During a meeting of the working group on proper funding of the judiciary in Ukraine, created by the parliamentary legal committee (the legal committee of the Parliament), Vitalii Salikhov, a member of the High Council of Justice, raised the problematic issues regarding the payment of judicial remuneration and the counting of judicial experience for judges who are released from the duties of administering justice in connection with conscription for military service.
The issue of the payment of judicial remuneration to judges engaged in military action arose due to the Law of Ukraine No. 2352-IX “On Amendments to Certain Legislative Acts of Ukraine Regarding Optimization of Labor Relations”, which came into force on July 19, 2022. Among other things, the third part of the Article 119 of the Labor Code of Ukraine was amended to replace the words “place of work, position and average earnings are preserved” with the words “place of work and position are preserved”. Therefore, the average earnings as a social guarantee for employees during the performance of state or public duties no longer exist in the national legislation.
Vitalii Salikhov noted that taking into account the constitutional guarantees of the independence of judges, the priority of the norms of the Constitution of Ukraine and the Law of Ukraine “On the Judiciary and the Status of Judges” over other legislation, mobilized judges should receive their judicial remuneration in full. The Council of Judges of Ukraine adheres to the same position. However, the majority of budgetary funds' managers of the judicial authorities have stopped paying judges' remuneration and the law-provided allowances to their salaries.
Vitalii Salikhov also noted that the non-payment of judicial remuneration to the judges defending Ukraine may lead to further uncertainty in calculating judicial seniority upon retirement and counting insurance experience. The absence of contributions to the Pension Fund from judicial remuneration during judges' military service may cast doubt on the existence of judicial seniority during that period. Currently, the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families” is in force, but its provisions are general, and guarantees of their application to judges are not indubitable. It is advisable to establish a clearer definition regarding judges.
According to Vitalii Salikhov, the resolution of these disputed issues should be done by the legislature through amendments to the relevant Law of Ukraine "On Judicial System and Status of Judges", in order to avoid resolving these issues in court after the return of mobilized judges from the front.
The member of the HCJ noted that the High Council of Justice has approved the redistribution of the budget expenditures among the courts, the State Judicial Administration of Ukraine and its territorial branches, as there is a budget saving on judicial remuneration, therefore there is a financial possibility to pay judicial remuneration to judges who defend our state on the battlefield.
In addition, during the working group meeting, the issue of expenses for the creation and beginning of the operation of the Disciplinary Inspectorate Service under the High Council of Justice was raised.
Vitalii Salikhov noted that there are sufficient financial resources for launching the Disciplinary Inspectorate in the current year, in the model that was legislatively provided for. However, there are concerns that high requirements for disciplinary inspectors and the inadequate level of payment for their work may create problems in recruiting such specialists. In this regard, the High Council of Justice has proposed legislative changes, after which the funding level should be reviewed accordingly. Additionally, a member of the HCJ pointed out the need for allocating additional premises for this service, as there is a shortage of space for accommodating this independent structural unit in the current building of the HCJ.
The meeting of the working group was attended by the heads of courts, representatives of the Council of Judges of Ukraine, heads of court apparatuses and financial departments of courts, the State Judicial Administration, the High Qualification Commission of Judges of Ukraine, the Ministry of Finance of Ukraine, etc.
During the meeting, it was established that the situation with current funding remains unchanged during the first three months of 2023: the resources were only available for the payment of mandatory components of salaries and provision of other current expenses.