DECISION OF THE SECOND SENATE OF THE CONSTITUTIONAL COURT OF UKRAINE

of July 21, 2021 No. 4P (II)/2021

On case on the constitutional claim of Bivalkevich Bogdan Vyacheslavovich concerning compliance of the Constitution of Ukraine (constitutionality) of Item 8 of the Section XI "Final and transitional provisions" of the Law of Ukraine "About National police"

Case No. 3-107/2020(221/20)

The second senate of the Constitutional Court of Ukraine as a part of judges:

Golovaty Sergey Petrovich - the chairman, Gorodovenko Victor Valentinovich, Lemak Vasily Vasilyevich, Moysik Vladimir Romanovich, May Day Oleg Alekseevich - the speaker, Slidenko Igor Dmitriyevich, Yurovskaya Galina Valentinovna,

No. 580-VIII considered at plenary meeting case on the constitutional claim of Bivalkevich Bogdan Vyacheslavovich concerning compliance of the Constitution of Ukraine (constitutionality) of Item 8 of the Section XI "Final and transitional provisions" of the Law of Ukraine "About National police" of July 2, 2015 (Sheets of the Verkhovna Rada of Ukraine, 2015, Art. No. 40-41, 379).

Having heard the judge-speaker of May Day VA. and having researched case papers, the Constitutional Court of Ukraine

established:

1. The person of law on the constitutional claim is Bivalkevich B. V. - No. 580-VIII appealed to the Constitutional Court of Ukraine with the survey request on compliance to Articles 8, of 22, to parts one, the second, sixth article 43 of the Constitution of Ukraine, Item 8 of the Section XI "Final and transitional provisions" of the Law of Ukraine "About National police" of July 2, 2015 (further - the Law No. 580) under which "from the date of publication of this Law all employees of militia (face of the private and the commanding structure of law-enforcement bodies), and also other employees of the Ministry of Internal Affairs of Ukraine, its territorial authorities, organizations are considered warned in accordance with the established procedure about possible forthcoming redundancy".

1.1. From contents of the constitutional claim and other case papers it is seen that Bivalkevich B. V. appealed to District administrative court of the city of Kiev with the claim to the Ministry of Internal Affairs of Ukraine (the Ministry of Internal Affairs of Ukraine) with the assistance of the third party who is not declaring independent requirements regarding dispute, - National police of Ukraine (further - police) in which asked court: recognize illegal and repeal the order of the Ministry of Internal Affairs of Ukraine "On staff" of November 6, 2015 No. 2338 about/with (further - the Order) regarding release of the militia colonel, the deputy head of department on investigation of especially important criminal proceedings - the chief of the 1st department of the Main Investigation Department of the Ministry of Internal Affairs of Ukraine Bivalkevich B. V. from service in law-enforcement bodies; recover Bivalkevich B. V. on service in law-enforcement bodies of Ukraine since November 6, 2015 and transfer to police to equivalent position since November 7, 2015; oblige the Ministry of Internal Affairs of Ukraine to pay to Bivalkevich B. V. average earnings during induced truancy for the period from November 6, 2015 to day of recovery on service.

The district administrative court of the city of Kiev the resolution of May 16, 2016 which is left without changes determination of the Kiev Appeal administrative court of September 1, 2016 refused satisfaction of the claim. The supreme administrative court of Ukraine determination of November 23, 2016 cancelled the specified decisions of the courts of the first and appeal instances, and sent case for new trial in Trial Court.

The district administrative court of the city of Kiev the decision of January 17, 2018 satisfied claims of Bivalkevich B. V. partially: recognized illegal and repealed the Order regarding Bivalkevich B. V. dismissal from service in law-enforcement bodies of Ukraine and reinstated as it; recovered Bivalkevich B. V. right to transfer in police according to Item 9 of the Section XI "Final and transitional provisions" of the Law No. 580; collected in its advantage from the Ministry of Internal Affairs of Ukraine average earnings during induced truancy from November 7, 2015 to January 17, 2018 in the amount of the 217th 992, 50 UAH. Satisfaction of other claims to Bivalkevich B. V. it was refused.

