On December 5, 2023, the Grand Chamber of the Constitutional Court continued consideration of the constitutional appeal of 49 people’s deputies of Ukraine regarding 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, which was ratified by the Law of Ukraine “On the Ratification of the Agreement between Ukraine and the Russian Federation on issues of the presence of the Black Sea Fleet of the Russian Federation on the territory of Ukraine" dated April 27, 2010 (No. 2153-VI). This case is being examined by the Grand Chamber of the Constitutional Court with the aim of providing an opinion on the constitutionality of this agreement.
A seemingly simple news headline, but how much bitterness it contains for Ukrainians, writes the publication Censor. NO. After all, the agreement on the Black Sea Fleet is about betrayal, and about political blindness, and about the seizure of Crimea, and, of course, about a full-scale war, especially about a Russian breakthrough in the south at the beginning of 2022.
Incredibly, the Ukrainian authorities still do not have a common position on what to do with the Agreement on the Black Sea Fleet. Moreover, during the consideration of this case, a real struggle is taking place under the roof of the Constitutional Court. This and other questions from the publication “Censor.NET” were answered by one of the initiators of the constitutional appeal, representative of the subject of the right to a constitutional appeal, people’s deputy of the “Voice” faction Solomiya Bobrovskaya.
— There will be many people who will tell you about this matter: why recognize the Kharkov agreements as unconstitutional? The war reset and canceled everything. What, 49 deputies, including Solomiya Bobrovskaya, have nothing else to do? What will you answer to these people?
“Unfortunately, the war did not reset or completely restart relations between Ukraine and the Russian Federation from scratch. Moreover: today, if I’m not mistaken, we have more than 600 agreements with the Russian Federation and the Republic of Belarus, which have not yet been denounced and have not been considered by the Rada - all this despite constant insistence and reminders in the session hall.
“It’s a shameful situation, there’s no other way to put it.”
— To our shame, just six months ago we denounced joint anti-terrorism exercises within the CIS! Or, for example, the anti-state Kerch agreements. We must pay meticulous and priority attention to the maritime security of Ukraine, which was neglected for 30 years and which in the first 20 years of Independence, it seems, was simply outright surrendered and prepared for a potential full-scale invasion.
— Are we talking about both the Kerch and Kharkov agreements?
- Certainly. I want to emphasize that I have been opposing the denunciation of the Kerch and Kharkov agreements - and this is not the first year! — Ministry of Foreign Affairs of Ukraine. For me, this position is as strange as possible and does not coincide with the understanding of state interests.
— How did the Foreign Ministry explain its point of view to you?
— The Foreign Ministry insists that this will be an important factor in international courts regarding holding the Russian Federation accountable and receiving compensation. But I would like to draw your attention to the fact that the Russian Federation denounced these agreements back in March 2014. It's debatable whether they followed procedure - and it's likely they didn't. But this does not help us in the courts.
— That is, they will appeal to the Russian Federation’s violation of this agreement.
- Yes. Our position is based not on the Kharkov agreements, but on violations of the fundamental norms and principles of international law: territorial integrity, inviolability of borders, refraining from the threat or use of force, non-interference in internal affairs, etc. And all these violations of international law by the Russian Federation were committed without regard to the presence or absence of the Kharkov agreements. The collectability argument under these agreements is also weak at $100 million per year.
With losses of $500 billion caused by a full-scale invasion alone, the amounts of debt in question would not make a difference even if the agreement was recognized as valid - which is doubtful after the Russians' unilateral withdrawal from it. But they will still have to pay reparations - again - with or without the Kharkov agreements. So who are we deceiving and why are we avoiding justice?
— What do lawyers say about this? That even in a war there is a possibility that the Russians can appeal to these provisions?
— The lawyers with whom our group works say that Ukraine’s strategic task is to completely remove the Russian naval fleet from both the Sea of Azov and the Black Sea (especially from our water area, our peninsula). This is not only in the literal sense, but also applies to all international agreements that we concluded, with or without pressure, with the Russian side.
Moreover - and this is what outrages me most of all: according to the logic of our government structures, subject to the deoccupation of Crimea and the entry of Ukrainian troops into Sevastopol, the Black Sea Fleet has the right to stand in Sevastopol Bay?! What will the Foreign Ministry call this then?
— I have a question about priorities. What do you think is the greater motivation for this appeal? Pragmatic and legal - that is, to guarantee us from future tricks of the Russian Federation during European courts and negotiations? Or the need for historical justice, the need to close this gestalt for Ukraine and Ukrainians? What's more here?
“I believe that this is a historical need and requirement - to close this gestalt and finally put an end to historical justice. Why and how was the Black Sea Fleet transferred to the Russian Federation? On what grounds and why were they given the right to be in Sevastopol, to use a military base, and even more so to extend this agreement until 2042? Also with the provision of automatic renewal of the contract every 5 years?
We understand that if they had not existed, the war could have been avoided or many events could have happened differently!
— The constitutional appeal that led to the consideration of this case has the signatures of 49 deputies. This list represents all factions and groups in the Verkhovna Rada.
- Yes, except for OPZH.
—Who was the initiator of the appeal? Because it doesn’t happen that everyone is 49. Someone has to be the think tank, so to speak.
— The driving forces and motivators were the “Voice” and “European Solidarity” factions.
— That is, some “servants of the people” joined this appeal later, right?
- Yes.
— Twice during the consideration of the case, your side has demanded the recusal of the judge of the Constitutional Court of Ukraine Sergei Golovaty, who is the reporting judge in this case. Why is this so?
- Firstly, it is not our side that makes these petitions. I believe that this case should be considered as soon as possible. And Golovaty’s recusal was announced by the representative of the Verkhovna Rada in the Constitutional Court and the representative of the President in the Constitutional Court. I regard this as a delay in the matter and a reluctance to consider our appeal on the merits. I assume that representatives who represent the Verkhovna Rada and the president probably take the position that the Kharkov unfortunate agreements are still in effect.
- That's it... So you, the 49 deputies who wrote this appeal, have a different position with the representative of the Verkhovna Rada of Ukraine?
- Nothing surprising. That the representative of the President in the Constitutional Court, that the representatives of the Verkhovna Rada in the Constitutional Court in this convocation will occupy the position of the Office of the President or the President. However, I emphasize that we regard this as stalling for time and unwillingness to close fundamental agreements with the Kremlin, which led to rapid occupation and war.
— Sergei Golovaty has a very controversial reputation. But no one denies the fact that he is an experienced lawyer and can, if he wants, do everything at a high level. The way he treats this case - what do you think it feels like?
— I’ll say this: I want to believe in the impartiality of all judges in the Constitutional Court of Ukraine. And, in particular, the presiding officer. Dot.
“It’s not just about Golovaty. The parliamentary majority voted for the Kharkov Agreements at that time, and Speaker Vladimir Lytvyn presided at that meeting. We all remember those videos and those eggs. I understand that it’s not your prerogative to deal with this, but doesn’t it seem that all these people should have been brought to criminal responsibility a long time ago? Or at least society should have a clear understanding of why this did not happen?
— As far as I remember, the National Security and Defense Council in the spring of 2021 instructed the Security Service to check the circumstances of the preparation and ratification of the Kharkov agreements. Therefore, it would be good for all the puzzles to finally come together - both in the SBU, and in the Verkhovna Rada, and the KSU and the State Bureau of Investigation. All of them should lead to one thing - the responsibility of those who sold the state and sovereignty to the Russians.
- Last question. When is it expected that the Constitutional Court will make a decision on Golovaty and the process will move forward?
“Unfortunately, this is impossible to predict.
