution office.
Thus, Article 51.1.9 of Law No. 1697 grants the Prosecutor General discretionary powers without clearly defining their scope.
In view of the above, the Constitutional Court of Ukraine concluded that Article 51.1.9 of Law No. 1697 contradicts Articles 8.1, 92.1.14, 1311.2 of the Constitution of Ukraine.
Assessing the compliance with the Constitution of Ukraine (constitutionality) of subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697, the Constitutional Court of Ukraine proceeds primarily from the fact that in order to comply with the requirements of the Constitution of Ukraine, the state must implement in its activities the constitutional principle of its responsibility to the individual and the principle of good governance that is essentially related to it.
Subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697 does not establish an additional ground for dismissal of a prosecutor, but is one of the provisions regulating the selection of persons for the positions of prosecutors in the newly created prosecution offices.
The Constitutional Court of Ukraine finds that the application of testing for the position of a prosecutor in the newly established prosecution office on the basis of subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697 is covered by the legal construction “selection of prosecutors”, which is constitutionalised in Article 131.10 of the Fundamental Law of Ukraine, according to which “in accordance with the law, bodies and institutions are established in the justice system to ensure the selection of ˂…˃ prosecutors”.
The use of “successful passing of the testing” as one of the means of selection for the position of a prosecutor in the newly established prosecution office does not violate the independence of the prosecutor, since the success of such testing in the process of selection of prosecutors depends primarily on the professional knowledge, skills and other personal qualities of the candidate for the position of a prosecutor, and not on the decisions and actions of the Prosecutor General and/or other official.
In addition, as prescribed by subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697, a person who already holds the position of a prosecutor is not obliged to participate in the testing, i.e. participation in the selection for the position of a prosecutor is voluntary.
The Constitutional Court of Ukraine emphasises that successful passing of the testing as a condition for holding the position of a prosecutor in the newly created prosecution office ensures the implementation of the principle of good governance in the organisation and activities of the prosecution office, and participants in public relations have reasonable expectations that only those persons who have the personal qualities appropriate for this position, primarily professional knowledge and skills, and are of high integrity, will be appointed as prosecutors. Subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697 does not establish discriminatory privileges or restrictions during the selection process for persons who hold the position of prosecutor at the time of selection.
Taking into account the above considerations, the Constitutional Court of Ukraine concluded that subparagraph “c” of subparagraph 1 of paragraph 51 of Section XIII “Transitional Provisions” of Law No. 1697 does not contradict Articles 3, 131.10, 1311.2 of the Constitution of Ukraine.
Having found that Article 51.1.9 of Law No. 1697 contradicts Articles 8.1, Article 92.1.14, 1311.2 of the Fundamental Law of Ukraine, the Constitutional Court of Ukraine, in order to ensure the efficiency of the prosecution office and to provide the Verkhovna Rada of Ukraine with a term for amending Law No. 1697, deems it necessary to postpone the expiration of Article 51.1.9 of Law No. 1697 for six months from the date of this Decision delivery.