The Kiev Appeal administrative court the resolution of May 30, 2018 cancelled the decision of District administrative court of the city of Kiev of January 17, 2018 and made the new decision which refused satisfaction of the administrative claim of Bivalkevich B. V.

The Supreme Court as a part of board of judges of Cassation administrative court the resolution of March 5, 2020 left the resolution of the Kiev Appeal administrative court of May 30, 2018 without changes.

The judgment of cassation instance is motivated that Bivalkevich B. V. in the procedure established by the Law No. 580 was warned about dismissal in connection with staff reduction. The additional notice of the claimant (as well as other faces of the private and the commanding structure of law-enforcement bodies) about the forthcoming dismissal by the Law No. 580 was not required. Bivalkevich B. V. did not use the right of submission of the official report determined by the Law No. 580 on acceptance to service in police and did not confirm the consent to its passing therefore the Ministry of Internal Affairs of Ukraine in case of adoption of the Order was effective within powers and method which are provided by the Constitution and the laws of Ukraine.

1.2. The person of law on the constitutional claim claims that Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 violated its constitutional right on work guaranteed by article 43 of the Constitution of Ukraine this instruction "actually levels the important guarantees from wrongful dismissal provided by provisions of parts 1 - 3 articles 49-2 Labour Codes, namely the right to the personal warning of the forthcoming dismissal not later than two months, the privilege to leaving at work, the right to receive offers from the employer concerning other work at the same company that directly contradicts articles 22 and 43 of the Constitution of Ukraine".

Proving the line item, Bivalkevich B. V. refers to the Constitution of Ukraine, the Law No. 580, the Labor code of Ukraine (further - the Code), the resolution of the Cabinet of Ministers of the Ukrainian SSR "About approval of the Regulations on service by ordinary and bossy structure of law-enforcement bodies" of July 29, 1991 No. 114 with changes, the Order, and also to judgments on its case.

2. Resolving issue concerning compliance of the Constitution of Ukraine (constitutionality) of Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580, the Constitutional Court of Ukraine proceeds from the following.

2.1. According to the Fundamental Law of Ukraine in Ukraine the principle of supremacy of law is recognized and is effective (Article part one 8); The Constitution of Ukraine has the highest legal force; the laws and other regulatory legal acts are adopted on the basis of the Constitution of Ukraine and shall correspond to it (Article part two 8); constitutional rights and freedoms are guaranteed and cannot be cancelled (Article part two 22); in case of adoption of the new laws or introduction of amendments to current laws narrowing of content and amount of the existing rights and freedoms is not allowed (Article part three 22); to citizens protection against wrongful dismissal is guaranteed (Article part six 43).

2.2. Constitutional court of Ukraine, considering questions of protection of labor rights of citizens, noted that:

- the state, providing stability of employment legal relationship, performs their normative regulation for the purpose of creation fair, safe and favorable for life and health of working conditions, increases in its productivity, ensuring equal rights and opportunities of each worker, preserving its working capacity, labor longevity, protection on unemployment case; legislative activity in the field of work regulation, in particular, concerning conditions and procedure for the termination of employment legal relationship, shall meet the standards and the principles determined in the Constitution of Ukraine and also to be approved with the international obligations which follow from participation of Ukraine in activities of the international organizations (the paragraph of the sixth of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine (The first senate) of July 12, 2019 No. 5-r (I)/2019);

- content of the right to work affirmed by provisions of parts one and the second article 43 of the Constitution of Ukraine except the free choice of work, includes also corresponding sales warranties of this right; the free choice assumes variety of working conditions, however (obligatory) guarantees of protection of the worker against wrongful dismissal are permanent under any working conditions (paragraph one of subitem 2.2 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine (The second senate) of September 4, 2019 No. 6-r (II)/2019).

