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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of December 6, 2012 No. 31-P

On behalf of the Russian Federation

On the case of check of constitutionality of item 4 of part 1 of Article 33 and subitem "an" of Item 3 of part 1 of article 37 of the Federal law "About the Public Civil Service of the Russian Federation" in connection with the claim of the citizen L. A. Pugiyeva

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, G. A. Zhilin, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, O. S. Hokhryakova, with participation of the representative of the Federation Council - the doctor of jurisprudence A. S. Salomatkin, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,

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, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered case on check of constitutionality of item 4 of part 1 of Article 33 and the subitem "an" of Item 3 of part 1 of article 37 of the Federal law "About the Public Civil Service of the Russian Federation" in open session.

Reason for consideration of the case was the claim of the citizen L. A. Pugiyeva. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation challenged by the declarant of legislative provision.

Having heard the message of the judge-speaker N. V. Seleznyov, explanation of representatives of the Federation Council and the President of the Russian Federation, speech of the representatives invited in meeting: from the Ministry of Justice of the Russian Federation - M. A. Melnikova, from the Prosecutor General of the Russian Federation - T. A. Vasilyeva, from the Commissioner for Human Rights in the Russian Federation - A. N. Maximova, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. The Federal Law of July 27, 2004 No. 79-FZ "About the public civil service of the Russian Federation" refers to the general bases of the termination of the office contract, release from the replaced position of the public civil service and dismissal from the public civil service of the government civil servant termination of the office contract at the initiative of the employer's representative (item 4 of part of 1 Article 33), and to the bases of termination of the office contract at the initiative of the employer's representative - such single gross violation by the government civil servant of job responsibilities as absence, i.e. absence on the office place without valid excuse more than four hours in a row during the office day (the subitem "an" of Item 3 parts of 1 Article 37).

1.1. With reference to the called legislative provisions the declarant on this case citizen L. A. Pugiyeva due to the lack on service was dismissed from September 26 to September 28, 2011 by the order of the head of Administration of the Head of the Republic of Ingushetia of September 29, 2011 the personnel manager and the state awards of Administration of the Head of the Republic of Ingushetia and dismissed from the public civil service for absence.

Refusing satisfaction of requirements of L. A. Pugiyeva about recovery at work, collection of the salary for time of induced truancy and compensation of moral harm, the Magassky district court of the Republic of Ingushetia in the decision of November 24, 2011 (it is left without change determination of judicial board on civil cases of the Supreme Court of the Republic of Ingushetia of December 29, 2011) regarded as abuse of the right of action of the declarant, expressed that she reported about the reason of the absence on service since September 26, 2011 (need of care of the son undergoing treatment in hospital - the disabled person of the II group) only two days later, suppressed the fact of temporary disability and on September 29, 2011 provided disability leaf.

L. A. Pugiyeva's argument that, being pregnant woman, she owing to article 73 of the Federal law "About the Public Civil Service of the Russian Federation" falls under action of part one of article 261 of the Labor Code of the Russian Federation fixing guarantee in the form of prohibition of dismissal of pregnant workers at the initiative of the employer except cases of liquidation of the organization and the termination of activities by the individual entrepreneur was rejected by courts on the ground that part 3 of article 37 of the called Federal Law in which the exhaustive list of the guarantees provided to the government civil servants in case of termination of the employment contract at the initiative of the employer's representative is established does not contain prohibition on dismissal of the expectant mothers who are not on maternity leave, and the regulation of the Labor Code of the Russian Federation which is not allowing dismissal of expectant mothers does not extend to the government civil servants. Transfer of the writ of appeal for consideration in judicial session of court of cassation instance to the declarant it was refused by determination of the judge of the Supreme Court of the Republic of Ingushetia of March 14, 2012 and determination of the judge of the Supreme Court of the Russian Federation of April 12, 2012.

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