B Explanatory memorandum
by Mr Tiny Kox, rapporteur
1 Introductory
remarks
1. The Parliamentary Assembly
comes back to examining the various aspects of parliamentary immunities at
regular intervals for manifold reasons: the need to interpret 70-year-old
texts given the realities of the Assembly's work and to specify
how the granted immunities would apply in practical terms. Also,
the Assembly closely follows trends in immunity regimes at the European
level and conducts a general reflection about how the afforded protection
could be truly effective against existing political risks, while
not being misused for personal benefit.
2. The last Assembly resolutions
Note addressed
theoretically a practical application of immunities based on latest
studies and a few cases where the immunities of the Assembly members
were at stake.
Note They
clarified and solidified the immunity regime and called on member
States to honour their obligations with regard to relevant statutory
provisions.
3. It is indeed in the interest of the Assembly as a parliamentary
institution to guarantee its members enhanced and consistent functional
protection in the face of the missions that members are called upon
to carry out. The issue of unrestricted travel on official Assembly
business (free movement) and the level of protection afforded in
the exercise of the Assembly duties (immunities) occupies an important
place in this endeavour.
4. In particular in
Resolution
1325 (2003), the Assembly pointed to the evolved nature of the duties
of its members which required their statements be protected not
only during the debates in the Chamber but also in the course of
official missions outside the Assembly precinct.
Recommendation 1602 (2003) also successfully tackled the issue of free movement
which resulted in the acknowledgment by member States of the laissez-passer
which is now being issued to the members of the Assembly.
5. In its
Resolution
1490 (2006) the Assembly raised the case of members who were unable
to exercise their European mandate due to arrest or detention. It
concluded that the combined reading of Article 15 of the General
Agreement on Privileges and Immunities of the Council of Europe
(ETS No.2) and Article 3 of its Additional Protocol (ETS No.10)
established a basic immunity which derived from an international
treaty and which guaranteed members immunity from arrest and detention,
regardless of their country of origin. This immunity, the Assembly
underlined, might not be restricted unless it was previously lifted
by the Parliamentary Assembly itself. Today it could be said that
this position has been fully confirmed.
Note
6. In
Resolution 2087
(2016) and
Recommendation
2083 (2016), the Assembly called for a uniform protective framework
for parliamentarians travelling abroad and for more transparency
and legal certainty in cases where a member State, acting within
its jurisdiction and not in breach of undertaken international commitments,
decided or was considering imposing restrictive measures banning
the entrance of foreign parliamentarians. Though the Committee of
Ministers ruled out the standard-setting work, it insisted on the respect
of the existing obligation of member States. It also endorsed the
Assembly’s call to member States to consider granting immunities
and privileges to members of the delegations holding observer or
partner for democracy status with the Parliamentary Assembly and
who take part in sessions of the Assembly and meetings of its committees.
7. Following
Recommendation
2095 (2016), the Committee of Ministers reiterated the Assembly’s
call to member States to honour their commitments and fully guarantee
the immunity of members of the Parliamentary Assembly and their
free movement on the territory of member States.
Note
8. The current report tends to take stock of the overall situation
regarding how immunities have been invoked and applied over the
past years in order to summarise both the general principles and
the practice of the Assembly to make the immunity regime truly effective
and easy to apply by both the members of the Assembly and relevant
national authorities.
9. For instance, the rapporteur had in mind the cases which happened
in the past and where some of the member States did not comply with
their commitments to guarantee freedom of movement arising from
the General Agreement. By doing so, national authorities put forward
domestic law to justify a failure to comply with international commitments,
which, as it was pointed out on many occasions, could not provide
a valid justification under international law.
Note
10. Concerning a few other immunity-related cases, national authorities
seemed to have made unilateral interpretation of the General Agreement
to rule out the application of the Assembly immunities or the Assembly prerogative
to lift it.
Note Therefore,
the set of clear guidelines would constitute a necessary reminder
to member States.
11. A set of criteria in relation to the immunity regime was also
requested by the Independent investigation body on the allegations
of corruption within the Parliamentary Assembly (IBAC),
Note which led to an investigation into
corruption-related allegations against members and former members
of the Assembly in 2017-2018. The investigation resulted in internal
sanctions being imposed on those members whose misconduct was established
in the course of the inquiry. Investigations have also been launched
by national authorities in a few cases.
Note No
request to waive immunity or a request to defend immunity has been
received by the Assembly so far.
Note
12. The IBAC also made a number of recommendations, including
on establishing a clear set of criteria on the application of immunity
to make sure that privileges and immunity cannot be invoked in cases
of genuinely suspected corruptive activities.