2.3. According to the International Labor Organization Convention No. 158 about the termination of employment relationships at the initiative of the employer of 1982 (further - the Convention No. 158) it extends to all industries of economic activity and to all persons working on hiring (Item 1 of Article 2); employment relationships with workers do not stop if there are only no legal causes for such termination connected with capabilities or behavior of the worker or caused by business necessity of the company, organization or service (Article 4).

3. In the Fundamental Law it is determined that protection against wrongful dismissal (Article part six 43) is guaranteed to citizens.

Indivisible element of realization of constitutional right on work is providing proper guarantees with the state from wrongful dismissal.

Dismissal can be considered to the answering instructions of part six of article 43 of the Constitution of Ukraine if it is made based on the law which regulations meet the requirements of supremacy of law, requirement of release is directed to achievement of the lawful (legitimate) purpose, and the faces of measure applied in case of dismissal are proportional (pro rata).

3.1. The sustainability strategy "Ukraine - 2020", Ukraine approved by the Presidential decree of January 12, 2015 No. 5/2015 (further - Strategy), after ratification by the Law of Ukraine of September 16, 2014 No. 1678-VII of the Agreement on association between Ukraine, on the one hand, and the European Union, European Atomic Energy Community and their state members, from other party (further - the Agreement), establishes vectors of movement and the development program of the state, one of which determines, in particular, reform of system of law enforcement bodies ("law-enforcement system") (the Section 3).

In item 4 "Reform of law-enforcement system" of Section 3 of Strategy the emphasis on requirements "is placed carry out functional and organizational transformations in system of the Ministry of Internal Affairs of Ukraine" and "accurately to distribute functions on forming of policy which shall be performed by the Ministry, and realization of policy which shall be performed by separate central executive body in system of the Ministry of Internal Affairs of Ukraine - National police. Political management and professional management in the field of law and order shall be accurately differentiated as it is provided by the European code of police ethics".

3.2. The constitutional court also considers that according to Item 2 of the explanatory note to the bill of Ukraine on National police (рег. No. 2822) this project was developed and accepted for implementation of measures for reforming of law-enforcement bodies of Ukraine, its main objective determined "creation of National police in Ukraine - executive body which will serve society and is intended for protection of human rights and freedoms, counteraction of crime, maintenance of public procedure and public safety".

Thus, based on number of instructions of the Fundamental Law of Ukraine, in particular, on realization of strategic rate of the state on acquisition of full membership in the European Union and in the North Atlantic Treaty Organization (Item 5 parts one of Article 85), and taking into account the international obligations of Ukraine according to the Agreement the Constitutional Court of Ukraine comes to conclusion that the purpose of adoption of law No. 580 is legitimate and it is caused by public interest in reforming of system of law enforcement bodies regarding creation of such executive body as police.

4. In Ukraine the principle of supremacy of law (part one of Article 8 of the Fundamental Law of Ukraine) is recognized and is effective.

Due to the permanent understanding of the principle of supremacy of law one of its components is legal definiteness that requires, in addition, clearness and clearness of rules of law, in particular, in aspect of prediscretion of their content and legal relationship which will be settled by these regulations.

The European Court of Human Rights in the decision on case "Verentsov against Ukraine" of April 11, 2013 (the statement No. 20372/11) noted that acts of the right shall be available to persons whom they concern, and are formulated with sufficient clearness to give to these persons opportunity to regulate the behavior to be capable (having got, if necessary, the corresponding advice) to provide in that degree which is admissible under specific circumstances, effects which specific action (see, for example, decisions for "The Sunday Times v can entail. the United Kingdom (No. 1)" of April 26, 1979 (the statement No. 6538/74), §49, Series A No. 30; "Rekvenyi v. Hungary" [VP] of May 20, 1999 (the statement No. 25390/94), §34, ECHR 1999-III; "Rotaru v. Romania" [VP] of May 4, 2000 (the statement No. 28341/95), §55, ECHR 2000-V; "Maestri v. Italy" [VP] of February 17, 2004 (the statement No. 39748/98), §30, ECHR 2004-I) (§52).

