Compromised immunity: Would privileges for Ukraine's MPs be lifted from January 1?

Author : Natalia Lebed

Source : 112 Ukraine

If earlier the fate of the MP depended on the parliament, now it will be decided by the prosecutor general, appointed by the president
17:29, 26 December 2019

Verkhovna Rada
The Verkhovna Rada

The recent elections in the united territorial communities, held last Sunday, showed a further drop in the rating of President Zelensky. Against the backdrop of the loss of popularity, it was important for the head of state to witness at least a partial fulfillment of the data during the election campaign promises.

Bees against honey

The Constitution of Ukraine has primacy over all the state laws. But our reality is characterized by conflicts when the first and second ones enter the clinch, and the rule of law does not work.

As for parliamentary immunity, the Verkhovna Rada liquidated the corresponding article of the Constitution on September 3 but was not able to agree on new rules of procedure in relation to MPs.

In practice, this meant one thing: the Constitution does not work. After all, it was not clear who and how could detain (arrest, convict) an MP, because there was no algorithm for such steps. And finally, bill No. 2237 - on the removal of parliamentary immunity - was considered in the second reading and gained 291 votes.

It was supported by MPs from the Servant of the People and Opposition Platform - For Life factions, but representatives of Poroshenko’s European Solidarity, Tymoshenko’s Batkivshchyna and Vakarchuk’s Holos party did not give a single vote.

Related: Anti-Corruption Bureau and Anti-Corruption Prosecutor's Office call on president to veto bill on limiting MPs parliamentary immunity

If earlier the fate of the MP depended on the parliament, now it will be decided by the prosecutor general, appointed by the president. Power, and not for the first time, has been looped over by the head of state, with whom it is better to "make friends" rather than quarrel.

However, according to authorities, now everything has been greatly simplified. It is not surprising that “as a result of the previous complicated procedure for 28 years of Ukraine’s independence, only 19 MPs have lost their immunity,” MP from the Servant of the People Halyna Yanchenko comments on. She adds: the task of the parliament was to adopt the document before January 1, when the previously adopted amendments to the Constitution, abrogating immunity, would enter into force so that the legislation would work harmoniously.

Manhunt MPs: Step-by-step instructions

If an MP is “caught” on any crime and the law enforcement authorities became aware of this, they must act in accordance with the new article (482-2) of the Code of Criminal Procedure, which was entered into the Code of Criminal Procedure after voting for Law No. 2237.

To begin with, suspicions are reported to the Prosecutor General of Ukraine. He has the exclusive prerogative to enter information regarding deputies into the Unified Register of Pre-trial Investigations.

Since the Prosecutor General’s Office is deprived of the functions of an investigation, the right to conduct an investigation remains only with the National Anti-Corruption Bureau (NABU) and the State Bureau of Investigation.

NABU and the State Security Bureau are working, and if during the investigation they are convinced that the reasons to suspect the MP of a crime are unreasonable, they again go to the Prosecutor General.

The latter gives permission for: 1) detention; 2) choosing preventive measure in the form of detention or house arrest; 3) search, wiretap or access to correspondence; 4) conducting covert investigative actions for which court permission is required.

Related: Removing immunity of Ukraine's MPs in questions and answers

These sanctions must be approved by the court. The MP must be present at the court session. Without it, the court will be able to give permission only for a search and covert investigative actions.

The exception is situations when the MP was caught for a particularly serious crime related to violence or a crime that resulted in the death of a person.

We will remind that prior to the adoption of the law, any investigator or prosecutor could start a case against an MP. Transparency International Ukraine believes that "the parliament did not heed the position of civil society and cemented its immunity instead of canceling it." Indeed, now the mechanism for holding an MP accountable formally exists, although it is practically impossible to put into practice.

Additional barriers

Until now, law enforcement authorities have coordinated all investigative actions with the Verkhovna Rada, but the head of the Verkhovna Rada should still notify that one of his colleagues has become investigative.

Related: Ukraine’s parliament intends to restrict to final MPs’ immunity

Part of the parliament did not like one of the voted amendments concerning protection from political persecution. Until now, the MPs could not be punished for the results of voting and statements in parliament  (with the exception of insult or slander), now this norm of immunity has expanded. And now, in accordance with the new law, the MPs will also not be legally liable "in the exercise of parliamentary powers."

The Servant of the People applauds innovations, emphasizing: from now on, MPs are reliably protected from pressure for their views and beliefs. But, for example, Holos faction frankly calls the law “bullshit.” The counterarguments are as follows: law enforcement officers will not be able to hold the MP accountable for parliamentary activities for the entire period of his powers.

Lobbying on behalf of the initiative?

At the same time, chairman of the board of the Center for Political and Legal Reforms Ihor Koliushko does not criticize or praise the new law. “I think it’s normal that there might be some peculiarities in investigations into cases involving MPs,” he told.

“Let’s be honest: if it weren’t for immunity, the Maidan would be dispersed in three seconds,” Serhiy Vlasenko, MP from Batkivshchyna, adds. He is convinced that parliamentarians need protection. One that makes impossible the persecution of political opposition is possible.

"If parliamentary immunity is completely lifted, this will not allow the elected representative to defend the interests of his voters, criticize the government, and it will lead to the complete destruction of the opposition," Yuri Pavlenko, the representative of the Opposition Platform - For Life, says.

Related: Verkhovna Rada finally restricts MPs' parliamentary immunity

"Not a single crime committed by an MP could be considered his parliamentary activity. Therefore, interpreting this amendment as indulgence is completely impossible, and I am convinced that literally in the first months of the new year we will see this on the example of representations of both NABU and Prosecutor General’s Office," Serhiy Ionushas, the deputy chairman of the law enforcement committee, noted.

And yet it’s not even this norm that is much more dangerous, but the fact that criminal proceedings are at the mercy of the Attorney General, political analyst Kyrylo Sazonov. “The MPs of the mono-majority can be congratulated on the fact that they have condemned themselves to complete dependence on the Prosecutor General, and now the reluctance to vote for any presidential bill could result in a criminal prosecution for them,” Sazonov said.

A joint statement by NABU and Prosecutor General’s Office reads: “Suppose, within the framework of one investigation, NABU detectives discovered another crime, which the MP was likely involved in. Before the entry into force of bill No. 2237, investigators simply had to isolate the episode and investigate it as a separate proceeding. If however, the draft that has been voted will acquire the status of law, detectives will have to convince the prosecutor general to start an investigation, but after it begins, all evidence gathered in another case shall be declared inadmissible.”

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