This year, the Supreme Court itself decided to remove the powers of head Vsevolod Knyazev after his arrest on charges of accepting a bribe in the amount of $2.7 million. This event attracted widespread attention in world news.
In 2019, after the change of political power, one of the main stumbling blocks for President Zelensky and the Servant of the People team on the path to complete consolidation of power was the Supreme Court, which they tried to “reform” back in the fall of 2019. However, having then received a slap on the wrist from international partners and the Constitutional Court of Ukraine, the builders of the “vertical of power” were forced to temporarily stop these attempts.
This year, the Supreme Court itself gave a “pass” to the power team after its 44-year-old head, Vsevolod Knyazev, made international news when he was detained for a bribe of $2.7 million.
In December, the Supreme Court celebrates its 6th anniversary with a new composition and new functions that it received as a result of the 2016 reform. One of the goals of that reform was the restoration of the independence of the judiciary, headed by a strong Supreme Court.
That reform eliminated the cassation “highest specialized courts” that Yanukovych-Portnov created to weaken the Supreme Court using the “divide and rule” method, and also completely rebooted the Supreme Court itself. The court received new judges elected through competition and a new structure: four cassation courts (administrative, economic, criminal and civil) and the Grand Chamber, a body for resolving the most complex legal issues.
It is the Grand Chamber and the extraordinary events taking place around it after the bribe to Knyazev that will be discussed. After all, under the guise of Knyazev’s story, Bankovaya and the “servants” decided to crush the Supreme Court and take revenge for 2019.
What is BP VS?
The Grand Chamber of the Supreme Court (GC Supreme Court) is a new phenomenon for Ukraine (after all, it has been functioning for only six years), but many supreme courts in the world have similar large chambers. They function in the European Court of Human Rights (17 judges) and the Court of Justice of the European Union (15 judges).
The Grand Chamber of the Ukrainian Supreme Court has 21 judges - five judges from each cassation court and the chairman of the Supreme Court ex officio. Judges are elected by the meeting of judges of the relevant court of cassation for a period of three years. The Assembly has no right to recall judges. Each judge can serve in the OP for no more than two consecutive terms.
This formula ensures maximum independence of the Chamber and minimizes (although does not eliminate) external influence on it, and also contributes to the preservation of “historical memory,” which is important for the stability and unity of the practice of the Supreme Court.
Its functionality is to ensure the unity of judicial practice between different judicial jurisdictions (which affects the understandability and predictability of court decisions in the system as a whole), resolving so-called jurisdictional disputes (so that the case is heard in a specific jurisdiction, and not in all at the same time), resolving exceptional legal problems (this is when legislation has conflicts or is completely absent on certain issues) and reviewing decisions in exceptional circumstances (when the ECHR finds that Ukraine has violated the provisions of the European Convention on Human Rights).
An equally important function of the Chamber is the appeal hearing of cases with the participation of the President, Parliament, the High Council of Justice and the High Qualifications Commission of Judges. In fact, the Grand Chamber is the body that identifies violations of the Constitution and laws of Ukraine by the president and the Verkhovna Rada, and therefore, its decisions can change the landscape of Ukrainian government, in particular, significantly influence the election results.
“Political” cases considered by the Supreme Court Supreme Court
This fall, the BC Supreme Court, among other things, made a number of decisions against the president and the Verkhovna Rada.
The decision against the president is the cancellation of the decrees of the head of state on the removal and “dismissal” of former judges of the Constitutional Court Tupitsky and Kasminin, by which the president essentially canceled the appointment of these judges (this is somewhere the same as canceling someone’s birth). At the same time, Tupitsky’s case was delayed in the Grand Chamber for more than two years, which, of course, is deliberate and excessive.
Then, a few weeks later, the Grand Chamber considered claims against the Verkhovna Rada filed by people's deputies Galina Tretyakova and Leo Geros against the parliament's decision to deprive them of the right to participate in Rada meetings. Parliament asked to close the cases and recognize that the decision to deprive deputies of the right to participate in meetings of the Verkhovna Rada of Ukraine cannot be appealed in court. That is, in fact, to consolidate “serfdom” in parliament: if you don’t listen, you don’t vote, and you don’t complain. The OP said a clear “no” to this “novel” from “Servant of the People”.
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Our sources in the Grand Chamber, on the basis of anonymity, said that the position of the parliament magically coincided with the position of the new chairman of the Supreme Court Stanislav Kravchenko, who, by a strange coincidence, attended these cases, although he usually does not attend meetings of the Supreme Court.
Therefore, the office of the president and the “servants of the people” failed to disseminate their ideas among the judges of the OP, but they succeeded in cleaning up the “rotten” cases involving the president and parliament, which had been considered by the Supreme Court for several years. And if outside these cases passed without wide resonance, which was Bankova’s task, inside the Grand Chamber it is very noticeable who defended the non-legal narratives and how.