For understanding of content of the concept "legal definiteness" CDL-AD (2011)003rev, judgment according to which "legal definiteness requires that legal regulations were clear and exact, and also that providing prediscretion of situations and legal relationship" (the first offer §46) was their purpose is significant also provided in the Report on the right possession approved by the European Commission "For democracy through the right" (the Venetian Commission) at its 86th plenary meeting which took place on March 25-26, 2011.

4.1. Performing check of Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 on compliance to the requirement of legal definiteness, the Constitutional Court of Ukraine, first of all, states that the Law No. 580 was adopted on July 2, 2015 and published on August 6, 2015 in the Golos Ukrainy newspaper that is confirmed by the public data placed on the official web portal of the Verkhovna Rada of Ukraine.

According to paragraphs to the first, second Item 1 of the Section XI "Final and transitional provisions" of the Law No. 580, in which commencement provisions of separate provisions of the Law No. 580, are determined the disputed instruction of the Law No. 580 became effective on August 7, 2015, that is from the date of, the publication of the Law No. 580 following behind day. In general the Law No. 580 became effective on November 7, 2015, that is in three months from the date of, its publication following behind day.

4.2. At the same time availability does not guarantee to participants of the public relations of the act of the right for acquaintance availability of its content if the instruction of such act is stated poor, in particular, is indistinct or contradictory.

Performing check of Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 on compliance to the requirement of legal definiteness, the Constitutional Court of Ukraine, first of all, notes that this instruction of the Law No. 580 is formulated as the warning of dismissal directly of all employees of militia, unlike the instruction of article 49-2 of the Code according to which "workers are personally warned about the forthcoming release not later than two months" (part one). That is the instruction of part one of article 49-2 of the Code is only the basis for future personal notification of the worker on its forthcoming release (dismissal) whereas Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 of the personal prevention of the worker on the forthcoming dismissal does not require any more.

The analysis of Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 gives to the Constitutional Court of Ukraine the grounds to believe that use of connection of the words "possible future release" in it resulted in inconsistency of its content.

Such conclusion is caused by the fact that the person of law on the constitutional claim, commencing on the effective date (on August 7, 2015) the disputed instruction of the Law No. 580 could consider that this instruction is or the inadequate notification on its forthcoming dismissal, or taking into account use in it of the words "possible" and "future" that release concerning it can be not applied further and expect continuation of employment relationships.

4.3. Performing check of Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 on compliance to the requirement of legal definiteness, the Constitutional Court of Ukraine also pays attention that Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 can be interpreted and applied in in essence in connection with Items 9, 10 these Sections of the Law No. 580, according to which:

"9. Employees of militia who showed willingness to serve in police on condition of compliance to requirements to the police officers determined by this Law within three months from the date of publication of this Law can be employed in police by the publication of orders on appointment from their consent or passing of tender to positions which are replaced with police officers, in any body (organization, institution) of police.

Positions which are offered persons specified in this Item can be equivalent, above or lower concerning positions which these persons held during service in militia.

10. Employees of militia who refused service in police and/or are not employed in police, in three-months time from the moment of the warning of the forthcoming release, are dismissed from service in law-enforcement bodies on grounds of redundancy".

Thus, Item 9 of the Section XI "Final and transitional provisions" of the Law No. 580, first, establishes in general the procedure of employment of employees of militia in police, secondly, specifies availability of positions in polices which can be replaced by employees of militia.

In Item 10 of the Section XI "Final and transitional provisions" of the Law No. 580 it is determined that workers who refused service in police and/or are not employed in police", will be dismissed though Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 already contains the warning of employees of their dismissal in connection with staff reduction without the facts of their refusal of service in police and/or rejection on service in police in three-months time from the moment of the warning of the forthcoming release (dismissal).

