Ukrainian MPs strengthened their immunity from prosecution by adopting a bill meant to lift it

On 18 December, the Ukrainian parliament or Verkhovna Rada satisfied one of the main demands from society as MPs adopted a bill that stripped them of immunity from prosecution. However, it turned out that canceling the parliamentarian immunity was just in words. In fact, the new legislation made the “untouchables” even more untouchable. The expert community immediately criticized the legislation. So did the anti-corruption institutions as well.

This demand was caused by the public's low trust in the parliament. For many years, Ukrainian politicians had promised to bring the matter to a close. Political expert Pavlo Buldovich tells that the Constitutional Court considered the question of depriving MPs of immunity from prosecution nine times since 2010. Every subsequent judgment simply repeated the previous, saying that the Constitution doesn’t prevent the legislators from lifting the immunity from themselves. In 2017, then-President Petro Poroshenko stated

that the parliament of the time had already broken a record in voting to lift immunity from separate MPs. Despite the successful outcome of the voting, the MPs still avoided being prosecuted through procedural loopholes. While the Ukrainian expert community advocated to merely restrict the privilege, many Ukrainian politicians made radical statements that parliamentarian immunity should be eliminated altogether in an attempt to harness the general population's rage against politicians. The issue became top-priority for the parliament elected in July 2019. At the beginning of September, the MPs adopted a bill canceling the provision that enabled the parliamentarian immunity. The amendment made it impossible to bring MPs to justice without the approval of the parliament. Under the adopted legislation, the parliamentarians would have lost their immunity starting from 1 January 2020. Later on, President Volodymyr Zelenskyy signed the law. However, there has been a legal discrepancy since the immunity was lifted but a procedure of bringing to justice was not introduced. The legislature needed another bill to eliminate the conflict. On 18 December, 291 MPs voted for Bill #2237 that amends Article 80 of the Constitution of Ukraine on the immunity of the MPs. However, the legislation that meant to cancel the parliamentarian immunity unexpectedly made the MPs even more “untouchable.”

The legislation imposed PG’s monopoly of registering cases against MPs

The Anti-Corruption Action Centre, Ukraine’s leading NGO in the field of fighting corruption, criticized the legislation prior to its adoption. The outcome of the voting showed that their fears came true. The changes foresee that Prosecutor General gets a monopoly in opening criminal proceedings against MPs. It means that only one person in Ukraine will be able to submit the data on such cases to the Unified Register of Pre-trial Investigations. It makes the potential investigations dependent on the integrity or busyness of the Prosecutor General. With the changes still not in effect, any investigator or prosecutor can open a case against an MP, according to the Criminal Code.

“Not only did the MPs not lift their immunity, they made it even stronger compared to what we have now. With these innovations, it will be hard not only to bring an MP to justice but even to simply initiate an investigation,” said Olena Shcherban, member of the board of the Anti-Corruption Action Center.

Another dangerous innovation that the MPs have introduced is the requirement of a mandatory presence of a deputy in court when judges are considering the petitions filed by investigators. Such motions may include, for example, the seizure of suspect’s assets. Notified about a hearing in advance, an MP can re-register the assets to the names of family members and, thus, avoid getting his property arrested. And with this provision in force, an investigator would not even be able to seize the bribed money when a legislator is caught red-handed on bribery. Currently, judges have the ability to consider petitions without the participation of an MP if there is a risk that documents, assets, or evidence may be destroyed due to MP’s awareness.

Anti-corruption institutions are ready to fix drawbacks

With the adoption of the changes, Ukrainian anti-corruption institutions - the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutors Office (SAP) - came up with a joint statement

saying that the new legislation will decrease the efficiency of probes into the crimes committed by MPs. Investigating the legislators is within the jurisdiction of the NABU, while the SAP is dealing with all the criminal proceedings of the Bureau. First of all, both institutions have also criticized the provision that empowers the Prosecutor General to be the only person to initiate investigations against MPs.

“The mentioned norm threatens the independence of the NABU detectives and the SAP prosecutors in their work because before launching an investigation they would have to apply to the Prosecutor General in order to persuade him to submit the data to the Unified Register of the Pre-trial Investigations,” the statement reads.

The NABU and SAP expressed their readiness to take part in revising the bill to correct its numerous flaws.

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