C Explanatory memorandum
by Ms Liliana Palihovici, rapporteur
1 Introduction
1. Parliamentary immunity, in
its two forms – non-liability and inviolability – is an ancient
and fundamental democratic safeguard, born of the need to preserve
the integrity of parliaments, its operation and its acts, and to
protect their members’ independence in the performance of their
duties. The rules on parliamentary immunity vary considerably between
European countries according to their traditions and political culture.
In addition, and quite apart from the national immunities they may
enjoy, members of the Parliamentary Assembly are covered in the
performance of their duties in the Assembly by special rules on
immunity at European level, laid down by the General Agreement on
Privileges and Immunities of the Council of Europe of 1949 and its additional
Protocol of 1952 (ETS Nos. 2 and 10). These rules establish the
same twofold principle of parliamentary non-liability and inviolability
and provide in addition for the free movement of Assembly members within
the territory of the member States.
2. Over the years, a number of institutions have contributed
to the conceptualisation of and reflection on developments in parliamentary
immunity. These include the following studies or reports:
- a major global comparative study
on the parliamentary mandate (written by Marc Van der Hulst) published
by the Inter-parliamentary Union (IPU) in 2000;Note
- an extensive study by the European Parliament’s Office
for the Promotion of Parliamentary Democracy, “Non-liable? Inviolable?
Untouchable? The Challenge of Parliamentary Immunities. An overview”, published
in 2012;
- a report by the European Commission for Democracy through
Law (Venice Commission) of May 2014 takes stock of the scope and
lifting of parliamentary immunities at national levelNote and
proposes a number of criteria and guidelines for waiving parliamentary
immunity.Note
3. The existence of rules on parliamentary immunity is first
and foremost based on the need to protect the principle of representative
democracy. Such immunity can be justified to the extent that it
is suitable and necessary in order to ensure that the elected representatives
of the people are effectively able to fulfil their democratic functions
without fear of harassment or undue interference from the executive,
the courts and political opponents. This is particularly important
with regard to the parliamentary opposition and political minorities.
Historically, the idea of parliamentary immunity is linked to the
principle of separation of powers. The argument is that there should
be a strict separation so that the executive and the judiciary cannot
unduly interfere with the democratic workings of the legislature.
4. However, in recent years, a number of cases have called into
question the traditional scope of the privileges and immunities
enjoyed by members of the Assembly at both national and European
level. Certain member States have restricted immunity in order to
combat parliamentary “impunity”, often in connection with efforts
to fight corruption.
5. These are the reasons why the Assembly has wanted to take
a fresh look at the system of parliamentary immunities in Europe,
as the last substantial report on this issue dates back to 2003.
Note The Committee on Rules of Procedure
should therefore take stock of the current rules – at both national
and European level – governing the immunities enjoyed by its members.
To this end, the rapporteur sent a questionnaire to the European Centre
for Parliamentary Research and Documentation (ECPRD)
Note and
also asked national delegations for additional information.
Note
6. By studying recent developments in the rules governing parliamentary
immunities in member States, it has been possible for the Committee
on Rules of Procedure to assess current trends and put forward recommendations.
2 Parliamentary immunities in flux?
7. By parliamentary immunity,
we mean all the provisions regarding the status of members of parliament providing
them with a legal regime dispensing them in certain cases from the
application of ordinary law in their relationship with the justice
system in order to preserve their independence.
8. As summed up by a national member of parliament at a seminar
organised by the Inter-parliamentary Union in 2005, “in order to
carry out our functions, we must be able to freely express ourselves
without fear of reprisal from any quarter. That is a condition
sine qua non for ensuring the independence
of the parliament itself and the separation of powers. Parliamentary
immunity serves this objective. … the various systems of parliamentary
immunity … all provide for the absolute protection of statements
delivered at the plenary or in committee, and also of the votes
cast”.
Note
2.1 General
observations on the latest trends
9. There are a great number of
systems of parliamentary immunity in member States, but almost all
make a distinction between two main categories of immunity: non-liability
and inviolability. As these two are quite distinct, they are regulated
and applied in different ways. Almost all democratic countries have
a system establishing the non-liability of members of parliament,
although there are subtle variations. Inviolability in general has
more numerous exceptions and can always be waived.
10. In theory and as a matter of principle, non-liability is absolute,
permanent and perpetual in nature and cannot accordingly be waived.
It exempts members of parliament from legal proceedings for votes
or opinions expressed in a parliament or in discharge of parliamentary
duties. It protects members of parliament against any criminal or
civil law proceedings in relation to deeds or words which, outside
the context of a parliamentary mandate, would be punishable under
criminal law or could incur the liability of the person responsible
for those words or deeds (for example defamation or abuse).
11. That being said, the absolute character of non-liability has
also been called into question given the issue it raises with regards
to the content of a statement or investigations into vote-buying.
Note Consequently, the concept
of relative non-liability has also emerged. Concerning freedom of
expression it implies that the right to free speech must “be balanced
with other aspects of the public interest, such as the rights of
others, in particular the right to honour, as well as respect due
to certain State institutions”.
Note Therefore,
some countries have restricted the scope of non-liability so as
not to cover insults, defamation, hate speech and racist remarks, threats
or incitement to violence or crime. Some countries also exclude
from the scope of protection insulting the head of State, criticism
of judges, disclosure of State secrets or remarks that are considered
treason.
12. Apart from the growing concern about the balance between the
public interests and the rights of others, the need for absolute
non-liability has also been reduced by the development of the general
system of human rights protection. To date, the substantive scope
of the parliamentarians’ non-liability is extensively protected by
Article 10 of the European Convention on Human Rights (ETS No. 5)
and other international treaties as a part of the protection granted
to a public political debate. However, for the moment, the Venice
Commission has maintained its stance in favour of maintaining national
rules on parliamentary non-liability.
13. Inviolability is aimed at ensuring that the exercise of the
parliamentary term of office is not obstructed by certain legal
actions relating to acts carried out by members of parliament as
mere citizens. It sets out the rules pertaining to legal action
for words or deeds unrelated to their parliamentary duties. It is
a special form of legal protection enjoyed by a member of parliament
accused of having breached the law, protecting him or her against
any arrest, detention or prosecution without the consent of the
parliament of which he or she is a member, except where he or she
is found committing, attempting to commit, or just having committed
an offence, or has received a final conviction. Often, it also covers
investigative measures such as searches or wiretapping or even criminal
prosecution in general.
14. The Venice Commission generally considers that the rules on
parliamentary inviolability are not a necessary part of modern democracy.
In a well-functioning political system, members of parliament enjoy adequate
protection through other mechanisms and do not need special immunity
of this kind.
2.2 The
calling into question of the scope of parliamentary immunity
15. The traditional model of parliamentary
immunity is currently being called into question. Several countries (Estonia,
the Slovak Republic and Ukraine) have chosen the path leading to
a significant reduction or even the repealing of inviolability.
By doing so, they will join a number of countries where traditional
inviolability does not exist (the Netherlands, the United Kingdom)
or is interpreted narrowly (Sweden). Moreover, the traditional absolute
non-liability is also narrowing and therefore producing a new culture
of parliamentary debate.
16. The Venice Commission observes that the main argument against
parliamentary immunity is the principle of equality of all citizens
before the law, one of the foundations of the rule of law: “Any
form of parliamentary immunity by definition means that members
of parliament are given a special legal protection that other citizens
do not have. For democracy to function it is particularly important
that the members of the legislature themselves stick strictly to
the laws that they make for others and that they can be held both politically
and legally accountable for their actions. Rules on parliamentary
immunity are an obstacle to this, and they are open to misuse and
the obstruction of justice. By their very existence they may also
contribute to undermining public confidence in parliament and to
creating contempt for politicians and for the democratic system
as such.”
