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13.12.2005

Ruling of the Shevchenkivsk District Court in Kyiv on the appeal of former Prosecutor General, S. Piskun

   

Case No. 2-12238/05

RESOLUTION

In the name of Ukraine

On 18 November 2005 the Shevchenkivskiy court of Kyiv consisting of:

chief judge I. Moroz

judges: O. Biloshkap, N. Ignatchenko

and secretary O. Golub

considered at the open court sitting in Kyiv the appeal lodged by Svyatoslav Piskun against the President of Ukraine about acknowledgement of Edict No. 1441/2002 of 14 October 2005 as illegal, its cancellation and obligation to take the measures for his resuming on the post.

The court resolved:

The plaintiff turned with the claim on acknowledgement as illegal and cancellation of Edict No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine”, motivating the claim with the argument that he was illegally dismissed from the post of General prosecutor of Ukraine by the mentioned Edict, contrary to the operating laws of Ukraine and the Constitution of Ukraine; thus, he asks to reinstate him on the post.

The claimant grounds his demands on the fact that the Constitution of Ukraine envisages guarantees from the illegal dismissal and the duty of the organs of state power to act on the basis, within the limits and by methods envisaged by the Constitution of Ukraine. However, the President of Ukraine issued Edict No. 1441/2002 of 14 October 2005, which contradicted the operating laws of Ukraine, in particular the Law of Ukraine “On prosecutor’s office”, since it did not contain the grounds of dismissal of the claimant from the post of General prosecutor of Ukraine. So, the plaintiff reckons that the considered Edict is illegal.

At the court sitting the plaintiff and his representatives supported the declared demands, adding that on the day of issuing of the Edict the claimant had been temporarily not-able-bodied, which was confirmed by the sick-list.

Representatives of the defendant did not acknowledge the plaintiff’s claim, stating that the considered Edict was an individual legal act, which followed from the constitutional-political responsibility of the state official -- General prosecutor of Ukraine, and was issued by the President of Ukraine within the limits of authorities given to him by item 11 of part 1 of Article 106 of the Constitution of Ukraine. So, the mentioned act has the constitutional-legal character, is a subject of constitutional jurisdiction, and consideration of this question is related to jurisdiction of the Constitutional Court of Ukraine. So, the plaintiff has no right to appeal against this act to a court of general jurisdiction in the framework of administrative proceedings.

The court sitting has established that the President of Ukraine issued Edict No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine”, which read: “In accordance with item 11 of part 1 of Article 106 of the Constitution of Ukraine, to dismiss Piskun from the post of General prosecutor of Ukraine”.

This Edict was issued by the President of Ukraine before the end of the five-year term of authorities of the General prosecutor of Ukraine envisaged by Article 122 of the Constitution of Ukraine, which was not contested by the sides.

According to explanations of the claimant and his representatives, they did not dispute the right of the President of Ukraine to dismiss the General prosecutor of Ukraine, but they contested the legality of the considered Edict of the President of Ukraine concerning groundlessness of dismissal of the plaintiff.

Article 55 of the Constitution of Ukraine, regulating the court protection of human and citizens’ rights and freedoms, guarantees to everybody the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers.

Article 43 of the Constitution of Ukraine guarantees court protection from unlawful dismissal.

According to Resolution of the Constitutional Court of Ukraine No. 8-рп/2002 of 7 May 2002 on the constitutional appeal of the President of Ukraine about the official interpretation of the provisions of parts 2 and 3 of Article 124 of the Constitution of Ukraine (on jurisdiction of the acts on appointment or dismissal of state officials) states that the appointment and dismissal of state officials by the President of Ukraine and the Supreme Council of Ukraine cannot restrict their right for court protection in case of the illegal dismissal.

Article 124 reads that judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction, to which, in compliance to Article 125 of the Constitution of Ukraine, specialized courts are related.

According to Article 150 of the Constitution of Ukraine and Article 13 of the Law of Ukraine “On the Constitutional Court of Ukraine”, the authority of the Constitutional Court of Ukraine comprises deciding on issues of conformity with the Constitution of Ukraine (constitutionality) of the laws and other legal acts of the Supreme Council of Ukraine; acts of the President of Ukraine; acts of the Cabinet of Ministers of Ukraine; legal acts of the Supreme Council of the Autonomous Republic of Crimea.

In compliance with Article 150 of the Constitution of Ukraine and Article 40 of the Law of Ukraine “On the Constitutional Court of Ukraine”, these issues are considered on the appeals of the following categories of subjects of the constitutional appeals: the President of Ukraine; no less than forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the ombudsperson of Ukraine; the Supreme Council of the Autonomous Republic of Crimea.