4.4. Considering brought, the disputed provision of the law No. 580 in essence in connection with Items 9, of the 10th Section XI "Final and transitional provisions" of the Law No. 580 can be interpreted and applied not only as the message on possible forthcoming dismissal of Bivalkevich B. V., and, at the same time, and as the offer of rather possible employment in police based on consent to acceptance and further service in police, successful participation in the corresponding tender and accomplishment of other conditions specified in instructions of the Law No. 580.

Therefore, the person of law on the constitutional claim, court or other subject of law enforcement had no opportunity to accurately understand content, to provide legal effects of action of Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 and behavior of the participant of the public relations on further realization of right to work. Such legislative regulation contradicts the constitutional principle of supremacy of law in aspect of observance of the requirement of legal definiteness and, as a result, does not provide the protection against wrongful dismissal guaranteed by the Fundamental Law of Ukraine.

Based on stated the Constitutional Court comes to conclusion that Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 contradicts part one of Article 8 and part six of Article 43 of the Fundamental Law of Ukraine.

5. Estimating legitimacy of intervention in constitutional right of Bivalkevich B. V. on work, the Constitutional Court of Ukraine considers it expedient to perform check on compliance of the disputed provision of the law No. 580 to other instructions of the Fundamental Law of Ukraine.

5.1. In the Constitution of Ukraine it is determined that the government in Ukraine is performed on the basis of its separation on legislative, executive and judicial; bodies of legislative, executive and judicial authority perform the powers in the borders established by the Constitution and according to the laws of Ukraine (Article 6); public authorities and local government bodies, their officials shall act only on the basis of the, within powers and methods which are provided by the Constitution and the laws of Ukraine (Article part two 19).

According to article 85 of the Constitution of Ukraine adoption of the laws (Item 3 parts one), approval of general structure, number, determination of functions, in particular, of the Ministry of Internal Affairs of Ukraine belongs to powers of the Verkhovna Rada of Ukraine (Item 22 parts one).

Instructions of Items 12, 12-1, 16 - 21, 26, 35 parts one of article 85 of the Constitution of Ukraine the Verkhovna Rada of Ukraine is given authority to destination to positions or to dismissal of officials of public authorities and state bodies. According to Items 10, 25 parts one of article 85 of the Constitution of Ukraine the Verkhovna Rada of Ukraine has powers, respectively, elimination of the President of Ukraine from post according to the procedure of special procedure (impeachment) and consent on position assignment and dismissal by the President of Ukraine of the Attorney-General.

The part two of article 85 of the Constitution of Ukraine determines that the Verkhovna Rada of Ukraine performs also other powers which according to the Constitution of Ukraine are referred to its maintaining.

According to article 91 of the Constitution of Ukraine the Verkhovna Rada of Ukraine adopts the laws, resolutions and other acts.

According to Article 92 of the Fundamental Law of Ukraine only the laws of Ukraine determine, in particular, bases of regulation of work and employment (Item 6 parts one), the organization and activities of bodies of pre-judicial investigation (Item 14 parts one).

The given provisions of the law demonstrate that the Verkhovna Rada is authorized to adopt the laws, however contents of these laws shall meet the requirements of the Constitution of Ukraine, and their acceptance - to provide accomplishment of functions by the Verkhovna Rada of Ukraine as the single regulatory authority in Ukraine.

5.2. The constitutional court of Ukraine noted that "the purpose of functional separation of the government on legislative, executive and judicial is, in particular, differentiation of powers between different public authorities that means independent accomplishment by each of them of the functions and implementation of powers according to the Constitution and the laws of Ukraine" (paragraph two of subitem 2.1 of Item 2 of motivation part of the Decision of July 8, 2016 No. 5-rp/2016).