Note
17. Moreover, stronger links between the parliamentary majority
and the government have reduced the risk of harassment by the executive
towards the parliamentary institutions as a whole. Rather, it is
the parliamentary opposition which is in danger of undue pressure.
The rules on parliamentary immunity today function primarily as
a minority guarantee. In addition, the generally stronger independence
of the judiciary has reduced the misuse of courts against political
opponents by the executive. Moreover, the extension of individual
rights of all citizens has decreased the need for special parliamentary
protection. Finally, there was a call for a greater transparency
of political life which has led to a debate on the reduction of
inviolability.
18. However, when it comes to the above arguments, a line is to
be drawn between so-called “new” democracies and democracies which
have reached a certain level of maturity and stability. If the parliamentarians
of “old” democracies are adequately protected in other ways, parliamentarians
of “new” democracies still require immunities to be protected against
false charges. At the same time, it is often new democracies that
are most exposed to political corruption and the misuse of immunity
by parliamentarians themselves.
3 Developments
in national immunity regimes
19. Concerning the scope of non-liability,
the review of the immunity regime in the national parliaments of 32
States
Note gives
the following picture: 13 countries
Note cover only opinions
expressed during debates in the chamber or committees and/or in
written questions and 19 parliaments
Note have defined the protection more extensively
as to include opinions expressed in discharge of parliamentary duties,
including outside the chamber. Inviolability varies from one country
to another and provides either full protection against detention and
the institution of criminal proceedings without the parliament’s
authorisation (18 States
Note) or partial protection,
which does not cover members of parliament against wiretapping or
interceptions of communications, police investigations and/or questioning
in the event of arrest and/or against civil actions, etc. (14 States
Note).
There is no provision for inviolability in the Netherlands.
3.1 Modifications
in national legislation
20. In the last few years, the
issue of systems of parliamentary immunities has been debated in
the parliaments of several member States and sometimes led to amendments
to national legislation or the national constitution. The debate
is continuing in some of these countries and sometimes even features
prominently in the news.
21. In Austria, an intensive
debate was held over the past year on the abolition of Article 57.3
of the Federal Constitutional Law which entitled the parliament
to decide whether a connection existed between the alleged offence
and parliamentary duties. In the end, the wording of the article
was retained, but two exceptions to the immunity – calumny and offences
punishable under the Information Acts – were removed from the scope
of the immunity.
22. In Bulgaria, the institute
of parliamentary immunity has not been amended since 2006, when
the opportunity for MPs to give written consent for the removal
of their immunity was provided.
23. In Cyprus, in March
2016, an amendment was tabled to the relevant constitutional provision
with the aim of defining more accurately and restrictively the scope
of parliamentary immunity so as to protect members of parliament
from criminal and civil liability only in relation to the exercise
of their parliamentary functions, and more specifically for votes
or opinions expressed. For other offences unrelated to parliamentary
duties, members would be subjected to the same proceedings as ordinary
citizens. The amendment is still under consideration.
24. In Georgia, following
the amendment to the Rules of Procedure of the Parliament adopted
in 2012, a proposal to carry out investigations against a member
of parliament shall be sent to the parliament by the Prosecutor
General and not the Minister of Justice as had been the case earlier.
Moreover, in 2014, an amendment to the Code of Criminal Procedure
was passed deleting the provision making the institution of criminal
proceedings against an MP conditional on the prior authorisation
of parliament.
25. In Estonia, important
changes to the immunity system were made in 2015. The following
provisions were added to the Status of members of the Riigikogu
Act: the explicit impossibility to invoke immunity in connection
with acts that are not related to the exercise of the free mandate
or in order to escape legal liability (Article 18.3), the possibility
for a member to agree to be subjected to some procedures (Article
18.4), the suspension of the limitation period of the offence during
a member’s mandate (Article 181), and
the possibility for a member to be subjected to direct coercion
insofar as this is inevitably necessary for fixing the fact of the offence
(Article 182.1).
26. In Latvia, on 19 May
2016, the parliament amended the regime of parliamentary immunity
aimed at repealing immunity without the parliament’s consent in
the case of imposition of administrative penalties.
27. In the Republic of Moldova,
since 2013 there have been several attempts to amend legislation
with the aim of limiting the immunity of members of parliament.
In 2013, a group of MPs submitted an initiative to amend Articles
70 and 71 of the Constitution. Amendments to Article 70 aimed to
exclude immunity for MPs. In this context, the draft bill proposed
the exclusion of the words “and immunities”, and the withdrawal
of paragraph 3, according to which “an MP cannot be detained, arrested,
searched, except in cases of flagrant crime, or prosecuted without
consent of the Parliament, after the hearing of the member”. At
the same time, the bill proposed to specify and define in Article
71, which states that “an MP cannot be prosecuted or held legally responsible
for votes or opinions expressed in exercising an MP’s duty”, the
methods of expression of opinions by inserting after the word “expressed”
the word “publicly”. In 2014, this bill did not gain the necessary
number of votes in parliament and the legislation remained unchanged.
In April 2016, a new draft bill to amend Article 70 of the Constitution
of the Republic of Moldova was registered.
28. In Poland, following
an amendment introduced in 2015 to the Act on the Exercise of the
Mandate of a Deputy or Senator, parliamentarians can now receive
tickets for traffic offences and pay related fines.
29. In
Romania,
Note in 2015, clarifications were made
to the waiving procedure and the possibility for a parliamentarian
to be called as a witness was added.
30. In the Slovak Republic,
parliamentary inviolability has been significantly reduced. Since
1 March 2012, the immunity for administrative offences was repealed
following the repealing of the immunity from criminal proceedings
as from 1 September 2012. Currently, MPs therefore have no immunity
from criminal proceedings. The consent of the National Council is
still needed to take a parliamentarian into custody. To date, parliamentarians
enjoy only non-liability.
31. In Sweden, two cases concerning criminal
investigations against members of parliament for corruption in a
commercial transaction (1994) and the alleged violation of a copyright
law (2000) bring to light the position of the parliament according
to which the lifting of immunity is not required if the offence
is not closely linked to parliamentary duties.
32. In Turkey, on 12 April
2016, a proposal to amend the Constitution with a temporary clause
was submitted by the governing Justice and Development Party (AKP).
The proposal is intended to suspend the application of one of the
provisions of Article 83 of the Constitution (“A deputy who is alleged
to have committed an offence before or after the election shall
not be arrested, interrogated, detained, or tried unless the Assembly decides
otherwise”) to members of parliament involved in current cases.
Even though the proposal applies without distinction to all requests
to lift immunity under examination at the Great National Assembly,
it would mainly concern the Peoples’ Democratic Party (HDP) which
is the subject of half of some 667 dossiers and has been recently
targeted for its alleged support to the outlawed Kurdistan Workers’
Party (PKK). The proposal was approved by the Committee on Constitution
on 2 May 2016, and subsequently by the plenary Assembly on 20 May
(by 376 votes, i.e. beyond the required two-thirds majority required
to change the Constitution). A total of 138 parliamentarians are
thus deprived of their immunity (a quarter of the 550 members of
the Grand National Assembly). The measure will disproportionately
hit members of the opposition, affecting 53 of the 59 members of
the HDP and 51 of the 133 members of the Republican People's Party
(CHP), including at least four members of the Parliamentary Assembly.
