Constitutional model of parliamentary immunity: Ukrainian and European experience
Liudmyla Mikhnevycha, Larysa Vasylchukb, ARTEM Hryhorenkoc, Yuliia Rudd
Constitutional model of parliamentary immunity: Ukrainian and European experience*
DOI: 10.26350/18277942_000133
Summary: 1. Introduction. 2. Materials and Methods. 3. Results. 4. Discussion. 5. Conclusions.
- Introduction
The main task of the authorities of every country in the world is to ensure people's rule and create conditions for the people to realise their rights and interests. The Constitution of Ukraine[1] stipulates that the people of Ukraine are the main source of power. Therefore, to ensure people's rule in Ukraine, it is necessary to create effective parliamentary activity as an institution of representative democracy. According to the constitutional legislation and constitutional law not only of Ukraine, but also of other countries, the elected bodies of the state and their representatives, in this study deputies, enjoy a wide range of rights and powers. In connection with this, the question arises about the development of guarantees to ensure their activities. As noted by M. Sych[2]: “Guarantees in all cases are a problem of the reality of a legal phenomenon”. But, unfortunately, the institution of parliamentary inviolability is not always given due attention, and it remains not fully explored. However, increasing attention is being given to the issue of guarantees for elected officials. This is particularly evident in the context of constitutional amendments regarding parliamentary immunity issues. Especially concerning are the problems that arise after such changes have been made.
Ongoing disputes regarding the institution of parliamentary immunity have formed two opposing views on the necessity of the existence of immunity for members of parliament. Representatives of the first claim that this institution is outdated and has lost its relevance and contradicts established constitutional principles. Representatives of the second insist on preserving the institution of parliamentary inviolability as a guarantee of the independence of deputies during the exercise of their powers[3]. In many countries of the world, and Ukraine is no exception, before the elections, activity increases regarding the issue of parliamentary guarantees and privileges of independence. These questions, as noted above, are increasingly attracting interest among scientists in view of the increase in the level of democracy and people's rule[4]. The constitutions of the countries of the world at the state level enshrine the institution of parliamentary immunity, the main purpose of which was to establish guarantees for people's elected officials. Like everything else in the world, the institution of “deputy immunity” also developed and evolved. Some features of this institute, as noted by I. Shchebetun and N. Goreyko[5], M. Sych[6], existed even in ancient Rome, where people who performed public functions were endowed with certain guarantees. At present, there is no universal model for the protection of deputies, as security guarantees of their professional activity are established in accordance with the specific features that exist in each individual country.
Parliamentary immunity, also known as legislative immunity or deputy immunity, refers to the legal protection granted to members of parliament, shielding them from prosecution or legal action for their official activities or statements. This article explores the implications of removing parliamentary immunity in Ukraine, assessing the advantages and disadvantages of such a decision.
Therefore, the study of the institute of parliamentary immunity will allow establishing the main purpose of this institute, evaluating the effectiveness of one or another model of parliamentary immunity, finding out the legality and necessity of granting privileges to members of parliament, including its role in ensuring the principles of democracy and the rule of law in society. Within the scope of this study, a number of tasks have been identified that need to be solved:
- characterise the institution of parliamentary immunity and analyse its components (immunity and indemnity);
- investigate the specific features of parliamentary immunity in some European countries;
- identify and analyse models of parliamentary immunity that are common to almost all European countries;
- compare models of parliamentary immunity in Ukraine and in European countries;
- carry out an analysis of the introduced constitutional changes to the institution of parliamentary immunity in Ukraine;
- find out and characterise the expediency of cancelling parliamentary immunity in Ukraine.
The provisions laid down in this article are of practical value for deputies and persons who plan to work in the parliament in the future, and for state bodies and authorised persons who regulate the institution of parliamentary immunity.
The motivation for conducting this study stems from the growing importance of parliamentary immunity reforms worldwide. As societies strive for increased transparency, accountability, and the strengthening of democratic institutions, examining the implications of removing parliamentary immunity becomes crucial. By understanding the benefits and drawbacks of such reforms, policymakers and scholars can make informed decisions and propose appropriate legal frameworks.
The research on the removal of parliamentary immunity holds significant relevance in several aspects.
As countries strive to reform their legal and political systems, parliamentary immunity is often a key area of focus. Analyzing the impact of removing immunity contributes to the development of effective legal frameworks that balance accountability and legislative independence. Parliamentary immunity has been associated with potential abuses of power and corruption. Investigating the consequences of removing immunity can shed light on ways to prevent and combat corruption within the political sphere. Comparing the application of parliamentary immunity across different countries, particularly in Europe and Ukraine, provides insights into best practices and potential challenges. This knowledge can assist in the development of tailored reform strategies and cross-country learning.