13. Though the immunities shall undisputedly not shield corruption
activities, the rapporteur does not lose sight of the possible political
context in which corruption related charges may also be used to
put the pressure on the opposition.
14. It is against this backdrop that the rapporteur would draw
his proposal for the guiding principles which would not merely provide
a background to considering immunity-related questions but would
also raise awareness among the Assembly members and their respective
parliaments of the institutional privilege they enjoy.
15. The rapporteur wishes to thank those colleagues and former
colleagues who responded to the questionnaire he prepared for this
report, which sought to gather information on members' knowledge
and possible use of the immunity they enjoy as members of the Assembly.
96 people, representing 32 national delegations, participated in
the exercise. The data collected showed that 80% of the participants
were not aware of the immunities granted to Assembly members. The
vast majority of participants never invoked their immunity either
to their national authorities or to the national authorities of
other member States. Furthermore, 60% of respondents were in favour
of strengthening the mechanism contained in Rule 73.6 of the Rules
of Procedure allowing the President of the Assembly to take an initiative
to defend the immunity of a member (see below); some indicated that,
as this mechanism was already in place, it was more important that
the President be able to make effective use of it and that national
authorities respect it, with one person pointing out that this could
be particularly relevant in the context of Assembly election observation.
Other comments wished that information on the immunity of Assembly
members be more widely disseminated both to members and to national
authorities.
16. The rapporteur would also like to thank Mr Sascha Hardt, Assistant
Professor of Comparative Constitutional Law, from Maastricht University;
Ms Victoria Cherniychuk, Lawyer, from the Directorate of the Jurisconsult,
Registry of the European Court of Human Rights; Mr Rogier Huizenga,
Secretary of the Committee on the Human Rights of Parliamentarians
and Human Rights Programme Manager of the Inter-Parliamentary Union
(IPU); and Mr Remco Nehmelman, Secretary General of the Dutch Senate
(Eerste Kamer) who participated in a hearing of the committee on
30 November 2020 or provided information on a number of legal issues
on the immunity regime and the latest case-law of the European jurisdictions.
2 Scope of protection as defined by
the Council of Europe texts
17. The immunities of representatives
and substitutes to the Assembly are defined in the following texts:
- Article 40(a) of the Statute
of the Council of Europe:
“(…)
representatives of Members (...) shall enjoy in the territories
of its Members such privileges and immunities as are reasonably
necessary for the fulfilment of their functions. These immunities
shall include immunity for all Representatives to the Consultative
(Parliamentary) Assembly from arrest and all legal proceedings in
the territories of all Members, in respect of words spoken and votes
cast in the debates of the Assembly or its committees or commissions”;
- The General Agreement
on Privileges and Immunities of the Council of Europe of 2 September
1949 (hereafter the General Agreement) and the Protocol thereto
of 6 November 1952, which supplement Article 40(a) of the Statute
and establish two types of immunity:
Parliamentary
privilege – Article 14:
“Representatives to the Consultative
(Parliamentary) Assembly and their substitutes shall be immune from
all official interrogation and from arrest and all legal proceedings
in respect of words spoken or votes cast by them in the exercise
of their functions.”
Parliamentary inviolability
– Article 15:
“During the sessions of the
Consultative (Parliamentary) Assembly, the Representatives to the Assembly
and their Substitutes, whether they be members of Parliament or
not, shall enjoy:
a. on their national territory,
the immunities accorded in those countries to members of Parliament;
b. on the territory of all
other member States, exemption from arrest and prosecution”.
18. This immunity also applies
when they are travelling to and from the place of meeting of the
Consultative (Parliamentary) Assembly. It does not, however, apply
when Representatives and their Substitutes are found committing,
attempting to commit, or just having committed an offence, nor in
cases where the Assembly has waived the immunity.”
19. Article 5 of the Protocol states: “Privileges, immunities
and facilities are accorded to the representatives of Members not
for the personal benefit of the individuals concerned, but in order
to safeguard the independent exercise of their functions in connection
with the Council of Europe. (…)”.
20. Assembly members enjoy two forms of protection: parliamentary
privilege, which is guaranteed by Article 14 of the General Agreement
and gives them immunity from any judicial proceedings (criminal,
civil and administrative) owing to an opinion they have expressed
or a vote they have cast in the exercise of their parliamentary
functions, and immunity from any arrest, detention or prosecution.
21. The aim of the immunity provided for in Article 14 is to protect
the independence of parliamentarians and guarantee their freedom
of judgment, expression and decision.