27 AKP deputies (out of 316) and 9 members (out of 40) of the Nationalist
Movement Party (MHP), both belonging to the governing majority,
would also be deprived of their immunity.
33. In
Ukraine, a new draft
law under consideration suggests removing parliamentary inviolability.
On this occasion, the Venice Commission has stated that inviolability
was certainly an obstacle to fighting corruption. However, “the
current state of the rule of law in Ukraine does not yet warrant
a complete removal of inviolability of parliamentarians”.
Note
34. In Israel, several
members of the opposition have tabled an amendment aimed at increasing
the majority requested to waive immunity.
35. In
Kyrgyzstan, the
Movement for the Abolition of Parliamentary Privilege, supported
by the main political parties, was launched in 2015 prior to the
October 2015 parliamentary elections. It tabled amendments to the Constitution
aimed at permitting proceedings to be opened without the approval
of parliament and allowing the latter, on the initiative of two
thirds of MPs, to oppose criminal proceedings against an MP after
the event. The Venice Commission has criticised these amendments,
especially as it is impossible for the system proposed to prevent
politically motivated persecutions because two thirds of MPs will
inevitably belong to the government majority
Note. The amendments have now been withdrawn.
Only the proposal to dispense with the approval of parliament when
criminal proceedings are opened for offences committed prior to
the election remains.
36. According to the information provided, Estonia, the Slovak
Republic, Ukraine (draft proposal) and Cyprus (draft proposal) have
significantly reduced the scope of inviolability or are planning
to do so through the revision of relevant legal provisions. Latvia
and Poland have slightly reduced inviolability too. In Romania,
no authorisation of the Chamber is required to appear as a witness.
However, the Knesset seems to be wishing to strengthen the parliamentary
protection guarantee, though for the moment it remains at the level
of a legislative proposal. Still, a slight trend in limiting the
scope of inviolability in Europe could formally be established given
that, out of 47 member States, there are almost 14 which either
do not have any inviolability or have significantly reduced the
scope of inviolability.
37. In addition, the majority of parliamentary systems are enshrined
in national constitutions. In very few cases, the sources of the
two types of parliamentary immunity could be in legal instruments
of varying types and scope. Examples of these cases are the Republic
of Moldova and Switzerland, where non-liability is governed by constitutional
provisions and inviolability by the ordinary law
Note. On the other hand, in the Russian Federation,
inviolability is defined by Article 98 of the Constitution whereas
non-liability is laid down in the laws relating to each chamber
of parliament
Note.
3.2 Inviolability
– what is at stake?
38. It should be noted that a criminal
conviction can have important implications on a parliamentary mandate.
39. A conviction leads to the revocation of the parliamentary
mandate in almost all member States of the Council of Europe,
Note but a criminal
conviction would not trigger the revocation of the mandate in Switzerland, in
the Czech Republic and in the German Bundesrat.
Note
40. Concerning the European Parliament, the exercise of the parliamentary
mandate would in principle be compatible with a criminal conviction
in the absence of any particular reference in the act concerning
the election of the members of the European Parliament by direct
universal suffrage of 20 September 1976. The law of the European
Union does not prevent a convicted person who becomes an MEP from
retaining his or her seat. However, national law could do so given
that Article 7.3 of the above act allows member States to extend
national incompatibility rules to an MEP. Moreover, Article 13 mentions
the withdrawing of parliamentary mandate in connection with national
legislation. Accordingly, if incompatibility exists at the national
level, MEPs’ mandates can be revoked in accordance with such rules.
For instance, a UK MEP mandate was not revoked following a 9-month
prison sentence for fraud given that the national legislation requires
a sentence of at least 12 months’ imprisonment in order for the
national mandate to be revoked.
41. In the United Kingdom, the Recall of MPs Act 2015 introduced
a recall process. If a recall petition process is triggered and
at least 10% of eligible electors sign the petition, the Member’s
seat becomes vacant. The recall election process is triggered in
three circumstances: if a Member is sentenced to a prison sentence of
12 months or less (MPs have to vacate their seats if they are sentenced
to more than a year in prison); if a Member is suspended from the
House of Commons (following a report from the Committee on Standards)
for at least 10 sitting days or 14 days; or if a Member is convicted
of an offence under section 10 of the Parliamentary Standards Act
2009 (offence of providing false or misleading information for allowance
claims).
3.3 Analysis
of waivers of immunity requests
42. It appears from figures provided
at my request by national parliaments of 23 countries that the parliaments
of Bosnia and Herzegovina, Luxembourg, Liechtenstein, Georgia (since
2012), Finland (since 1979), “the former Yugoslav Republic of Macedonia”
(in the past four years) and Norway have had no cases concerning
the lifting of immunity. No case has been examined by the parliament
of the Netherlands given that no inviolability is granted to parliamentarians
of that country.
43. The waiver of immunity has been granted in all cases examined
by the parliaments of Latvia (29 requests between 2012 and 2016),
Portugal (172 requests in total, out of which 14 concerned criminal accusations
against parliamentarians and 158 requests to call them as witnesses)
and Slovenia (21 requests since 2012 for offences related to defamation,
business fraud, false reporting of crime, abuse of position).
44. Only one case has ever been examined by the Parliament of
Denmark which led to the waiver of immunity in the case of a driving
offence. Since 2012, the Parliament of Switzerland has examined
in substance four requests in case related to racist remarks or
relations with lobbyists; the immunity was upheld in all cases. In
Sweden, the question of immunity has been addressed twice: in 1994
(bribery) and in 2000 (violation of copyright law). In both cases,
the offences were considered as being not in connection with parliamentary duties.
45. The procedures initiated have led to the lifting of immunities
in almost all cases in Austria (22 out of 27), Cyprus (5 out of
6) and Lithuania (8 out of 10 cases between 2012 and 2016).
46. From 2001 to 2015, the Poland Sejm received 155 requests.
In 115 cases, parliamentarians have consented to being subjected
to legal action. The examination of 23 requests has resulted in
five waivers of immunity.
47. In the Republic of Moldova, in the past four years, only one
procedure to waive immunity has been initiated. On 15 October 2015,
the parliament adopted a decision to waive the immunity of one MP.
48. The following parliaments have waived members’ immunity in
approximately half the cases: Belgium, House of Representatives
(since 1997, 8 out of 15, 1 partially granted, 2 denied, 2 declared
inadmissible due to procedural reasons and 1 still pending), Croatia
(12 out of 30 requests between 2011 and 2015), Greece (78 out of
128 during the 15th parliamentary term and 4 out of 9 during the
16th parliamentary term), the French Senate (14 out of 21 since
1995) and Ukraine (6 out of 12).
49. During the period from 2012 to 2016, the parliament of Montenegro
lifted immunity in only 3 cases out of 9 requests and the Parliament
of Hungary in 12 procedures out of 68. Since 2012, the Russian State
Duma has stripped 6 MPs of immunity, mainly in cases related to
embezzlement and related offences.
50. Concerning the nature of legal actions related to the waiver’s
request, an important number concerns defamation and slander or
road traffic offences. After these come various offences related
to acceptance of benefits, embezzlement or abuse of position. Almost
all actions which triggered requests to the French Senate concerned
property-related offences. One case of bribery was reported in Lithuania,
Greece, Croatia and Ukraine. Sedition and attack on an official
person were at the origin of four requests in Montenegro.
51. A request to waive national immunity has at some time or other
concerned Parliamentary Assembly members of the delegations of Austria
(3 members), Lithuania (3 members), Latvia (2 members, both cases concerned
driving offences), Hungary (1 member, though legal action was initiated
before the member’s appointment to the Assembly delegation), Poland
(3 members, driving offence) and Portugal (10 members).
