Bringing Holovatyi to administrative responsibility under NACP protocol does not meet principles of legality - court's decision

On May 20, the Holosiivskyi District Court of the city of Kyiv, considering the case of bringing Serhii Holovatyi as the Acting Chairman of the Constitutional Court of Ukraine to administrative responsibility under the first and second parts of Article 172-7 of the Code of Administrative Offenses of Ukraine, issued a resolution on May 20, establishing that there was neither an incident nor a composition of administrative offenses he was accused of.

The press service of the Constitutional Court of Ukraine has announced this, the Ukrainian News agency reports.

Artem Sytnyk, a deputy chairman of the NACP, drew up the protocol regarding Holovatyi.

The essence of administrative offenses in the protocol is defined as follows: "S.P. Holovatyi contrary to the requirements of paragraphs 2, 3, part 1 of Article 28 of the Law of Ukraine "On Prevention of Corruption" (hereinafter - the Law), part 2 of Article 60 of the Law of Ukraine "On the Constitutional Court of Ukraine", part 1 of paragraph 13 of the Regulations of the Constitutional Court of Ukraine did not inform the Constitutional Court of Ukraine about the existence of a real conflict of interest regarding the consideration of the appeal of V.V. Bohatyr from 06/22/2023, which came to the Constitutional Court of Ukraine with the letter of the Office of the President of Ukraine dated 06/27/2023, exit number 22/040779-26 (entry from 06/29/2023, No. 18/337), and proposed (07/25/2023) the specified appeal for consideration on the agenda of the meeting of the Constitutional Court of Ukraine (not within the framework of a special plenary meeting)".

After examining the case materials, the court came to the conclusion that the proceedings in this case are subject to closure on the basis of paragraph 1 of Article 247 of the Code of Criminal Procedure due to the fact that:

- the protocol on an administrative offense does not meet the requirements of the current legislation;

- the protocol does not prove the fact of committing administrative offenses;

- the protocol, together with the case materials, does not contain sufficient, proper and admissible evidence that the actions (inaction) of Serhii Holovatyi contained both the event and the composition of the administrative offenses established by the first and second parts of Article 1727 of the Code of Administrative Offenses.

The court, in particular, noted that the reference in the protocol to the violation of the second part of Article 60 of the Law of Ukraine "On the Constitutional Court of Ukraine" is groundless given the fact that this provision in no way relates to issues of conflict of interest settlement during the performance by the head of the Constitutional Court of Ukraine and/or the acting chairman of the Court of his powers to convene meetings, special plenary meetings of the Constitutional Court of Ukraine.

The court also came to the conclusion that the statement of the NACP that Holovatyi had a private interest related to the consideration of the "appeal" is legally groundless, and therefore, he did not violate the requirements of paragraphs 2, 3 of the first part of Article 28 of the Law of Ukraine "On Prevention of Corruption".

The court separately drew attention to the fact that the content of the "appeal" addressed to the President of Ukraine "does not take into account the guarantee of the independence of the Constitutional Court of Ukraine and its judges", and noted that "one of the integral and basic elements in the system of constitutional guarantees of the independence of judges of the Constitutional Court of Ukraine is the prohibition of the influence of the judge of the Constitutional Court of Ukraine in any way (part 2 of Article 149 of the Constitution of Ukraine). This constitutional prescription 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 the state bodies, institutions and organizations, local self-government bodies, their officials and employees, individuals and legal entities, aimed at obstructing the execution of their powers by the judges of the Constitutional Court of Ukraine".

In the end, the court noted that "bringing S.P. Holovatyi to administrative responsibility will not comply with the principles of legality, the definition of the concept of an administrative offense (misdemeanor) under part 1 of Article 9, and the task of proceedings in administrative offense cases."

As reported by the Ukrainian News agency, the Kyiv Court of Appeal acquitted the Acting Chairman of the Constitutional Court, Serhii Holovatyi, in the corruption case.

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