Kyiv Court of Appeal finds NACP's order against acting CCU Head Holovaty unlawful

The Kyiv Court of Appeal has ruled that the NACP's order against the acting head of the Constitutional Court of Ukraine, Serhiy Holovaty, is illegal. The ruling of the Court of Appeal has entered into force, is final and not subject to appeal, UNN reports with reference to the CCU.

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On May 1, 2024, the Kyiv Court of Appeal considered an appeal filed in the interests of Acting Head of the CCU Serhii Holovaty against the decision of the Holosiivskyi District Court of Kyiv dated January 2, 2024, to find him guilty of committing an administrative offense under part one of Article 18846 of the Code of Administrative Offenses and to impose an administrative penalty in the form of a fine of UAH 1700 based on the report on administrative offense drawn up by the NACP on November 8, 2023.

Briefly about the case

On September 14, 2023, the NACP sent a request to the Constitutional Court of Ukraine demanding information and copies of certain documents, some of which related to the constitutional proceedings.

The CCU provided the NACP with the requested information and part of the documents, but refused to provide the rest due to the lack of legal grounds for their provision.

On October 12, 2023, the NACP issued an order to the acting Head of the CCU Serhiy Holovatyi, further demanding that he provide copies of all documents.

On November 8, 2023, the NACP drew up a report against acting CCU Chairman Serhiy Holovaty for failing to comply with its allegedly "legal" demands.

On January 2, 2024, the Holosiivskyi District Court of Kyiv found Sergiy Holovaty guilty of committing an administrative offense based on the NACP protocol. 

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On May 1, 2024, the Kyiv Court of Appeal declared the NACP's order unlawful and overturned the decision 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's order;
• The Procedure for Drawing Up Protocols on Administrative Offenses and Issuing Orders to the NACP on Corruption Prevention, established on June 9, 2016, was canceled on December 6, 2019, by an order of the NACP;
• as of October 12, 2023, and November 8, 2023, there was no regulatory regulation of the procedure for issuing orders by NACP authorized persons on violation of the Law of Ukraine "On Prevention of Corruption";
• On November 21, 2023, the CCU appealed the NACP's order to the Kyiv District Administrative Court. 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's order directly related to constitutional proceedings in case No. 2-1/2023 (125/23) under constitutional appeal of 49 MPs of Ukraine on providing an opinion on the constitutionality of the Agreement between Ukraine and the Russian Federation on the Presence of the Black Sea Fleet of the Russian Federation on the Territory of Ukraine of April 21, 2010, ratified by the Law of Ukraine "On Ratification of the Agreement between Ukraine and the Russian Federation on the Presence of the Black Sea Fleet of the Russian Federation on the Territory of Ukraine"
• The reporting judge 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 law.

The Court of Appeal noted that in accordance with paragraph 1 of Article 247 of the Code of Administrative Offenses, the NACP had no right to initiate proceedings on an administrative offense, and the initiated proceedings were subject to closure due to the absence of an event and elements of an administrative offense.

The circumstances established during the appeal proceedings indicate that there is no evidence in the case file of the guilt of the acting Chairman of the CCU Serhii Holovaty in committing an administrative offense under part one of Article 18846 of the Code of Administrative Offenses, and, accordingly, the corpus delicti of an administrative offense.

The Kyiv Court of Appeal upheld the appeal filed on behalf of Sergiy Holovaty, reversed the decision of the court of first instance and closed the proceedings on bringing him to administrative responsibility under Article 247(1)(1) of the Code of Administrative Offenses due to the absence of an administrative offense under Article 18846(1)(0) of the Code of Administrative Offenses. The ruling of the Court of Appeal has entered into force, is final and cannot be appealed

Serhiy Holovaty's reaction

"The decision of the appellate instance clearly established the illegality of the NACP's actions both in relation to the judge-rapporteur in a particular 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, i.e. interference of the executive body in constitutional proceedings.

It turned out that the NACP entered into cooperation with a certain lawyer Volodymyr Bohatyre, who on June 22, 2023, dissatisfied with both the opening of proceedings in the case of the 2010 Kharkiv agreements and the fact that the reporting judge was Serhiy Holovaty, appealed to President of Ukraine V. Zelenskyy with a demand to "initiate 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 this appeal by V. Bohatyryi that became the starting point of the NACP's systemic actions aimed at obstructing the constitutional proceedings in this case. To date, the constitutional proceedings in this case have been blocked.

It is well known that back in July 2023, SBI employees completed the pre-trial investigation of the criminal proceedings in the case of high treason against V. Yanukovych and V. Bohatyry (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 in defense of the private interests of Yanukovych and Bohatyr, who are accused of treason? Are these actions of the NACP employees their private initiative, or is it a continuation of the Soviet tradition of following orders from "higher authorities"?

The only pity is that a judge of the Holosiivskyi Court, who made the decision in the first instance, was involved in a number of illegal actions of the NACP, knowingly or unknowingly," commented Acting Head of the CCU Serhii Holovaty on the decision of the Kyiv Court of Appeal.