On June 5, 2024, the Second Senate at the public part of the plenary session in the form of written proceedings deliberated the case upon the constitutional complaint of Serhii Vashchenko, who impugns Articles 21.2, 22.1, 22.2.2, 1175.1 of the Civil Code of Ukraine (hereinafter, the “Code”).
In accordance with the provisions of Article 21.2 of the Code, “a court shall declare illegal and overturn a normative legal act of a body of state power, a body of power of the Autonomous Republic of Crimea or a local self-government body if it contradicts acts of civil legislation and violates civil rights or interests”.
Pursuant to Article 22.1 of the Code, “a person who has suffered damages as a result of a violation of his/her civil right is entitled to compensation for them”; according to Article 22.2.2 damages are “the incomes that a person could have actually received under ordinary circumstances if his/her right had not been violated (loss of profits)”.
In compliance with provisions of Article 1175.1 of the Code, “damages caused to an individual or legal entity as a result of the adoption by a body of state power, a body of power of the Autonomous Republic of Crimea or a local self-government body of a regulatory act that has been declared illegal and cancelled shall be compensated by the state, the Autonomous Republic of Crimea or a local self-government body, regardless of the guilt of officials and employees of these bodies”.
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 content of the constitutional complaint and the materials attached to it showed the following.
The Verkhovna Rada of Ukraine dismissed the applicant from the position of a judge by a resolution, and by order of the chairman of the court, he was excluded from the court employees. As Serhii Vashchenko was not paid a one-off severance payment of 10 monthly salaries after his dismissal, he applied to the court.
The courts of the Ukrainian judicial system refused to satisfy the claim of Serhii Vashchenko for a one-off severance payment of 10 monthly salaries for his last position, given that under subparagraph 1 of paragraph 28 of Section II of the Law of Ukraine “On Prevention of Financial Catastrophe and Creation of Preconditions for Economic Growth in Ukraine” No. 1166–VII dated March 27, 2014 (hereinafter, “Law No. 1166”), Article 136, part one of which established the right of a former judge to a severance payment of 10 monthly salaries in his last position, was excluded.
On April 15, 2020, the Constitutional Court of Ukraine delivered the Decision on the unconstitutionality of the provision of subparagraph 1 of paragraph 28 of Section II of Law No. 1166. In this regard, the applicant appealed to review his case due to exceptional circumstances. The courts refused to satisfy the claim.
The above became the basis for Serhii Vashchenko to file a claim with the court to recover from the State Budget of Ukraine in his favour the damages caused by the “law that was declared unconstitutional”. The first instance and appellate courts refused to satisfy the claim of Serhii Vashchenko, and the cassation court held to return the cassation appeal to the person who filed it.
According to the author of the petition, the disputed provisions of the Code “are not clear, understandable and unambiguous” and do not comply with the principles of the rule of law and violate his right to property, as well as “do not ensure adequate protection and realisation of the right to compensation for damages, which the state has guaranteed at the constitutional level” and “do not comply with the principle of equality in the exercise of the right to compensation for damages in the form of loss of profits, including during and/or with regard to public service, caused by a law declared unconstitutional.”
The judge-rapporteur also informed that in order to ensure a full and objective deliberation of the case and to ensure that the Court delivers a reasoned decision, he sent inquiries to a number of bodies of state power and academic institutions with a request to express their positions on the issues raised in the constitutional complaint.
In this case, the Court proceeded to the in-camera part of the plenary session for a decision.
Serhii Vashchenko, subject of the right to a constitutional complaint, attended the session.
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”.