A constitutional appeal contains the request about acknowledgment of the appealed act as unconstitutional. Article 152 of the Constitution of Ukraine states that laws and other legal acts, which are deemed to be unconstitutional, lose legal force.

According to Article 143 of the Law of Ukraine “On the Constitutional Court of Ukraine”, citizens of Ukraine can turn to the Constitutional Court only with the constitutional appeals on the questions of conclusions of the Constitutional Court in case of the necessity of official interpretation of the Constitution of Ukraine and laws of Ukraine.

The methods of protection from illegal dismissal are cancellation of the act and resuming on the post. This is also confirmed by Article 255 of the Labor Code, which, according to Article 1, is applied to labor relations of all employees (“in case of dismissal without legal grounds or illegal transfer to another job, an employee must be reinstated on his previous post by the organ, which considers the conflict”).

Thus, the claimant cannot appeal against the act at issue in the framework of constitutional jurisdiction, since, according to the law, a citizen of Ukraine cannot be a subject of constitutional appeal. And the official interpretation of the norms of the Constitution of Ukraine regarding this question is given by the Constitutional Court in the above-mentioned resolution.

Articles 8, 19, 22, 24, 43 and 55 of the Constitution of Ukraine establishes and guarantees the right of every citizen for the efficient court protection and restoration of the abused rights in case of illegal dismissal.

The above-stated norms proclaim the superiority of right and obligation of law for all citizens of Ukraine, and, in accordance with the demands of Article 106 of the Constitution of Ukraine, the President of Ukraine issues decrees and directives on the basis and for the execution of the Constitution and the laws of Ukraine. So, such acts may be checked for compliance not only with the Constitution, but also with the laws of Ukraine; check of legality of these acts is a function of courts of general jurisdiction.

Reasoning from the contents of the claim, the plaintiff does not dispute constitutionality of the legal act of the President of Ukraine, but legality of the act of individual action, its conformity with Ukrainian laws, including the Constitution of Ukraine as the Basic Law, which is stated in the preface to the Constitution of Ukraine.

It should be also pointed out that, according to Article 147 of the Constitution of Ukraine, the Constitutional Court of Ukraine decides on issues of constitutionality of legal acts, but not the acts of individual action. Resolution No. 8-рп/2002 of the Constitutional Court of Ukraine establishes that decision by the Constitutional Court of Ukraine on the issues of conformity of legal acts with the Constitution of Ukraine (constitutionality) of legal acts of the President of Ukraine and the Supreme Council of Ukraine does not exclude the possibility of appealing to courts of general jurisdiction about legality of the acts of the President of Ukraine or the Supreme Council of Ukraine of individual action concerning the appointments or dismissals. The only exclusion are the acts, which are the result of constitutional-political responsibility of state officials, to which, in our case, the Constitutional Court has related in its Resolution the expression of distrust by the Supreme Council of Ukraine, which resulted in dismissal of the General prosecutor. The act of the President of Ukraine, issued not on the basis of distrust expressed by the Supreme Council, is not a result of constitutional-political responsibility of the General prosecutor of Ukraine; so, the considered Edict must be considered in the framework of administrative proceedings.

According to Article 19 of the Constitution of Ukraine, 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 123 of the Constitution of Ukraine reads that organization and operational procedure for the bodies of the prosecution of Ukraine are determined by law.

According to Article 6 of the Law of Ukraine “On prosecutor’s office”, organs of prosecution of Ukraine form the united centralized system headed by the General prosecutor of Ukraine; they realize their authorities on the basis of observance of the Constitution of Ukraine and the laws acting on the territory of the republic, independently of any organs of state power, officials, decisions of public associations and their organs.

Article 7 of the Law of Ukraine “On prosecutor’s office” guarantees the independence of prosecutor’s office from any power organs and state officials.

In compliance with the above-mentioned norms, the prosecutor’s office headed by the General prosecutor of Ukraine is an independent centralized organ and is not accountable to the President of Ukraine or other persons. The only organ, to which the General prosecutor must report on his activities and activities of the organ subordinate to him is, according to Article 2 of the Law of Ukraine “On prosecutor’s office”, the Supreme Council of Ukraine. Just this organ can bring the General prosecutor to constitutional-political responsibility and to express distrust, which would entail his dismissal.

Article 122 of the Constitution of Ukraine reads that the term of authority of the General prosecutor of Ukraine is five years. In accordance with this article of the Constitution of Ukraine and Article 2 of the Law of Ukraine “On prosecutor’s office”, the Supreme Council of Ukraine may express no confidence in the General prosecutor of Ukraine, which results in his resignation from office. The General prosecutor is also dismissed in the following cases: expiration of the term, for which he has been appointed; inability to fulfill his duty because of the state of health; violation of the demands about not combining jobs; coming into effect of guilty verdict against him; termination of his citizenship; his appeal about dismissal from the post by own wish.

