Verkhovna Rada Procedure Committee 2 – Prosecutor General 0 (and it’s only Tuesday)

July 4, 2017

On 2nd July Prosecutor General Yuri Lutsenko graced the TV screens and grabbed some headlines of Ukraine by stating that 6 parliamentarians would be subjected to applications to strip their immunity (and impunity) – 1 parliamentarians per day from 3rd – 7th July and the last one the following week.

The parliamentarians were named Andriy Lozovoy – Radical Party, Evgene Deidey (aka Dade) – People’s Front, Boryslav Rosenblatt – Block Poroshenko, Olesya Dovgyi – Independent, Maksym Polyakov – People’s Front, and Mykhail Dobkin – Opposition Block.    Mr Dobkin being the MP to be subject to procedures next week.

The Prosecutor General making quite clear that “We have collected enough evidence to convince impartial deputies—and the key word here is ‘impartial’—of the need to remove the immunity of the 6 deputies and to continue the pre-trial investigation. All this will be backed up by a presentation of audio recordings, videotapes, and documents.

There should be only a check. Is there evidence of possible criminal offenses? Yes, there is. Whether the evidence is sufficient will only be determined by the court.”

In short a statement loaded with caveats – and rightly so.

There are also some possible legal issues with the contents of his statement – for example the “recordings” in particular, if obtained via SIGINT (which seems most likely), would require appropriate and specific authorising protocols to be followed if the target of such recordings were a parliamentarian.  It may be that the “recordings” involving the parliamentarians came about via incidental collection when a parliamentarian was recorded talking to the target of another operation/investigation.

Nevertheless that, just as the Prosecutor General states regarding “sufficient evidence”, is for a Ukrainian court (no matter how corrupt and unreformed) to decide.

However before any court can decide anything, the issue of removing or partially removing an MPs absolute immunity has to be dealt with, and that requires the Verkhovna Rada Procedures Committee to give its assent and suggest the matter go to a parliamentary vote.  If no assent is forthcoming the matter goes to the Speaker of the Verkhovna Rada, who duly noting the lack of assent, is to decide whether to continue the process of immunity-stripping by putting it to parliamentary vote – or not.

Memory fails to recall a single instance when the Verkhovna Rada Procedures Committee refusal to give consent has resulted in a parliamentarian being stripped of their immunity.

The question therefore is what role the Verkhovna Rada Procedures Committee plays – or indeed perhaps should play but doesn’t.

It is not a court of law.  Neither is its membership comprised entirely of lawyers nor judges.  It is not a body flush with the finest legal minds.  It is comprised of fellow parliamentarians of various background and political party – which considering the often shambolic legislation drafted and passed by the Verkhovna Rada clearly infers it is not a body flush with the finest legal minds.

Ergo the question to be first asked and answered by this committee is whether the rules and procedures have been followed leading up to the request of the Prosecutor General.

But is that the only question that it should be asked and have to answer?

Is it to act as a “parliamentary court” regarding the assessment and weight of any evidence, or how that evidence was collected, when presented by the Prosecutor General during any application to strip an MP of immunity?   After all, such requests from the prosecutors occur when an investigation is on-going and they require the legal right to question, by detention if necessary, an otherwise entirely legally immune individual.  As such the case for the prosecution, if there eventually be one (and there may not be), is by definition not complete.

Monday 3rd July was the day that Evgeny Dade was subject to the Prosecutor General’s request to the Verkhovna Rada Procedures Committee.  The Committee refused the Prosecutor General stating “……is not sufficiently substantiated, unmotivated, does not contain specific facts, and the investigative conclusions are based on assumptions.”

Tuesday 4th July was the day that Olesya Dovgyi saw the Prosecutor General apply for an assenting nod from the Procedures Committee.  The Committee again refused to give assent – “The Committee believes that the presentation to provide consent to the criminal prosecution of MP O.Dovgyi made to the Verkhovna Rada by the Prosecutor General Yuri Lutsenko on June 21, 2017 № 06-294 contains significant shortcomings in terms of the validity of abuse of office of Deputy O.Dovgim when Secretary Kyiv City Council, as well as in terms of intent on the abuse of power in the interests of third parties.”

Lo, two days into “immunity stripping week” the Prosecutor General is 0 for 2.

The Verkhovna Rada Procedures Committee will send two “nays” rather than two “yeas” to the Verkhovna Rada Speaker.

The question therefore is whether the Speaker will concur with the Verkhovna Rada Committee and decline to put the matter to all parliamentary peers for a vote – or in keeping with history, kill the Prosecutor General’s requests, forcing him to reapply with better evidence, or publicly eat humble pie after his address to the nation.

A complete wipe out (both at Committee and overall) remains a possibility – albeit with some chance of a comeback considering those still to go before the Procedures Committee.

Thus, having questioned the appropriateness of the Verkhovna Rada Procedures Committee to act as a “parliamentary court” or “parliamentary jury”  when assessing the weight of evidence at the stage at which on-going investigations are at, it is also necessary to question the strength of evidence collected prior to the Prosecutor General asking for a parliamentarian to be stripped of their immunity so that the investigation may continue.

Just how flimsy or how solid are the prosecutor’s investigations at the stage when the removal of immunity is sought?  Would a “reasonable person” (per legal definition) consider there sufficient weight of evidence to continue an investigation that would require a parliamentarian to have immunity removed at the time of application?

Regarding timeliness, in turn a reader may ask why, with the Verkhovna Rada holidays beginning in just over a week, is the Prosecutor General attempting to get 6 parliamentarians stripped of their immunity now?  The Verkhovna Rada, if the speed of reform-orientated legislation is any guide, is already demob happy with many of its members mentally lazing on some very expensive beach somewhere.

Why so many applications at once, and why so close to the parliamentary holidays?  Why were they not submitted individually when sufficient “reasonable person” evidence could be placed before the Procedures Committee?  A matter of the Prosecutor General wanting a media “bang” before the holidays, or not wishing to lose months of investigative time due to the holidays?

It is not as if anybody in Ukraine is expecting Prosecutor General Lutsenko to actually open a high profile case and manage to get a single high profile conviction before he returns to politics from whence he came.  The very day he assumed the role, the blog wrote that it expected him to remain in post 18-24 months, open lots of cases, and return to politics before any convictions ever occurred.  That view has not changed whatsoever.

Nevertheless, tomorrow is another day – and a day where Mr Andriy Lozovoy’s submission will be heard.  Mr Lozovov is on record asking the Verkhovna Rada Procedures Committee to assent to the Prosecutor General’s request so that he can face them in court and display the “persecution” for what it is.

The question therefore is whether the Verkhovna Rada Procedures Committee will be 3 – 0 vis a vis the Prosecutor General, or whether the Prosecutor General will manage to pull one back.

Gripping isn’t it?


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