4 Parliamentary
immunity in a European context
52. Members of the Parliamentary
Assembly are covered by special rules on immunity which they share
with members of the European Parliament. This system dates back
to the era when the European Parliament was not directly elected
but was composed, like the Parliamentary Assembly, by delegates
from the national parliaments. Consequently, both institutions have
the same system of immunities. After direct elections were introduced
in 1979, the European Parliament attempted to change the system.
The proposal to revise the Protocol on Privileges and Immunities
formulated in the 1980s failed. The wording of the provisions has remained
unchanged throughout subsequent revisions of the treaties and remains
identical to the regime of immunity of Assembly members.
53. These provisions have made possible the establishment of a
common European parliamentary body of law on immunities. This immunity
is autonomous in nature and distinct from and independent of national parliamentary
immunity which members of parliament may moreover enjoy on the territory
of their own State.
4.1 Identical
legal basis
54. The members of the Parliamentary
Assembly are covered by a system of immunities established by a number
of provisions taken from the Statute of the Council of Europe,
Note the General Agreement on Privileges and
Immunities and its Protocol, and the Assembly’s Rules of Procedure.
55. Under the terms of the General Agreement on Privileges and
Immunities of the Council of Europe, concluded in application of
Article 40 of the Statute, the members of the Parliamentary Assembly
enjoy three forms of protection:
- parliamentary
non-liability, guaranteed by Article 14 of the General Agreement,
which makes them immune from any judicial proceedings – criminal,
civil and administrative – in respect of an opinion expressed or
a vote cast in the performance of their parliamentary duties, designed
to protect the independence of members of the Assembly and to ensure
their freedom of judgment, expression and decision;
- parliamentary inviolability (Article 15 of the General
Agreement), which protects them against any arrest, detention or
judicial proceedings on the territory of any other member State,
in addition to the national immunity they enjoy in their own State;
this immunity cannot be waived except by the Parliamentary Assembly
at the request of a “competent authority” of the member State concerned
(Rule 67.2 of the Rules of Procedure);
- free movement (Article 13 of the General Agreement).
56. As regards the European Parliament, the system is based on
identical provisions embodied in Protocol No. 7 of the Treaty on
European Union: Article 8 provides for non-liability and Article
9 for a combination of national and European inviolability regimes.
4.2 Definition
of the scope of European parliamentary immunity
57. If the number of cases dealt
with by the Parliamentary Assembly does not allow the identification
of any specific approach to the question, reports by the European
Parliament’s relevant committees allow trends and principles to
be identified. These principles have been partly refocused by the
Court of Justice of the European Union (CJEU) and the European Court
of Human Rights.
58. It is interesting to note that, in addition to the waiver
of immunity, the European Parliament as well as the Parliamentary
Assembly have introduced the possibility to defend members’ immunity.
Note
59. If the waiver of the immunity of an MEP is expressly provided
for in the Protocol on the Treaty on the European Union, the possibility
of defending the immunity of a member is a product of the internal
regulation of the European Parliament. The CJEU has acknowledged
the defence of immunity but only in cases where, in the absence
of a request for waiver, immunity is endangered, in particular by
“the action of the police or judicial authorities”.
Note “Defence
of the immunity is a tool whereby the European Parliament, at the
request of a member, may intervene when national authorities violate
the immunity of one of its members.”
Note As
regards the Parliamentary Assembly, the Bureau has already requested
the relevant committee to provide its opinion on cases where immunity
or the free movement of Assembly members was violated
Note or
was about to be violated.
60. Since 1974, the European Parliament has dealt with a number
of requests to waive immunity. Statistics show that “between 1979
– when direct elections to the EP were held for the first time –
and the 2009 elections, 157 immunity cases were discussed in the
plenary. In 45 out of these 157 cases, immunity was waived or an MEP’s
immunity not defended”.
Note
61. To date, out of 14 requests to waive immunity examined since
the beginning of the 8th Legislature, only two have been rejected,
and both with reference to Article 8 of Protocol No. 7 (non-liability),
given that the opinions expressed were within the scope of the MEPs’
official duties.
Note
4.3 Approach
to immunities adopted by the Parliamentary Assembly of the Council
of Europe
62. So far only two cases have
been examined by the Parliamentary Assembly under Rule 67 of the
Rules of Procedure (waiver of immunity). However, the Assembly has
adopted in its ordinary reports a number of positions both on the
system of immunities for its members
Note and on related issues.
63. Among the leading reports are “The discipline of the members
of the Parliamentary Assembly”
Note and “Ensuring
protection against attacks on a person's honour and reputation”.
Note Both reports arise from incidents which
took place in the Assembly Chamber and therefore aim to outline
the contours of members acceptable behaviour and statements in the
discharge of their duties as Assembly members and, therefore, determine whether
or not such actions are covered by their European immunity.
64. In April 2012, the European Rule of Law Mission in Kosovo
(EULEX) sent the President of the Parliamentary Assembly an official
letter requesting the waiver of the parliamentary immunity of Mr
Dick Marty, a former member of the Parliamentary Assembly and Assembly
rapporteur on the inhuman treatment of people and illicit trafficking
in human organs in Kosovo, and his appearance as a witness in the
so-called Medicus clinic trial. The Committee on Rules of Procedure,
in an opinion to the President of the Assembly (document AS/Pro (2012)
10 def), considered that Mr Marty enjoyed the immunity guaranteed
by Article 14 of the General Agreement on Privileges and Immunities,
which was absolute, permanent and perpetual in nature and could accordingly
not be waived either by the Parliamentary Assembly or by the national
parliament. The previous request of this nature dated back to 2001
(application to waive the immunity of Mr Silvio Berlusconi, at the request
of the Spanish Supreme Court – document AS/Bur (2001) 028). No decision
was taken owing to Mr Berlusconi’s prior resignation from the Parliamentary
Assembly.
65. Moreover, the Committee on Rules of Procedure was consulted
to treat certain individual cases of parliamentarians raising the
question of the protection granted to them by the Council of Europe
Statute and the General Agreement on Privileges and Immunities with
regard to their freedom of movement in member States. The committee
made it clear that, whatever their national regime of immunity,
Assembly members are protected against prosecution and arrest in
the exercise of their duties as members of the Assembly or when travelling
on Assembly business, whether inside or outside their national territory
(Article 15 of the General Agreement). If they are not exercising
an activity as defined or travelling on Assembly business, in pursuance of
a decision taken by a competent Assembly body, only their national
regime of immunity applies (i.e. in their country).
NoteNote Moreover, under the General
Agreement on Privileges and Immunities (Article 13), all Council
of Europe member States committed themselves to guarantee freedom
of movement for members of the Assembly; therefore, when hosting
a meeting or official event organised by the Assembly, they shall
facilitate the participation of Assembly members and issue the visas
required for their admission to their territory. In accordance with
the principles of international law, a State Party to a treaty cannot
derogate from the obligations it has entered into or invoke the
provisions of its domestic law as justification for a failure to
fulfil its international obligations.
Note
4.4 Examination
of requests by the European Parliament to waive immunity
66. The European Parliament has
created its own rules and references which could constitute a kind
of “case law”. The CJEU has accepted that “the parliament has a
broad discretion when deciding whether to grant or to refuse a request
for waiver of immunity or defence of immunity, owing to the political
nature of such a decision”.