Analyzing regulations of the Constitution of Ukraine in aspect of delimitation of powers of the single regulatory authority in Ukraine - parliament (the Verkhovna Rada of Ukraine), the Constitutional Court of Ukraine stated also other legal line items including on part two of article 85 of the Constitution of Ukraine which determines that the Verkhovna Rada of Ukraine performs powers which according to the Constitution of Ukraine are referred to its maintaining (the second offer of the paragraph of third Item 2 of motivation part of the Decision of March 2, 1999 No. 2-rp/99); powers of public authorities are determined by the Constitution and the laws of Ukraine, and the Verkhovna Rada of Ukraine concerning implementation of the government are established only by the Constitution of Ukraine (the first offer of paragraph two of subitem 3.1 of Item 3 of motivation part of the Decision of May 27, 2009 No. 12-rp/2009).

5.3. As it was already noted, according to the disputed instruction of the Law No. 580 "from the date of publication of this Law all employees of militia... are considered warned in accordance with the established procedure about possible forthcoming redundancy".

Thus, in the disputed provision of the law No. 580 the Verkhovna Rada of Ukraine determined one of components of special procedure for dismissal of all employees of militia - the warning of dismissal by method of publication of the Law No. 580. Such method of the prevention of Bivalkevich B. V. and other employees of militia about their forthcoming dismissal, undoubtedly, differs from method of the warning of dismissal determined by the Code concerning other workers and the Law No. 580 concerning police officers.

According to the Constitutional Court of Ukraine, Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 has signs of the act of law enforcement in the relations with participation of Bivalkevich B. V. and other employees of militia. However considering number of regulations of the Fundamental Law in essence in their interrelations and legal line items of the Constitutional Court of Ukraine the Verkhovna Rada of Ukraine is not subject of law enforcement and is not authorized to adopt acts of such type, except as specified, which are directly determined by the Constitution of Ukraine.

That is the Verkhovna Rada of Ukraine by adoption of the laws which are regulations cannot exempt the certain worker or certain employee categories and report to them about possible forthcoming dismissal. Release of person is possible based on not the law, but only the right of the individual act which powers on acceptance the Verkhovna Rada of Ukraine does not have. Cases when the Verkhovna Rada of Ukraine is authorized to dismiss and appoint individuals by adoption of individual acts of the right, are determined by instructions of the Fundamental Law of Ukraine.

Thus, the Constitutional Court comes to conclusion that Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 is accepted by the Verkhovna Rada of Ukraine outside its constitutional powers, and therefore is contradicting Article part two 6, of Article part two 19, of part two of article 85 of the Constitution of Ukraine.

6. According to part two of Article 43 of the Fundamental Law of Ukraine the state creates conditions for complete implementation by citizens of right to work, guarantees equal opportunities in choice of profession and sorts of labor activity, realizes programs of professional training, preparation and retraining of personnel according to public requirements.

Analyzing proportionality (proportionality) intervention in right to work of Bivalkevich B. V. and observance of the guarantees of protection against wrongful dismissal provided to it by the Fundamental Law of Ukraine, the Constitutional Court of Ukraine considers that content of the constitutional guarantee of protection against wrongful dismissal is also that in case of legislative regulation of these relations requirements of the Constitution of Ukraine concerning creation by the state of conditions for complete implementation by citizens of right to work in cases when dismissal of the worker happens contrary to his desire shall be observed.

6.1. Ukraine is the party of number of the international treaties assigning obligation to the state to be effective as appropriate for the purpose of creation of conditions for complete implementation by citizens of right to work and to consider dismissal (release) of the worker and furthermore the whole employee group as ultima ratio (last resort) in regulation of employment relationships.

According to article 6 of the International Covenant on Economic, Social and Cultural Rights of 1966 the states participating in this pact recognize right to work which includes the right of each person to have opportunity to earn to itself living by work which it freely chooses or to which freely agrees and will take proper steps to providing this right (Item 1); measures which shall undertake member countries of this contract with the purpose of complete implementation of the specified right include programs of professional education and training, way and methods of achievement of productive employment in the conditions guaranteeing the main political and economic human freedoms (Item 2).

According to article 4 of the Convention No. 158 employment relationships with workers do not stop if there are only no legal causes for such termination connected with capabilities or behavior of the worker or caused by business necessity of the company, organization or service.