- Materials and methods
A number of methods of scientific knowledge were used to carry out this research. Thus, the methodological basis of this study consists of general scientific and special methods. With the help of the universal dialectic method, approaches in different countries regarding guarantees of parliamentary immunity were considered. Also using this method, the main models of ensuring parliamentary immunity in the world were established and analysed. The historical method was used to study the moment of creation of the institution of parliamentary immunity and establish that the first manifestations of this institution were in ancient Rome. The system-structural approach allowed investigating the main guarantees and privileges of deputy activity as elements of the legal status of a deputy, which is connected with other elements and is also a complex, systemic phenomenon. The formal and legal method of scientific knowledge was used to clarify the purpose of the institute of parliamentary immunity and to analyse the application of guarantees and privileges granted to deputies during the performance of their powers. The logical method of scientific knowledge was used to cover the essence of the main definitions that were used during this study. The comparative legal method made it possible to find out the foreign experience of guaranteeing the independence and inviolability of deputies.
The use of induction and deduction methods allowed establishing the main problems and advantages that arose in connection with the abolition of parliamentary immunity in Ukraine. With the help of the logical-semantic method, the conceptual apparatus was clarified. The modelling method was used to establish the main problems that states face when limiting or cancelling parliamentary immunity. An effective method of researching constitutional models of parliamentary immunity was also the axiomatic method, which was used to analyse the main forms of guarantees of parliamentary activity, including the construction of a scientific theory, in which some axioms are accepted without evidence and then used to obtain the rest of the knowledge according to certain logical rules.
Statistical and sociological methods were widely used to justify the degree of expediency of introducing certain guarantees of deputy activity. An important role in this study was also the synthesising method, which was used to analyse the practice of using parliamentary immunity in a number of countries, including France, Poland, Great Britain, Germany, etc. For the effective study of this topic, a logical method was used, which allowed establishing the need to provide deputies with certain privileges and guarantees, and investigating the limits of their provision in different European countries. The method of abstraction was used to carry out a comprehensive analysis of the main models of the immunity of deputies. The method of formalisation, which reflects meaningful knowledge in the known sign and symbolic content, the method of systematic analysis, theoretical generalisation is used to generalise research related to the analysis of the institute of immunity of the deputy in various European countries. The use of philosophical methods allowed establishing the disadvantages and advantages of the abolition of parliamentary immunity. The method of system analysis was used to draw conclusions based on the research results.
- Results
For many years, in Ukraine, with the change of presidents, governments, and the composition of the Verkhovna Rada of Ukraine, attempts were made to abolish the immunity of deputies, but it became possible only in 2020 . The abolition of parliamentary inviolability (in terms of parliamentary immunity) will allow showing that no one can be above the law and everyone must be held accountable for committing illegal acts. The main purpose of parliamentary immunity in any country is to grant a deputy certain privileges, guarantees, so-called immunity, which ensures that they are not held accountable for their professional activities. In every country of the world, the institution of parliamentary immunity contains both negative and positive features. And in each individual country, it depends, first of all, on the level of democracy, governance, political will, socio-economic development, and the competence and awareness of parliament members . As mentioned above, Ukraine fought for a long time to remove immunity from deputies, because during the 30 years of independence, people's elected representatives developed a sense of irresponsibility and permissiveness. Yes, such a privilege as parliamentary inviolability allowed the deputy to be independent and fully exercise his powers, and on the other hand, it was a serious obstacle to bringing members of parliament to justice, which, in turn, led to their non-responsibility for crimes committed by them.
When studying the topic of this article, first of all, it is worth giving a definition to the concept of “deputy immunity”. Thus, parliamentary inviolability must be understood as legally established guarantees that are provided to members of the parliament in connection with the performance of their powers. The inviolability of deputies includes two components, namely immunity and indemnity. The classic definition of “immunity” was formed in the French Constitutional charter[7]. Thus, according to this definition, immunity should be understood as non-infringement of a criminal case against a member of parliament, namely a deputy, if the consent of the chamber to which such a deputy belongs was not given, except if he was detained at the scene of the crime. Therefore, immunity must be understood as the protection of a member of parliament from any actions that may limit his rights or freedom, and also contains a prohibition against prosecution. In turn, indemnity should be understood as the lack of responsibility of a member of parliament for his speech or his vote[8].
Positive sides of removing parliamentary immunity in Ukraine:
a) Enhanced accountability: The removal of parliamentary immunity promotes greater accountability among lawmakers, as it ensures that they can be held legally responsible for their actions and decisions.
b) Deterrence against abuse: By eliminating immunity, the potential for abuse of power or corruption within the parliament is reduced, as members are no longer shielded from legal consequences.
c) Strengthening the rule of law: Removing parliamentary immunity contributes to the principle of equality before the law, treating members of parliament as equal citizens and promoting the rule of law within the democratic framework.
