20 March 2024
On 20 March, at the public part of the plenary session, the Second Senate initiated the proceedings in the form of written proceedings on the constitutional complaint of Yurii Prokopenko.
During the plenary session, the judge-rapporteur in the case, Volodymyr Moisyk, outlined the content of the constitutional complaint and the applicant's arguments. In particular, the judge noted that the citizen had filed a petition with the Constitutional Court of Ukraine to verify the compliance of paragraph 1.17 of Section I of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Optimisation of Labour Relations” No. 2352-IX dated July 1, 2022 (the “Law”), which amended Article 119.3 of the Labour Code of Ukraine (the “Code”), namely the words “the place of work, position and average earnings are preserved” were replaced by the words “the place of work and position are preserved”.
According to Article 119.3 of the Code, “employees called up for regular military service, military service by conscription of officers, military service by conscription during mobilisation, for a special period, military service by conscription of persons from among reservists during a special period or enlisted for military service under a contract, including by concluding a new contract for military service, shall retain their jobs during the special period for the period until its expiry or until the day of actual dismissal. Such employees shall be paid remuneration at the expense of the State Budget of Ukraine in accordance with the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families”.
According to the author of the petition, the disputed provision of the Law is unconstitutional, as it narrows the content and scope of the existing rights to the calculation and payment of average earnings to employees called up for military service during the special period, due to the entry into force of paragraph 1.17 of Section I of the Law.
As it can be seen from the content of the constitutional complaint and the materials attached to it, Yurii Prokopenko has been in an employment relationship with the Ministry of Economy of Ukraine since January 17, 2020 and until now. According to the order of the Ministry of Economy of Ukraine, he was released from office from March 1, 2022 to perform duties related to the call-up for military service in the Armed Forces of Ukraine, with the preservation of his place of work, position and average salary. Due to the amendments made to Article 119.3 of the Code by paragraph 1.17 of Section I of the Law, the order of the Ministry of Economy of Ukraine dated July 19, 2022 terminated accruing and paying him his average salary.
As a result, Yurii Prokopenko filed a lawsuit to recover his average salary for the period of non-payment and to cancel the order of the Ministry of Economy of Ukraine. The courts dismissed his claim.
The judge-rapporteur informed that the Constitutional Court of Ukraine is considering a number of cases on the same issue and, in the course of their consideration, judges receive responses to inquiries from scientific institutions, higher education institutions, and public authorities.
After examining the case file in the public part of the plenary session, the Second Senate proceeded to the in-camera part of the plenary session.
The subject of the right to a constitutional complaint, Yurii Prokopenko, and the Permanent Representative of the Verkhovna Rada of Ukraine at the Constitutional Court of Ukraine, Maksym Dyrdin, attended the public part of the plenary session.
The public part of the plenary session is available on the official website of the Court in the section “Archive of video broadcasts of sessions”.