With external influence, everything is quite clear: every political power is trying to influence the courts in one form or another. But the influence on judges from within requires special attention.
Ex-head Knyazev and record bribe
In May 2023, Ukraine (and the world) was rocked by the story of a record bribe of $2.7 million, in which the previous Chairman of the Supreme Court, Vsevolod Knyazev, got burned. Together with Knyazev, lawyer-intermediary Oleg Goretsky, who was the so-called back office of the ex-head of the Armed Forces, was also detained.
According to investigators, the bribe was intended for the Supreme Court to make a decision in favor of Konstantin Zhevago in a dispute over 40.19% of the shares of the Poltava Mining and Processing Plant.
The Supreme Court reacted quickly: it removed Knyazev from the post of head of the Supreme Court and called May 15 “a black day in the history of the court.” The Supreme Court judges also noted: “They must be worthy and withstand this blow.”
But there was something to withstand, because during the searches, “tagged” bills were found not only from Knyazev, but also from three other judges of the Grand Chamber - criminologists Grigorieva and Elenina and administrative specialist (and friend of Knyazev) Zhelezny.
Reactions of the President and Parliament
President Zelensky's reaction and the decision of the National Security and Defense Council included the verification of Supreme Court judges, the introduction of a polygraph, and increased criminal liability for corruption in the judicial system. Bills also appeared from different groups of people’s deputies to reform the OP.
Six months later, it must be stated that no suspicion was brought against the other judges of the Grand Chamber; Zelensky's polygraph idea was vetoed by the Venice Commission; the bill on increasing liability for corruption “conflicts” with other articles of the Criminal Code of Ukraine; and instead of a severe punishment, lawyer Goretsky was released under an agreement with the investigation, while the text of the agreement was removed from public access. Therefore, no one, except for the judges of the Supreme Court of Ukraine and several prosecutors of the SAP, knows why Goretsky walks the streets of Kyiv and tries to sell real estate in order to pay the millions stipulated by the agreement to the Armed Forces of Ukraine.
Unfortunately, the judicial system and lawyers received an “excellent” signal this time from the anti-corruption bloc, which is actively implementing the institution of agreements: take enough to pay for the Armed Forces of Ukraine, and have enough compromising evidence to make a deal with the prosecutor. These are the results of the fight against corruption in the judicial system. And this is not just irony, but a reason for serious discussion.
For Knyazev, VAKS once again reduced the amount of bail (to UAH 27 million), returned access to salary money (because he still receives a salary), although he extended the period of detention for another two months.
What's inside the Supreme Court?
The new Chairman of the Supreme Court, Stanislav Kravchenko, initially insisted on the early return of the judges of the Supreme Court to the cassation courts. The judges were not enthusiastic about this idea, and there was no legal basis for this.
Some heads of cassation courts also supported Kravchenko’s position on the need to recall judges of the Supreme Court, if not at their request, then by decision of the meeting of judges of the relevant cassation court. And then the internal split of the Supreme Court began.
The fact is that the presence of a permanent Grand Chamber was initially not liked by certain heads of the cassation courts, because one way or another the Grand Chamber has influence on the cassation courts (through the adoption of decisions that are actually binding on them).
Before the reform of 2016-2017, there was procedural and jurisdictional chaos in Ukraine, when one case could be heard in the courts of 2-3 different jurisdictions simultaneously or sequentially. For example, having lost a case in the courts of economic jurisdiction, a party could receive a positive decision in a court of administrative or civil jurisdiction. At the same time, both cassation “higher specialized courts” and specialized chambers in the Supreme Court could make diametrically opposed decisions on the same issues, including regarding the competence of the court of which jurisdiction a particular case falls.
The emergence of a single Supreme Court with a Grand Chamber, which resolved several thousand jurisdictional disputes in 2018-2019, put an end to most inter-jurisdictional wars. Of course, there were also significant shortcomings in the activities of the Grand Chamber, in particular, arbitrary changes in legal positions, artificial delays in cases, obvious playing along with Bankova in matters important to it, etc. But even these facts cannot be compared with the chaos that existed before 2017, when a final solution to the dispute could not be obtained not only for a long time, but in principle never.
As one of the lawyers told us: “Everyone has almost forgotten how it was to work before the emergence of a single Supreme Court, what chaos and lawlessness the courts created during the time of Yanukovych.” Looks like some people would like to bring it back.
Bills to reform the OP of the Armed Forces
In recent years, the person who has most criticized the Grand Chamber has been the deputy head of the presidential office, Andrei Smirnov, an associate of Andrei Portnov and Andrei Bogdan, who brought him to this position. His interest is quite understandable - he does not need an independent structure within the Armed Forces, which is very difficult to influence.
