May 9, 2024
On May 1, 2024, the Kyiv Court of Appeal deliberated the appellate complaint filed on behalf of Acting Chief Justice Serhiy Holovaty against the decision of the Holosiivskyi District Court of Kyiv dated January 2, 2024, to find him guilty of committing an administrative offence set forth in Article 18846 of the Code of Ukraine on Administrative Offenses and impose an administrative penalty in the form of a fine of 1700 UAH based on the protocol on administrative offence drawn up by the National Agency on Corruption Prevention (hereinafter, the “NACP”) dated November 8, 2023.
Briefly on the course of the litigation
On September 14, 2023, the NACP forwarded the request to the Constitutional Court of Ukraine (hereinafter, the “CCU”) to provide the Agency with information and copies of certain documents, some of which were related to the constitutional proceedings.
The CCU provided the NACP with the requested information and a part of the documents, but refused to provide the rest due to the lack of legal grounds for doing that.
On October 12, 2023, the NACP issued an order to the Acting Chief Justice of CCU Serhiy Holovaty, further demanding copies of all documents.
On November 8, 2023, the NACP drew up a protocol against Acting Chief Justice of CCU Serhiy Holovaty for failing to comply with its allegedly “legal” requirements.
On January 2, 2024, the Holosiivskyi District Court of Kyiv found Serhiy Holovaty guilty of committing an administrative offence after considering the NACP protocol.
On May 1, 2024, the Kyiv Court of Appeal declared the NACP order unlawful and overturned the resolution of the court of first instance in view of the following:
- The Holosiivskyi District Court of Kyiv did not verify the legality of the NACP order;
- the Procedure for Drawing up Protocols on Administrative Offences and Issuing Orders by the NACP on Corruption Prevention, established on June 9, 2016, was overturned on December 6, 2019, by the Order of the NACP;
- as of the date of the order issuing dated October 12, 2023, and the drawing up of the protocol dated November 8, 2023, regarding the Acting Chief Justice Serhiy Holovaty, there was no normative regulation on the procedure for issuing orders by the NACP authorised persons on violation of the requirements of the Law of Ukraine “On Prevention of Corruption”;
- On November 21, 2023, the CCU contested the NACP order at the Circuit Administrative Court of Kyiv City. However, there is still no information on any procedural actions of the Administrative Court in this case;
- the documents and information requested in the NACP order were directly related to the constitutional proceedings in case No. 2-1/2023 (125/23) upon the constitutional appeal of 49 People's Deputies of Ukraine to provide an opinion on the constitutionality of the Agreement between Ukraine and the Russian Federation on the Stationing of the Russia's Black Sea Fleet on the Territory of Ukrainedated April 21, 2010, ratified by the Law of Ukraine “ On Ratification of the Agreement between Ukraine and the Russian Federation on the Stationing of the Black Sea Fleet of the Russian Federation on the Territory of Ukraine” No. 2153-VI;
- the judge-rapporteur in this case is Serhiy Holovaty;
- the Court of Appeal stated that the NACP had requested information and documents directly related to the constitutional proceedings, while the request for such materials is prohibited by the law.
The Court of Appeal outlined that in accordance with Article 247.1 of the Code of Ukraine on Administrative Offenses, the NACP had no right to initiate proceedings on an administrative offence, and the initiated proceedings were subject to closure due to the absence of an event and corpus delicti of the administrative offence.
The circumstances established during the appeal proceedings indicate that there is no evidence in the case file of the guilt of the Acting Chief Justice of CCU Serhiy Holovaty in committing an administrative offence set forth in Article 18846 of the Code of Ukraine on Administrative Offenses, and, accordingly, the corpus delicti of the administrative offence.
By its resolution, the Kyiv Court of Appeal upheld the appeal filed on behalf of Serhiy Holovaty, overturned the resolution of the court of first instance, and closed the proceedings on bringing to administrative liability under Article 247.1.1 of the Code of Ukraine on Administrative Offenses due to the absence of corpus delicti of the administrative offence under Article 18846.1 of the Code of Ukraine on Administrative Offenses.
The resolution of the Court of Appeal has entered into force, is final, and not subject to appeal.
Commenting on the court decision of the Kyiv Court of Appeal dated May 1, 2024, Acting Chief Justice of the CCU Serhiy Holovaty noted, in particular, the following:
“The decision of the appellate court clearly established the illegality of the NACP's actions, both in relation to the judge-rapporteur in the respective case and to the CCU as an institution of justice. Therefore, there are grounds to consider the system of actions in this case by the NACP as political pressure on the judge and the Court as a whole, id est, interference of the executive body into the constitutional judiciary.
It turned out that the NACP shared the stand of a lawyer Volodymyr Bohatyr, who, on June 22, 2023, being dissatisfied with both the opening of proceedings in the case of the 2010 Kharkiv agreements conclusion and the fact that Serhiy Holovaty was appointed as the judge-rapporteur, appealed to President V. Zelenskyy to “initiate the immediate dismissal of Serhiy Holovaty from the position of a judge of the CCU and from the position of a member of the Venice Commission.”
It was just this appeal by V. Bohatyr that served as a starting point of the NACP's systemic actions to obstruct constitutional proceedings in the respective case. Since then and until now, the constitutional proceedings in this case are still blocked.
It is well-known that back in July 2023, the SBI completed the pre-trial investigation of the criminal proceedings in the case of treason against V. Yanukovych and V. Bohatyr (as the then Deputy Minister of Justice) and accordingly sent an indictment to the court regarding the seizure of state power by these two persons in 2010.
Against this background, more than one question arises. In particular, did the NACP act to protect of the private interests of Yanukovych and Bohatyr, who are accused of treason? Do these actions of NACP constitute a private initiative of its employees or its a manifistation of the soviet style to follow orders from “the senior leadership”?
It`s a only pity that a judge of the Holosiivskyi Court, who delivered the decision in the first instance, has joined consciously or unconsciously the actions of the NACP, which were revealed to be unlawful.
