The Constitutional Court is investigating who sheltered the Russian Black Sea Fleet in Ukraine and...
On December 5, the Grand Chamber of the Constitutional Court continued to consider the appeal of people's deputies on the constitutionality of the Agreement between Ukraine and Russia on the basing of the Russian Black Sea Fleet on the territory of Ukraine. Production is at an early stage. At the previous meeting, which took place in September, the permanent representative of the Verkhovna Rada in the Constitutional Court, people's deputy from the Servant of the People Maxim Dyrdin, challenged the reporting judge Golovaty. The majority of judges refused to grant the challenge. And then we stumbled over the next bend.
This time, the representative of the president in the Constitutional Court, Sergei Dembovsky, spoke out against the participation of Judge Golovaty in this case. The judges of the Constitutional Court must again evaluate his arguments. And among them, according to Glavkom sources, there are definitely those who support the recusal of their colleague Golovaty.
“The vote cast for ratification of the “Kharkov agreements” hangs on Judge Golovaty. Therefore, he has an idea: to transfer the consideration of the proceedings to a closed part, and, as a judge-reporter, invite his colleagues to support the draft decision to declare unconstitutional the Agreement on the presence of the Russian Black Sea Fleet on the territory of Ukraine. This way he will rehabilitate himself.” This version was put forward in a conversation with “Commander-in-Chief” by one of the former judges of the Constitutional Court.
“Kharkov agreements”
Judge of the Constitutional Court, and now acting chairman of the court, Sergei Golovaty is the rapporteur in constitutional proceedings on the appeal of 49 people's deputies. At the end of March of this year, the elected representatives sent a document to the Constitutional Court in which they asked to give an opinion on the constitutionality of the Agreement between Ukraine and Russia on the presence of the Russian Black Sea Fleet on the territory of Ukraine. This scandalous agreement was one of the first steps towards Russia by Viktor Yanukovych, who was elected president of Ukraine in early 2010.
On April 21, 2010, in Kharkov, Yanukovych and the then Russian President Dmitry Medvedev sealed this document with their signatures. On April 27, the Agreement was ratified by the Verkhovna Rada and the State Duma of the Russian Federation.
The “Kharkov Agreements” extended the tenure of the Russian Black Sea Fleet by 25 years, until May 28, 2042, with subsequent automatic extension for subsequent five-year periods unless either party notifies the other party in writing of the termination of the Agreement no later than one year before expiration date. Payment for the presence of the fleet consists of annual payments of $100 million per year, starting in 2017, as well as additional funds obtained by reducing the price from the date of entry into force of this Agreement in the amount of up to $100 dollars from the one established by the current contract between NJSC Naftogaz Ukraine and OJSC Gazprom, for every thousand cubic meters of gas supplied to Ukraine. At a price of $333 and above per thousand cubic meters of gas, the reduction will be $100; at a price below $333, the reduction will be 30% of this price.
In the spring of 2014, after the occupation of Crimea, the Russian State Duma unilaterally denounced the Agreement with Ukraine on the basing of the Russian Black Sea Fleet on the territory of the Ukrainian peninsula...
While a break was announced in the case, the “Commander in Chief” was figuring out what was wrong with judge Sergei Golovaty and why his person turned out to be so contrarian in this particular case.
Problem #1. Golovaty's vote for the Russian Navy
Ironically, back in 2010, the current judge Sergei Golovaty was a people’s deputy of the 6th convocation and was a member of the faction of the pro-government Party of Regions. On “X” day, he voted for the ratification of the Agreement between Ukraine and Russia on the presence of the Russian Black Sea Fleet on the territory of Ukraine.
“Sergei Golovaty did not personally vote for the Kharkov agreements; his card or its duplicate worked. Parliament voted for these agreements on the very day when PACE was choosing judges for the European Court of Human Rights from Ukraine (ECHR). That day I was in Strasbourg and saw Holovaty with my own eyes at a distance of about 100 meters. According to the quota from Ukraine, three candidates were nominated to the ECHR: Sergei Golovaty, Anna Yudkovskaya and Stanislav Shevchuk,” recalls Stanislav Shevchuk, former chairman of the Constitutional Court and judge of the European Court of Human Rights from Ukraine in 2009-2012, in a conversation with Glavkom.
