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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.

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