Volodymyr Bogatyr: an oxymoron of conflict of interests in the Constitutional Court

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The National Agency for the Prevention of Corruption undertook to study the behavior of the head of the Constitutional Court. It is about a conflict of interests in connection with the appointment of Serhii Holovaty as a judge-rapporteur in the case of “Kharkiv Agreements”.

What exactly happened and why did it happen?

Conflict of positions in time

Recently, the panel of judges opened constitutional proceedings in the case at the request of 49 people’s deputies. The case concerns an opinion on constitutionality agreements between Ukraine and Russia on the stay of the Black Sea Fleet of the Russian Federation on the territory of Ukraine dated April 21, 2010.

Serhii Holovatyy, acting chairman of the Supreme Court, was appointed as the judge-reporter in this difficult case.

It will be recalled that the agreement, which is currently being checked for constitutionality, provided for the extension of the 1997 agreements. The aforementioned agreements discussed the distribution of the Black Sea Fleet after the collapse of the USSR and the conditions for the Russian fleet’s stay on the territory of Ukraine.

We will remind, according to the Constitution (Article 17), the location of foreign military bases on the territory of Ukraine is inadmissible. At the same time, the Transitional Provisions of the Basic Law (Clause 14) allow that foreign military formations may be temporarily stationed at existing military bases on the territory of Ukraine under lease conditions. This lease must be established by international treaties ratified by the Verkhovna Rada.

Accordingly, the “Kharkiv Agreements” were ratified by law No. 2153–VI. On the day of its consideration in the session hall of the Verkhovna Rada, cast your vote “for” gavein particular, a People’s Deputy of the VI convocation and a member of the faction of the Party of Regions (#93 on the list), chairman of the subcommittee on constitutional legislation of the Verkhovna Rada… Serhiy Holovaty.

We can, of course, assume that, according to the ancient traditions of Ukrainian parliamentarism, it was not he who voted in the hall, but his card. Nevertheless, as a representative of the then pro-government faction and the head of the specialized constitutional subcommittee, Holovaty was most likely involved in the political procedures of agreement and ratification of the “Kharkiv Agreements”. Which after the change of power became the subject of criminal proceedings of the State Bureau of Investigation.

Judging from open sources, the ex-National Deputy did not withdraw his vote. And this indicates the contradictions in the actions of Holovaty as the head of the Constitutional Court and judge-rapporteur today and people’s deputy in the past. And it can directly affect objectivity and impartiality during the consideration of the constitutionality of the “Kharkiv Agreements”.

How should the judge act

One can definitely talk about the existence of a conflict of interests. As stated in Article 60 of the Law “On the Constitutional Court of Ukraine”, a judge of the Constitutional Court cannot exercise his powers if he has a real or even a potential conflict of interests. In such a case, he is obliged to inform the SC about this within one working day and declare his withdrawal.

Also, Article 28 of the Law “On Prevention of Corruption” imposes a direct duty on the judges of the Constitutional Court: to prevent the occurrence of a conflict of interests. If it does exist, the judges should inform the NAZK, not take any action and not make emergency decisions.

In order to find out to what extent these norms of the law were observed, we asked about the presence of Serhiy Holovaty’s appeal with a self-recusal and a notification regarding the conflict of interests in the Constitutional Court and NAZK. But both institutions refused to provide an answer on the merits. The Supreme Council of Justice she also “washed her hands” in this matter. It turns out that if these state bodies do not hide such a problem, then, at least, they are indifferent to it.

Skeletons in the closet

There are several interesting facts in the career of the current head of the Central Committee, which characterize him from the point of view of integrity.

official biography, placed on the court’s website, only one line mentions his political life: “He was a People’s Deputy of Ukraine for six terms (1990, 1994, 1998, 2002, 2006, 2007).” But in fact it is more saturated and deserves a separate study. In contrast to the dry numbers, let us remind you of his political tastes: the CPSU, the faction of the People’s Movement of Ukraine and the “Non-Party” faction, the “Reform” group, the “Independent” group, BYU, “Our Ukraine”, “Party of Regions”. Such variety, which of course is not mentioned, can hardly compromise a talented person in any way. Moreover, all this “remained in the past”.

But something else is interesting. In December 2005, when Holovaty was the Minister of Justice, the Central Election Commission admitted him as a violator of the election legislation. The reason for this decision was the minister’s live speech, where he violated the ban on participation in pre-election campaigning for officials. Having established this fact, the CEC obliged Holovaty to refrain from further violations of the election legislation.

