DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of October 27, 1999 No. 9-rp/99

The solution of constitutional court of Ukraine on the case of the constitutional representation of the Ministry of Internal Affairs of Ukraine on official interpretation of provisions of part three of article 80 of the Constitution of Ukraine (case on parliamentary privilege)

Case No. 1-15/99

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Victor Egorovich's buffoons - the chairman,

Voznyuk Vladimir Denisovich - the judge-speaker,

Evgrafov Pavel Borisovich,

Kozyubra Nikolay Ivanovich,

Korniyenko Nikolay Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Martynenko Pyotr Fedorovich,

Mironenko Alexander Nikolaevich,

Nemchenko Vasily Ivanovich,

Selivon Nikolay Fedosovich,

Timchenko Ivan Artemyevich,

Silent Vladimir Pavlovich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

Yatsenko Stanislav Sergeyevich,

with the assistance of representatives for the order of representatives of the person of law on the constitutional representation - the Ministries of Internal Affairs of Ukraine - Shtanko Alexander Fedorovich, the deputy minister of internal affairs of Ukraine, the Christmas carol Pyotr Vasilyevich, the first deputy chief of the Main Investigation Department of the Ministry of Internal Affairs of Ukraine; recruited in consideration of this case from the Verkhovna Rada of Ukraine - Shishkin Victor Ivanovich, the People's Deputy of Ukraine, the vice-chairman of Committee of the Verkhovna Rada of Ukraine concerning legal reform, Krivenko Leonid Ivanovich, the chief scientific consultant of Department of bonds with judicial bodies of the Secretariat of the Verkhovna Rada of Ukraine; from the Prosecutor General's Office of Ukraine - Burdol Evgeny Pavlovich, the head of legal support of the Prosecutor General's Office of Ukraine, Titarchuk Grigory Nikolaevich, the acting as the head of department of supervision of compliance with laws by law-enforcement bodies and tax police when carrying out operational and detective activities, inquiry and the dosudovy investigation; from the Security Service of Ukraine - Porodko Vladimir Mikhaylovich, the chief of Investigation department of the Security Service of Ukraine; and also Nosov Vladislav Vasilyevich, the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine,

considered case on official interpretation of provisions of part three of article 80 of the Constitution of Ukraine at plenary meeting.

The constitutional representation of the Ministry of Internal Affairs of Ukraine of rather official interpretation of provisions of part three of article 80 of the Constitution of Ukraine became reason for consideration of the case according to articles 39, of 41 Law of Ukraine "About the Constitutional Court of Ukraine".

The basis for consideration of the case according to article 93 of the Law of Ukraine "About the Constitutional Court of Ukraine" is practical need for official interpretation of provisions of part three of article 80 of the Constitution of Ukraine.

Having heard the judge-speaker Voznyuk V. D., Shtanko O. F explanations, P.V., Shishkin V. I. Christmas carol., Krivenko L. I., Burdolya E. P., Titarchuka G. M., Porodko V. M., Nosov V. V. and having researched case papers, the Constitutional Court of Ukraine established:

1. The Ministry of Internal Affairs of Ukraine appealed to the Constitutional Court of Ukraine with the petition to give official interpretation of provisions of part three of article 80 of the Constitution of Ukraine according to which People's Deputies of Ukraine cannot without the consent of the Verkhovna Rada of Ukraine be brought to trial are detained or arrested. In the constitutional representation the question of determination of the moment from which there comes criminal liability, and the moment from which person is considered brought to trial is brought also up; about need of cancellation of the measure of restraint chosen earlier in the form of taking prisoner of person before its election as the People's Deputy of Ukraine; about need of the appeal to the Verkhovna Rada of Ukraine with idea of receipt of consent to criminal prosecution and arrest of this person according to the procedure, the stipulated in Article 28 Laws of Ukraine "About the status of the People's Deputy of Ukraine".

The person of law on the constitutional representation proves practical need of such interpretation by the fact that the existing penal and criminal procedure legislation does not determine the concept "criminal prosecution", the moment from which there comes criminal liability and from which immunity is guaranteed to People's Deputies of Ukraine is not established. It is not determined also whether the parliamentary privilege extends to person who is brought to trial and concerning whom the suppression measure in the form of taking prisoner before election it the People's Deputy of Ukraine is chosen. On election results which took place on March 29, 1998 certain citizens concerning whom investigative law-enforcement bodies till the election day criminal cases were begun are elected People's Deputies of Ukraine, charge is brought and the suppression measure in the form of taking prisoner according to provisions of Articles 131, of 132, of 148, of 150, of 155 and other Articles of the Code of penal procedure of Ukraine is chosen.

