Political Points for 17 – 24 September 2018
Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.
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Voting of the Verkhovna Rada on parliamentary immunity
1. CPLR expert opinion
On September 20, the Verkhovna Rada by 274 votes approved the Resolution on further elaboration of the Draft law on Amending the Constitution of Ukraine on the Immunity of People’s Deputies of Ukraine (No. 7203/П1) as the basis and in general.
In fact, this means that the Verkhovna Rada has suspended the procedure for amending Article 80 of the Constitution of Ukraine as regards the abolition of parliamentary immunity.
As the CPLR has a critically negative attitude towards the abolition of parliamentary immunity, we support this vote of the Verkhovna Rada.
2. Respective authorities counter-point/argument
According to the Resolution, consideration of possible amendments to the draft Law No. 7203 will continue until November 21.
3. CPLR assessment of the authorities counter-point
Abolition of parliamentary immunity may adversely affect the development of parliamentarism and, accordingly, the democracy, in Ukraine. The existence of the deputies’ immunity is conditioned by the need to protect parliamentarians from unjustified pressure by law enforcement authorities, prosecutors and other actors, which may try to prevent parliamentarians from exercising their powers. In fact, this institution provides a balance of the power branches division and constrains possible encroachment of the executive power on the legislative, and is an element of the system of checks and balances. That is why any amendments to Article 80 of the Constitution of Ukraine should be considered through the prism of the purpose of this institution existence.
Both draft laws (No. 6773 and No. 7203) propose complete abolition of the parliamentary immunity. Undoubtedly, there are countries with constitutional democracy where the need for such constitutional provisions (concerning parliamentary immunity) has already exhausted itself, since the practice of implementing the Constitution and common practice ensure a system of checks and balances.
However, as the Venice Commission noted in its Conclusion CDL-AD (2015)013 of June 19, 2015, in the political system of vulnerable democracy, which is Ukraine, the complete abolition of parliamentary immunity may be dangerous for the functioning and autonomy of the parliament. Consequently, these draft laws may disrupt the system of checks and balances of the state power in Ukraine. In addition, concerns of weakening parliamentarism through the abolition of parliamentary immunity are justified, given the general tendency of the Ukrainian president’s institution to authoritarianism.
We would like to emphasize that the provisions of Article 80 of the Constitution of Ukraine really require adjustments in terms of restricting of parliamentary immunity, but not its entire abolition. Unduly broad interpretation of the provisions of the Constitution of Ukraine actually creates a caste of untouchable persons and distorts the implicated constitutional idea. In particular, the Constitutional Court has repeatedly emphasized that the immunity of people’s deputies is not a personal privilege, an individual right of a people’s deputy, but has a public-law nature. This issue is disclosed in more detail in a number of separate opinions of the Constitutional Court judges, in particular Melnyk, Sas, and Slidenko judges.
In view of this, the provisions of Part 3 of Article 80 of the Constitution of Ukraine can be set forth in the following wording: “A people’s deputy can not be detained or arrested until the conviction is passed by a court without the consent of the Verkhovna Rada, except for the commission of a grave crime.”
It should be emphasized that there is no unambiguous understanding of the current provisions of the Constitution on parliamentary immunity. The Decision of the Constitutional Court No. 9-рп/99 of October 27, 1999, in which the CCU interpreted the provisions of Art. 80 of the Constitution of Ukraine, states that the consent of the Verkhovna Rada of Ukraine to bring a people’s deputy of Ukraine to criminal liability should be obtained before he/she is charged with a crime in accordance with the current Criminal Procedure Code of Ukraine. However, in the current CPC, there is no such category as “charging with a crime”. Therefore, the scope and content of the category of “parliamentary immunity” at present are not clearly defied.
The content and scope of parliamentary immunity can be determined by the Constitutional Court through the interpretation of the text of the Constitution. The Constitutional Court opened constitutional proceedings in a case under the constitutional petition of 59 people’s deputies of Ukraine regarding the official interpretation of the provisions of Part 3 of Art. 62, part 1, 3 of Art. 80 of the Constitution of Ukraine. The decision of the CCU in this case will significantly affect the understanding of the scope and content of parliamentary immunity in Ukraine.
4. Related legislation/instructions which require the authorities act in a certain manner
Section ХІІІ of the Constitution of Ukraine, Chapter 26 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The Centre for Policy and Legal Reforms believes that complete abolition of the parliamentary immunity in Ukraine is premature. This could became a threat of weakening the parliamentarism and disrupting the balance of power branches in the context of the president’s institution tendency towards authoritarianism and a low constitutional culture. Therefore, we welcome the voting of the Parliament, which postponed the consideration of possible amendments to draft Law No. 7203 until November 21st.