Note
67. These rules, which are derived from decisions adopted in respect
of applications for immunity to be waived, create a consistent notion
of European parliamentary immunity which, in general terms, is independent of
the various national parliamentary procedures. Through the application
of these principles, a constant factor has emerged in the European
Parliament's decisions, which has become a basic criterion in its
response to each request for waiver of immunity. One of these criteria
is the existence of fumus persecutionis,
namely the presumption that criminal proceedings have been brought
with the intention of causing the member political damage. Another
long-established criterion is the link between a legal action and
a member’s political activity. It has been clarified by the CJEU,
which in turn drew on the case law of the European Court of Human
Rights.
4.4.1 Scope
rationae temporis
4.4.1.1 Non-liability
68. The language of both corresponding
articles (Article 14 of the General Agreement on Privileges and Immunities
of the Council of Europe and Article 8 of Protocol No. 7 of the
Treaty on European Union) is clear. Even though the afforded protection
can go beyond the duration of the mandate, in order to benefit from
it, members’ votes or opinions have to be expressed during their
mandate and in discharge of their functions. At present, the protection
afforded to parliamentarians of both institutions covers all kinds
of statements.
69. At the same time, it would be unthinkable to let parliamentarians
misuse the immunity by making defamatory statements or statements
which affront human dignity or incite discrimination. In the absence
of the possibility to launch an external action against an MEP or
an Assembly member for their opinions and remarks, they may be,
as is the case in most national parliaments, subject to internal
disciplinary sanctions by the relevant institutions themselves.
According to the Venice Commission, these sanctions are legitimate
as long as they are relevant and proportional and not misused by
the parliamentary majority to infringe the rights and liberties
of political opponents.
70. Both institutions have relevant provisions requiring a conduct
to be characterised by mutual respect and based on democratic value
and principles.
Note Several
sanctions could be imposed for the breach of these requirements.
Note For
instance, in 2010, an MEP from the United Kingdom was fined for
verbal attacks on the European Union President.
4.4.1.2 Inviolability
71. Concerning inviolability, both
the European Parliament and the Parliamentary Assembly provide protection
during the whole length of the parliamentary year, including between
part-sessions, given the continuous nature of parliamentary activities.
It amounts,
de facto, in the
case of the Parliamentary Assembly to the duration of member’s credentials
Note and
in the case of the European Parliament to the duration of the member’s
term of office.
Note If
legislative elections take place in the course of a session, the
members of the Parliamentary Assembly concerned continue to enjoy
the immunity granted by the General Agreement on Immunities and
Privileges until a new delegation is appointed, which shall be made
within six months after the elections. Equally, both institutions
recognise that this type of immunity is applicable with regard to
acts committed prior to the start of the mandate.
Note
72. Even if inviolability applies to previous actions, the analysis
of the latest cases shows that the European Parliament would not
necessarily uphold immunity in cases where legal actions derived
from statements or acts made before the taking of office even though
they were made in the public interest
Note or
in the capacity of a national politician,
Note provided
that there is a lack of
fumus persecutionis.
73. For instance, a statement on a matter of general interest
made by a journalist about the probity of the prison staff before
his election to the European Parliament “has nothing to do with
the office of … as a Member of the European Parliament but is rather
connected to his former position as a television reporter”. Or it
clearly makes a distinction between the position of an MEP and his
previous political activities by saying that “the charges are clearly
unrelated to [the MEPs] position as a Member of the European Parliament
and arise from his position as Chair of the National Democratic
Party”.
4.4.2 Fumus persecutionis
74. Fumus persecutionis is
the presumption that a judicial action has been brought with the
intention of causing the member political damage. There would be
suspicions of fumus persecutionis when
proceedings are based on anonymous accusations, requests made a
long time after the alleged facts or when a case involving a parliamentarian
is handled in a different way from how it would have been investigated
against an ordinary citizen. In any case, additional arguments,
the independence of the judiciary or media coverage would be closely
examined.
75. For instance, a French MEP’s immunity in relation to criminal
charges concerning,
inter alia,
illegal arms trading and influence peddling was upheld on the grounds
that the competent authority did not provide enough information
“concerning places and persons involved”.
Note A
second request submitted on the occasion of the same legal action
was also rejected on suspicions of
fumus persecutionis given
the case’s media coverage and the fact that the examining magistrate
had in the meantime become himself a subject of investigation.
Note
76. In another case, the immunity of an Italian MEP was upheld
in legal proceedings initiated against him for statements accusing
a former parliamentarian of belonging to a criminal organisation.
The European Parliament found that, given the rapid acquittal of
the latter without the MEP’s statements being analysed, “the complaint
made against [the MEP] was … marred by
fumus persecutionis”.Note
77. A German MEP saw his immunity upheld in the course of criminal
proceedings initiated against him for failing to declare €5 000.
The European Parliament found that “criminal charges have been brought
against him in respect of a sum and in circumstances which would,
in the case of an ordinary citizen, have attracted merely administrative
proceedings.” Moreover, the public prosecutor made sure that the
case received great publicity in the media, thus inflicting the
maximum amount of damage on the member. Consequently, it appeared
that the case was one of
fumus persecutionis.
Note
78. Fumus persecutionis has
also been found in a case where a private criminal prosecution was
initiated against a Polish MEP by his political rival many years
after the contested actions took place and with the explicit political
aim of preventing the MEP from being elected to the European Parliament.
Note
79. However, recently the European Parliament has rejected
fumus persecutionis in a case where
a Hungarian MEP (under investigation for alleged spying for Russia)
claimed that the 2013 law criminalising espionage against the EU
institutions was passed with the unique objective of making his
behaviour punishable. It has been stated that, at the time of the
request, no formal accusation had been made with regard to the MEP
and guarantees of independent investigation were given by the national
authorities.
Note Similarly, the European Parliament
has not defended the immunity of a Lithuanian MEP who alleged that
the false accusation against him was part of a conspiracy by the
government aimed at his departure from the country because of his
ties with the Russian secret service. By stating so, the European
Parliament pointed,
inter alia,
to the possibility of effectively defending his claim before the
national courts.
Note
80. To conclude on this issue, when examining whether there is fumus persecutionis, the European Parliament
takes account of the overall state of the rule of law in a given
country. A reading of the latest decision reveals that the European
Parliament presumes the effective functioning of relevant institutions
in EU member States.
4.4.3 Political
activity
81. Immunity is normally not to
be waived if a member is accused of actions that come under the
sphere of political activity, with the exception of cases where
the acts were regarded as constituting a threat to individuals or
democratic society (support for persons guilty of terrorist acts;
membership of criminal organisations; drug trafficking, etc.) ;
cases of defamation where the injured party has been denigrated
as an individual and cases involving a clear breach of criminal
law or of rules or administrative provisions which were in no way
connected with any political activity.
Note Political activity
would therefore include “expressions of opinion … made at demonstrations,
at public meetings, in political publications, in the press, in
a book, on television, by signing a political tract and even in
a court of law”.
Note
82. Particular attention is paid to a connection between a given
member’s activity or statement and the member’s duties. For instance,
in the case of Bruno Gollnisch, MEP immunity was waived in the course
of the legal action brought against him for racial hatred given
that the statements in question were made in his capacity as regional
councillor.
5 Judicial
review: towards a functional approach to parliamentary immunities
in Europe
83. The issue of parliamentary
immunity has been addressed by both the European Court of Human
Rights and the CJEU. Even though the two jurisdictions have addressed
the issue of parliamentary immunities within their own scope of
competences and using their own scale of references, they have adopted
a similar approach which requires a close link between immunity
and core parliamentary duties.