However, refers to the grounds for dismissal of the General prosecutor of Ukraine, envisaged by Article 122 of the Constitution of Ukraine and Article 2 of the Law of Ukraine “On prosecutor’s office”, are absent in the considered Edict.

Article 43 of the Constitution of Ukraine and Article 5-1 of the Labor Code guarantee to citizens the protection from unlawful dismissal, that is dismissal that took place not on the basis of law.

Article 19 of the Constitution establishes three unalienable conditions of legality of actions or decisions: they must be carried out only on the grounds, within the limits of authority, and in the manner envisaged by the law. Yet, in the consideration case the legal grounds for dismissal of the claimant are absent in the Edict.

Therefore, the court reckons that the dismissal of the General prosecutor without mentioning of the grounds of this dismissal may be regarded as influence on the General prosecutor of Ukraine and meddling in his activities, since it creates the dependence of the General prosecutor of Ukraine and his actions or decisions on the state official – defendant in this case.

The court also takes into account the fact that the Constitutional Court, in its Resolution No. 8-рп/2002, drew the following conclusion: there are no juridical grounds to reckon that certain norms of the laws on labor do not concern the members of the Cabinet of Ministers of Ukraine, heads of other central organs of executive power and the persons, who are appointed to or dismissed from the posts by the President of Ukraine and the Supreme Council of Ukraine. According to with Article 11 of the Law of Ukraine “On state service”, state employees have the right to defend their legal rights and interests in higher state organs and in compliance with legal procedure, and they can appeal directly to court against a decision about termination of state service (Articles 11 and 32 of the Law).

Court cannot accept the argument of representatives of the defendant that the post of General prosecutor of Ukraine is political one, since this contradicts the norm of Article 121 of the Constitution of Ukraine, Articles 2, 3, 5, 6 and 7 of the Law of Ukraine “On prosecutor’s office” containing the list of functions of prosecutor’s office of Ukraine, not-subordination and independence of prosecutor’s office from power organs, except the Supreme Council of Ukraine and the single case of constitutional responsibility (Article 122 of the Constitution of Ukraine) to the Supreme Council of Ukraine, which is pointed out in the Constitutional Court Resolution No. 8-рп/2002. Moreover, there is Article 3 of the Administrative Code of Ukraine, which separates the political posts and prosecutors in the explanation of the term “public service”.

Besides, the court reckons that the protection from the illegal dismissal, guaranteed by Article 43 of the Constitution of Ukraine, as well as the norm of the Labor Code about inadmissibility of dismissal during temporary incapacity for work, must be applied to the claimant, since he has produced proofs of his temporary incapacity for work on 14 October 2005 (medical certificate No. ААВ № 313913).

Therefore, the court comes to the conclusion that Edict of the President of Ukraine No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine” is illegal, and the rights of the claimant must be protected by means of cancellation of this Edict and reinstatement of the claimant on the post of General prosecutor of Ukraine since 14 October 2005.

Besides, the court also regards as a commonly known circumstance, which must not be proved, the decision of the Pecherskiy district court of Kyiv of 9 December 2004 (case No. 2-4541) concerning the controversy among the same persons and connected with the same situation. The mentioned court decision in the civil case, which has come into legal force, reads that the dismissal of the claimant from the post of General prosecutor of Ukraine by Edict of the President of Ukraine without mentioning of any grounds violates Article 2 of the Law of Ukraine “On prosecutor’s office”, and so, in compliance with the demands of Article 72 of the Code of administrative proceedings of Ukraine, this circumstance must not be proved again.

On the basis of the above-stated, being guided by Articles 8, 19, 22, 24, 43, 55, 64, 103, 106, 121, 122, 123, 124, 147, 150 and 152 of the Constitution of Ukraine, Articles 13, 40 and 43 of the Law of Ukraine “On Constitutional Court of Ukraine”, Articles 2, 3, 5, 6, 7 and 56 of the Law of Ukraine “On prosecutor’s office”, Articles 3, 6, 15, 17, 72, 158-163 and 256 of the Code of administrative proceedings of Ukraine, the court

RESOLVED:

To satisfy the demands of Svyatoslav Piskun.

To regard as illegal Edict of the President of Ukraine No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine” and to cancel it.

To reinstate Svyatoslav Piskun on the post of General prosecutor of Ukraine since 14 October 2005.

The decision about reinstatement of Svyatoslav Piskun on his post must be executed immediately.

The appeal against the Resolution can be lodged to the Appeal court of Kyiv by dint of handing of petition about the appeal to the Shevchenkivskiy district court of Kyiv within ten days after the day of pronouncement of the decision and handing of the appeal claim within twenty days after handing of the petition about the appeal.

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