The draft law on criminal offenses violates European standards and requirements of the Constitution
1. CPLR expert opinion
The adoption in 2012 of the new Criminal Procedure Code of Ukraine laid the grounds for further changes, in particular the introduction of the institution of criminal offences. This implies the division of violations depending on the level of their gravity, limitations on the application of penalties related to deprivation of liberty, etc.
In order to complete these tasks, the draft Law No 7279-д “On Amending Certain Legislative Acts of Ukraine on the Simplification of Pre-trial Investigation of Certain Categories of Criminal Violations” was elaborated.
2. Respective authorities counter-point/argument
The draft Law No. 7279-д was adopted in the first reading on June 7, 2018. A profile parliamentary committee considered the document at its meeting on September 20 and recommended it for adoption by the parliament in general.
This decision was adopted without taking into account the opinion of the Council of Europe, the experts of which have not yet completed the evaluation of the document and have not prepared their conclusion.
3. CPLR assessment of the authorities counter-point
Introduction of a criminal offense institution is primarily aimed at the creation of an effective system for investigating violations by introducing a differentiated procedure depending on the severity of the crimes and actual lessening of the burden on the pre-trial investigation bodies. While supporting the idea of this draft law, it is worth paying attention to its provisions, which carry serious risks of violation of human rights and freedoms:
1. Extremely short deadlines for initial investigation are established: 72 hours in the case of admission of guilt by a person, 20 days – in the case of non-admission of guilt or the need for additional investigative actions. The proposed deadlines will allow the investigation authorities to apply unlawful methods of influence on individuals.
2. The court is authorized to consider the cases of offences without court hearings, in the absence of participants in hearings. These innovations will lead to violation of the person’s right to defense and abuse by law enforcement and prosecution authorities. Even in the cases of administrative offenses, there is no such procedure for the consideration of cases in the absence of a person who is prosecuted.
3. New types of “evidence” are introduced: person’s explanation, medical examination, expert’s conclusion, indications of technical devices that can be collected before the formal start of criminal proceedings without providing any guarantees for defense. At the same time, the draft law does not establish a procedure for such actions, which creates a broad field for violation of individual’s rights.
4. Establishment of new grounds for the detention of persons violates the requirements of the Constitution. In particular, the provisions which allow law enforcement authorities to detain a person only on the grounds that he/she is intoxicated, does not comply with the Basic Law.
4. Related legislation/instructions which require the authorities act in a certain manner
The Constitution of Ukraine, the Criminal Code, the Code of Ukraine on Administrative Offences, the Criminal Procedure Code of Ukraine.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The draft Law No. 7279-д in the current wording should be rejected in case of its submission for consideration by the Verkhovna Rada. It needs to be substantially reviewed in terms of amending the CPC in the area of alignment of its provisions with the requirements of the Constitution of Ukraine and European standards.
Kyiv District Administrative Court determined that operational investigative actions of the NABU in the so-called “amber case” were illegal
1. CPLR expert opinion
On September 20, Kyiv District Administrative Court determined that the actions of the National Anti-Corruption Bureau of Ukraine (NABU) and the General Prosecutor’s Office of Ukraine (GPU) were illegal, and also ordered these bodies to further adhere to the guarantees of parliamentary immunity of Boryslav Rosenblat.
2. Respective authorities counter-point/argument
According to the court’s ruling, the NABU and the GPU in the frames of the so-called “amber case” unreasonably acted on the prosecution of B. Rosenblat outside the relevant criminal proceedings and did not comply with the legislative requirements regarding the need to ensure parliamentary immunity. That is, there was no Parliament’s consent to bring B. Rosenblat to criminal responsibility, which, among other things, led to unlawful interference in his personal and family life.
3. CPLR assessment of the authorities counter-point
By considering the claim of B. Rosenblat, Kyiv District Administrative Court went beyond its powers, since all issues/problems of criminal proceedings (in particular, caused by the relationship “state authority – person”) should be decided by an investigating judge or court within the framework of the relevant criminal proceedings.
In addition, in this case, there was no violation of the guarantees of parliamentary immunity of B. Rosenblat, since the latter was not prosecuted, arrested or detained.
4. Related legislation/instructions which require the authorities act in a certain manner
It follows from the contents of Article 30 of the CPC of Ukraine, Articles 19 and 170 of the Code of Administrative Proceedings of Ukraine, that Kyiv District Administrative Court had to decline the claim of B. Rosenblatt to open proceedings in an administrative case.
According to Article 80 of the Constitution and paragraph 14 of Part 1 of Article 3 of the CPC of Ukraine, the violation of parliamentary immunity is the fact of bringing a deputy to criminal liability, his/her arrest or detention. Such measures were not implemented in the case under consideration.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The said decision must be appealed and canceled. Otherwise, this will create a precedent, and its negative impact cannot be overestimated: virtually any action or omission of the investigator or prosecutor in the proceedings open against senior officials will be appealed under administrative legal procedure, which will enable corruptors to paralyze any criminal process.