Note
5.1 The
case law of the European Court of Human Rights
84. The European Court of Human
Rights examines the issue of parliamentary immunity mainly from
the viewpoint of obstacles it creates to the access to court (Article
6 of the European Convention on Human Rights). Since the previous
Assembly report on parliamentary immunities, in 2003, the Court
has further clarified in its case law the admissible scope of the
immunities enjoyed by members of parliament.
85. The Court has held that “the guarantees offered by both types
of parliamentary immunity (non-liability and inviolability) serve
the same need – that of ensuring the independence of Parliament
in the performance of its task” and pointed out that members of
parliament enjoyed immunity which “was absolute in nature and applied
to both criminal and civil proceedings” and was designed “not to
protect individual members but Parliament as a whole”.
86. With regard to non-liability, the leading case law
Note reveals
that the Court accepts the absolute nature of immunity granted to
parliamentary speech in a legislative chamber as a constitutional
tradition of almost all member states as well as privileges granted
to representatives of the Parliamentary Assembly and MEPs, and concludes
that a rule of parliamentary immunity could not in principle be
regarded as imposing a disproportionate restriction on the right
of access to court. However, where the statements are made outside the
parliamentary chamber,
Note including
at an election meeting, it requires their clear connection with parliamentary
activity in order for the non-liability to be proportioned.
87. In contrast to non-liability, inviolability applies only for
the duration of the term of office. Despite its temporary nature,
the Court has been critical of this form of immunity even though
it recognised that it “helps to achieve the full independence of
Parliament by preventing any possibility of politically motivated
criminal proceedings (
fumus persecutionis)
and thereby protects the opposition from pressure or abuse on the
part of the majority.”
Note In
the case
Tsalkitzis v. Greece,Note the Court assessed the impossibility
of suing an MP, former mayor of Kiffisia, for a corruption offence
which allegedly took place prior to his election to the parliament.
By assessing the limitation of access to court imposed by the parliamentary
immunity, the Court observed that the alleged criminal act had taken
place three years prior to the former mayor’s election to the parliament
and had had no connection with the MP’s parliamentary function.
Moreover, the alleged crime had been of a particular immoral nature.
The Court therefore applied its usual proportionality test before
concluding that, given a lack of clear connection with parliamentary
functions, the limitation due to parliamentary immunity was in violation of
Article 6.1.
88. The Court’s approach has been confirmed in another case against
Greece concerning criminal proceedings brought by the applicant
against his ex-spouse, a member of parliament, for denying access
to his child.
Note This
case has also highlighted another concern related to the equality
of arms, given that the possibility for an MP to bring a procedure
against an ordinary citizen “created an imbalance in treatment”.
With this case, the Court has consolidated its functional approach
to parliamentary immunity: it is legitimate in principle for Contracting
Parties to protect their legislatures by means of an immunity system
which ensures that parliaments can discharge their constitutional
functions free from any undue influence. But the further a member,
through an act, is removed from this core function, the narrower
the concept of proportionality must be interpreted.
Note
89. The Court has also developed extensive case law on the freedom
of expression of political elected representatives in the exercise
of their parliamentary duties, stating in several judgments that,
“while freedom of expression is important for everybody, it is especially
so for an elected representative of the people”, and underlining
the principle that only “compelling reasons” can justify a violation
of this freedom.
Note Still,
statements by a parliamentarian must contribute to a public debate.
In the case
Keller v. Hungary,Note the applicant, a parliamentarian from
the opposition, attacked a member of the government on the lack
of investigation into matters of national security by arguing,
inter alia, that the member’s father
had relations with a national far-right movement. The member concerned
has successfully sued for damages. The Court found the application manifestly
ill-founded not least because of the comprehensive and balanced
reasoning of domestic court. However, it also stated that the parliamentarian
“did not limit himself to attacking his opponent in Parliament ... Indeed,
his statement during the parliamentary session was rather elusive,
... such public insinuations no longer benefited from the privilege
afforded to parliamentary debate”. Reading the above case in conjunction with
the older case
Castells v. Spain,Note Cordova
(No. 2) v. Italy and
Féret
v. BelgiumNote reveals
that in addition to being a part of a political discourse, statements
must be respectful of others people’s right should they be citizens,
foreigners or fellow political opponents.
90. Finally, it should be noted that granting or lifting of immunity
at a member’s request remains within the national margin of appreciation.
Note
5.2 The
case law of the Court of Justice of the European Union
91. The leading cases could be
summarised as follows.
92. In the
Marra case, an
Italian MEP circulated a number of pamphlets criticising the Italian
justice system and individual judges. A civil claim was brought
against him. The Italian Supreme Court of Cassation referred the
matter to the CJEU for a preliminary ruling. The CJEU stated that
it was for the national judge to rule on the scope of European non-liability
without, however, defining the scope of the non-liability itself.
Note
93. One had to wait until 2011 to receive more guidance on what
the CJEU considered as an opinion expressed in the exercise of MPs’
duties. In the
Patriciello case,
Note an
Italian MEP accused a police officer of wrongdoing and was consequently
prosecuted. The CJEU has stated that, in order to be covered by
European non-liability, a connection between the opinion expressed
and parliamentary duties must be direct and obvious.
94. The reasoning of the obvious link has been confirmed in a
subsequent judgment (
Bruno GollnischNote)
in which the Court has confirmed that European immunity was not
deemed to cover acts performed by a MEP in his capacity as regional
councillor.
95. The above cases merely allow the approach of the CJEU to be
identified with regard to non-liability. It seems that it would
be up to the national court to decide whether the MEP’s non-liability
could be invoked. However, in doing so, the CJEU encourages consideration
of whether the statements at stake have a “direct and obvious link”
with a member’s work in the European Parliament.
6 Parliamentary
immunity bordering on impunity
96. Parliamentary immunity constitutes
a guarantee of members of parliament being able to exercise the mandate
they have been given by the citizens without hindrance and completely
independently, without fear of pressure, wrongful accusations or
reprisals because of opinions expressed and votes cast. While parliamentary
immunity has its origin, raison d’être and legitimacy in a political
context in which the emerging or infant democracies had yet to fully
develop and the judiciary itself had not come into its own as an independent
branch of government, the present era, with firmly established and
mature democratic institutions, places more emphasis on the other
side of immunity: being potentially able to obstruct the course
of justice, compromise the proper conduct of a criminal investigation
or permit abuse that cannot be challenged by a legal remedy, immunity
appears to be one of the much criticised privileges of politicians,
whose exceptional legal status places them above ordinary citizens.
Parliamentary immunity as such is under the spotlight, and the current
political situation in some member states has reignited the debate
on the protection given to members of parliament.
6.1 Hate
speech and the popularity of nationalist parties
97. In several European states,
parliamentary elections have opened parliaments up to nationalist
or extremist parties against a backdrop of public discontent fuelled
by the economic crisis and the social situation, globalisation,
the dilution of national identity and, more recently, the migrant
crisis. Extreme right-wing or nationalist parties have entered parliament
in at least 12 European countries. The backing of the European electorate
varies considerably and ranges from 4% in Italy to 29% in Switzerland.
In Denmark, the government coalition depends on the support of the
Danish People’s Party, which polled 21% of the votes at the last elections.
Note Even
though these parties represent a broad range of political views,
some of them, such as Golden Dawn or the “People’s Party – Our Slovakia”,
actively contribute to the discriminatory rhetoric. Ten of these
parties also have representatives in the Parliamentary Assembly.
