October 3, 2024
The Constitutional Court of Ukraine at the public part of the plenary session deliberated the case upon the constitutional petition of the Ukrainian Parliament Commissioner for Human Rights in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Viktor Gorodovenko, informed about the content of the constitutional petition and the grounds for initiating constitutional proceedings in the case.
In particular, he stated that the subject of the right to constitutional petition – the Ukrainian Parliament Commissioner for Human Rights – had appealed to the Constitutional Court of Ukraine to declare the provisions of the second sentence of the second passage of Article 12.1, the third passage of Article 12.1, the second passage of paragraph 3 the Section “Final Provisions” of the Law of Ukraine “On the Organisation of Labour Relations under Martial Law” No. 2136‒IX dated March 15, 2022 as amended (hereinafter, the “Law”) as inconsistent with Articles 8.1, 22.2, 22.3, 45, 64 of the Constitution of Ukraine.
The Law stipulates that:
–„ at the employer's decision, unused days of such vacation may be granted without pay “ (the second sentence of the second passage of Article 12.1);
– „during the period of martial law, an employee may be granted any type of vacation (except for maternity leave, vacation to care for a child under the age of three and leave in connection with the adoption of a child) in excess of the annual basic vacation provided for in the first passage of this part, at the employer's decision, without pay. The provision of unused days of such vacation shall be postponed to the period after the termination or cancellation of martial law. At the employer’s decision, unused days of such vacation may be granted without pay” (third passage of Article 12.1)
– The Law shall be in force during the period of martial law imposed in accordance with the Law of Ukraine “On the Legal Regime of Martial Law” and shall cease to be in force from the date of termination or cancellation of martial law, except for:
„second sentence of the second passage of Article 12.1 and the third sentence of the third passage of Article 12.1 of this Law, which shall cease to be effective from the moment of using the vacation days that were transferred to the period after the termination or cancellation of martial law” (the second passage of paragraph 3 of the Section “Final Provisions”).
According to the author of the petition, if the provisions of the Law that he is disputing are literally interpreted, the employer may: “solely limit the granting of annual basic leave to 24 calendar days for the current working year”; “transfer unused vacation days during the period of martial law to the period after the termination or cancellation of martial law”; “grant unused vacation days exceeding 24 calendar days without pay”; “unused days of such vacation may be granted without pay after the termination or cancellation of martial law – until the use of the leave days that were transferred”; “refuse to grant an employee unused annual vacation days during the period of martial law”.
The judge-rapporteur also noted that the Ukrainian Parliament Commissioner for Human Rights considers the provisions of the second sentence of the second passage of Article 12.1, third passage of Article 12.1 of the Law to be contrary to Articles 45 and 64 of the Constitution of Ukraine, justifying this by the fact that “unused days of annual vacations shall not be provided by the employer’s decision without pay, because according to Article 45 of the Constitution of Ukraine, annual vacations are paid and their duration is determined by the laws”; “the norms that are subject to constitutional review do not restrict, but cancel the right of employees to annual vacation of full duration and its payment, and replace them by the employer’s decision with another type of vacation – unpaid vacation <...> in accordance with Article 64 of the Constitution of Ukraine, it is allowed to restrict rights during the period of martial law, but not to cancel them”.
In the opinion of the author of the petition, the second passage of paragraph 3 of the Section “Final Provisions” of the Law does not comply with Articles 8, 64 of the Constitution of Ukraine, since it “extends its effect on the restriction of constitutional rights and freedoms to the period after the end of martial law”, does not have “legal certainty <... > of universal nature, as it it ceases to be effective for each person at different times” and “signs of predictability”; however, “the duration of restrictions imposed under martial law should be fixed in terms of time and provided for by law, not by the actions of the subject of legal relations”.
The judge-rapporteur stated that in order to fully and objectively deliberate the case, the relevant instructions were given to the structural units of the Secretariat of the Court and a number of requests were sent to state bodies and institutions regarding the issues raised in the constitutional petition.
The plenary session was attended by Andrii Ovsiienko, Representative of the Commissioner for the Judiciary on the Right to Fair Justice and Representation in the Constitutional Court of Ukraine, Serhii Dembovskyi, Representative of the President of Ukraine at the Constitutional Court of Ukraine, and other citizens of Ukraine.
After examining the case file at the public part of the plenary session, the Court proceeded to the in-camera part of the plenary session 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”.