6.2. The constitution of Ukraine is the fundamental act concerning the industry legislation which shall contain regulations which shall consider and develop the corresponding constitutional instructions.

The constitutional court of Ukraine considers that the legal institutes determined in the Code and other acts of the legislation of Ukraine shall provide the reliable industry normative basis for effective implementation of the obligations of the state established by part two of article 43 of the Constitution, in particular, on creation of conditions for complete implementation by citizens of right to work.

6.3. The code contains number of the regulations directed to implementation of instructions of part two of article 43 of the Constitution of Ukraine.

In preamble of the Code the legal basis and guarantees of implementation by citizens of Ukraine of the right to dispose of the capabilities to productive and creative activity are determined.

According to the paragraph to the seventh article 5-1 of the Code the state guarantees to the able-bodied citizens who are constantly living in the territory of Ukraine, "legal protection from unreasonable refusal in acceptance for work and wrongful dismissal and also assistance in preserving work".

Article 42 of the Code establishes the privilege to leaving at work in case of release of workers in connection with changes in production organization and work (with higher qualification and labor productivity, with long uninterrupted length of service of work at this company, in organization, the organization and so forth).

Article 49-2 of the Code determines procedure for release of workers, in particular, is determined that personally warn about the forthcoming release of workers not later, than in two months (part one).

6.4. Performing verification of the disputed instruction of the Law No. 580 on compliance to requirements of the Fundamental Law of Ukraine, the Constitutional Court of Ukraine considers that Bivalkevich B. V. was on service in law-enforcement bodies since 1991, the length of service on the date of its dismissal from position of the deputy head of department on investigation of especially important criminal proceedings - the chief of the 1st department of the Main Investigation Department of the Ministry of Internal Affairs of Ukraine constituted more than 26 years. Actually the person of law on the constitutional claim had no other working experience, than the experience gained during service in law-enforcement bodies of Ukraine and therefore the disputed instruction of the Law No. 580 contains according to the Constitutional Court of Ukraine, signs of essential intervention in private and professional life of Bivalkevich B. V.

6.5. In article 8 of the Convention on human rights protection and fundamental freedoms of 1950 (further - the Convention) it is determined that everyone has the right to respect of its private and family life, its dwelling and correspondence; public authorities cannot interfere with implementation of this right, except as specified, when intervention is performed according to the law and it is necessary in democratic society for the benefit of homeland and public security or economic well-being of nation, for prevention of conflicts or crimes, for health protection or morality or for protection of the rights and freedoms of other persons.

The European Court of Human Rights in the decision on case "Alexander Volkov against Ukraine" of January 9, 2013 (the statement No. 21722/11), claiming about violation of the right of the applicant to respect of his private life, stipulated in Clause 8 Conventions, noted, in particular, the following:

- "private life "includes the right of person to forming and development of the relations with other people, including the relations of professional or business nature"... Article 8 of the Convention "protects the right to personal development, the right to establish and develop the relations with other people and the world around"... The concept "private life" in principle does not exclude the relation of professional or business nature. Eventually, within labor activity most of people have considerable opportunity to develop the relations with the world around" (§165).

6.6. Based on number of regulations of the Constitution of Ukraine, in particular, of Article 3, of parts one, the second, sixth Article 43, the Constitutional Court of Ukraine considers that intervention in the rights of the person of law to the constitutional claim from the state in the course of liquidation of militia and creation of new law enforcement body - police - shall be proportional (pro rata) and provide possibility of continuation Bivalkevichy B. V. of professional career in police or establish worthy and provided on the to content and effects of condition for its dismissal from service.

Considering brought the Constitutional Court of Ukraine comes to conclusion that Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 in essence in connection with other provisions of the law No. 580 does not contain proportional (pro rata) funds of intervention in the rights of the person of law for the constitutional claim and does not consider requirements of number of the constitutional instructions, namely concerning content and orientation of activities of the state which are determined by human rights and freedoms and their guarantees (the first offer of part two of article 3 of the Constitution of Ukraine); the main obligation of the state on approval and providing human rights and freedoms (the third offer of part two of article 3 of the Constitution of Ukraine); obligations of the state on creation of conditions for complete implementation by citizens of right to work (part two of article 43 of the Constitution of Ukraine).