Negative sides of removing parliamentary immunity in Ukraine:
a) Political pressure and harassment: Without immunity, lawmakers may become vulnerable to political pressure, false accusations, or harassment from opponents, which could hinder their ability to perform their duties independently.
b) Impeded legislative independence: The removal of immunity may deter individuals from entering politics, fearing potential legal consequences for their actions as lawmakers, which could lead to a decline in the quality and diversity of parliamentary representation.
c) Judicial interference and manipulation: In the absence of immunity, the judiciary might be susceptible to undue influence, with politically motivated charges being used to silence opposition voices or curtail the legislative process.
As mentioned above, the institution of parliamentary inviolability in its inherent features existed even in ancient Rome. The emergence of this institution in the modern sense is associated with European countries, where bodies appeared that were supposed to protect themselves from the monarch and feudal lords, who concentrated almost all power in their hands[9]. The main purpose of the institution of parliamentary immunity in European countries is to protect against any influence on the activities of members of parliament. However, there is an exception to this rule: the deputy's immunity may be revoked or limited in the event that the elected official commits a criminal offense. In Europe, members of many parliaments have two-level protection – political and criminal[10]. Political means the absence of responsibility for professional, namely political actions and decisions of the deputy, and which in the vast majority is valid for life. In turn, criminal immunity provides a member of parliament from persecution and restriction of freedom, but considering the specific features of the legislation of each country, and such protection exists only for the period of the parliamentarian's mandate. The institution of parliamentary immunity and, accordingly, the guarantees provided are not absolute and may be limited in accordance with the legislation of each country. Among the main restrictions that can be applied to parliaments, the following should be singled out: restriction of freedom and prosecution of a deputy with the consent of the parliament (France, Lithuania, Finland); exceptions to non-jurisdiction exist in some countries. Yes, the deputy's immunity does not apply if he has committed a state crime or a crime against public order; immunity does not apply if a member of parliament was detained while committing a crime (Germany, France, Bulgaria, etc.)[11].
There are several models of parliamentary immunity. For example, the absolute model is considered the strictest, as it provides for the protection of the people's representative not only during sessions or the exercise of his powers, but also at other times. Thus, in Italy and Germany, a corresponding model is in effect: in Italy, the restriction of the will of a deputy or bringing him to criminal responsibility takes place with the consent of the chamber to which he belongs[12], and in Germany it takes place with the consent of the Bundestag[13]. In a number of constitutions of European countries, the absolute immunity of members of the parliament and the prohibition of their prosecution and responsibility for political actions are enshrined. Austrian law states that a member of parliament cannot be held accountable for political actions without the consent of the National Council[14]. The Austrian Federal Constitutional Law “Constitution of the Republic of Austria”[15] states that without the consent of the National Council, members of parliament may be held criminally liable for crimes committed by them that are not related to their professional activities. The absolute model is characterised by the following limitations: the content of parliamentarians' statements (deputies are generally liable for defamation or insult; in some countries it is forbidden to express criticism or accusations against the head of state or judges); place of speech of a member of parliament. Thus, in some European countries, the parliamentarian is not responsible for his statements, which were made in the parliament or its bodies; place of expression. An elected official cannot be prosecuted for his speech from the rostrum of the parliament, but he can be prosecuted if his speech is made in the mass media[16].
Parliamentary immunity in Ukraine and other EU countries differs in some ways. For example, by its scope and extent of immunity: European countries vary in the scope and extent of parliamentary immunity, with some providing broad protection, while others restrict immunity to specific acts or statements. In Ukraine, parliamentary immunity traditionally offered broad protection, shielding members from prosecution for all but the most serious offenses.
Also, Waiving immunity is worth considering in this context. Many European countries have streamlined procedures for waiving parliamentary immunity, ensuring a balance between accountability and legislative independence. Ukraine has experienced delays in adopting similar mechanisms, contributing to the prolonged existence of immunity.
Analysing the signs and components of the absolute model of parliamentary inviolability in European countries, it is possible to distinguish the conditions and signs of immunity and indemnity: the place of effect of the indemnity (regardless of the place of the speech of the member of parliament; valid in Poland, Greece, Italy, Austria); speech in the parliament (valid in France, Norway, Germany); time limits (immunity applies during the term of office of the parliament (Great Britain, Belgium); the time limits of the indemnity are divided into four components: from the moment the deputy is elected (Poland, Denmark); from the first meeting of the newly elected parliament; the privilege extends to the entire time the deputy exercises his powers (Spain, Switzerland); during parliamentary sessions (Great Britain); action on a circle of persons (only members of parliament (Sweden, Poland)); members of parliament and ministers (Belgium); participants in parliamentary debates and inquiries (Switzerland, Great Britain); only to members of parliament or members of the chamber (for example, in Germany only members of the lower house, the Bundestag, are immune); to employees of parliamentary apparatuses and bodies created by parliament (for example, the ombudsman in Spain); to any persons who participate in parliamentary and committee investigations as witnesses. Limitation of indemnity: criticism of judicial authorities is prohibited; banning criticism of the head of state; slander and insult are prohibited. Also, it is worth noting the universal criteria for the application of immunity under the absolute model of parliamentary immunity, namely: the temporary nature of the immunity; subject to restrictions established by law or parliamentary procedures; is cancelled only after a clear, fair and legal procedure; does not apply to serious crimes; does not apply to minor or administrative offences, nor does it apply if a member of parliament was caught red-handed[17].
