1. **Subject of the dispute:** A prosecutor’s challenge to a personnel commission’s decision regarding failure to pass an attestation and the subsequent dismissal order from the prosecutor’s office.
2. **Key arguments of the Court:**
– The Court confirmed that a personnel commission’s decision to dismiss a prosecutor is subject to judicial review, and the respondent’s reliance on “discretionary powers” does not exempt the commission from the duty to justify its conclusions.
– The Supreme Court emphasized that the assessment of professional competence cannot be based solely on the results of a practical task, but must take into account the results of all stages of the attestation.
– The commission’s decision was deemed unsubstantiated as it did not contain clear evidence of the prosecutor’s non-compliance with ethical and competence criteria.
– The Court applied a legal position by departing from the previous approach regarding the impossibility of applying Article 7 of the Code of Administrative Procedure of Ukraine to unconstitutional norms, recognizing Paragraph 9 of Part 1 of Article 51 of the Law “On the Prosecutor’s Office” as contrary to the Constitution of Ukraine.
– The Supreme Court took into account the Decision of the Constitutional Court of Ukraine No. 11-r(II)/2024, which declared the very ground for a prosecutor’s dismissal due to the reorganization of an authority to be unconstitutional, as it creates legal uncertainty.
– In summary, the cassation instance upheld the conclusions of the lower courts regarding the illegality of the dismissal, supplementing the reasoning part of the decisions with references to the unconstitutionality of the applied norms.
3. **Court decision:** The Supreme Court partially granted the cassation appeal of the Office of the Prosecutor General only in part regarding the supplementation of the reasoning part of the decision with legal conclusions concerning the unconstitutionality of the norms, while leaving the decision on the reinstatement of the prosecutor to their position and the recovery of average earnings unchanged.