About “corrupt practices” that “win at the highest level”, also informed the NAKC in October 2020, commenting on the scandalous decision of the Supreme Court of Ukraine case about illegal enrichment. It is about declaring unconstitutional Article 366-1 of the Criminal Code of Ukraine. At that time, anti-corruption officials mentioned the declaration of unreliable information by two judges of the Constitutional Court, in particular, by Holovaty in the amount of UAH 3.6 million. The NAKC accused the judges of having a conflict of interest in making a decision.

Despite this, in two months, the deputy chairman of the Central Committee becomes the acting chairman. the leader Whether a candidate for the post of ordinary judge would pass the integrity check with such a background is a rhetorical question.

In the end, I submitted a report of corruption to the NAKC, which resulted in the start of monitoring and control of the implementation of legislation in the event of a conflict of interest in the activities of judge Serhiy Holovatoy (agency letter No. 39-02/9347-23 dated 05/02/2023).

Declaration and not only

According to the available information, signs of violations related to the declaration were also found among other judges of the Constitutional Court, in particular, Iryna Zavhorodnaya, Igor Slidenko and Volodymyr Moysyk.

Even bigger scandals accompanied previous heads of the Central Committee. At one time, Stanislav Shevchuk was accused of many things: illegal orders, politicization of the court’s activities, ignoring the rights of colleagues, as well as abuse of office, inappropriate use of budget funds and interference in the work of judges.

After him Oleksandr Tupytsky was in the center of attention due to several corruption scandals. He was accused of illegally taking possession of a plot of land during his work at a law firm, as well as entering false data into an electronic declaration. And yet, precisely because of the infamous decision on illegal enrichment, the head of the Central Committee was associated with the “Servant of the People” party. After all, at that time the decision, which undermined the electronic declaration system and negatively affected the authority of anti-corruption bodies, was perceived as an attempt to protect political interests.

In general, all these scandals related to judges of the Constitutional Court point not only to potential corruption schemes, but also to the lack of independence of the court itself. European practice knows the tradition of resignation in order to preserve respect for the authority. For us, ensuring the “interests” of those in power is the main and highest “priority”.

But all their own

The appointment of judges of the Constitutional Court was not always based on their professional competence and impeccable reputation. In some cases, it can be said that personnel decisions are used as a tool of political influence or ensuring loyalty to specific political forces.

Even the Venice Commission pointed to political dependence as the main problem of the COP.

During the analysis of the draft Law on Constitutional Procedure (#4533 dated 12/21/2020), European colleagues warned that the appointment of judges of the Constitutional Court will become possible after the procedure is changed. The new one must necessarily include the participation of international experts.

Moreover, the recommendations of the Venice Commission directly refer to the preliminary selection of judges of the Constitutional Court on the basis of evaluation of integrity and professional skills. Adoption and implementation of such legislation has become one of the seven requirements EU to Ukraine as a candidate country for accession.

But neither the requirements of the EU nor the recommendations of the experts of the Venice Commission stood in the way of the people’s deputies when the question arose election his colleague Olga Sovgyri as a new judge of the Constitutional Court.

This approach devalues ​​the importance of a single body of constitutional jurisdiction. I used to wrote that the Constitutional Court, during its activity, has become a frankly inefficient body that deserves nothing less than liquidation. After all, his decisions are systematically not implemented and are not even recognized by law enforcement officers. In fact, what remained was the process for the sake of the process and the pretense of the existence of a constitutional right.

Because of this, the articles of the Constitution never became norms of direct action, their use at best causes a smile from judges, and for the execution of the decisions of the KSU, they may be held criminally liable. And it cannot be assumed that today’s lawyers-scientists (if they can still be called that) do not see this state of affairs. Instead, they continue to approve other reforms, delegate their representatives to the Central Committee and other institutions.

Such behavior of the judges of the KSU from all sides discredits the body of constitutional jurisdiction, and its continuation will only speed up the liquidation of this body. Therefore, one cannot but agree with the recently put forward thesis of a colleague about the pathological inability of the authorities to do something good in the courts. Because “there will be no independent KSU, as well as accession to the EU”.

All this emphasizes the importance of carrying out reforms to strengthen the independence of the judiciary, the transparency of the appointment of judges, as well as their accountability to the public and the law.

Volodymyr Bogatyr

The column is a material that reflects exclusively the point of view of the author. The text of the column does not claim objectivity and comprehensive coverage of the topic it raises. The editorial office of “Ukrainian Pravda” is not responsible for the reliability and interpretation of the given information and performs exclusively the role of a carrier. The point of view of the editorial office of UP may not coincide with the point of view of the author of the column.

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