On behalf of the Russian Federation
of July 14, 2020 No. 35-P
On the case of check of constitutionality of part one of article 392 of the Labor Code of the Russian Federation in connection with the claim of the citizen R. M. Chetyz
Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, V. G. Yaroslavtsev,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered in meeting without carrying out hearing case on check of constitutionality of part one of article 392 of the Labor Code of the Russian Federation.
Reason for consideration of the case was the claim of the citizen R. M. Chetyz. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision disputed by the applicant.
Having heard the message of the judge-speaker L. M. Zharkova, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. According to part one of article 392 of the Labor Code of the Russian Federation the worker has the right to take a legal action behind permission of individual employment dispute within three months from the date of when he learned or shall learn about violation of the right, and on disputes on dismissal - within one month from the date of delivery to it copies of the dismissal order or from the date of issue of the service record or from the date of provision to the worker in connection with its dismissal of data on labor activity (article 66.1 of this Code) at the employer on the last place of employment.
1.1. The applicant on this case citizen R. M. Chetyz signed on July 31, 2013 with Management of FSIN of Russia on the Republic of Sakha (Yakutia) the contract on service in criminal executive system of the Russian Federation as the average commanding structure of Management of FSIN of Russia on the Republic of Sakha (Yakutia) for five-year term from the moment of the termination of educational institution and was enlisted by the cadet of 1 rate of law department of federal state educational institution of the higher education "Academy of the right and Office of the Federal Penitentiary Service" (FSIN of Russia Academy).
R. M. Chetyz was deducted by the order of the chief of FSIN of Russia Academy of August 4, 2017 based on the conclusion of functional audit check of July 31, 2017 from the educational organization for gross violation of office discipline, removed from all types of allowance and is recalled by the order of the acting the chief of OFPS of Russia on the Republic of Sakha (Yakutia) of August 18, 2017 to the order of FKU SIZO-1 OFPS of Russia on the Republic of Sakha (Yakutia) since August 14, 2017. Then the applicant was recalled by the order of the chief of FKU SIZO-1 OFPS of Russia on the Republic of Sakha (Yakutia) of August 25, 2017 to the order of the chief of OFPS of Russia on the Republic of Adygea for further service since August 25, 2017 (based on R. M. Chetyz's official report of August 25, 2017, request of OFPS of Russia on the Republic of Adygea of August 24, 2017, approval of FSIN of Russia of August 24, 2017).
R. M. Chetyz appealed to the Soviet district court of the city of Ryazan with the action for declaration about contest of the order on expel from FSIN of Russia Academy and reinstatement of the cadet which solution of January 15, 2018 left without change appeal determination of judicial board on civil cases of the Ryazan regional court of July 4, 2018, its claims were satisfied - the order on assignment was acknowledged illegal, R. M. Chetyz is reinstated as the cadet of law department of FSIN of Russia Academy.
The judgment was turned to immediate execution and R. M. Chetyz was reinstated by the order of the chief of FSIN of Russia Academy of January 24, 2018 the cadet 4 rates of law department since August 15, 2017. Respectively, the applicant was excluded on January 31, 2018 by the order of OFPS of Russia on the Republic of Adygea of January 29, 2018 (with the changes made by the order of February 6, 2018) from lists of staff of OFPS of Russia on the Republic of Adygea and recalled for further service to the order of FSIN of Russia Academy, and upon termination of training is sent to OFPS of Russia on the Republic of Sakha (Yakutia).
On August 21, 2018 R. M. Chetyz appealed to the Soviet district court of the city of Ryazan with the action for declaration about compensation of the moral harm done as a result of illegal expel from FSIN of Russia Academy, proving the requirements by the judgment availability on office dispute which took legal effect on July 4, 2018 and referring to provisions of article 237 of the Labor Code of the Russian Federation providing that the moral harm done to the worker by wrongful acts or failure to act of the employer is compensated to the worker in cash in the sizes determined by the agreement of the parties of the employment contract, and in case of dispute the causing fact to the worker of moral harm and the amount of its compensation is determined by court irrespective of the property damage which is subject to compensation, and also on provisions of Article 151 of Civil Code of the Russian Federation affirming the right of citizens to compensation of moral harm.
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