Considering stated, the Constitutional Court of Ukraine considers that Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 is to the parts one contradicting Article part two 3,, the second, sixth article 43 of the Constitution of Ukraine.

7. According to part one of article 97 of the Law "About the Constitutional Court of Ukraine" the Constitutional Court of Ukraine in the decision, the conclusion can establish procedure and terms of their accomplishment, and also to oblige the relevant state bodies to provide control of execution of the decision, observance of the conclusion.

Recognizing Item 8 of the Section XI "Final and transitional provisions" of the Law No. 580 contradicting the Constitution of Ukraine, the Constitutional Court of Ukraine considers it expedient not to extend action of this Decision to legal relationship which arose from coming into force of this instruction of the Law No. 580 and continue to exist after day of acceptance by the Constitutional Court of Ukraine of this Decision.

Choosing such approach in case of the solution of this case, the Constitutional Court of Ukraine considers the need for respect for balance of socially significant interests for maintenance of legitimacy of creation of such executive body as police, and private interests of the person of law on the constitutional claim. Election of other approach on this case would lead to review of legal relationship on dismissal not only Bivalkevich B. V., and also other employees of militia and legal relationship on acceptance on service of employees of police, than the principle of supremacy of law would be broken and legitimacy of creation of police is called into question.

At the same time for the purpose of protection of the rights and interests of the person of law on the constitutional claim in the Constitutional Court of Ukraine considers it expedient to confirm the legal line item stated to them according to which according to part three of article 152 of the Constitution of Ukraine the material and moral harm done to physical persons or legal entities by acts and actions, acknowledged unconstitutional is compensated by the state in the procedure established by the law (The solution of the Constitutional Court of Ukraine of October 7, 2009 the No. 25-rp/2009, Solution of the Constitutional Court of Ukraine (The second senate) of April 7, 2021 No. 1-r (II)/2021).

Therefore, for the purpose of protection of the rights and interests of the person of law on the constitutional claim in the Constitutional Court of Ukraine considers that Bivalkevich B. V. has the right to compensation of material and moral damage guaranteed by the Fundamental Law of Ukraine which it suffered as a result of application of Item 8 of the Section XI to it "Final and transitional provisions" of the Law No. 580, which according to this Decision violates instructions of the Constitution of Ukraine. Evasion of the state from implementation of such compensation reduces trust to the state and public authorities and contradicts the Fundamental Law of Ukraine.

Considering stated and being guided by Articles 147, of 150, 151-1, 151-2, 152, 153 Constitutions of Ukraine, based on Articles 7, of 32, of 36, of 65, of 67, of 74, of 84, of 88, of 89, of 91, of 92, of 94, 97 Laws "About the Constitutional Court of Ukraine" the Constitutional Court of Ukraine

solved:

1. Recognize not answering to the Constitution of Ukraine (is unconstitutional), Item 8 of the Section XI "Final and transitional provisions" of the Law of Ukraine "About National police" of July 2, 2015 as No. 580-VIII.

2. Item 8 of the Section XI "Final and transitional provisions" of the Law of Ukraine "About National police" of July 2, 2015 No. 580-VIII recognized as unconstitutional voids from the date of acceptance by the Constitutional Court of Ukraine of this Decision.

3. The solution of the Constitutional Court of Ukraine does not extend to the legal relationship which arose from coming into force of Item 8 of the Section XI "Final and transitional provisions" of the Law of Ukraine "About National police" of July 2, 2015 No. 580-VIII and continue to exist after day of acceptance by the Constitutional Court of Ukraine of this Decision.

4. The solution of the Constitutional Court of Ukraine is obligatory, final and such which cannot be appealed.

The solution of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine".

 

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