On March 26, 2024, the Second Senate, at the plenary session, delivered the Decision in the case upon the constitutional complaint of Yelyzaveta Yevhrafova regarding the compliance of the specific provision of paragraph 7 of Section XII “Final and Transitional Provisions” of the Law of Ukraine “On the Judiciary and the Status of Judges” No. 1402-VIII dated June 2, 2016, (hereinafter, “Law No. 1402”), as amended, with the Constitution of Ukraine (constitutionality).
The Constitutional Court of Ukraine has declared unconstitutional the specific provision of paragraph 7 of Section XII “Final and Transitional Provisions” of the Law of Ukraine “On the Judiciary and the Status of Judges” No. 1402- VIII dated June 2, 2016, as amended.
The subject of the right to a constitutional complaint claimed that after the entry into force of Law No. 1402 on September 30, 2016, she proceeds with administering justice in the court of cassation, successfully passed the qualification assessment and confirmed her ability to administer justice in the Supreme Court, however, she is granted a remuneration of judges in accordance with the Law of Ukraine “On the Judiciary and the Status of Judges” No. 2453-VI dated July 7, 2010 (hereinafter, “Law No. 2453”).
Yelyzaveta Yevhrafova pointed out that the disputed provision of Law No. 1402 “introduces a discriminatory approach to guarantees of independence of judges of high specialised courts, that before the Supreme Court commenced its activity (in its new composition), had exercised the powers of the cassation instance <…> which violates the principle of inadmissibility of discrimination, the principle of the unity of the status of judges, constitutional guarantees of their independence”, which contradicts Articles 8.1, 8.2, 19.2, 24.1, 24.2, 126.1 of the Constitution of Ukraine.
The Constitutional Court of Ukraine emphasises that the provisions of Article 126 of the Constitution of Ukraine, in order to prevent any influence on judges, guarantee them equal constitutional protection and equal guarantees of their independence and inviolability, fundamental approaches to ensuring such guarantees, and this should be the basis of the laws of Ukraine defining the judicial system, judicial proceedings and the status of judges.
The Decision states, “All judges of the Ukrainian judicial system have a uniform status, which is inherent in them as persons performing an exclusive constitutional function – the administration of justice. The uniform status of judges means the uniformity of the legal status of judges in all aspects, primarily, the uniformity of their guarantees of independence and inviolability, rights and obligations, requirements, restrictions, prohibitions and liability. At the same time, ensuring guarantees of independence and inviolability of judges should be based on the principle of a uniform status of judges, which does not permit, in particular, selectivity in ensuring these guarantees and lowering their level for a certain category of judges, that does not contribute to the administration of justice by unbiased, objective, impartial and independent courts, the exercise of the constitutional right to judicial protection.”
The Constitutional Court of Ukraine noted that the independence of the judicial power and each individual judge, and the inadmissibility of any extraneous influence on judges, is the duty of all bodies of state power, their officials and other persons as well as under international law.
Taking into account its decisions, the Constitutional Court of Ukraine concludes that adequate material and social security of judges, including the right to remuneration of a judge, and other constitutional guarantees of their independence and inviolability are extended to all judges and must be ensured by the state on the basis of the principle of a uniform status of judges without any reduction in the level of such guarantees.
In the Decision, the Court underscores that international law guarantees adequate material and social security of judges, first of all, ensuring dignified and stable remuneration to all of them, which is an integral part of the status of a judge, guaranteeing the independence of judges; as well as that the constitutional courts of European countries recognise adequate material and social security of judges as one of the most important guarantees of judicial independence.
The Constitutional Court of Ukraine proceeds from the fact that the constitutional guarantee of judicial independence – remuneration of a judge – is an integral part of the uniform status of judges.
The Constitutional Court of Ukraine emphasises that the remuneration of a judge is an element of his/her status; it follows from the content of Article 125.2 of the Constitution of Ukraine that reorganisation, liquidation or other actual termination of the court's activities does not deprive each of its judges of the status of a judge.
In the Decision, the Court underlines the need to comply with legal certainty as a requirement of the rule of law in matters of ensuring funding and proper conditions for the functioning of courts and the activities of judges. Establishment of the amount of judicial remuneration by Law No. 2453 means not only guaranteeing its amount at the level of a special law, but also the existence of one such law that clearly, systematically and consistently regulates the issue of the amount of remuneration of a judge in accordance with the uniform status of judges and guarantees of independence and inviolability of judges.
The Constitutional Court of Ukraine notes that by the impugned provision of Law No. 1402 the legislator has actually defined a certain category of judges, namely judges of the High Specialised Court of Ukraine for Civil and Criminal Cases, the High Commercial Court of Ukraine, the High Administrative Court of Ukraine, for whom, prior to the termination of the activity of these courts, contrary to the constitutional guarantee of material support of judges as an element of their independence and the principle of the single status of judges, selectively established a different (smaller) amount of the judge's remuneration under Law No. 2453, compared to judges to whom such remuneration is determined by Law No. 1402. The judges of these high specialised courts, who were not dismissed from office or whose powers were not terminated on the grounds specified by the Constitution of Ukraine, are judges of the judicial system of Ukraine, administer justice, and therefore do not differ in their legal status from other judges whose remuneration is calculated in accordance with Law No. 1402. Therefore, the disputed provision of Law No. 1402 narrows the guarantees of independence of this category of judges, which is an influence on these judges, and consequently poses a threat to both their independence and the judicial power as a whole and contradicts the provisions of Articles 8.1, 8.2, 19.2, 126.1, 126.2 of the Constitution of Ukraine.
The Constitutional Court of Ukraine also came to the conclusion that the specific provision of paragraph 7 of Section XII “Final and Transitional Provisions” of Law No. 1402 does not meet the requirement of legal certainty regarding the regulation of the amount of remuneration of a judge by the Law “On the Judiciary and the Status of Judges”, and therefore contradicts Articles 8.1, 130.2 of the Constitution of Ukraine.
The Judge-rapporteur in the case was Viktor Gorodovenko.