98. In 2014, when several representatives of political parties
from the far-right political spectrum were elected to the new European
Parliament, several associations expressed their concern about possible
misuse by MEPs of their parliamentary immunities, in particular
non-liability, to avoid legal actions, as was the case in 2009 when
parliamentary immunity protected a French MEP from the far-right
party from criminal charges with regard to the Holocaust denial.
Recently, a member of the far-right Golden Dawn was expelled from
a plenary session of the European Parliament for racist remarks
targeting the Turkish people. Questions have been voiced about the
limited range of internal sanctions given the gravity of the statement.
Consequently, one can imagine that the concept of parliamentary
immunity can evolve in order to fit the current political context particularly
sensitive to hate speech.
99. Both the Luxembourg and Strasbourg courts have already considered
cases concerning incitement to discrimination by parliamentarians.
The European Court of Human Rights has found, after applying its
usual proportionality test, that the limitation by a court of the
freedom of expression of a campaigning politician who was distributing
leaflets advocating anti-immigrant policies with generally xenophobic
and discriminatory content, had not violated the Convention. “The
fact that the applicant is a parliamentarian cannot be regarded as
an attenuating circumstance. In this connection, the Court points
out that it is crucial for politicians, when expressing themselves
in public, to avoid comments that might foster intolerance … It
considers that politicians have a particular duty to defend democracy
and its principles because their ultimate aim is to govern”.
Note It
also follows from the judgment of the CJEU in the case of
Bruno Gollnisch v. European Parliament that
the European Parliament’s position of not upholding immunity under
Article 9 (inviolability) when incitement to hatred was at stake
was not to be called into question.
100. One possible solution would be not to apply the non-liability
to certain statements, even when made in the context of political
duties. A similar approach has been followed by the former European
Commission on Human Rights which refused to apply Article 10 of
the Convention on freedom of expression to “activities aimed at
the destruction of any of the rights and freedoms set forth in the
Convention” (in accordance with Article 17).
NoteNote The internal Notice No. 11/2003 of
the European Parliament, a compilation of the relevant practices
of the (former) Committee on Legal Affairs and the Internal Market
in taking decisions on the waiving of immunities, also states that
“the expression of opinion should not constitute an incitement to
hatred, defamation or a violation of fundamental human rights or
an attack on the honour or reputation of groups or individuals”.
101. Another avenue could be the setting up of a special procedure
for the revocation of a mandate in the case of a constant breach
of democratic principles and values. The Parliamentary Assembly
already examined this question in 2005 when it decided that, if
the procedure was to be introduced to allow the challenging of the “credentials
of individual members of national parliaments who [were] accused
of activities or statements persistently violating the basic principles
of the Council of Europe, there would be a danger of abuse. The Assembly
cannot have an interest in becoming the forum for political infighting”.
However, in 2013 it came back to this question on the occasion of
the challenges of individual credentials of two members
Note and recognised that a solution
should be found. However, after debating the issue again in the
framework of the report on the “Evaluation of the implementation
of the reform of the Parliamentary Assembly”,
Note the Rules Committee decided,
by a narrow majority, not to propose the establishment of such a
procedure in the Rules.
6.2 Fight
against corruption
102. In the current, political,
economic and social environment, the system of parliamentary immunities
ought to help promote strong and effective democratic institutions
and, in particular, should not be an obstacle to the fight against
corruption. This is a powerful argument in favour of restricting
parliamentary inviolability. On the other hand, in the last few
years, the fight against corruption has been a favourite means of
exerting pressure on political opponents when the judicial authorities
take up individual cases.
103. In some member states, cases which have often received wide
media coverage revealed that, notwithstanding the seriousness of
allegations against them, whether proven to be well-founded or unfounded –
and regardless of political affiliations of the defendants –, parliamentarians
have been stripped of their parliamentary immunities in rather unusual
circumstances, sometimes in violation of internal procedures. One example
is that of Mr Igor Mosiychuk, a member of the (far right) Radical
Party of Oleg Lyashko, whose immunity was withdrawn by the Ukrainian
Parliament in September 2015 in unusual circumstances.
Note Even if the facts described could
appear to provide serious grounds for lifting his immunity, the
failure to comply with domestic parliamentary procedure, including
the fact that it was impossible for the individual concerned to comment
on the matter, raised several concerns, especially as regards selective
justice when efforts to combat corruption are directed exclusively
against members of the opposition. Another example that may be mentioned
is that of Mr Vlad Filat, former Prime Minister of the Republic
of Moldova, who was arrested by the police in October 2015 after
his immunity had been lifted by the parliament for passive corruption
and influence peddling in a procedure that was unusual in that case
too. This decision was criticised by some observers as flawed due
to legal and procedural irregularities.
Note
104. By contrast, in a number of corruption scandals which rocked
Romania in 2014,
Note the National Anticorruption Directorate
(DNA) in charge of the investigations consistently followed all
the prescribed steps of the proceedings, including the submission
of requests for lifting the immunity of MPs who may have been involved.
In addition, the DNA’s investigations equally targeted representatives
of all Romanian political parties
Note thus contributing to
the perception of the sincerity of anti-corruption efforts.
105. The temptation to reform the system of parliamentary immunity,
sometimes in a radical way, occasionally seems an appropriate means
of responding to a politico-financial scandal involving the misappropriation
of public funds, abuse of power, conflicts of interest, influence
peddling or the concealment of income. However, in some political
systems in which democracy is weak and corruption in the judicial
system is widespread, the abolition of parliamentary inviolability
could, on the contrary, jeopardise the parliament’s democratic operation and
autonomy.
Note
106. The Venice Commission accordingly emphasises that inviolability
“should under no circumstances protect against preliminary investigations,
as long as these are conducted in a way that does not unduly harass the
member concerned. Indeed investigations may be crucial to establishing
the facts of the case, and they have to be conducted while the case
is still fresh, and not years later, after the expiry of the period
of immunity”.
Note
7 Parliamentary
immunity: rules that protect the political minority?
107. The benefit of parliamentary
immunity is accompanied by a very clear general principle: conceived
as a guarantee of the independence of the parliamentary institution
as such in the performance of its tasks, immunity does not aim to
protect the interests of members of parliament as individuals or
to cover their deeds in all circumstances. However, this statement
needs to be qualified: the contemporary situation leads one to acknowledge
that immunity plays (or should play) a role in practice as an element
protecting the political activities of the parties represented in
parliament and of their elected members when these parties belong
to the political minority. What is at stake is the proper functioning
of democracy, so the existence of a limited system of parliamentary
non-liability and the attempts in some member states to reduce the
inviolability of members of parliament are cause for concern.
7.1 Prosecution
of members of the opposition or the political minority
108. As the Venice Commission has
emphasised, it is less often the parliament itself than the parliamentary opposition
that risks being subjected to pressure by the executive and therefore
might need special protection. In the past, the “French” model advocated
the strict separation of powers and the special protection of members
of parliament against the executive, but today the parliamentary
majority and the government are often of the same political complexion.
Consequently, the system of parliamentary immunity functions today
as a right of the political minority. This applies all the more
to the new democracies, where sometimes the culture of political
alternation is finding it hard to become established. The desire
of incumbent governments to stay in power is reflected in particular
in successive changes in electoral laws and amendments to the constitution aimed
at weakening the opposition.
109. Aware of this problem, many new democracies have opted for
relatively extensive inviolability, the aim clearly being to safeguard
the effective autonomy of the parliamentary institution.
110. Abuses against members of parliament through the institution
of criminal proceedings remain a reality in several European countries.
