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2 January, 2013  ▪  Andriy Skumin

Referendum Sleight-of-Hand

The Viktor Yanukovych regime plans to hold a referendum on constitutional amendments to increase manoeuvrability in repressing political opponents while securing a long period of immunity for the president

Bill No. 0976 sponsored by Oleksandr Lavrynovych and Viktor Yanukovych has been registered in the Verkhovna Rada. If passed, the bill will strip MPs and the President of Ukraine of immunity and will require making amendments to the Constitution regarding guarantees of immunity for certain officials. This document is set to become a key tool for putting pressure on the opposition and even pro-government MPs, because it puts “deimmunization”, a popular idea in Ukrainian society, in a highly manipulative framework.

Article 80 of the current Constitution says: “The people’s deputies of Ukraine shall not be held criminally liable, detained or arrested without the consent of the Verkhovna Rada of Ukraine.” This means that if an MP commits a crime and is caught red-handed, he cannot be detained or arrested. A pretrial investigation cannot even be opened.

Law unto one's enemies

Bill No.0976 makes MPs only partly immune: “A people’s deputy shall not be detained or arrested without the consent of the Verkhovna Rada of Ukraine until a guilty verdict against him from a court enters into force.” This means that a verdict by a regime-controlled court will suffice to have any opposition MP or even a recalcitrant pro-government parliamentarian arrested. The Interior Ministry, the Prosecutor General's Office and the Security Service, which will be framing the cases, are completely controlled by the president’s family.

Some recent events point exactly in this direction. Hryhoriy Nemyria, one of the key communicators with the West, has been implicated in a case about illegal financing of the Batkivshchyna (Fatherland) party abroad. Serhiy Vlasenko, Yulia Tymoshenko’s defence attorney, has been banned from traveling abroad under the pretext of failing to pay alimony. And former opposition MP Andriy Shkil has been forced to leave for the Czech Republic and seek political asylum there for fear that a 2001 case under which he was charged with inciting a mass riot during the Ukraine Without Kuchma campaign may be reopened. If the new bill becomes law, the government will have wide-ranging opportunities to put pressure on defiant opposition MPs. For example, Arsen Avakov, a Fatherland MP, may soon find himself behind bars. The same fate may befall opposition MPs who fought with State Guard troops in parliament and even those who kicked the turncoat MPs, the Tabalovs, out of the session hall. The Criminal Code has a specific article for each such action. So, despite the populist wrapping, stripping much-hated MPs of immunity has a political dimension: under the threat of criminal prosecution, the government will have an easy time blackmailing and subduing the opposition, while turning a blind eye to the biggest criminals in its own camp.

Catch me if you can

In response to all of the complaints voiced by the opposition and international organizations — particularly the Venice Commission — and allegations that the sponsors of bill No. 0976 are biased against opposition MPs, Lavrynovych and Yanukovych have an ironclad argument: the bill strips both MPs and the president of their immunity. Article 105 of the current Constitution says that “the President of Ukraine shall enjoy the right of immunity for the period of his authority.” In other words, from the moment the president takes oath and until he resigns (either on schedule or earlier), he cannot be detained or arrested. But as soon as his authority expires, this becomes possible. Now the new bill proposes removing the phrase “for the period of his authority” and add the following sentence to Article 105: “The President of Ukraine shall not be detained or arrested without the consent of the Verkhovna Rada of Ukraine until a guilty verdict of a court against him enters into force.” The trick is that under the same article of the Constitution, the title of the President of Ukraine “shall be protected by law and shall be reserved for the President for life.” This means that neither the current president nor any former president can be detained or arrested without the consent of parliament until a guilty verdict against him enters into force. Clearly, with the judicial system subordinated to the presidential vertical of power, a guilty verdict against the president is de facto impossible, as is the consent of the pro-presidential majority in parliament to have him detained or arrested. So Yanukovych would likely enjoy immunity at least until 2015.

The proposed bill has one more wrinkle. Under the current Constitution, the title of the president is reserved for life, “unless the President of Ukraine has been removed from his office in compliance with the procedure of impeachment.” That procedure, under Article 111, is used when the president “commits treason or other crime.” Following the reasoning of Lavrynovych and Yanukovych, a president who has been removed from office for treason is not only granted immunity against arrest but also keeps the privileges granted to former presidents.

Remarkably, the populist novelty that makes it possible to institute criminal proceedings against the president may be rescinded post factum, so to say, based on an already existing Constitutional Court decision or its possible future reiteration. On 1 April 2010, the Constitutional Court ruled on a similar constitutional bill. It concluded that the limitation the bill imposed on the president’s immunity (even in such an ambiguous interpretation) contradicted Article 157 of the Constitution, while the same measure regarding MPs was in line with Articles 157 and 158. The Constitutional Court also recognizes as “constitutional” the norm under which the title of the President of Ukraine is reserved for impeached presidents for life. Thus, it may turn out that only MPs, but not the president, will lose their immunity. If the Lavrynovych-Yanukovych bill can be construed as an attack on the opposition (by way of weakening the status of opposition MPs), the amendments proposed for Article 105 of the Constitution reveal the insecurity of the president and his team about their own future. Curiously, their initiative will clearly pay dividends not only to Yanukovych, but also to former presidents Leonid Kuchma, Viktor Yushchenko and Leonid Kravchuk.

Aware of the risks, MPs are unlikely to support the bill. However, Yanukovych will likely use any stubbornness in parliament as an excuse to put the bill before a national referendum. And the initiative will come from the “enraged public”. The argument will be that the president wants to strip both MPs and even himself of immunity, but they, unlike the president, dearly want to hold on to the privilege. Consequently, "a referendum will be in order". Considering the low level of people’s awareness of the bill’s legal nuances and the possible political ramifications buried in it, the seemingly popular norm about making everyone equal before the law may well pull off the trick.

As a result, the country will indeed become equal in the sense of all being equally defenceless before the “law” which the president’s entourage and family will use to solve their own problems.


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