At plenary meeting representatives for the order of the representative of the person of law on the constitutional representation Shtanko O. F. and P.V.'s Christmas carol explained that the Ministry of Internal Affairs of Ukraine in the constitutional representation puts question of clarification of the moment of attraction of person to criminal liability and need of the appeal to the Verkhovna Rada of Ukraine with idea of receipt of consent to involvement of the People's Deputy of Ukraine to criminal liability and arrest if he is detained and to it charge in crime execution before election as the People's Deputy of Ukraine is brought.

According to line item of the Ministry of Internal Affairs of Ukraine person is considered brought to trial from the moment of carrying out of the resolution on involvement of this person as person accused and presentation of accusation to it, and guarantees of parliamentary privilege extend to the People's Deputy of Ukraine from the moment of adoption of the oath by it. Therefore, if person is brought to trial before election as the People's Deputy of Ukraine and bringing of the oath, then in the appeal to the Verkhovna Rada of Ukraine with idea of receipt of consent to criminal prosecution and arrest of such People's Deputy of Ukraine there is no legal basis.

Representatives of the Verkhovna Rada of Ukraine Shishkin V. I. and Krivenko L. I. consider that the initial moment of process of attraction of person to criminal liability is the carrying out of the resolution on attraction it as person accused and presentation to it of specific accusation in crime execution. Process of criminal prosecution has step-by-step nature. The citizen elected the People's Deputy of Ukraine acquires the status of the People's Deputy from the moment of registration by Central Election Commission of the fact of election as his People's Deputy of Ukraine. Exactly from now on the guarantees of parliamentary privilege provided by part three of article 80 of the Constitution of Ukraine which predetermines need to consider this status in case of application concerning the deputy of the mechanism of criminal prosecution and election of measure of suppression in the form of arrest, and also the obligatory consent of the Verkhovna Rada of Ukraine to involvement of the People's Deputy of Ukraine to criminal liability, his detention or arrest extend to the People's Deputy of Ukraine.

Representatives of the Prosecutor General's Office of Ukraine Burdol E. P. both Titarchuk G. M. and the Security Service of Ukraine of Porodko V. M. explained that according to the existing Code of penal procedure of Ukraine person is considered brought to trial from the moment of pronouncement of the resolution on attraction it as person accused. Guarantees of parliamentary privilege begin with the moment of bringing of the oath by the People's Deputy of Ukraine and affect only the period of its powers. Therefore in case of involvement of the citizen to criminal liability and arrest before election as his People's Deputy of Ukraine there is no legal basis to address with representation to the Verkhovna Rada of Ukraine about receipt of consent to implementation of such actions.

According to the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine Nosov V. V., systems analysis of the constitutional regulations gives the grounds under the phrase "are brought to trial" which is used in part three of article 80 of the Constitution of Ukraine of rather People's Deputies of Ukraine, to understand application of criminal penalty to person guilty of crime execution. Person it is considered by the court brought to trial after removal of conviction which took legal effect. As for guarantees of parliamentary privilege, they shall extend to the People's Deputy of Ukraine after bringing of the oath by him as he begins to fulfill the duties exactly from now on. If the citizen is arrested before its election as the People's Deputy of Ukraine, bodies of pretrial investigation and court cannot prevent such People's Deputy of Ukraine to take the oath as the people act as the single source of the power and its declaration of will is obligatory for public authorities.

2. Criminal liability is kind of legal responsibility, singular element in the mechanism of criminal and legal reaction of the state concerning person who committed crime. The concept "criminal liability" is legislatively not determined also in the theory criminal and criminal procedure law is interpreted in different ways.

According to part one of article 62 of the Constitution of Ukraine person is considered innocent in crime execution and cannot be subjected to criminal penalty until his guilt is proved legally and established by conviction of court, and according to article 3 of the Criminal code of Ukraine only person guilty of crime execution, i.e. it which purposely or on imprudence made socially dangerous act provided by the law is subject to criminal liability. Nobody can be found guilty of crime execution, and also is subjected to criminal penalty differently by what according to the court verdict and according to the law. These provisions give the grounds to consider criminal liability as special legal institution within which response of the state to the committed crime is performed.

Criminal liability provides official assessment of behavior of person by the relevant state bodies as criminal. The basis of criminal liability is availability in actions of person of the actus reus provided by the penal statute. It is form of realization by the state of law-enforcement regulations which finally, as a rule, consists in application to person who committed crime, specific criminal legal measures of forced nature through conviction of court. Criminal liability can have not only the form of punishment. According to the court verdict it can come down only to condemnation of person who committed crime, and to release it from punishment (part two of article 50 of the Criminal code of Ukraine). Person can be condemned conditionally or with delay of execution of sentence (Article 45, of 46, of 46-1 Criminal code of Ukraine). Therefore the fact of conducting criminal case of rather particular person, detention, taking prisoner, presentation he cannot admit charges as criminal liability. Person does not bear criminal liability until it is not found by court guilty of crime execution and the court verdict does not take legal effect.

