Supreme Court sends case over dismissal of civil servant on grounds of Russian citizenship back for appeal hearing

The Security Service of Ukraine (SSU) received information that the plaintiff, a Ukrainian citizen working at the Ministry of Justice of Ukraine, had Russian citizenship.

Subsequently, the Deputy Head of the SSU sent a letter to the Deputy Minister of Justice of Ukraine explaining the circumstances of the plaintiff's acquisition of Russian citizenship and requesting an assessment of the risks of harm to Ukrainian state security in connection with the plaintiff's public service.

By order of the Ministry of Justice, the plaintiff was dismissed from her position on the basis of paragraph 2, part 1, Article 84 of the Law of Ukraine "On Civil Service" - on the grounds of loss of the right to civil service or its restriction as a result of establishing the fact that a civil servant has foreign citizenship or acquired foreign citizenship during civil service. The order of the Central Interregional Department announced the said order and dismissed the plaintiff from her position.

The plaintiff filed a lawsuit seeking the cancellation of these orders, her reinstatement at work, and the recovery of her average earnings for the period of forced absenteeism.

The Kyiv District Administrative Court dismissed the claim, and the Sixth Administrative Court of Appeal upheld the decision.

The appellate court received motions from the plaintiff to request new evidence and to suspend the proceedings. These requests were denied.

The appellate court was guided by the fact that the procedural law sets time limits for filing a motion to request the discovery of evidence, especially at the stage of appellate review of a court decision. However, the case file does not contain information that the plaintiff had filed similar motions in the court of first instance and that they were denied.

At the same time, the Administrative Cassation Court of the Supreme Court emphasised that the court of first instance had considered the case in written proceedings and had not taken any active steps to further investigate the circumstances cited by the plaintiff. The court of appellate instance should therefore have taken a more detailed approach to resolving the issues raised by the appellant when considering her appeal.

The Supreme Court cannot assert an indisputable violation of procedural or substantive law by the appellate court in adopting the contested judgment. However, the Court cannot conclude that the additional circumstances of this case were fully investigated, given its complexity and importance for public relations in the state.

In order to confirm the legitimacy of the interference with the conventional rights of such a person, the court (including the appellate court) is not limited to further investigate the facts and circumstances of the case, which are necessary for making a lawful and reasonable decision.

In the case at hand, the court of appellate instance formally addressed the plaintiff's motions and, in the Supreme Court's view, should have further investigated the circumstances referred to by the plaintiff in her motions.

However, the Supreme Court does not evaluate the relevance or admissibility of the disputed letter from the SSU, which was the basis for the plaintiff's dismissal. Such an assessment should be carried out with a full investigation of all circumstances that may additionally confirm / refute the facts already established by the courts of previous instances regarding the presence / absence of a person's citizenship (passport) of the aggressor country.

In view of the above, the Administrative Cassation Court overturned the decision of the appellate court and referred the case for a new appellate review, in which the appellate court should take into account the conclusions reached as a result of the cassation review and ensure that all the circumstances of the case necessary for a lawful and reasonable judicial decision are examined.

The Resolution of the Administrative Cassation Court of the Supreme Court of January 9, 2024 in case No. 640/19582/21 (proceedings No. K/990/34525/22) - https://reyestr.court.gov.ua/Review/116186716.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.