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07.04.2010

Constitutional Court restricts deputy immunity but prohibits abusing the President

   

The Constitutional Court has issued a judgment on whether a draft law on amendments to the Constitution regarding the safeguarding of immunity for particular public officials complies with Article 157 and 158 of the Constitution.

The draft law envisages amendments to the present system as regards immunity of the President and National Deputies [MPs]. It proposes removing Article 80 § 1 which guarantees National Deputies deputy immunity. The Court found that the removal of this constitutional norm does not involve the revoking or limiting of human rights and civil liberties and does not contravene Article 157 § 1 of the Constitution.

At present Article 80 § 1 states that “National Deputies of Ukraine 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.”

The draft law proposes to remove the exception regarding insults and defamation. The Constitutional Court has found that the removal of the exception would restrict human rights and civil liberties and thus  contravene Article 157 § 1 of the Constitution.

The draft law also suggests the following reformulation of Article 80 § 3 “A National Deputy cannot without the consent of the Verkhovna Rada be detained or arrested before a court conviction has come into force”. At the present time, the relevant passage reads: “National Deputies of Ukraine shall not be held criminally liable, detained or arrested without the consent of the Verkhovna Rada of Ukraine”.

The Court accepted the proposed change as constitutional, i.e. not restricting rights and freedoms (prohibited by Article 157 § 1).

However the Constitutional Court found that immunity of the President does not contravene the norms of the Constitution.

The draft law had suggested excluding from Article 105 paragraph 2 according to which “Persons guilty of offending the honour and dignity of the President of Ukraine are brought to responsibility on the basis of the law”.

The Court finds that these changes could restrict human rights and civil liberties and contravene the Constitution since insults or defamation against the President can be viewed not only as an encroachment on the specific President’s rights, but also as a demonstration of disrespect for the Ukrainian state and its people as a whole.

The Court did however allow the inclusion in Article 105 § 3 of the Constitution of the words “unless the President has been removed from office through impeachment”.

The draft law proposes to remove to Article 105 § 1 which states: “The President of Ukraine enjoys the right of immunity during the term of authority”, and to add a new paragraph: “The President of Ukraine cannot without the consent of the Verkhovna Rada be detained or arrested until the entry into force of a court conviction against him.” Article 108 would add a new paragraph 3, stating 3) the coming into force of a court conviction against him.” 

The Constitutional Court found that these changes are in breach of Article 157, i.e. “amendments foresee the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine”.

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