But the fact remains that Golovaty’s vote for ratification of the Agreement was recorded by the Rada system. And the honorable judge himself, it seems, was not very worried about this fact for many years. This was noted by the permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Maxim Dyrdin, noting this in his statement of challenge to Golovaty. According to Dyrdin, in those days (during the reign of Viktor Yanukovych’s team - “Glavkom”) there was a practice: if a parliamentarian did not agree with the results of his vote, for example, he was absent, the card worked incorrectly or did not work at all, he wrote a statement to the Chairman of the Verkhovna Rada , in which he gave an explanation and asked his vote to be counted or not, or explained how he actually voted. Further, this statement is displayed under the general expression of the will of the people's representatives for this or that bill.
However, as Dyrdin noted, People's Deputy Sergei Golovaty made no attempts to recall or file an application for non-counting of his vote. Moreover, Golovaty was on a business trip at that time, so he could state publicly: he did not agree that his card was used without consent during the vote for ratification of the “Kharkov agreements.” At the same time, there was “tacit consent” on the part of the parliamentarian-judge.
“Under the current circumstances, there is a certain doubt about the impartiality and objectivity of the reporting judge Sergei Golovaty,” noted a parliamentary representative in court in a comment to the “Glavkom”.
By the way, today there is also a practice: when a people’s deputy’s card does not work or his vote is displayed incorrectly when passing laws, the elected one writes a statement to the Speaker of the Rada and asks that his vote be taken into account as needed. The statement of the elected official is read out by the presiding officer at the plenary session of the parliamentary session against a transcript. True, this does not affect the final result, this is a certain political position of the people’s deputy, explained Maxim Dyrdin.
An interesting opinion about Holovaty’s voting in a house under a dome in 2010 was voiced by a retired judge of the Constitutional Court, and as of April 2010, also by people’s deputy Sergei Sas. In an interview with the publication “Vysoky Zamok,” he made a loud statement, saying that Golovaty “sold his vote for the Kharkov agreements.”
“If Golovaty sues me, I am ready to prove, especially with witnesses, that he sold his vote “for the Kharkov agreements.” I didn’t give it away, I sold it! When this happened, Golovaty mumbled somewhere that his card had been used. But he did not declare in parliament that he was withdrawing his vote. As a sign of protest, he did not leave the Party of Regions faction. After that vote, he remained in it for two more years. He was in a political force whose charter says about “bilingualism” and other shameful things,” Sas recalled facts from the biography of the current judge of the Constitutional Court.
At the same time, it should be recalled that in 2010, in an interview with the “Commander in Chief,” the then people’s deputy from the Party of Regions faction, Sergei Golovaty, said that there was no personal vote on his part for the ratification of the “Kharkov agreements.” “It was the card that voted, not me,” he assured. And he added that after this incident, he kept the deputy’s card and its duplicate.
Problem #2. Criminal prosecution for the “Kharkov agreements”
Another sword of Damocles that hangs over judge Sergei Golovaty is the criminal prosecution of all participants involved in the adoption of the Agreement on the Russian Black Sea Fleet. In the spring of 2021, the National Security and Defense Council instructed the Security Service to check the circumstances of the preparation and ratification of the “Kharkov agreements” of 2010.
“There is a separate order from the SBU to find out the circumstances of how these 236 deputies voted on this issue, and if the SBU considers it necessary, it should initiate a treason (case) under Article 111 of the Criminal Code against the relevant persons,” stated the NSDC Secretary Alexey Danilov.
As “Glavkom” found out, criminal proceedings No. 62021000000000279 were indeed opened in 2021. Two former high-ranking officials were then in the dock: the fourth president, Viktor Yanukovych, and the then prime minister, Mykola Azarov. The indictment against them was filed in the Pechersky District Court of the capital, the case is at the preparatory stage of consideration.
There are three more suspects in the “Kharkov agreements”: former ministers of justice, defense and foreign affairs Alexander Lavrynovych, Mikhail Yezhel and Konstantin Grishchenko. Last year, the State Bureau of Investigation charged them with treason. In addition, the investigation put the ex-officials on the state and international wanted list.
