May 22, 2024
On May 20, 2024, the Holosiivskyi District Court of Kyiv, deliberating the case on bringing Serhiy Holovaty, as the Acting Chief Justice of the Constitutional Court of Ukraine, to administrative liability under Articles 1727.1, 1727.2 of the Code of Ukraine on Administrative Offences, adopted the ruling establishing that there were neither an event nor corpus delicti of the administrative offence incriminated to Serhiy Holovaty.
Litigation course of the case No. 752/3676/24
The Court started proceedings in this case on the basis of protocol No. 39- 02/2, drawn up on January 18, 2024, by the Deputy Head of the NACP Artem Sytnyk against the Acting Chief Justice of the Constitutional Court of Ukraine Serhiy Holovaty.
The essence of the administrative offences in the protocol No. 39-02/2 is defined as follows: «S. Holovaty, contrary to the requirements of Articles 28.1.2, 28.1.3 of the Law of Ukraine “On Prevention of Corruption” (hereinafter, the “Law”), Article 60.2 of the Law of Ukraine “On the Constitutional Court of Ukraine”, paragraph 13.1 of the Rules of Procedure of the Constitutional Court of Ukraine, hasn’t informed the Constitutional Court of Ukraine about the existence of a real conflict of interest in deliberating the application of V. Bohatyr dated June 22, 2023, which was received by the Constitutional Court of Ukraine with the outgoing letter of the Office of the President of Ukraine No. 22/040779-26 dated June 27, 2023 (incoming letter No. 18/337 dated June 29, 2023), and proposed (on July 25, 2023) the said application to be deliberated on the agenda of the session of the Constitutional Court of Ukraine (not within the framework of a special plenary session)».
Having examined the case file, the Сourt held that the proceedings in this case is subject to closure upon Article 247.1 of the Code of Ukraine on Administrative Offences on the following grounds:
- the protocol on the administrative offence do not comply with the requirements of the legislation in force;
- the protocol does not prove the fact of committing administrative offences;
- the protocol itself, as well as the case file, do not contain sufficient, adequate and admissible evidence that the action (inaction) of Serhiy Holovaty contained both an event and corpus delicti of the administrative offence established by Articles 1727.1, 1727.2 of the Code of Ukraine on Administrative Offences.
In particular, the Court underscored that the reference in the protocol to the violation of Article 60.2 of the Law of Ukraine “On the Constitutional Court of Ukraine” was groundless, given that this norm in no way relates to the settlement of conflict of interest when the Chief Justice of the Constitutional Court of Ukraine and/or the Acting Chief Justice of the Court exercises his/her powers to convene meetings, special plenary sessions of the Constitutional Court of Ukraine.
Regarding the alleged violation of paragraph 13.1 of the Rules of Procedure of the Constitutional Court of Ukraine by Serhiy Holovaty, the Court noted that, given the form, content of the “application” of V. Bohatyr and its addressee, it was not an “application concerning the commission by a Judge of a significant disciplinary offence, gross or systematic neglect of his/her duties, which is incompatible with the status of a Judge or revealed his incompatibility with the position held” within the meaning of paragraph 13.1 of the Rules of Procedure of the Constitutional Court of Ukraine, and hence there were no grounds for its deliberation at a special plenary session of the Constitutional Court of Ukraine.
The Court also held that the NACP assertion that Serhiy Holovaty had a private interest in the deliberation of the “application” was legally groundless, and therefore Serhiy Holovaty did not violate the requirements of Articles 28.1.2, 28.1.3 of the Law of Ukraine “On Prevention of Corruption”.
The Court specifically noted that the content of the “application” addressed to the President of Ukraine “does not take into account the guarantees of independence of the Constitutional Court of Ukraine and its judges” and outlined that “one of the integral and foundational elements in the system of constitutional guarantees of independence of judges of the Constitutional Court of Ukraine is the prohibition of influence on a judge of the Constitutional Court of Ukraine in any way (Article 149.2 of the Constitution of Ukraine). This constitutional provision should be understood as a prohibition of any actions against the judges of the Constitutional Court of Ukraine, regardless of the form of their manifestation, by bodies of state power, institutions and organisations, local self-government bodies, their officials and employees, individuals and legal entities to obstruct the judges of the Constitutional Court of Ukraine from exercising their powers.”
As a result, the court pointed out that “bringing S. Holovaty to administrative liability would not comply with the foundations of the legality, the definition of an administrative offence (misdemeanour) under Article 9.1, and the objectives of proceedings on administrative offence.”
It should be reminded that on May 1, 2024, the Kyiv Court of Appeal declared the NACP order dated October 12, 2023, regarding Acting Chief Justice of the Constitutional Court of Ukraine Serhiy Holovaty unlawful and overturned the resolution of the court of first instance finding him guilty of committing an administrative offence: https://is.gd/hIQNiF.
