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13.12.2005

Center of political-legal reforms: “In the case of Piskun the Constitution of Ukraine and the Law “On the Prosecutor’s office” prevail over labor guarantees”

   

“The President of Ukraine has the constitutional authority to dismiss the General prosecutor of Ukraine without any restrictions and exceptions. Such decision of the head of the state does not require specification of the grounds for dismissal and/or observance of the demands of operating laws, since it has discretionary character and belongs to the public-legal sphere”.

Explanation: The question of dismissal of General prosecutor of Ukraine from his post is regulated by item 11 of part 1 of Article 106, part 1 of Article 122 of the Constitution of Ukraine, as well as by parts 1 and 2 of Article 2 of the Law of Ukraine “On prosecutor’s office”.

Part 1 of Article 2 of the Law of Ukraine “On prosecutor’s office” repeats the corresponding constitutional provisions: “The General prosecutor of Ukraine is assigned to his post by approbation of the Supreme Council of Ukraine and is dismissed by the President of Ukraine. The Supreme Council of Ukraine can express distrust to the General prosecutor of Ukraine, which results in dismissal from his post”.

The second part of this article envisages the cases, where the authorities of General prosecutor of Ukraine are terminated obligatorily: “The General prosecutor of Ukraine is dismissed form his post also in the case of:

-  end of the term, for which he was appointed;

-  impossibility 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”.

The word “also” means that part 2 of Article 2 of the Law of Ukraine “On prosecutor’s office” is an independent norm, which presents the list of obligatory grounds for dismissal of the General prosecutor of Ukraine and does not restrict the action of part 1 of Article 2 of this Law.

According both to the Constitution of Ukraine and the special Law of Ukraine “On prosecutor’s office”, the authority of the President of Ukraine to dismiss the General prosecutor of Ukraine is not restricted – this authority is discretional (in own opinion of the President). The Law additionally determines only the cases of obligatory dismissal of the General prosecutor of Ukraine from his post.

This means that the President of Ukraine can dismiss the General prosecutor of Ukraine on any ground (it may be adduced in a corresponding President’s edict, but may be not adduced). This distinguishes the General prosecutor of Ukraine from, for example judges, for dismissal of which the exhaustive list of reasons is adduced in Article 126 of the Constitution of Ukraine, or from MPs, whose authorities are terminated only in the cases envisaged by Article 81 of the Constitution of Ukraine. At the same time, the procedure of dismissal brings the General prosecutor near to the members of the government (see Article 115 to of the Constitution of Ukraine).

According to the Resolution of the Constitutional Court in the case on juridical of the acts on appointment or dismissal of state officials of 7 May 2002, “legal regulation by the Constitution of Ukraine and special laws of Ukraine of the status of the Prime Minister of Ukraine, members of the Cabinet of Ministers of Ukraine and other state officials (part 1 of Article 9 of Law of Ukraine “On state service” of 16 December 1993 No. 3723-XII) does not mean that the provisions of other laws concerning the relations not regulated by special laws are not applied to them. Taking into account the above-said, there are no juridical grounds to believe that certain norms of the Labor Code of Ukraine must be applied to the persons, who, in compliance with the Constitution of Ukraine, are appointed to posts or dismissed by the President of Ukraine or the Supreme Council of Ukraine”.

The relations connected with the dismissal of the General prosecutor of Ukraine, regulated by the Constitution of Ukraine and the Law of Ukraine “On prosecutor’s office”, as well as the Labor Code of Ukraine may not be applied in this case.

Besides, one should take into account the fact that the question of appointment of the General prosecutor (as a person of special state agency) belongs to the sphere of public right, which principally differs from labor laws as a sphere of private right. So, the public interest (necessity of the efficient realization of authorities of the General prosecutor of Ukraine) must dominate over the guarantees of labor (private) rights of a person, which occupies (occupied) this post.

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