“The motives for prosecution may be different; we have seen this many times in Ukraine. Before my wife and I were forced to leave for treatment, I gave explanations as a witness twice in Kyiv, trying to help the investigation understand the groundlessness of my involvement in this case. At that time there was no talk of bringing any charges against me at all, and only when I had already been outside Ukraine for several months was a report of suspicion drawn up, which my lawyer informed me about. Whatever the drivers of this decision - political, someone’s personal ambitions, or something else - they definitely have nothing to do with the desire to establish the truth. I think we need to deal with this in calmer conditions,” this is how Konstantin Grishchenko commented on his position to the Commander-in-Chief.
According to “Glavkom” sources in the SBU, judge Sergei Golovaty was also interrogated in the “Kharkov agreements” case. He appeared there as a witness.
In a comment to the “Commander-in-Chief”, press secretary for communications of the State Bureau of Investigation Tatyana Sapyan said: today the judge of the Constitutional Court Sergei Golovaty does not have any status in this criminal proceeding, since at the time of the vote he, as a people’s deputy, was officially on a business trip.
“Some of the deputies of the VI convocation were interrogated as witnesses. Let us remind you that according to Article 80 of the Constitution of Ukraine, deputies are not legally responsible for voting results or statements in parliament. At the same time, investigators are looking into possible falsifications during the vote on ratification of the “Kharkov agreements,” noted the speaker of the State Bureau of Investigation.
Problem #3. Is NAPC attacking?
The National Agency for the Prevention of Corruption (NAPK) also became interested in the person of Judge Golovaty. The official statement of the NACP says: information is being verified about judge Golovaty’s actions in the context of a real conflict of interest. For this purpose, the anti-corruption body tried to obtain the relevant documents from the Constitutional Court.
However, the NAPC request was ignored. This became the basis for drawing up a protocol on an administrative offense against Golovaty, as the acting chairman of the court.
At the same time, the communications department of the National Agency for the Prevention of Corruption, at the request of the “Glavkom”, reported that it does not see a conflict of interest with Sergei Golovaty as a judge-reporter in the case of the “Kharkov agreements”. “Holovaty did not support the agreement and was absent from the Rada that day. He doesn’t know how the card was voted. So, we do not yet see a conflict of interest for Golovaty as a judge-reporter in the case of the “Kharkov agreements,” the NAPC said.
NAPC reported that it does not see a conflict of interest for Sergei Golovaty as a judge-reporter in the case of the “Kharkov agreements”
The anti-corruption body added that they are now checking the possible participation of Judge Golovaty during the court hearing, where the complaint against his actions was considered. NAPC wanted to request documents from the Constitutional Court in order to check, but in vain. That’s why we went to court to appeal against Golovaty’s inaction as the acting chairman of the court.
If a respected judge loses the administrative case, he will end up on the register of corrupt officials. And this is already a mark not only on the judge’s robe, but also on the long-term career of a civil servant Golovaty in general.
At the same time, Sergei Dembovsky, the representative of the president in the Constitutional Court, mentioned a potential conflict of interest in his challenge to Judge Golovaty: “Judge Sergei Golovaty did not take measures to refute information about the possible commission of actions by him in conditions of a real conflict of interest in this case, even at the legal request competent state body (NAPK - “Commander in Chief”).”
Problem #4. Flawed treatment of people's deputies
There are also questions about the legal impeccability of the formalization of the very submission of a group of people’s deputies to the Constitutional Court. By the way, this was pointed out by the authors of Judge Golovaty’s challenges, Maxim Dyrdin and Sergei Dembovsky. The point is that there should not be a constitutional presentation, as the people’s representatives framed it, but a constitutional appeal. True, following the submission sent, the deputies sent additional documents to the Constitutional Court, in which they emphasized: their document on the interpretation of the “Kharkov agreements” should still be considered a constitutional appeal.
During a conversation with “Glavkom”, people’s deputy and representative of the group of elected officials in the Constitutional Court, Solomiya Bobrovskaya, said: with the beginning of the Russian invasion, certain parliamentarians turned to the Chairman of the Verkhovna Rada Ruslan Stefanchuk with a demand to put to a vote and denounce all international agreements, treaties signed with Russia and Belarus within the CIS. There are about 600 of them, for unknown reasons there is no progress in this direction.