22. Article 15 incorporates the concept of inviolability. The
purpose of this type of immunity is to protect a parliamentarian
from undue pressure which could be exercised against him or her
in respect of acts which do not constitute a part of typical parliamentary
activities. It is possible to put pressure on and to hinder the performance
of a political mandate by introducing legal suits for acts not related
to the exercise of parliamentary functions, which may result in
moral coercion or other restrictions on a parliamentarian’s activities
or freedom of movement. This immunity aims at ensuring the optimal
working conditions for a parliamentary institution throughout the
member’s mandate and to grant its independence vis-à-vis other branches
of power. This concept exists in a number countries and, depending
on the country, could cover a variety of procedural safeguards
Note or types of offences.
Note
23. The competences of the Assembly with regard to immunities,
in particular the procedure for waiver of immunities, is defined
in Rule 73 of the Assembly’s Rules of Procedure.
3 Clarifying the immunity regime of
the Assembly members: a joint exercise of the two statutory organs
24. The rapporteur acknowledges
from the outset that the interpretation of the provisions of the
Statute of the Council of Europe and the General Agreement is a
joint exercise which requires the adoption of the position by the
Committee of Ministers and the Parliamentary Assembly as to the
manner in which these provisions apply or the meaning vested in
some of their terms.
25. The Statute of the Council of Europe and the General Agreement
are international treaties which set forth the powers and functions
of the organs, and the rights and duties of members. According to
these texts, the organs of the Council of Europe – the Committee
of Ministers and the Parliamentary Assembly of the Council of Europe
– have different functions but equal standing with regard to their
position in the organisation and enjoy relative autonomy in their
operations. Both can establish their internal rule of functioning,
provided those rules are compatible with the “primary law” of the
Organisation, namely the Statute and the General Agreement. While
carrying out the function attributed by the Statute, the Assembly
may give effect to the provision of the primary law without, however,
overstepping its competences.
26. In the past the issue of interpretation of the Statute already
triggered lively inter-institutional debates leading to the conclusion
that, in order to maintain an efficient dialogue and contribute
to the fulfilment of relevant organs’ mandates, the interpretation
of the Statute should be a joint exercise.
27. This approach takes on more special meaning when it comes
to interpreting provisions which define the boundaries of privileges
and the protection granted to the members of the Assembly, especially
in the absence of a specific provision on a competent authority
in charge of interpretation.
Note
28. The original meaning is a fundamental principle of interpreting
the General Agreement alongside the institutional purpose of immunities.
Such immunities are an institutional privilege, originally granted
to parliamentarians to avoid interference from other branches of
power, and serve to protect Assembly members from proceedings intended
to deprive the Assembly of the co-operation or freedom of action
of its members. The role of the Assembly and its practice in shaping
the immunity regime of its own members cannot therefore be overlooked.
Indeed, it would be greatly incoherent to leave the decision concerning
the protection of elected representatives in the hands of an executive
body.
29. With regard to the origins of the immunities granted to the
members of the Assembly, it shall be recalled that the wording contained
in Article 14 reflects constitutional traditions of a number of
the founding States, the constitutions of which embody similar provisions.
Note
30. Article 15 was elaborated by the so-called “Preparatory Commission”
of the Council of Europe which had been instituted by the Conference
of Ministers for Foreign Affairs which adopted the Statute of the
Council of Europe on 5 May 1949.
Note The Preparatory Commission considered
that: it was necessary to protect the Assembly representatives also
when travelling to and from the place of meeting of the Assembly
to their home countries and that
: the
members should also be protected against any restriction imposed
by their own or other governments on the free exercise of their
functions.
31. The first draft text read as follows: “no Representative or
Substitute to the (Consultative) Assembly shall, during one week
before the opening of sessions and during sessions be prosecuted,
be subject to search, home search, be arrested in a criminal affair
except when so authorised by the Assembly or when found committing,
attempting to commit or just having committed an offence. The detention
or prosecution of a representative or substitute to the (Consultative)
Assembly shall be suspended at the Assembly’s request”.
32. At a later stage the French delegation presented a new proposal
for a text making a distinction concerning immunities of Assembly’s
members on their national territory and on the territory of all
member States. After some minor changes this proposal was adopted
by the experts and the Preparatory Commission and became the current
Article 15 of the General Agreement.
4 The Parliamentary Assembly and the
European Parliament: different institutions, the same immunity regime?
33. Relevant precedents could not
altogether be ignored while establishing the ordinary meaning to
be given to the treaty provisions, especially when the precedents
concern similar organisations.
Note That is why, given the common
historical background surrounding the establishing of the immunity
regime for the Parliamentary Assembly of the Council of Europe and
the European Parliament, one should be mindful of practical application of
the primary law retained by the European Parliament or the interpretation
provided by the Court of Justice of the European Union (CJEU).
