Ukraine’s Parliament is famous not only for its brawls among members, but also for enjoying legal immunity from prosecution. This allows lawmakers to get away with serious crimes.
On Feb. 5, a resounding majority of the Verkhovna Rada, 365 out of 450 members, voted to abolish all legal immunity for deputies and judges in Ukraine.
What is now popularly being embraced as a necessary reform, however, has some legal experts concerned. The measure is too severe, they warn, and in its current form it could have dangerous and unintended consequences.
The bill, now being reviewed by Ukraine’s Constitutional Court, will cut all present and existing legal immunity enjoyed by members of parliament and judges.
However, the cuts will preserve parliamentary indemnity, the protection against criminal prosecution based on public duties such as votes cast or specific statements in the performance of legislative duties.
Judges will still have more cover and not face consequences for actions conducted during their administration of justice. Moreover, they still can only be detained or arrested through the consent of the Higher Council of Justice, with certain specific exceptions.
European countries make a degree of immunity available for public officials so that they can more effectively carry out their duties.
“In Ukraine, immunity is a mechanism for avoiding responsibility,” says Mykola Kozubra, a Constitutional Court judge from 1996 until 2003. “But it should be a guarantee of parliamentary and judicial activities, and of the flawless operation of Parliament and the judicial system as whole.”
After its vote, Ukraine’s Parliament filed a petition with the Constitutional Court of Ukraine to consider the consistency of the bill with relevant articles of the Constitution. The court then appointed a judge-rapporteur, and according to court rules, its decision must be rendered in the coming weeks.
Stanislav Shevchuk, a Constitutional Court judge, says the court won’t keep the Ukrainian public waiting for long and will keep its deliberations in the public’s eye. “It is important to conduct public hearings on the matter and attract press,” he says. “The future of the Constitutional Court lies in the transparency of its procedures.”
Parliament’s speaker, Volodymyr Groysman, has little doubt about the general outcome. “After the court’s findings, the Verkhovna Rada will vote in the bill en bloc at the regular session in September,” he says enthusiastically.
Kozubra does not share Groysman’s excitement, however. In his view, the total abolition of immunity for members of Parliament and judges is inadvisable. “At least functional immunity must remain,” he says.
“The problem is, Parliament has managed to infect people with this idea,” he says. “Thus, it has to be decided. If members of parliament did not roll out this campaign, immunity would be some 30 place down among the interests of Ukrainians.”
Yet while many people slam legal immunity for MPs as a feudal practice, the extent of immunity provided under the Ukrainian constitution is largely in line with that provided by most other European countries.
The immunity of judges was functional since the birth of the Constitution,” says Oleksandr Vodyannikov, an OSCE project coordinator. However, laws mutilated constitutional provisions to such an extent as to confer absolute immunity.
Legislation could bring immunity back into line with its original intent, Kozubra says. “It is enough to bring to an end to the notorious practice of ‘covering up kin, ’” he says.
Kozubra advocates continued immunity for activities carried out by judges and legislators in the line of duty. He also says that instead of totally abolishing immunity for criminal cases, a mechanism could be put in place wherein police structures and prosecutors were still free to investigate the alleged crimes of judges and legislators, and courts could still rule in these cases. But a special judicial or parliamentary panel would have to rule in the event that the detention of a judge or legislator would take place during the judge’s or legislator’s time in office.
Both Vodyannikov and Kozubra agree that the amendments in question are likely to be approved by the Constitutional Court, as they seem to be consistent with the Constitution.
Still, he doubts that the coalition can ultimately collect the 300 votes necessary to abolish immunity during the next parliamentary session in September. “I do know members of Parliament who believe this is an ill-advised move.”