The limited model is characterised by the limitation of parliamentary immunity by law and parliament. This model is characterised by the fact that deputies are provided with security guarantees during the direct exercise of their powers and during sessions. The main guarantee that exists under this model is the provision of indemnity to deputies and the impossibility of holding parliamentarians accountable for their professional actions or statements. As a rule, the indemnity applies not only during the execution of the powers, but also after such execution[18]. In some European countries, there is a limited model of parliamentary inviolability, that is, restrictions on certain privileges. Thus, the Constitution of France[19] and The Spanish Constitution[20] contain a provision according to which any prosecution, detention or detention of a member of parliament or other actions may be annulled or suspended if requested by the house to which such parliamentarian belongs. This constitutional model of parliamentary immunity also exists in France. Thus, the Constitution of France states that none of the members of the parliament can be subject to any arrests, prosecutions, prosecutions for carrying out their professional activities, that is, for the actions and statements that will be made by them during the exercise of their powers. Within the scope of this study, the institution of parliamentary immunity in individual countries was analysed. In some European countries, the constitutional status of a member of parliament is based on the principle of a free mandate, according to which the parliamentarian is not legally responsible to the voters for his professional actions, nor can he be recalled by them for his activities in the parliament. The principle of a free mandate provides for the representation and protection of the interests of the entire population of the respective country, not just individual voters.
In Great Britain, there is currently an institution of guarantees provided to members of parliament, and it consists of immunity and indemnity. Indemnity was guaranteed to members of parliament even when the Bill of Rights[21] was adopted, and Article 9 of this act stated the following provision: “The freedom of speech and debate during parliamentary sessions shall not be challenged or subject to discussion in courts or other places outside parliament”. The indemnity comes into force and begins to operate from the moment a member of parliament receives a mandate. This type of guarantee provides protection against prosecution, arrest or prosecution for statements or actions made during the performance of the parliamentarian's powers. However, these guarantees apply only to parliamentary activities and in no case to other public statements or actions. The immunity of members of parliament in Great Britain is somewhat limited compared to indemnity. Yes, the provision on the granting of immunity is enshrined in the Act of Parliamentary Privileges. One of the guarantees established there is that a member of parliament cannot be called as a witness in court if the speaker of the parliament confirms that he must be present during a session in the parliament[22].
Parliamentary immunity in France also consists of immunity and indemnity. Guarantees of indemnity are enshrined in Article 26 of the Constitution of France[23], according to which “no member of Parliament shall be subject to criminal prosecution, questioning, arrest, detention or trial in connection with an opinion expressed or a vote in the performance of his duties” That is, the scope of application of the indemnity extends to the performance by members of the parliament of their powers, namely, voting, speaking, introducing bills, consultations, etc. The indemnity is applied during the term parliamentarian office, but cannot be extended to the statements of the deputies in the mass media. Also, guarantees of indemnity do not protect a deputy from insults or threats made by him against other members of parliament or representatives of state authorities. Deputies may be held administratively liable for relevant actions. As for the application of immunity, it is enshrined in Article 26 of the Constitution of France, which stipulates that a member of parliament cannot be arrested for committing even a serious crime or any other restriction of free will without the prior consent of the Bureau of the National Assembly. However, there are exceptions to this rule. A deputy may be arrested or prosecuted for committing a particularly serious crime if he was caught and the arrest took place at the scene of the crime. Only the Prosecutor General has the right to submit a request for the arrest or imprisonment of the relevant deputy to the Court of Appeals, where the Minister of Justice then forwards such a request to the Chairman of the National Assembly. After that, this request is considered by the Bureau of the National Assembly, which takes place in private[24].
