27.10.2005 | Oleksandr Severyn

A Cold shower for “servants of the people”


I have no idea to what extent, by adopting on 8 September the Law “On amendments to the Law of Ukraine “On the Status of Deputies of Local Councils”” State Deputies have improved their material position at the expense of their “little brothers” from those same local councils and of the contingent of a certain quality, who hope to land there with the aim of gaining the dreamed of “immunity”.  It is possible that they have improved it quite well. Or, perhaps, only so-so with nothing to get excited about. And just maybe (you must admit after all that one wants to believe in something at least comparatively better, contra spem spero [hope against hope] so to speak) that the Representatives of the People pulled this trick in no way “for personal gain, but purely at the will[1]” of their feeble (legal) awareness, which does in that case demonstrate their total incapacity, but no more.

However if such an assumption prove true and individual “local deps” did, in one way or another, natural or, so to speak, unnatural, encourage the State Deputies towards such ignoble and illegal actions, then I’m afraid I must disillusion them – they’re naïve idiots. Sorry, guys, the banal truth is that you’ve been duped by slick dealers from Hrushevsky St [i.e. the Verkhovna Rada]. “Immunity”, even if the anti-constitutional amendments of 8 September 2005 remain in force, is no more than a legal fiction, not worth any special expectations, nor, how shall we put it, capital investment.

So, through the efforts of an organized grouping of State Deputies, and with the backing of the person who not so very long ago the people having risen up almost forcibly brought into the office on Bankovy St. as “Guarantor of the Constitution”, certain norms have appeared in the Law of Ukraine “On the Status of Deputies of Local Councils”.  These state: “A Deputy of a local council cannot be held criminally liable, arrested or subjected to administrative measures of liability imposed through the courts without prior consideration of the issue by the local council (Article 30§ 7) and “preventive measures with regard to a Deputy of a local council in the form of a signed undertaking to not leave the place, or being remanded in custody may be applied exclusively by the court after agreement has been received by the relevant local council” (Article 31 § 2).  And the local deputy heart trembles with joy and the local deputy soul soars, filled with the sense of his or her own “exclusiveness”, and (attention!) perhaps local deputy grey cells begin ticking, brainstorming the vital issue of new profitable opportunities.

However then comes the cold shower.

Being a normative act of “the highest legal force” (Part 2 of Article 8) and “of direct effect” (Part 3 of Article 8), the Constitution of Ukraine at the same time is imperative in establishing the equality of all citizens before the law and before the court (Part 1 of Article 24 and Paragraph 3 of Part 2, Article 129), allowing exceptions only for the President, National Deputies (that is, Deputies of the Verkhovna Rada of Ukraine) and judges.  Two decisions of the Constitutional Court of Ukraine (No. 7-ep from 23.12.97 and No. 1-pn/98 from 26.02.98) confirms this more than convincingly (although, I admit, not for such a specific contingent as those who, through our will, sit in the building on Hrushevsky St.)

It would not, in addition, hurt the “local deps” in their euphoric frame of mind to pay attention to the Decree of the Supreme Court of Ukraine, No. 9 from 01.11.96 “On the Application of the Constitution in the Administration of Justice”, two provisions of which it will give me great pleasure to quote here for those burning with the urge to hide their legally shameful private places behind a “local” mandate.  "Since the Constitution of Ukraine, as set out in Part 2 of Article 8 has the highest legal force, and its norms are norms of direct effect, the courts in considering specific cases should evaluate the content of any law or other normative legal act from the point of view of its compliance with the Constitution and in all necessary cases apply the Constitution as an act of direct effect.  Court rulings must be based on the Constitution, and also on current legislation which does not contradict it”.

Little, you think?  Then here is another: "The court shall directly apply the Constitution in cases: when from the content of the norms of the Constitution there is no ensuing need for supplementary regulation of its provisions by law; when the law which was current before the Constitution came into effect or which was adopted after this, contradicts the Constitution…".  I would stress that this is not a question of any need for a decision of the Constitutional Court declaring an instance where the law adopted is in contravention of the Constitution. It is sufficient for the specific court considering a case to be convinced of this.

Therefore, bearing in mind the above, the Ukrainian courts, bodies of the Ministry of Internal Affairs, the Prosecutor’s office, the Security Service – that is, all the divisions connected with law enforcement may, and more than that, MUST, simply ignore the legislative lightweight of 08.09.05, remaining guided by the Constitution as the highest norm of direct effect, and consequently assuming the equality before the law and the court of ALL, barring those specifically set apart in the Constitution, that is, the President, State Deputies and judges.  Therefore, for example, the police have every right, without requiring any agreement from any council, where grounds are present, to tie up “locals” right in their hide …, sorry, their offices, session halls and take them to a cell or the court, where the judge in turn is obliged to consider the actions the person is charged with regardless of whether or not he or she is “covered”.

A cold shower can wash from “local deputy” carcasses ineptly daubed protective armour. Icy streams of water can carry this rubbish away where it belongs, down the toilet. What remains is a citizen, equal in his or her equality before the law and the court to other citizens. And nothing else.

I can already hear the counter-arguments – questioning whether law enforcement officers would be prepared to directly apply the Constitution. They must if they do not wish to themselves break the law, after all the application of a norm of lower legal force which runs counter to the Constitution is an infringement of the law, a violation of the Constitution.  Or there are the voices suggesting that criminal deputies will “arrange” things with judges and prosecutor’s officers so well that the latter, setting aside the Main Law (the Constitution), will be guided by a bad law. Yes, it’s possible.  But it is possible, dear mandate bearers that this won’t happen. The maximum that you have gained (and not, incidentally, for long) is lack of clarity. And that, as psychologists tell us, is a highly unpleasant thing, wreaking havoc to psychological stability. So, let the Damocles sword, or more accurately, the sword of Lady Justice hang over those of you who feel the need for that feeble “immunity”.

All of the above does not in any way remove the responsibility from the Verkhovna Rada of Ukraine and from the President of Ukraine for their joint creation of an openly unconstitutional legislative act ). However this is a slightly different story and its continuation should be acted out in the court. ( )

[1] In the well-known work of Ilf and Petrov “The Twelve Chairs”, Father Fyodor’s typical refrain and excuse for everything is that it is not for personal gain, but for his sick wife (with variations) (translator’s note)

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