3. The concept "criminal prosecution" is not identical to the concept "criminal liability", as well as the concept "attraction to legal responsibility" is not identical to the concept "legal responsibility".

Regulations of the Constitution of Ukraine, in particular, contain terms: "for return and execution of obviously criminal order or order there comes legal responsibility" (Article part two 60); "nobody can be twice brought to legal responsibility of one type for the same offense" and "legal responsibility of person has individual nature" (Article 61); "person does not bear responsibility for refusal to give evidences or explanations concerning itself, family members or close relatives whose circle is determined by the law" (Article part one 63), "ignorance of the laws does not exempt from legal liability" (Article part two 68); "perpetrators are made for infringement of honor and advantage of the President of Ukraine responsible based on the law" (Article part two 105); "for disrespect for court and the judge perpetrators are brought to legal responsibility" (Article part five 129). In the context of content of provisions of the called articles of the Constitution of Ukraine the terms "attraction to legal responsibility" and "legal responsibility" are differentiated.

Attraction to legal responsibility precedes legal responsibility. Legal responsibility including criminal liability, as well as forms of attraction to legal responsibility, are determined and established by the laws. According to provisions of Items 14, 22 parts one of article 92 of the Constitution of Ukraine only are determined by the laws of Ukraine "legal proceedings... organization and activities of prosecutor's office, bodies of inquiry and investigation", and also "bases of civil responsibility; actions which are crimes, administrative or disciplinary offenses, and responsibility for them". By Item 9 of the Section XV "Transitional provisions" of the Constitution of Ukraine it is determined that "the prosecutor's office continues to perform according to current laws function of supervision of observance and application of the laws and function of pretrial investigation - before enforcement of the laws which regulate activities of state bodies for control of compliance with laws, and to sformuvaniye to system of the dosudovy investigation and enforcement of the laws which regulate its functioning". Thus, the form and procedure for criminal prosecution of person who is suspected of crime execution and also criminal liability of the perpetrator are regulated by the penal and criminal procedure legislation of Ukraine.

In particular, the procedure for investigation of criminal case, arrest and detention are regulated by the Code of penal procedure of Ukraine. Systems analysis of its regulations (Articles 147, of 242, of 246 and other Articles) gives the grounds to come to conclusion that criminal prosecution as stage of criminal prosecution, begins with the moment of removal investigative resolutions on involvement of person as the person accused and presentation of accusation to it. According to provisions of part one of article 147 of this Code "in case of involvement of the official to criminal liability for crime of official... the investigator shall discharge it of position...". The item 4 of part one of Article 242 of the Code of penal procedure of Ukraine provides that in case of transfer of the person accused to court the judge solely or court in administrative meeting shall find out whether "all persons who are exposed by the proofs collected in case in crime execution" are made responsible, and according to requirements of item 4 of part one of article 246 of this Code the court at administrative meeting returns case on additional investigation in case of "availability of the bases for criminal prosecution of other persons when separate consideration of the case concerning them is impossible".

Stipulated in Article 174 Criminal codes of Ukraine criminal liability of person who performs inquiry, the investigator or the prosecutor for attraction obviously innocent to criminal liability for mercenary motives or other personal interest are confirmation of the fact that the fact of presentation to person of accusation invests in contents of the term "criminal prosecution".

The historical analysis of precepts of law which regulated question of parliamentary privilege, demonstrates that involvement of person to criminal liability contacts the moment the fact of presentation to it of accusation in crime execution.

In particular, according to part four of article 111 of the Constitution (Fundamental law) of Ukraine of 1978 (with subsequent changes) the People's Deputy of Ukraine could not without the consent of the Verkhovna Rada of Ukraine be brought to trial, is arrested or subjected to measures of administrative penalty which was imposed judicially.

By the law of Ukraine "About the status of the People's Deputy of Ukraine" of November 17, 1992 it is determined that for receipt of consent of the Verkhovna Rada of Ukraine to involvement of the People's Deputy of Ukraine to criminal liability the Attorney-General of Ukraine brings representation to the Verkhovna Rada of Ukraine on presentation to the deputy of accusation or making the sanction for arrest (parts one and the second article 28 of the called Law). Article 29 of the Law of Ukraine "About the status of deputies of local councils of People's Deputies" determined that the deputy of council could not be brought to trial or to arrest without the consent of council (Article is excluded by the Law N11/98-BP of January 13, 1998).