In the Republic of Poland, as in other countries, there is an institution of parliamentary immunity, which has two forms: immunity and indemnity. Thus, in accordance with Article 105 of the Constitution of the Republic of Poland[25], it is established that a member of the Seimas cannot be held criminally liable during the performance of his powers, that is, during the term of office. The consent of the Seimas must be given to the detention or arrest of a deputy, with an exception of when such a deputy was detained during the commission of a crime and at the place of such a crime. The Marshal of the Seimas must be immediately notified of the detention or arrest of a deputy. Guarantees for the application of indemnity are also provided for in the Constitution of the Republic of Poland. Thus, the senate or deputy cannot be held responsible for statements or actions made by him during the performance of his powers. This guarantee is valid both during the validity of the mandate and after its termination. However, in certain cases, a deputy may be responsible for his activities before the Seimas and the Senate. A member of the Seimas can be deprived of his mandate by a body specially created for this purpose – the Committee on Regulations and Deputies. Not only deputies, prosecutors or state bodies, but also natural persons can make a proposal to deprive a deputy of their mandate, and they can do it with the help of a lawyer or independently, if they have the appropriate qualifications.
It is worth noting that the main purpose of the indemnity is to ensure and guarantee the deputy's independent position on issues that are directly considered in the parliament during the performance of his powers. Absolute indemnity is established in a number of European countries. For example, the Constitution of the Italian Republic[26] states that “members of parliament cannot be prosecuted for their opinions and votes in the performance of their functions”. At the same time, in some countries, the indemnity is limited. The introduction of restrictions is explained by the need to prevent possible abuse by members of parliament (Germany, Denmark, Great Britain). As for Ukraine, it is worth noting that until 2020 there was an absolute model of parliamentary inviolability of a people's deputy. In accordance with this model, people's elected officials could be prosecuted only with the consent of the Verkhovna Rada of Ukraine. Deputies were granted such privileges as freedom from arrest and exemption from liability, which in turn made it impossible to hold the people's elected representative accountable for his political activities. In 2020, the Verkhovna Rada of Ukraine made amendments to the Constitution of Ukraine[27] in the area of parliamentary immunity. Article 80 of the Constitution of Ukraine stated as follows: “People's deputies of Ukraine are not legally responsible for the results of voting or statements in the parliament and its bodies, with the exception of liability for insult or slander”[28]. The analysis of this article gives reason to claim that the deputy has certain guarantees regarding his political activity, but nothing is mentioned about immunity from criminal or other liability of the people's representative. Constitutional amendments of 2020 established as a result that only the Prosecutor General of Ukraine can open a criminal case based on the fact that a deputy has committed a crime.
- Discussion
The primary issue associated with the delayed adoption of the law on the abolition of parliamentary immunity during the 30th anniversary in Ukraine is the perpetuation of a system that undermines transparency, accountability, and the rule of law. The failure to eliminate parliamentary immunity suggests a reluctance to fully embrace democratic principles and reinforces perceptions of a privileged political class shielded from legal consequences.
To fulfill this requirement, changes were made to a number of normative legal acts. Law of Ukraine No. 388-IX “On Amendments to Certain Legislative Acts of Ukraine in order to bring it into line with the Law of Ukraine "On Amendments to Article 80 of the Constitution of Ukraine on the Inviolability of People's Deputies of Ukraine"”[29] was amended to the Criminal Procedure Code of Ukraine[30], supplementing it with Article 482-2 of the following content: “Specific features of the procedure for criminal prosecution, detention, selection of a preventive measure, investigative (search) and secret investigative (search) actions against a People's Deputy of Ukraine:
1. Information that may indicate the commission of a criminal offense by a People's Deputy of Ukraine shall be entered into the Unified Register of Pretrial Investigations by the Prosecutor General (a person performing the duties of the Prosecutor General) in accordance with the procedure established by this Code.
2. Petition for permission to detain, choose a preventive measure in the form of detention or house arrest, search, violation of the secrecy of correspondence, telephone conversations, telegraphic and other correspondence, and the application of other measures, including secret investigative (search) actions, which in accordance with the law limit the rights and freedoms of the people's deputy of Ukraine, the consideration of which is assigned to the powers of the investigating judge, must be approved by the Prosecutor General (the person performing the duties of the Prosecutor General)”.
So, it can be talked about the important role of the Prosecutor General in detaining and bringing to justice a people's deputy. This is evidenced by the reports of the Main Scientific and Expert Department of the Verkhovna Rada of Ukraine, which trace the conclusion about the actual role of one official in the process of starting a pre-trial investigation of criminal offenses committed by a People's Deputy of Ukraine. In addition to the above, it is worth noting some more innovations, namely in the Criminal Procedure Code of Ukraine. Thus, the following norm: “Without the permission of the investigating judge issued based on a petition approved by the Prosecutor General (a person performing the duties of the Prosecutor General), the detention of a people's deputy of Ukraine is allowed only if the latter was caught during the commission of the crime or immediately after the crime a serious or particularly serious crime involving the use of violence, or such crime that caused the death of a person”. Likewise, the detention of a people's deputy is carried out with the approval of the Prosecutor General and only by a certain body or official. Also, in accordance with Article 80 of the Constitution of Ukraine[31], amendments were made to the Law of Ukraine No. 2790-XII “On the Status of the People's Deputy of Ukraine”[32], namely Article 27 of this Law was set forth in the following version:
1. “People's deputies of Ukraine are not legally responsible for the results of voting or statements in the Verkhovna Rada of Ukraine and its bodies, and when exercising their parliamentary powers, with the exception of liability for insult or slander.
