The Parliament of Ukraine is reviewing (in the second reading) draft law No. 2237 “On Amendments to Certain Legislative Acts of Ukraine with the Aim of Harmonizing Them with the Law of Ukraine On Amendments to Article 80 of the Constitution of Ukraine Concerning Immunity of Members of the Parliament of Ukraine.” The review in the second reading was scheduled for December 17 but is postponed.
On October 7, 2019, the Verkhovna Rada of Ukraine received draft law No. 2237 “On Amendments to Certain Legislative Acts of Ukraine with the Aim of Harmonizing Them with the Law of Ukraine On Amendments to Article 80 of the Constitution of Ukraine Concerning Immunity of Members of the Parliament of Ukraine.” The draft law proposes to implement procedural changes in bringing special subjects (including MPs) to criminal liability.
According to the current version of Article 482 of the Criminal Procedural Code of Ukraine, bringing a member of the Ukrainian Parliament to liability is possible only with consent of the Verkhovna Rada, which makes this process especially complicated.
As of the second reading, a number of changes have been made in the draft law, which, in procedural terms, block bringing Ukrainian MPs to criminal liability. That includes the following.
On the Particularities of Searches and Covert Investigative Activities
The draft law says: “Such motions are reviewed with mandatory participation of a Member of the Parliament of Ukraine. The investigative judge is obliged to notify the MP on the motion in question in advance, excluding motions on covert investigative activities or search warrants.”
Note that under Article 234 part 1 of the Criminal Procedural Code of Ukraine a search is done with the aim to identify and record information on the circumstances of a criminal violation, to find the weapon used for the criminal violation or property obtained as the result of committing it, as well as to establish the location of wanted individuals.
Under Article 234 part 4 of the Criminal Procedural Code of Ukraine, a motion on issuing a search warrant is reviewed in court on the same day when it is filed with the participation of the investigator or the prosecutor.
Thus, a search is, by its nature, an investigative activity that is unexpected for the suspect, which aims to find and record evidence and traces of a crime. Thus, issuing a warrant for this activity while engaging (notifying) the subject who may have committed the criminal violation invalidates the very nature of this action.
Besides, considering the situation with the short time frame of review of a motion on issuing a search warrant (on the same day that it is filed) means that effective notification of the special subject (a member of the Ukrainian Parliament) is difficult to organize.
According to Article 246 of the Criminal Procedural Code of Ukraine, covert investigative activities are a type of investigative activities the methods and execution of which are not subject to disclosure other than in cases stipulated by the Code.
Thus, they are activities performed covertly and confidentially concerning third party individuals, especially the suspect. What serves as a balancing tool is that such activities of pretrial investigation agencies have to be sanctioned by the investigative judge.
Therefore, there is a direct collision of procedural standards, where the very nature of such activities is invalidated by notification of the individual who is meant to be targeted by such activities, which will enable the special subject to destroy evidence and traces of the crime.
It should also be noted that in the aforementioned paragraph, the first sentence contradicts the second one, which creates a situation where review of motions (including motions on searches and covert investigative activities) has to take place with the participation of the MP in question (which invalidates them); however, the investigative judge does not notify the MP on this review.
On Review of Motions on Covert Investigative Activities by the Investigative Judge
The draft law says, “Such motions, apart from ones concerning covert investigative activities, are reviewed by the investigative judge who has territorial jurisdiction over the respective pretrial investigation agency, and in criminal proceedings on crimes under the jurisdiction of the High Anti-Corruption Court – by an investigative judge of the High Anti-Corruption Court.”
However, the draft law (which will effectively govern the special procedure of bringing MPs to criminal liability) does not say who will review motions on covert investigative activities. Therefore, this provision renders the use of covert investigative activities in cases implicating Ukrainian MPs impossible
On Absence of an MP “with Good Reason”
The draft law says the following: “If a member of the Ukrainian Parliament failed to be present at the court hearing without good reason or failed to inform the court of the reason of his/her absence, such a motion can be reviewed without the participation of the MP.”
The notion of “good reason” is defined by Article 138 of the Criminal Procedural Code of Ukraine. Since one of the listed reasons is “other circumstances which render the individual’s presence objectively impossible,” it creates a situation when the judge can decide whether the reason is good or not entirely at his/her own discretion.
The provision does not set any limit of absences with good reason, which creates a situation when review of motions can be postponed indefinitely.
TI Ukraine’s Stance
The existing draft law renders bringing a Ukrainian MP to criminal liability effectively impossible.
Invalidation of covert investigative activities and searches as the main tools used by pretrial investigative agencies to obtain evidence will lead to a situation when these agencies will be unable to collect enough evidence in a criminal proceeding implicating a Ukrainian MP.
We also want to point out that seizure of property as a tool of preliminary injunction makes sense no more.
The main task of property seizure as ruled by the investigative judge or the court is to strip the suspect of the right to alienate, use or dispose of property concerning which there are reasons to believe or reasonable suspicions that it is evidence in a crime, is subject to special confiscation, etc.
Thus, such activities should be done unexpectedly for the suspect, who has the possibility to object in the court hearing, under the Criminal Procedural Code, but who should not be able to take action to destroy, transform or alienate the property in question.
A situation when it is mandatory to notify an MP on review of a motion on seizure of his or her property creates the risk when the purpose of the seizure will be rendered impossible to attain.
Taking this into account, we propose to harmonize the draft law with the standards of the Criminal Procedural Code of Ukraine, namely:
- Specify who will review motions on the use of covert investigative activities.
That is, motions on covert investigative activities should be reviewed by the investigative judge of the appellate instance of the respective jurisdiction or the investigative judge of the HACC.
- Specify an exhaustive list of motions that have to be reviewed in the presence of the MP under investigation.
That is, review of motions listed in the draft law should take place according to general rules established for such motions by the Criminal Procedural Code, with the motions being approved by the Prosecutor General of Ukraine (or Acting Prosecutor General, or Deputy Prosecutor General).
The Criminal Procedural Code of Ukraine provides enough tools to protect the interests of the suspect and ensure the rights of the Ukrainian MP as a suspect in a criminal proceeding.
- Establish a limit of 1 absence from a court hearing with good reason, after which review of the motion will be possible in the absence of the MP under investigation.
Draft law analyzed by legal advisor of Transparency International Ukraine S. Kurinnyi