“The issue of denunciation of the “Kharkov agreements” and their inconsistency with the Constitution was often discussed among colleagues in the Rada, especially when it came to maritime security. It is very strange that the Ministry of Foreign Affairs is still opposed to considering this issue. His position: in international courts he hopes to use it as evidence of Russia’s non-compliance with its obligations to fulfill the Agreement between Ukraine and Russia on the presence of the Russian Black Sea Fleet on the territory of Ukraine. After all, in March 2014, the Russians unilaterally denounced this Agreement. Therefore, our Foreign Ministry considers this an important argument in international courts as another violation on the part of the Russian Federation. On the other hand, we have a paradox: the aggressor state attacked Ukraine, and we still recognize the Agreement on the basing of the Russian Black Sea Fleet in Crimea as valid. That is, one day we will enter Crimea and land the Russian fleet in Sevastopol Bay?” – the parliamentarian does not understand.
Separately, the politician comments that now the case in the Constitutional Court is on a certain pause, probably being delayed by the challenges of Judge Sergei Golovaty. But action is needed.
“The purpose of the constitutional appeal of a group of people’s deputies is to put an end to the historical high treason that lasted for years. And the consequence of this was the ultra-fast annexation of the peninsula and a full-scale war in 2022. In my opinion, this mine was laid in 1997 by the then Ukrainian President Leonid Kuchma, who extended the Agreement between Ukraine and Russia on the presence of the Russian Black Sea Fleet on the territory of Ukraine. And in 2010, this was nothing more than high treason, preparing the ground for the invasion of the Russian Federation,” explained Solomiya Bobrovskaya.
Problem #5. There is no unity among judges
A difficult task for judge-rapporteur Sergei Golovaty will also be to find votes for the decision in the case of the “Kharkov agreements”. At least 10 votes are required. There are currently 13 servants of Themis working in the court. Five more judicial chairs remain vacant; a competitive selection has been announced for them.
In addition, the Constitutional Court has been without a chairman for more than two years. This happened after a clarification of relations between President Vladimir Zelensky and the then head Alexander Tupitsky after the destruction of the electronic declaration of officials by the Constitutional Court.
In 2022, the court announced elections for a chairman. In particular, it was planned to nominate Judge Victor Kichun as a candidate. He was once recommended for the position of judge from the Servant of the People faction by the former representative of the president in the Constitutional Court, People's Deputy Fyodor Venislavsky. However, it did not come to the point of nominating candidates. A similar story with the election of the chairman was repeated at the end of October - beginning of November 2023: none of the potential candidates were nominated.
...On December 5, during a meeting of the Grand Chamber of the Constitutional Court, Judge Viktor Kichun made an ambiguous statement. It seems that he found himself on the same side of the barricades with Maxim Dyrdin, who challenged Golovaty: “I have reasonable doubts that we have properly, in accordance with the law, resolved the issue of challenging a judge, which was filed by the permanent representative of the Verkhovna Rada in the Constitutional Court... I I would like to ask you to announce a break and dispel my doubts. By the way, other colleagues also have such doubts, but they are silent.” The presiding judge in this case, Sergei Golovaty, pretended that he had not heard his colleague Kichun, and gave the floor to another judge...
In a comment to the “Commander in Chief,” Constitutional Court judge Sergei Golovaty rejected any accusations against him regarding a conflict of interest in the “Kharkov agreements” case. “I have not had, do not and cannot have a conflict of interest in this matter. I assess the activities of the NACP in this matter in relation to me as illegal (with legal evidence of this) and as pressure on me as a judge-reporter, as well as an impact on the Constitutional Court as a whole as an institution,” the judge-reporter emphasized.
At the same time, the judge of the Constitutional Court left unanswered the questions of the “Commander in Chief”, in particular, whether he made legal attempts (whether he was preparing a statement to withdraw his vote or something else) to prove his non-vote for the ratification of the “Kharkov agreements”, being People's Deputy of the VI convocation.