2. The specific features of the initiation of a pre-trial investigation against a People's Deputy of Ukraine, a notification of suspicion, detention, selection of a preventive measure in relation to him, conducting investigative (search) and secret investigative (search) actions are determined by the Criminal Procedure Code of Ukraine”.
At the same time, amendments were made to the Rules of Procedure of the Verkhovna Rada of Ukraine, namely: rules regarding the procedure for submission and consideration by the Parliament of applications for consent to bring a people's deputy to criminal responsibility, detention or arrest are excluded[33]. Within the framework of this study, the stages and procedure of changes to the institution of parliamentary immunity are analysed, as this is an integral element of the study of the institution of parliamentary immunity and the corresponding constitutional models, which include certain guarantees and privileges of the activity of a member of parliament. The first efforts to change parliamentary immunity were made in 1999 by the Second President of Ukraine, Leonid Kuchma. In 2000, a referendum was held, at which, in particular, they voted on the abolition of parliamentary immunity. At that time, 89% of voters voted for the abolition of inviolability[34]. However, despite the held referendum, the European Community declared that the abolition of parliamentary immunity would lead to the threat of the destruction of parliamentarism. Although, it is worth noting that promises to abolish parliamentary immunity were made in the election campaigns of all candidates for the post of President of Ukraine. It could be called, rather, a populist promise of many political forces of Ukraine, rather than real actions and even attempts to fulfill these promises.
Only in 2015, at the request of the fifth President of Ukraine, Petro Poroshenko, the Verkhovna Rada of Ukraine registered the bill “Draft Law on Amendments to the Constitution of Ukraine (Regarding the Inviolability of People's Deputies of Ukraine and Judges)”. After that, the Verkhovna Rada of Ukraine sent a constitutional submission to the Constitutional Court of Ukraine on the provision of an opinion on the expediency and legality of the abolition of parliamentary immunity and, in this connection, the introduction of changes to the legislation of Ukraine. In 2017, the first reading was held in the Verkhovna Rada of Ukraine for the abolition of parliamentary immunity. In 2018, the Constitutional Court of Ukraine had recognized this draft law as constitutional, and in 2019, the Verkhovna Rada of Ukraine of the ninth convocation adopted Law No. 7203 on the abolition of parliamentary immunity[35]. The law provided for the exclusion from Article 80 of the Constitution of Ukraine[36] of provisions that guarantee people's elected representatives and grant them immunity from prosecution, arrest or detention without the consent of the Verkhovna Rada of Ukraine[37]. And starting from 2020, officially, at the legislative level, changes were made regarding the inviolability of people's deputies.
During the procedure for making changes to the institution of parliamentary immunity in Ukraine, the Constitutional Court of Ukraine and the European Commission for Democracy through Law (Venice Commission)[38] provided their conclusions on this issue. Thus, in its opinion dated July 19, 2018, the Constitutional Court although recognised the constitutionality of draft law No. 7203, however, it noted that during the cancellation of parliamentary immunity, it is necessary to consider the legal and political system in Ukraine and ensure the unimpeded exercise of their powers by people's elected officials. It was also stated that the immunity granted to deputies during the performance of their powers is aimed at securing them from any illegal interference in their professional activities. In turn, the European Commission for Democracy through Law (Venice Commission) noted that the level of democracy in Ukraine is imperfect, and therefore the complete and simultaneous cancellation of parliamentary immunity and deprivation of the guarantees provided to deputies may lead to insecurity autonomy of the parliament. The Report also stated that the abolition of parliamentary immunity may lead to unpredictable and illegal actions against members of parliament, i.e. the government exceeding its powers.
Currently, there are four countries in the world, in which parliamentary immunity has been completely abolished. Among them, it is worth highlighting the Netherlands as the only European country in the list. As practice shows, the complete abolition of the institution of parliamentary immunity in the listed countries did not yield positive results, that is, it did not justify the initial goal. This was also emphasised by the Venice Commission, asserting that in all developed European countries members of parliament are granted immunity and certain guarantees during the exercise of their powers, albeit with certain restrictions. The Commission also emphasised that it is necessary to gradually abolish parliamentary immunity, based on the realities of today's Ukraine. Therefore, the constitutional changes of 2020 regarding parliamentary inviolability need to be revised, and it is still too early to talk about the complete abolition of the inviolability of people's deputies. It is necessary to improve the criminal and criminal-procedural legislation regarding the prosecution of a people's deputy. A clear list of types of punishment and the procedure for bringing a people's deputy to criminal responsibility will provide a better effect of legality and transparency than the procedure of complete cancellation of immunity and changes that currently exists in Ukraine.