It is not uncommon for legal measures to be taken to silence parliamentarians
who are a little too critical. The opening and re-opening of proceedings
against MPs or members of their family for tax-related or other
matters are among the common methods of exerting political pressure.
It should be added that in a number of countries a conviction can
result in the loss of a mandate and/or ineligibility for election,
and therefore the end of a political career.
111. Here are some examples. The immunity of the Russian MP Ilya
Ponomaryov was waived in April 2015 to start a criminal probe into
alleged embezzlement related to the state innovation hub Skolkovo,
the Russian state-sponsored centre for innovation and technology.
However, due to the circumstances of the case (the main focus of
attention was on the MP, pursued for complicity, and not on the
alleged main perpetrator) as well as Mr Ponomryov’s personality
(he was an active participant of public actions in 2011-2013 by
the opposition and the only Russian MP who voted against the annexation
of Crimea), the stripping of immunity was seen by Kremlin critics
as an attempt to stifle political dissent. Vladimir Markin, spokesperson
for the Investigative Committee, dismissed claims that the case
against Mr Ponomaryov was politically motivated. The immunity of another
Russian MP (from the Communist Party) was also stripped for having
held an unauthorised meeting with voters before his election during
which a clash with the police took place. The MP concerned claimed
that the investigation was a “show-case” for the opposition.
112. In 2014, the Georgian Parliament passed an amendment to the
Code of Criminal Procedure deleting the provision making the institution
of criminal proceedings against an MP conditional on the prior authorisation
of parliament. The sole aim of the amendment in question is said
to have been the institution of criminal proceedings against a member
of the opposition, whose immunity was subsequently withdrawn. Although
he was later acquitted by the courts, his trial damaged his political
image.
7.2 Prosecution
of members of pro-autonomy or separatist parties
113. Self-determination movements
that result in the creation of political parties and their emergence
on the political stage are nothing new in the history of Europe.
While some movements base their legitimacy and their hopes of attaining
their objectives on democratic political processes, others are all
about breaking with the constitutional order and sometimes resort
to radical methods – violence, guerrilla tactics or terrorism –
and focus on the destabilisation of populations and institutions.
Members of parliament could well have proceedings brought against
them because of their actual or alleged membership of such movements,
hence the need to identify a number of principles.
114. As the European Court of Human Rights has emphasised, “one
of the principal characteristics of democracy is the possibility
it offers of resolving a country's problems through dialogue, without
recourse to violence, even when they are irksome”. In a normal situation,
“there can be no justification for hindering a political group solely
because it seeks to debate in public the situation of part of the
State's population and to take part in the nation's political life
in order to find, according to democratic rules, solutions capable
of satisfying everyone concerned”.
Note
115. The Court confirmed this position in its
Stankov and the United Macedonian Organisation
Ilinden v. Bulgaria judgment concerning the ban of a
peaceful meeting of a Macedonian minority in Bulgaria.
Note In particular,
the Court stated that “[d]emanding territorial changes in speeches
and demonstrations does not automatically amount to a threat to
the country’s territorial integrity and national security”.
Note The
Court’s subsequent position in its
Gorzelik
and Others judgment
Note became more nuanced. In
that case, which concerned the refusal by the Polish authorities
to grant electoral advantages to an association that had been set
up to promote a Silesian “nationality” and whose memorandum of association
stated as its objective to “awaken and strengthen the national consciousness
of Silesians”, no violation of Article 11 was found.
116. This case law was developed several years ago. Since then,
considerable changes have taken place, marked by the terrorist attacks
in Paris, Brussels, Ankara and Istanbul, the conflict in Ukraine
and the resumption of hostilities in Nagorno-Karabakh. As a result,
the risks arising from the ideas and statements of certain political
movements are being reconsidered. Moreover, the new communication
media and the use of social networks have significantly altered
the impact and weight of remarks made.
117. In this new context, it should be reiterated that it is up
to each state, in accordance with Article 1 of the European Convention
on Human Rights, to secure to everyone within its jurisdiction the
rights and freedoms enshrined in the Convention and to safeguard
them in an effective manner through the proper functioning of its
internal structures. In seeking to maintain a fair balance between,
on the one hand, the free expression of political ideas, especially
by elected representatives – including the promotion of autonomist
or separatist aspirations or calls for the right to self-determination
– and, on the other, the constitutional order or the security of
the country and its population, each state should therefore comply
with the requirements of the Convention and abide by the decisions
of the Court.
8 Conclusions
118. Almost all Council of Europe
member states grant their national elected politicians two types
of parliamentary immunity: non-liability and inviolability. However,
in spite of a common constitutional tradition, the system of parliamentary
immunities is deeply steeped in the traditions and the political
culture specific to each country. This system varies, sometimes
considerably, depending on the state, whether because of its nature,
its legal basis, its scope or existing parliamentary practices.
119. As a general rule, the system of non-liability is extremely
stable in member states. Non-liability remains the indisputable
pillar of parliamentary immunity, but there are differences: a number
of states grant protection solely to remarks made during parliamentary
debates, while others protect parliamentary work in the broad sense.
Moreover, insulting or defamatory utterances, incitement to hatred
or violence or racist remarks are not covered by non-liability rules
in some states.
120. The absolute protection of the acts and statements of members
of parliament poses a problem in the present situation – the upsurge
in terrorism and the migration crisis, in particular – especially
as far as hate speech is concerned. A possible solution would be
to exclude from the scope of non-liability statements aimed at the
destruction of democratic rights and freedoms, or withdrawal of
the parliamentary mandate in the event of a persistent violation
of democratic principles and values.
121. On the other hand, limiting the scope of non-liability by
excluding remarks deemed insulting to the head of state or treasonous,
criticism of judges or the disclosure of state secrets raises concerns
to the contrary: these criminal offences are often invoked to prevent
elected politicians from exercising their mandate.
122. As far as inviolability is concerned, it is no longer considered
an imperative form of protection, and a slight trend can be seen
in member states towards restricting its scope. However, it continues
to play an important role in countries that do not provide their
parliamentarians with adequate means of protection, especially because
their judicial and criminal justice system provides insufficient
safeguards. In general terms, it constitutes an important safeguard
for the political minority.
123. There are still significant differences between member states
with regard to the nature and degree of protection granted to members
of parliament through the rules on inviolability. The majority of
countries have enshrined inviolability in their respective constitutions,
although the parliament’s rules of procedure sometimes support the
procedure for waiving immunity.
124. The European Court of Human Rights accepts parliamentary immunity
as a legitimate constitutional rule while at the same time acknowledging
that it restricts the rights enshrined in the Convention. When they actually
serve to protect the free exercise of the duties of the parliament,
immunities are a justified restriction on access to justice, but
when they extend beyond this necessary protection their application
violates the Convention. Consequently, since non-liability relates
to acts carried out in connection with the immediate exercise of
the parliamentary mandate, the Court considers this a legitimate
restriction. On the other hand, inviolability concerning acts unrelated
to the parliamentary mandate cannot in principle constitute a legitimate restriction.
This last point more or less calls into question the very concept
of inviolability; yet the explicit purpose of inviolability is to
protect members of parliament against any politically motivated
judicial action concerning activities outside parliament.
125. Finally, if a member state is considering revising the system
of immunities protecting its members of parliament, it would be
desirable for that revision to be the subject of a wide-ranging
public debate and for it to take into consideration all the variables
and draw on good practices existing elsewhere in Europe, while bearing in
mind the underlying principle of these immunities, which is, in
particular, the need to preserve the rights and integrity of members
of the political minority during and after the end of the parliamentary
mandate.