Yet again the question is raised whether there should be deputy immunity
On 16 April 2007, the fifth congress of the party “Nasha Ukraina” [“Our Ukraine”] passed a Resolution again calling for the abolition of deputy immunity. This immunity, as it exists in Ukraine, is in contravention not only of the norms of law and political ethics, but also defies commonsense. This issue has been raised on many occasions in the history of Ukrainian parliamentarianism, however there has yet to be a positive outcome. What is deputy immunity, and does it exist in other countries? And can a Deputy do without it in carrying out his or her deputy functions?
Parliamentary immunity for National Deputies of Ukraine is an element in their legal status which is guaranteed by Article 80 of the Constitution. Immunity is understood as the right and privilege of a deputy over other citizens, and ideally exists in order to guarantee deputy independence when carrying out their duties.
This immunity has two component parts: indemnity (lack of liability) with regard to freedom of speech and expression, and deputy immunity as in freedom from criminal prosecution.
Indemnity means that deputies “are not legally liable for the results of voting or for statements made in Parliament and in its bodies, with the exception of liability for insult or defamation” (Article 80 § 2). This covers both the term of office, and after it has ended. Such deputy indemnity is recognized in all countries.
On the basis of deputy immunity Members of Parliament enjoy the protection of the representative body from arrest and some other procedural actions linked with the restriction of personal rights and freedoms, as well as from court prosecution on the basis of criminal proceedings launched.
The content and scope of deputy immunity, as well as the methods for safeguarding it are not the same in all countries. However, unlike in Ukraine, it is never of an absolute nature. In a number of countries, deputies enjoy immunity only at parliamentary sessions. Virtually no countries allow deputies immunity where they have been apprehended at the scene of a crime.
From the point of view of legal and political theory, the logic behind deputy immunity and indemnity are to ensure the effectiveness of parliamentarians work and to allow them to most fully exercise their mandate. The forms of immunity have a long history and tradition in different countries.
At the present time many European countries are tending to reduce the scope and limits of deputy immunity. For example, immunity is not given in the case of deputies (parliamentarians) detained while committing or at the scene of a crime. This is set down in the Constitutions of Austria (Article 68); Belarus (Article 93); Belgium (Articles 57 and 58); Greece (Articles 61 and 62); Italy (Article 68); the Russian Federation (Article 98); Germany (Article 46); France (Article 26) and many others.
In Finland deputies may be arrested and criminal proceedings against them launched without the sanction of parliament where the alleged actions constitute crimes subject to imprisonment for more than 6 months.
In Sweden, parliamentary permission to arrest and prosecute a deputy is not required if the punishment would involve imprisonment of 2 years. In Macedonia, Slovenia and Croatia (if the person is detained at the scene of the crime) the same applies where the period of imprisonment Is 5 years.
Returning to the situation in Ukraine, Article 27 of the Law “On the status of a National Deputy of Ukraine”, the following is not allowed: inspection or searches, detention, inspection of their personal belongings and baggage, transport, residential or work premises of a National Deputy, or violation of confidentiality of correspondence, wire tapping and the use of other measures which restrict the freedom of a parliamentarian. Even after the end of their term in office, National Deputies can only be charged with criminal offences committed during the period of mandate according to procedure envisaged for National Deputies.
The procedure for obtaining the consent of the Verkhovna Rada to prosecute a Deputy is also set out in the Law “On the status of a National Deputy of Ukraine”. The application is presented to the Verkhovna Rada by the Prosecutor General and the Deputy must be informed immediately. This application must be made before charges are laid or an arrest warrant issued, and must be reviewed by the Verkhovna Rada within a month. The Verkhovna Rada Committee on the Rules of Procedure, whose jurisdiction covers issues of deputy ethics, follows usual procedure in determining the legitimacy and justification of the application. The Deputy involved is invited to a meeting of the Committee however the failure of the Deputy to attend the meeting without good cause does not prevent a decision being passed. A decision on consent to charges being brought is taken at a session of the Verkhovna Rada by named voting through a resolution supported by no less than a two thirds majority of their actual numbers. The decision of the Verkhovna Rada is not subject to review.
This is also seemingly regulated however it is not all so simple.