There is no clear-cut regulation of bringing a people's deputy to justice for insult and slander, which often leads to human rights violations. The experience of Great Britain is relevant for overcoming this problem, namely liability in the form of a warning, fine, reprimand, or deprivation of a deputy's salary[39]. Also, paying attention to the shortcomings of the amendments made to a number of normative legal acts regarding the institution of parliamentary immunity, it is worth noting the need to take a number of actions to improve the legal framework, namely to regulate the issue of liability for offenses committed outside the scope of professional duties and responsibilities for slander or insult. In any phenomenon or process in the world, certain limitations of parliamentary immunity have both positive and negative sides. The advantage of the changes made to the institution of parliamentary immunity is the limitation of permissiveness and the prosecution of people's elected representatives for crimes committed by them, including the fact that future people's elected officials will run for parliament not for the purpose of obtaining immunity, but for the purpose of working on changes and improving life in the country. In turn, among the negative manifestations, the state of effective functioning of the parliament and the exercise of their powers by the deputies and the possible dependence of the people's elected officials on state bodies and individuals stand out.
- Conclusions
During this study, the main models of parliamentary immunity were characterised. An analysis of the guarantees and privileges granted to deputies in connection with the performance of their powers was also carried out. Thus, parliamentary inviolability must be understood as legally established guarantees that are provided to members of the parliament in connection with the performance of their powers.
Based on the findings and conclusions of this study, several striking suggestions for future studies can be proposed:
1. Comparative analysis of the effectiveness of absolute and limited models of parliamentary immunity: Further research can delve into comparing the outcomes and consequences of countries that adopt the absolute model of parliamentary immunity versus those that implement the limited model. This analysis can shed light on the advantages and disadvantages of each model and inform policymakers about the most suitable approach.
2. Examination of the impact of recent changes in Ukraine's parliamentary immunity: Future studies can focus on assessing the effects of the recent changes in Ukraine's parliamentary immunity system, particularly the shift towards limited guarantees. By evaluating the positive and negative features of these changes, researchers can identify any challenges that arise and propose potential solutions for improvement.
3. Comparative study of parliamentary immunity reforms across European countries: Expanding the comparative analysis of parliamentary immunity to include a wider range of European countries, beyond those mentioned in this study, can provide a more comprehensive understanding of the different approaches and practices. This research can identify successful reform strategies, challenges faced, and potential lessons that can be applied in Ukraine and other countries seeking to reform their parliamentary immunity systems.
4. Exploration of the relationship between parliamentary immunity and legislative effectiveness: Future studies can examine the correlation between the existence or removal of parliamentary immunity and the performance of legislative bodies. By analyzing factors such as legislative productivity, quality of decision-making, and public trust, researchers can assess how immunity impacts the overall effectiveness of the legislative process.
5. Investigation of the role of parliamentary immunity in combating corruption: Building on the anti-corruption aspect highlighted in this study, further research can explore the specific ways in which parliamentary immunity influences corruption levels within political systems. This analysis can contribute to the development of targeted anti-corruption measures and reforms.
6. Longitudinal analysis of the evolution of parliamentary immunity: Conducting longitudinal studies that track the historical development and changes in parliamentary immunity systems over time can provide valuable insights into the factors that drive reform and the long-term consequences of such changes. This research can help identify patterns, trends, and lessons from different eras that can inform current and future debates on parliamentary immunity.
By addressing these suggested areas of investigation, future studies can further deepen our understanding of parliamentary immunity, its impact on democratic governance, and the potential for reforms to strengthen accountability, transparency, and the rule of law.
For many years, Ukraine was characterised by the fact that many deputies mostly went to the parliament not to effectively perform their functions and develop the country, but to receive certain privileges and guarantees. Therefore, the experience of European countries can be considered and implemented in Ukraine, but the realities of the legal and political system of Ukraine must be considered.
Abstract: The purpose of this article is the methodological understanding of the foundations of the constitutional institution of parliamentary immunity, the characteristics of the constitutional models of this institution, and the clarification of problems arising in the process of the abolition of parliamentary immunity and proposals for ways to solve them. Among the methods used to study this topic are: dialectical method, formalisation method, legal method, formal-legal method, hermeneutic method, logical-legal method, systemic, structural-functional method, axiomatic method, method of induction and deduction, method analysis and synthesis. The results of this article are clarification of the specific features of the institution of parliamentary immunity in various European countries; establishing and analysing the main models of parliamentary immunity; study of the stages and procedure of cancellation of the immunity of deputies in Ukraine and determination of negative and positive aspects of such cancellation; carrying out a study of the specific features of the application of it in the activities of parliamentarians.
