Judges called up for military service during mobilisation are not paid judicial remuneration for the period of military service - SC GC

If a judge is called up for military service during mobilisation, for a special period, as well as in other cases provided for in Part 2 of Article 39 of the Law of Ukraine ‘On Military Duty and Military Service’, he or she retains his or her place of work and position for the period until the end of the special period or until the day of actual dismissal. During this period, the judge is subject to the status of a serviceman as defined by the regulations, including guarantees of legal and social protection of servicemen, and the judge is not paid a judicial remuneration.

This conclusion was reached by the Grand Chamber of the Supreme Court.

Under the circumstances of the case, by order of the president of the court of 5 March 2022, the plaintiff was dismissed from work in connection with the call-up to the Armed Forces of Ukraine to the Territorial Defence Forces for an indefinite period with the preservation of his place of work, position and average salary. At the same time, as of 19 July 2022, the accrual and payment of the plaintiff's judicial remuneration was terminated.

The plaintiff believed that the current legislation did not provide for the suspension of payment of judicial remuneration to judges who were serving in the Armed Forces of Ukraine. Such suspension is an unlawful restriction of the rights of a judge guaranteed by the Constitution of Ukraine.

The courts of the previous instances granted the claim, noting that the provisions of Part 3 of Article 119 of the Labour Code of Ukraine (as amended by the Law of Ukraine No. 2352-IX dated 1 July 2022 ‘On Amendments to Certain Legislative Acts of Ukraine on Optimisation of Labour Relations’, which excludes the provision on retention of the average salary at the place of work for employees during the period of military service) do not apply to the disputed legal relations.

The Grand Chamber of the Supreme Court disagreed with such conclusions in view of the following.

If a judge is called up for military service, in particular, for mobilisation, for a special period, the labour relations between him/her and the court are regulated by the provision of part 3 of Article 119 of the Labour Code of Ukraine, since the Law of Ukraine ‘On the Judiciary and the Status of Judges’ does not contain a provision that would regulate these relations differently.

Upon entering military service, the plaintiff did not lose his status as a judge, his powers as a judge were preserved by virtue of the provisions of Part 7 of Article 126 of the Constitution of Ukraine and Article 119 of the Law of Ukraine ‘On the Judiciary and the Status of Judges’. At the same time, he acquired the status of a serviceman.

As he was relieved of his duties in the administration of justice for the period of his military service, the plaintiff is not entitled to receive a judicial remuneration as a reward for the performance of his professional duty as a judge during this period. He entered into a public legal relationship with the state regarding military service under the conditions, including those related to provision (monetary and material), established by the state for this type of public service. In this regard, the termination of the accrual and payment of the plaintiff's judicial remuneration is lawful.

A link to the resolution of the Grand Chamber of the Supreme Court of 13 March 2025 in case No. 320/10955/23 (proceedings No. 11-5апп25) will be added immediately after its publication in the USRDC.