On December 3, the Parliament is supposed to review a draft law which will effectively abolish immunity of the Members of the Parliament. Currently, we have a law which stipulates de jure abolishment of immunity, yet the procedure of bringing somebody to liability has not been developed.
The situation as of December 2
On October 7, 2019, the Parliament 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 Parliament of Ukraine.” The draft law proposes to implement procedural changes in bringing special subjects to criminal liability, including MPs.
In the current version of Article 482 of the Criminal Procedural Code of Ukraine, Members of the Parliament can only be brought to criminal liability with consent of the Parliament of Ukraine, which creates significant difficulties in this process.
Currently, there is a legal collision, when the law of substance (MP immunity) has been abolished, but the procedure of bringing MPs to liability has not been developed. So, there is de jure no more immunity, but there is no procedure of how to proceed with such cases.
Taking that into account, draft law No. 2237 has been developed, in order to introduce those procedural changes.
- Data on the criminal proceeding can only be entered into the Unified State Register of Pretrial Investigations by Prosecutor General or Acting Prosecutor General.
- The motion on permission for detention or house confinement, search and violation of secrecy of correspondence as well as other investigative measures that restrict the rights and freedoms of a member of the parliament of Ukraine pursuant to the law at the discretion of the investigative judge have to be supported by the (Acting) Prosecutor General of Ukraine.
- (Acting) Prosecutor General of Ukraine, Deputy Prosecutor General, Head of the Oblast Prosecution Office are authorized to serve such individuals with charges.
Thus, the draft law does introduce important changes, but it requires some extra work, namely:
- It uses terminology not defined in the current Criminal Procedural Code (the idea of a motion being “supported”). This may lead to further discrepancies and create excessive workload for Prosecutor General.
In practice, such actions will be performed by subordinate prosecutors, which will lead to a situation where such actions will be successfully disputed in court, given the law places this duty on the Prosecutor General personally.
- The fact that the Prosecutor General has to enter information into the Unified State Register will lead to excessive workload for Prosecutor General and for Pechersk District Court (given it has territorial jurisdiction over cases pertaining to the Register).
Currently, while the draft law does meet the needs for legislative harmonization, it needs to be improved significantly given its overall imbalance.
If it is passed, legal obstacles to criminal prosecution of MPs will be formally eliminated, but the efficiency of the procedure described in the draft law is questionable at best.
The analysis has been prepared by TI Ukrane’s legal advisor Serhii Kurinnyi.