The lack of a clear understanding of the limits and extent of deputy immunity in legislation has led to this right and privilege being interpreted absolutely, with National Deputies not being subject to the law with this, in turn, violating the rights of other citizens. In cases, for example, where administrative or criminal offences are committed by National Deputies, administrative or criminal proceedings are not launched. As a result, Deputies bear no punishment if guilty of road offences, even where people have been killed, or of serious economic crimes. Investigations into such crimes are terminated as soon as the suspect becomes a Deputy.
Bearing this in mind, as well as the fact that there is a trend throughout the world to gradually limit and narrow deputy immunity, attempts have also been made in Ukraine to introduce constitutional amendments restricting such immunity.
In 1998 the question of abolishing immunity was put on the agenda of the Verkhovna Rada. The Presidium of the Verkhovna Rada rejected the draft law six times, then after the dissolution of the Presidium, the initiators of the draft law were unable to get 150 deputy signatures needed to get it onto the agenda.
The final attempt was begun in December of that year, with the first signatures being given then to a draft law on changes to the relevant Article of the Constitution. The draft proposed a formula for deputy immunity in conformity with international norms. If the deputy commits a crimes, the Prosecutor General would not need the consent of parliament to bring criminal charges, nor where the person is convicted, does the court need the Verkhovna Radas agreement to imprison the deputy.
156 signatures were collected. It is interesting that prominent politicians who did not sign the draft included Oleksandr Moroz, Oleksandr Tkachenko and Petro Symonenko who have for almost ten years enjoyed this right as peoples representatives from the Communist and Socialist parties, According to the results of the voting, parliamentary immunity was retained “thanks to” Deputies from among the communists, “Yednist” [Unity] and, in part, the “Constitutional Centre”.
Then in 2000, 158 Deputies again tabled a draft Law on amendments to Article 80 of the Constitution. This time the Committee on legal policy recommended that parliament reject the bill. They argued that since the authors proposed removing the provisions about the mandatory consent of the Verkhovna Rada for criminal charges being laid, the law enforcement agencies would have the right to launch a criminal investigation and carry out investigative activities with regard to National Deputies whether or not the Verkhovna Rada agreed to this.
The question of whether to remove deputy immunity was put in a nationwide referendum in 2000, and a majority supported its abolition. After this, a draft law was submitted on amendments to the same Article 80 of the Constitution. Deputies from “Nasha Ukraina” once again put forward a draft law with proposals to abolish deputy immunity. However the result of the peoples will has yet to find reflection in domestic law or policy.
The Constitutional Court also played a “role”, with its interpretation of deputy immunity. Due to the lack of interpretation of the concept of “deputy immunity” in society and among a certain number of Deputies, a distorted idea had emerged which not only contravened the principles of human rights, but also the normal functioning of the highest body of legislative power in the country.
As the then Constitutional Court Judge V. Voznyuk stated in 1999, “as a constitutional guarantee deputy immunity is aimed at defending National Deputies only as public officials. A broader interpretation of deputy immunity leads to a person who has committed a crime before his or her assuming the office of National Deputy turning this guarantee into a personal privilege.” As a result, such an understanding of deputy immunity implies a violation of the constitutional principles of equality of all citizens before the law (Article 24) and the rights of a person who has suffered from criminal actions to seek legal redress (Article 55).
Back then in 1999 the Constitutional Court issued a judgment according to which “where a citizen of Ukraine is accused of having committed a crime and / or has been arrested before being elected National Deputy, further criminal proceedings with respect to this Deputy may be carried out with the consent of the Verkhovna Rada and his or her facing criminal charges and / or being remanded in custody”. This effectively extended deputy immunity to cover people standing for election as Deputies who gained office. In practice this led to the termination of criminal investigations after a person was elected, even if there was proof of criminal activities.
What is to be done? First of all, the principle of deputy immunity must be applied only within the boundaries of deputies duties, without the violation of the rights of other citizens and without conflict with the principle of the rule of law which states that the law applies to all. To change the situation, amendments are urgently needed to the Law “On the status of a National Deputy” which will radically restrict deputy immunity. However are the deputies of other political forces ready for this?
Kateryna Levchenko – National Deputy (MP) from the “Nasha Ukraina” [“Our Ukraine”] faction, Doctor of Law, President of the International Womens Human Rights Centre “La Strada – Ukraine”