The first distortions of Deputy "immunity" emerge, with no criminal charges against the Head of the Ternopil regional administration
In April 2005 the Chortkiv correspondent office of “Prava Ludyny” informed about circumstances of detention by law-enforcing organs of Anatoliy Zhukinskiy, the head ofthe Ternopil regional administration. In this situation the regional council could not protect the right of its head for the access to advocate and for timely medical aid.
The next stage of this case started in the end of October, when the prosecutors office of the Ternopil region accused A. Zhukinskiy of large-scale misappropriation of budget funds. That time the corporative deputies solidarity acted…
Resolution of the Supreme Council of Ukraine “On introduction of changes into the Law of Ukraine “On the status of deputies of local councils”” No. 2854-IV, which had been signed by the President of Ukraine on 8 September 2005, became a real “ring-buoy” for the “drowning” head of the regional council. Article 30 of the mentioned Law has been supplemented with part 7, which reads: “A deputy of a local council cannot be brought to criminal responsibility, arrested or subjected to administrative measures imposed by court, without consideration of this question by the local council”. So, it is practically impossible to bring to criminal responsibility about 300 thousand of deputies of local councils in case of commitment of crimes by them. The experience of councils of previous convocations, when this norm has been already acting, shows that deputies give the consent to bringing of their colleagues to responsibility very rarely.
On 24 October the regional prosecutors office presented for consideration of the Ternopil regional council the request “On giving the agreement about bringing to criminal responsibility of A. Zhukinskiy, a deputy of the Ternopil regional council from Lanovetsliy electoral district No. 11”. On 27 October M. Liushnenko, the first deputy of the regional prosecutor, informed the sessional sitting about the results of investigation of the facts of malversation of budget funds by A. Zhukinskiy. The fact is that the head of the council paid 3 thousands of budget hryvnas for some spares for his personal car. Later this auto-fraud became more and more ingenious. This car was sold to a physical person – “some man from Dnepropetrovsk”. Then the same car was bought by the Ternopil regional council for its head, but now the cost was 260 thousand hryvnas, which seemed to be rather expensively for the region subsidized by the state budget for 75%. Traditionally, this purchase was concealed behind the general expenditures for upkeep of the council apparatus… After that the obtained money returned and, finally, by the conclusion of investigation, 90 thousand hryvnas were appropriated by A. Zhukinskiy. So, Zhukinskiy has misappropriated money of the regional council on the especially large scale, thus committing the deed having the features of the crimes envisaged by parts 2 and 5 of Article 191, part 1 of Article 263 and part 1 of Article 366 of the Criminal Code of Ukraine, which entails the deprivation of liberty for the term up to 12 years.
It should be pointed out that the request of the prosecutors office was included into the agenda of the session in a rather strange way, with violation of many regulation demands. This document was concealed from the permanent commission in charge of questions of legality and legal policy. The deputies got the opportunity to familiarize with the text of this document immediately before the beginning of the plenary sitting. The draft of the decision was not prepared at all. Mr. Zhukinskiy was absent during consideration of the question and it was impossible to ask him whether he wanted to prove his innocence in court.
The Ternopil regional council preferred to discuss the delicate problem of bringing of its head to responsibility at a closed plenary sitting. Only deputies and heads of law-enforcing organs were present in the session room. The session did not approve the proposition on the conduction of roll-call vote. As a result, the council protested against bringing of A. Zhukinskiy to responsibility by a majority. It is interesting that the official result of the voting at the closed sitting even was not made public officially, and any documented decision there was not allegedly taken… I reckon that there are all grounds to say that the rights of deputies have been violated during preparation and consideration of the prosecutors request, which resulted in adoption of unmotivated and illegal decision.
It should be noted that this was another attempt of deputies of the regional council not to disgrace itself. So, according to the proposition of Orest Zvarych, a deputy head of the commission of the regional commission in charge of questions of legality and legal policy, who disclosed the regulation violations in the procedure of consideration of the prosecutors request in the case of Zhukinskiy, it was planned to submit the question for the repeated consideration by the session on 2 November. Yet, as it was to be expected, the repeated sitting did not support this proposition of O. Zvarych…
So, in this situation, only the General prosecutor of Ukraine has the right to bring A. Zhukinskiy to criminal responsibility: in compliance with the norm of item 5 of Article 31 of the new version of the Law of Ukraine “On the status of deputies of local councils”, he has the right to turn to the Supreme Council of Ukraine with the request about solution of this question per se.
Theoretically, the Constitutional Court also can settle this question, since, according to the Constitution (Article 24), “Citizens have equal constitutional rights and freedoms and are equal before the law”. This norm does not concern only MPs: Article 80 of the Constitution guarantees them deputies inviolability, and they cannot be brought to criminal responsibility, detained or arrested without the consent of the Supreme Council.It seems to me that the peoples representatives will, in most cases, tolerate the criminal deeds of their colleagues, and Resolution No. 2854-IV of the Supreme Council will work effectively, although not in favor of justice.