The High Council of Justice draws attention to the fact that financial guarantees for judges are an invariable constant, a basic component of their independence, an integral element of the status of a judge.
Since the beginning of the full-scale invasion of the troops of the aggressor country into Ukraine, many judges of courts of different instances and jurisdictions have come to the defence of our country. During the period of military service, they retain their status, place of work, position. And, as a consequence, in view of this, judicial remuneration should be paid.
At the same time, after the entry into force of the Law of Ukraine No. 2352-IX “On making amendments to certain legislative acts of Ukraine on optimizing labour relations”, which removed the words “average earnings maintaining” from part three of Article 119 of the Labour Code of Ukraine in relation to employees who became military personnel, discussions on payments have arisen.
According to members of the High Council of Justice, judges in war remain judges with all the constitutional guarantees stipulated by their positions, so they should be paid just a judicial remuneration, and not the monetary allowance of military personnel. The amount of remuneration of a judge is established by the law on the judiciary (Article 130 of the Basic Law of Ukraine).
According to Article 135 of the Law of Ukraine “On the Judiciary and the Status of Judges”, judicial remuneration shall be governed by this Law and no other rules and regulations may apply. The law provides for an exhaustive list of restrictions on the payment of judicial remuneration but military service does not apply to such cases.
The Constitutional Court of Ukraine noted that guarantees of the judicial independence, including measures regarding his/her material and social support, apply to all judges and cannot be cancelled or reduced by other normative acts. (Decision dated April 15, 2020 No. 2-р(ІІ)/2020). The legislator cannot arbitrarily establish or change the amount of a judge's remuneration (Decision dated March 11, 2020 No. 4-р/2020)
Relying on the constitutional guarantees of the independence of judges, taking into account the priority of the norms of the Constitution of Ukraine and the relevant Law of Ukraine “On the Judiciary and the Status of Judges” over other norms of the legislation, the High Council of Justice considers that judges temporarily relieved of their duties of administering justice in connection with conscription for military service during mobilization, judicial remuneration must be paid in full.
This position is supported by the Council of Judges of Ukraine. In Decision No. 35, it drew the attention of administrators of budget funds of the judiciary that a judge who does not administer justice due to circumstances beyond his/her personal control or not due to his/ her behaviour has the right to receive additional payments to official salary in accordance with the Decision of the Constitutional Court Ukraine No. 11-р/2018.
Therefore, the judges who are currently defending Ukraine have every legal reason to receive the judges' remuneration in full.