Keywords: immunity – indemnity – parliament – deputy - abolition
a Kyiv National Economic University named after Vadym Hetman (mikhnevychliudmyla@gmail.com)
b Uzhhorod National University (vasylchuk_l@proton.me)
c Kyiv National Economic University named after Vadym Hetman (a.hryhorenko66@ukr.net)
d Kyiv National Economic University named after Vadym Hetman (rud.yuliia@outlook.com)
* Il contributo è stato sottoposto a double blind peer review.
[1] https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#n443 (Accessed 30. 05. 2023).
[2] M. Sych, Constitutional and legal regulation of guarantees of deputy activity in Ukraine, Kharkiv, 2021, pp. 23 ss.
[3]http://surl.li/jfzkh(Accessed 07. 06. 2023).
[4] https://zakon.rada.gov.ua/laws/show/v002v710-18#Text (Accessed 03. 06. 2023).
[5] I. Shchebetun – N. Goreyko, On the issue of parliamentary immunity, in Scientific Papers of the Odessa Law Academy, 29 (2021), pp. 215-220.
[6] M. Sych, Constitutional and legal regulation of guarantees of deputy activity in Ukraine, cit., pp. 23.
[7] https://www.napoleon-series.org/research/government/legislation/c_charter.html (Accessed 05. 06. 2023).
[8] D. Gorbachevskaya, Institute of parliamentary immunity and its abolition in Ukraine, in Legal Scientific Electronic Journal, 4 (2021), pp. 152-155.
[9] http://surl.li/jfztp (Accessed 30. 05. 2023).
[10] https://ips.ligazakon.net/document/MU15049 (Accessed 02. 06. 2023).
[11] http://surl.li/jfztp cit. (Accessed 30. 05. 2023).
[12] http://surl.li/jgaak (Accessed 05. 06. 2023).
[13] http://surl.li/jgaat (Accessed 02. 06. 2023).
[14] I. Ryzhuk, Analysis of the legal regulation of parliamentary immunity in Ukraine and abroad, in Prykarpattya Legal Bulletin, 3(24) (2018), pp. 23-26.
[15] http://surl.li/jgabd (Accessed 08. 06. 2023).
[16] http://surl.li/jgabi (Accessed 05. 06. 2023).
[17] http://surl.li/jgabi cit. (Accessed 05. 06. 2023).
[18] V. Oliynyk – D. Chabanyuk – A. Shumny, Problems of constitutional and legal support of the inviolability of people's deputies: foreign experience and Ukrainian realities, in State building and Law: Issues of Theory and Constitutional Practice. Law and Society, 4 (2019), pp. 17-28.
[19] http://surl.li/gqapf (Accessed 05. 06. 2023).
[20] http://surl.li/gposk (Accessed 03. 06. 2023).
[21] http://surl.li/jfzkh(Accessed 07. 06. 2023).
[22] http://surl.li/jgabi cit. (Accessed 03. 06. 2023).
[23] http://surl.li/gqapf cit. (Accessed 05. 07. 2023).
[24] http://surl.li/jgabi cit. (Accessed 08. 06. 2023).
[25] https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm (Accessed 03. 06. 2023).
[26] http://surl.li/jgaak cit. (Accessed 05. 06. 2023).
[27] https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#n443 cit. (Accessed 30. 05. 2023).
[28]https://zakon.rada.gov.ua/laws/show/v002v710-18#Text cit. (Accessed 03. 06. 2023).
[29] https://zakon.rada.gov.ua/laws/show/388-20#Text (Accessed 04. 06. 2023).
[30] https://zakon.rada.gov.ua/laws/show/4651-17#Text (Accessed 03. 06. 2023).
[31] https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#n443 cit. (Accessed 30. 05. 2023).
[32] https://zakon.rada.gov.ua/laws/show/2790-12#Text (Accessed 05. 06. 2023).
[33] https://zakon.rada.gov.ua/laws/show/1861-17#Text (Accessed 04. 05. 2023).
[34] A. Nyzhnyk, Inviolability of the People's Deputy of Ukraine – constitutional and legal guarantee of independent parliamentary control: information and legal aspect, in Information and Law, 2(29) (2019), pp. 141-155.
[35] https://zakon.rada.gov.ua/laws/show/v002v710-18#Text cit. (Accessed 03. 06. 2023).
[36] https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#n443 cit. (Accessed 30. 05. 2023).
[37] https://cutt.ly/dLvEqjv (Accessed 04. 05. 2023).
[38] https://ips.ligazakon.net/document/MU15049 cit. (Accessed 02. 06. 2023).
[39] I. Shchebetun – N. Goreyko, On the issue of parliamentary immunity, cit., pp. 215-220.
MIKHNEVYCH LIUDMYLA
Download:
10 MIKHNEVYCH.pdf