According to parts one and the second article 1 of the Law of Ukraine "About procedure for receipt of consent of Council of People's Deputies to involvement of the deputy to responsibility" (The law ceased to be valid based on the Law N11/98-BP of January 13, 1998) for receipt of consent of council to involvement of the deputy to criminal liability, his arrest the corresponding prosecutor shall bring in council representation before presentation to the deputy of accusation or making the sanction for arrest.

In part three of article 80 of the Constitution of Ukraine of rather People's Deputies of Ukraine the term "are brought to trial" is also used.

Therefore, criminal prosecution as stage of criminal prosecution, begins with the moment of presentation to person of accusation in crime execution.

4. The status of the People's Deputy of Ukraine is determined by the Constitution and the laws of Ukraine. Important constitutional guarantee is the parliamentary privilege which has target naznacheniyeobespecheniye of free and effective implementation by the People's Deputy of Ukraine of the functions. It is not the personal privilege, and has public nature.

According to provisions of part two of article 80 of the Constitution of Ukraine People's Deputies of Ukraine do not bear legal responsibility for results of vote or the statement in parliament and its bodies, except for responsibility for insult or slander. It means that the People's Deputy of Ukraine and after the termination of deputy powers cannot be brought to legal responsibility for the specified actions.

The parliamentary privilege provides also special procedure for criminal prosecution, detention or arrest of People's Deputies of Ukraine. They cannot without the consent of the Verkhovna Rada of Ukraine be brought to trial, are detained or arrested (part three of article 80 of the Constitution of Ukraine). According to part three of article 76 of the Constitution of Ukraine "the citizen who has criminal record for making of deliberate crime cannot be elected in the Verkhovna Rada of Ukraine if this criminal record is not extinguished and is not removed in the procedure established by the law". From this constitutional instruction follows that the citizen of Ukraine concerning whom criminal case is begun can be elected the People's Deputy of Ukraine, charge in crime execution, the detainee or the arrested is brought.

On contents of Article 69, of Article part one 76, of part two of Article 78 and part four of article 79 of the Constitution of Ukraine person is elected the People's Deputy of Ukraine and receives the deputy mandate owing to declaration of will of voters. Before introduction to position People's Deputies of Ukraine take the oath (part one of article 79 of the Constitution of Ukraine) before the Verkhovna Rada of Ukraine. The refusal to take the oath shall have the investigation loss of the deputy mandate (part three of article 79 of the Constitution of Ukraine). These constitutional instructions give the grounds to claim that the People's Deputy of Ukraine receives the mandate on election results, certified by the decision of the relevant electoral commission on recognition of the People's Deputy by the electee.

Thus, based on systems analysis of regulations of the Constitution of Ukraine the Constitutional Court of Ukraine came to conclusion that guarantees of parliamentary privilege according to provisions of part three of article 80 of the Constitution of Ukraine extend to the People's Deputies of Ukraine from the moment of recognition by their elite on election results certified by the decision of the relevant electoral commission and until the termination in accordance with the established procedure of deputy powers. If the citizen is elected the People's Deputy of Ukraine after sight to him accusations in crime execution or after arrest, further production in criminal case concerning such deputy can be continued in the presence of the consent of the Verkhovna Rada of Ukraine to attraction it to criminal liability or arrest according to the procedure, the stipulated in Article 28 Laws of Ukraine "About the status of the People's Deputy of Ukraine". Such approach provides realization of the principle of equality of all People's Deputies of Ukraine concerning guarantees of parliamentary privilege.

Based on stated and being guided by statyam 147, 150 Constitutions of Ukraine, Articles 51, of 63, of 65, 95 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. In aspect of the questions of provision of part three of article 80 of the Constitution of Ukraine lifted in the constitutional representation by the Ministry of Internal Affairs of Ukraine it is necessary to understand so:

1.1. Criminal liability comes from the moment of the introduction in legal force conviction of court.

1.2. Criminal prosecution as stage of criminal prosecution, begins with the moment of presentation to person of accusation in crime execution.

1.3. The consent of the Verkhovna Rada of Ukraine to involvement of the People's Deputy of Ukraine to criminal liability shall be received before presentation of accusation in crime execution to it according to the existing Code of penal procedure of Ukraine.

1.4. The parliamentary privilege extends to the People's Deputy of Ukraine from the moment of recognition by his electee according to the decision of the relevant electoral commission and until the termination of powers of the People's Deputy of Ukraine.

In case of presentation to the citizen of Ukraine of accusation in crime execution and/or its arrest before election as the People's Deputy of Ukraine further production in criminal case concerning such deputy can be continued in the presence of the consent of the Verkhovna Rada of Ukraine to its criminal prosecution and/or stay under guards.

2. The solution of the Constitutional Court of Ukraine is obligatory to execution in the territory of Ukraine, final and cannot be appealed.

Decision of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine" and in other official publications of Ukraine.

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