How to Reform Ukraine’s Parliamentary Immunity

The Ukrainian Parliament has postponed until August consideration of a bill that would abolish judicial and parliamentary immunity. Although this issue has recently taken a back seat to decentralization, it remains an important policy matter that requires through analysis and scrutiny.

On February 5, 2015 the Ukrainian Parliament (Verkhovna Rada) adopted draft law no. 1776 in the first reading. The law aims to abolish the constitutional guarantee of immunity for Members of Parliament (MPs). The measure is popular with the public, as parliamentary immunity has been regularly used by MPs to shield themselves from criminal prosecution. On June 16, 2015 the Draft Law was submitted to the Constitutional Court of Ukraine, which found the amendments to be in-line with the Ukrainian constitution.

However, on June 19 the Council of Europe’s Venice Commission issued its own opinion on the Draft Law, concluding that “the current state of the rule of law in Ukraine does not yet warrant a complete removal of inviolability of MPs.” The Commission argued that without an impartial judiciary, or a well-functioning political system, there is a real risk that MPs may be subject to undue harassment and political pressure by the executive and the judiciary. Based on earlier Venice Commission opinions, Democracy Reporting International (DRI) had argued in its January briefing paper that at this stage reform should be limited to removing ambiguous language and unreasonably long delays for lifting the immunity of MPs.

The legislative process can now take three directions: First, the Verkhovna Rada may adopt the Draft Law with 300 or more votes. Second, if the Draft Law received less than 300 votes it will be defeated, in which case no new draft can be submitted on this topic for one year. Third, MPs may decide to make substantial changes, for example reflecting the Venice Commission recommendations, in which case another first reading and another decision by the Constitutional Court is required. Thus, before putting the Draft Law on the floor for voting, MPs should have clear agreement on whether or not they will approve the law or decide to make substantial changes. Without agreement, the draft law may be defeated. This would pause the process of reform and send a bad signal to the public and international observers.

The issue

Parliamentary immunity^[1] has been abused in the past to shield corrupt politicians from criminal prosecution. For this reason, public opinion is strongly against immunity for MPs. However, the case against immunity is not clear-cut as it can also be an important democratic guarantee insulating lawmakers from undue pressure from the executive and judiciary. This is particularly important in fragile democracies without an impartial judiciary. Under the circumstances, there may be arguments in favor of a more careful reform that would reduce the scope of immunity.   Such reform would and clarify the process for revoking immunity on a case-by-case basis and avoid a wholesale removal of the privilege.

Decision of the Constitutional Court

The Constitutional Court of Ukraine must review any amendment to ensure compliance with articles 157 and 158 of the Ukrainian Constitution. The Court ensures that proposed amendments meet the following conditions:
∙ Amendment does not abolish or restrict human rights or the citizens’ freedom
∙ Amendment does not compromise the independence or territorial integrity of Ukraine
∙ Amendment may not be introduced while under conditions of martial law or a state of emergency.

In its decision of June 16, 2015 (no. 1-в/2015) the Constitutional Court of Ukraine determined that revoking parliamentary immunity fulfills the abovementioned requirements. The decision is plausible because parliamentary immunity is not a fundamental right, but a privilege. In addition, there is no legal obligation at the European or international level to regarding immunity. The decision on the issue lays within the political margin of the legislator.

In a dissenting opinion, judge Stanislav Shevchuk criticised the law’s lack of consideration for international standards and practices, pointing to the need to protect Ukrainian MPs at the constitutional level. In this respect, the Court could have referred to the Report of the Venice Commission on the Scope and Lifting of Parliamentary Immunities. It could have also considered the Venice Commission’s opinion of October 2000 on implementation of the constitutional referendum in Ukraine.^[2] Both documents support some degree of constitutional protection for MPs against civil and criminal proceedings in countries, like Ukraine, with poorly functioning democratic institutions.

Opinion of the Venice Commission

On 19 June, the Venice Commission issued an opinion on the proposed constitutional amendments. The Commission pointed out that there are no European standards with regards to immunity. Thus, the decision to restrict parliamentary immunity should be based on country specific analyses, “notably taking into account the state of development of the rule of law in the country concerned.” The Commission acknowledged that immunity of MPs “can be an obstacle to fight corruption.” At the same time it

At the same time it concluded that given Ukraine’s widespread judicial corruption and fragile democracy, a complete removal could hinder the Ukrainian parliament’s autonomy and ability to function properly. Thus, it recommended establishing other procedural safeguards to “prevent interference in the activity of Parliament while facilitating the fight against corruption.” As an example the Commission referred to Article 68 (II and III) of the Italian

Thus, it recommended establishing other procedural safeguards to “prevent interference in the activity of Parliament while facilitating the fight against corruption.” As an example the Commission referred to Article 68 (II and III) of the Italian Constitution, which states that without authorization of its chamber (Chamber or Senate), an MP cannot “be arrested or otherwise deprived of his personal freedom, nor held in detention, except when a final court sentence is enforced, or when the Member is apprehended in the act of committing an offence for which arrest flagrante delicto is mandatory”. The procedure to lift immunity is further regulated in the Rules of Procedures of the Chamber of Deputies and the Rules and Procedures of the Senate. The requests to lift the immunity are examined by the “committee for authorization to take action” in the Chamber (composing 21 deputies) and the Committee on Electoral Matters and Parliamentary Immunities in the Senate (composing 23 senators) within 30 days. At the same time a minority of MPs is entitled to complain against detention or any other measures taken against MP to the Constitutional Court within the certain deadline. Such a complaint would suspend the measures taken by prosecutor and ordinary judges towards the MP concerned until the decision of the Constitutional Court.^[3]

In its January 2015 briefing paper on the reform of parliamentary immunity in Ukraine, DRI also highlighted particular rules that should be revised. It suggested excluding flagrant criminal activity from the scope of protection and ensuring that a single decision to lift immunity within the same proceedings is sufficient. The briefing paper also drew attention to the political context of the reform: “Given that the newly elected parliament may be seen as less corrupt than previous parliaments, while the judiciary is still largely unreformed and the rule of law remains weak, there may be arguments in favor of a more careful reform which narrows the concept of inviolability and clarifies the process of lifting MP’s immunity.”

What happens next

Based on the Constitutional Court of Ukraine’s approval of the law to revoke immunity, the Verkhovna Rada can now vote for amendments in the second reading.

This next step in the legislative process can produce three unique outcomes:

• The current Draft Law may be adopted by 300 or more votes;
• The Draft Law may be defeated in the second reading i.e., it receives less than 300 votes. In this case the constitution would remain unchanged and a revised amendment could only be proposed after one year^[4], which would be disappointing for Ukraine’s reformers;
• Substantial changes may be made to the Draft Law, in which case the Verkhovna Rada must approve the changes in another first reading. This would require another 226 votes and a subsequent request for the Constitutional Court to review the amendments’ constitutionality.In the first reading on February 5, 2015 the Draft Law was supported by 365 MPs. It remains unclear if these MPs will maintain their support for abolishing immunity, or if the recommendations by the Venice Commission have gained traction with MPs.In view of these options, it is advisable that coalition members discuss and agree on their position regarding the recommendation of the Venice Commission before voting in the second reading. Otherwise they risk delaying reform of immunity for a year, which would send a bad signal for Ukraine’s broader reform efforts.

Notes