What’s wrong with the abolished parliamentary immunity?

The abolition of parliamentary immunity was put forward by the representatives of the “Sluga narodu” and the President himself, almost the main achievement of the last year. But the recent story of a bribe to Oleksandr Yurchenko, an MP of “Sluga narodu”, raises doubts about the reality of the abolition of immunity, as it took two days of public pressure to open criminal proceedings, which is a threat to the political party’s ratings ahead of the local elections. When the scandal could not be quietly silenced, the MP was expelled from the faction and promised without investigation and trial that he would “definitely go to prison”.

What’s wrong with revoked parliamentary immunity? We answer by analyzing the changes to the legislation that were adopted at the end of 2019.

How was it before? The old pre-trial procedure of bringing an MP to criminal responsibility provided for the following stages:

  1. The opening of proceedings against the MP took place in the general order – any prosecutor could do it.
  2. Investigative actions in the form of search, detention, an inspection of items, violation of the secrecy of correspondence, telephone conversations, application of other measures, including covert investigative actions that restrict the rights and freedoms of a member of parliament by law, could be carried out only if the Verkhovna Rada agreed to bring the MP to justice.
  3. Detention, arrest, or criminal prosecution of the MP could be carried out only with the consent of the Verkhovna Rada. For this:
  • The Prosecutor General filed motions for detention, arrest, and criminal prosecution;
  • The nominated MP provided explanations to the Standing Committee;
  • The Standing Committee considered the motivation for the submission and prepared an opinion:
    • In the absence of sufficient evidence to substantiate the submission, the Speaker of the Verkhovna Rada could return the submission to the prosecutor’s office together with the opinion of the committee;
  • The Verkhovna Rada then had to consider the committee’s opinion under a special procedure. If a majority of MPs voted for the decision, agree to start the MP’s prosecution process.

Current procedure. Amendments to the legislation, including the Constitution, excluded the Verkhovna Rada from the process of making such decisions, concentrating procedural powers in the hands of the Prosecutor General. Now (pre-trial) procedure of bringing the MP to criminal responsibility provides:

  1. Only the Prosecutor General can initiate proceedings concerning a member of parliament.
  2. Detention or house arrest, search, covert investigative (search) actions can be carried out only with the Prosecutor General’s consent. And at the consideration of the corresponding petitions (except for search and secret investigative actions), the MP has to be present.

The Prosecutor General’s monopoly on initiating proceedings and approving an important part of investigative actions significantly limits independent anti-corruption bodies’ capabilities – the National Anti-corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO). In fact, in investigations of MPs, these independent bodies depend on the Prosecutor General. The logic of creating a special vertical of anti-corruption bodies – NABU, SAPO, Anti-Corruption Court, is that these bodies are minimally dependent on other state bodies (including the Prosecutor General’s Office), as anti-corruption bodies are engaged in combating corruption in other state bodies. In the scandal with a bribe for the MP Yurchenko, NABU had to persuade Prosecutor General Iryna Venediktova to start proceedings publicly. Before that, the Prosecutor General did not see sufficient grounds for handing over the suspicion.

Is the immunity, which was so happily announced by the representatives of the “Sluga narodu” party, abolished? There has always been the possibility of prosecuting MPs. Yes, earlier, this required the consent of the Verkhovna Rada. In fact, out of 22 attempts to abolish the parliamentary immunity in the existing constitutional and legal framework for the VII and VIII convocations, 12 were successful – the MPs lost their parliamentary immunity. In some cases, voting in the session hall failed (6 cases). In three cases, the submission was returned to the Prosecutor General’s Office, and in another case, the Prosecutor General withdrew his submission.

The prosecutor’s office has problems with the preparation of submissions, which have been repeatedly “rejected” by the Standing Committee of the Verkhovna Rada (cases against Oleksandr Vilkul, Dmytro Kolesnikov, Serhiy Dunayev, and Oleksandr Ponomaryov). At the same time, it is difficult to say whether the problems were in the un/professionalism or non-/involvement of the Regulatory Committee or the prosecutor’s office and the courts.

Currently, the number of entities that decide on the possibility of bringing an MP to justice has decreased. Now the Verkhovna Rada’s consent is not required, and the powers are concentrated in the hands of the Prosecutor General. But the Prosecutor General is not independent. The President appoints him/her in agreement with the Verkhovna Rada. In Ukrainian practice, the Prosecutor General has always been a person of the President. In conditions when the President has a majority in the Verkhovna Rada, the Prosecutor General is even more dependent on the President. And it seems that the above-described powers of the Prosecutor General, as well as many of his other powers, under the current system of prosecuting MPs, will continue to be used as a tool to support friends and punish enemies.