In Zelensky’s office, due to Smirnov’s problems with the Grand Chamber, he was repeatedly reproached for his professional incompetence. Therefore, the ideas of reducing the number of BP judges, recalling them, or generally operating the Chamber in ad hoc mode were repeatedly heard from Smirnov long before the scandal with the bribe to Knyazev.
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After Knyazev’s case, the political authorities received formal grounds to do what they had been itching to do for a long time. As a result, two bills on reform of the Grand Chamber appeared - from SN and from BYuT.
These projects (No. 9643 and 9643-1) propose:
reduce the number of BP judges to 13-14 people;
grant the cassation courts the right to recall judges (which will affect the independence of the BC judges, because, knowing the position of a judge in a certain case, it is possible to change the judge “for a specific case”);
elect the secretary of the BP at the plenum (although the BP is an independent division of the court, and according to this logic, the plenum needs to elect the chairmen of the cassation courts and secretaries of the judicial chambers within the cassation);
narrow the grounds for referring cases to the Grand Chamber.
Plenum of the Supreme Court
All these warnings were voiced during the plenum held on October 6 by Grand Chamber judge and scholar Dmitry Gudyma, noting that “both bills carry risks for the institutional capacity of the Supreme Court as a whole, its unity, independence and the Court’s ability to ensure the unity of judicial practice.”
However, the plenum supported the conclusion voiced by the head of the Supreme Council Stanislav Kravchenko, who approved the “Servant of the People” bill with certain proposals. The judges suggested that the head of the Supreme Court, Kravchenko, not vote for the conclusions on the bills on the reform of the OP, but Kravchenko received the necessary votes (75 for, 31 against) and, apparently, fulfilled the agreements with the president’s office.
In the meantime, bills on the Grand Chamber are stuck in parliament, however, it seems that Smirnov is looking for other options to block the work of the Supreme Court.
Elections to the BP VS
Since the beginning of December, the courts of cassation have been holding elections to the Grand Chamber of their representatives to replace those whose three-year or six-year term of office has ended (two terms of three years).
Three cassation courts - economic, criminal and civil - elected their representatives to the BP.
During the same period, the Administrative Court of Cassation should also fill its quota. Judge Alexander Prokopenko’s six-year term of office ended there. The meeting of judges, held on December 11, returned him to the court of cassation and determined that in the future Prokopenko would work in the electoral chamber, but the head of the CAS of the Supreme Court, Mikhail Smokovich, did not even put the issue of electing a judge to the OP to a vote.
At the meeting, he stated that the Supreme Court will not elect anyone now (despite the fact that there are several judges who would like to work in the OP), but will wait until, after the president signs bill No. 5456-d, five judges of the Supreme Court of the period are transferred to the Supreme Court Yanukovych, who have not administered justice for six years. “And then we will send Judge Oleg Krivenda to the Supreme Court,” Smokovich noted.
So, either President Zelensky personally reports to Smokovich about the timing of signing the laws, or the head of the Supreme Court, as our sources say, in cooperation with Smirnov, deliberately blocked the work of the Grand Chamber for an unknown period. In essence, this is a violation by Smokovich of at least professional ethics in relation to his colleagues, and, in general, of the judge’s oath.
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As for Judge Oleg Krivenda, it is difficult to imagine a less adequate judge to work in the Supreme Court. He is Medvedchuk’s creation, he has not worked a day with the legislation adopted since 2017, together with other judges of the Supreme Court from the time of Yanukovych and some figures from Portnov’s team, he participated in initiatives to block the work of the Supreme Court, and there are questions about his integrity.
An excellent candidate for undermining the Grand Chamber from within, rather than working effectively within it.
Instead of conclusions
We can only hope that, firstly, there are enough sane judges in the Administrative Court of Cassation so as not to indulge in blocking the work of the Grand Chamber, especially against the backdrop of a new test of all judges of the Supreme Court for integrity, which looks almost inevitable.
And, secondly, in the absence of a functioning Grand Chamber, the head of the Supreme Court Stanislav Kravchenko, who is trying to strengthen his authority, will lose leverage over other cassation courts, which, of course, he cannot afford. Therefore, there is hope that common sense will prevail.
Despite the well-deserved criticism regarding the change in its own legal positions, the delay in the consideration of some “political” cases and the presence of several random personalities in the Chamber, in six years the Grand Chamber has fulfilled the minimum task of ensuring the unity of judicial practice and preventing procedural chaos.
Now the task of the Supreme Court is to consistently select the most effective judges for the Chamber, capable of making decisions in the interests of the country, and not fulfilling the whims of heads of courts or officials.
After the scandal with the bribe to Knyazev, the Supreme Court will either independently prove that there is a third power in Ukraine, or it will again become a bargaining chip in the political chaos of war and elections, which sooner or later the political authorities will decide.