34. The immunities of members of the Parliamentary Assembly of
the Council of Europe were established by texts adopted in 1949
and completed in 1952. The economic strand of European integration
had also foreseen a parliamentary dimension – the Common Assembly
composed of the appointed parliamentarians – which later became
the European Parliament. The immunities worded in almost similar
words as contained in the General Agreement were granted to members
of the Common Assembly of the European Coal and Steel Community
(ECSC) whose activity was extended in 1957 to cover in addition
the European Economic Community (EEC) and the European Atomic Energy
Community (EAEC), whose establishing treaties were also accompanied
by protocols embodying a similar provision on parliamentary immunities.
The provisions negotiated at the time have not been altered until
today, notwithstanding numerous revision attempts undertaken by
the European Parliament.
35. The similarity in the wording would not come as a great surprise
given that out of the six ECSC founding members, five were also
founding members of the Council of Europe.
36. Consequently, at the origin, the Council of Europe and the
European Parliament provided for two different types of immunities
– non-liability and inviolability – negotiated bearing in mind that
the members of those assemblies were not directly elected and that
the founding member States granted different scopes of immunities
to their national parliamentarians. For instance, the Netherlands
was unwilling to grant on its territory a level of inviolability
that the members of the Dutch Parliament did not enjoy. Some other
members were against limiting the scope of non-liability.
37. As a result, in addition to non-liability (absolute immunity),
the General Agreement and the Protocol on the Privileges and Immunities
of the European Union (hereinafter “the PPI”) established, under
its inviolability strand, two different regimes: one referring to
national laws and another defined by the international treaty itself. Accordingly,
in the territory of their member State, members of the Parliamentary
Assembly and the European Parliament enjoy the same level of protection
as national parliamentarians, while in the territory of other member
States they enjoy immunity from any measure of detention and from
prosecution (Parliamentary Assembly of the Council of Europe) or
from any measure of detention or from any legal proceedings (European Parliament).
In addition, the second paragraph of the corresponding articles
also confers immunities on members “while they are travelling to
and from the place of the meeting” of their respective parliamentary institutions.
Note
38. Finally, in a similar way, the corresponding provisions ban
all administrative or any other restriction, as well as grant immunities
to members travelling to and from meetings of their respective parliamentary
bodies.
39. In the light of the above, the rapporteur opted for introducing
in his analysis some relevant elements stemming from the practice
of the European Parliament and the case-law of CJEU, especially
when it comes to considering points the Assembly has not faced up
until now. However, the rapporteur underlines that both the Parliamentary
Assembly of the Council of Europe and the European Parliament, while
learning from each other’s experiences, are fully sovereign on their
rules and decisions, as all other parliamentary assemblies, operating
in (parts of) Europe, such as the Parliamentary Assembly of the
Organization for Security and Co-operation in Europe, the Interparliamentary
Assembly of Member Nations of the Commonwealth of Independent States,
the Nordic Council, are. Their experiences could also contribute
to a common interpretation of aspects of parliamentary immunity.
5 The material scope of privileges and
immunities granted to members of the Parliamentary Assembly – parliamentary
non-accountability (Article 14 of the General Agreement on Privileges
and Immunities of the Council of Europe)
5.1 Immunity for opinions and votes
40. This immunity, which is also
called absolute immunity, non-liability or non-accountability, could
be described as basic parliamentary immunity and can be found in
almost all democratic parliaments in the world. Though it may have
different historical origins, its main objective remains similar
and consists of protecting the elected representatives when acting
in their official capacity. This type of immunity is often absolute
and usually cannot be lifted, although there are some parliaments
that can do this.
NoteNotwithstanding
its common acceptance the definition of its scope remains a complex
issue. In most countries the formal definition and its scope are
set out in the fundamental texts the practical application of which
are further detailed by parliamentary practices and decisions by
judicial authorities. When it comes to the Assembly, its scope,
like the scope of inviolability, is initially defined by the General
Agreement and its application is further specified in Assembly resolutions
and opinions of the Rules Committee.
41. While defining the scope of the absolute immunity, special
attention is to be paid to the need to protect the independence
of the Assembly and its functional needs. The role of precedents
is also important, as well as the case-law of the European Court
of Human Rights, reports by the Venice Commission and other relevant documents.
In 2003, the Rules Committee stated: “The decisive factor for the
scope of the immunity under Article 14 of the General Agreement
is therefore reference to the activities of the Parliamentary Assembly, bearing
in mind its competences both explicit (Statute of the Council of
Europe, Rules of Procedure and other legal texts) and implicit (Assembly
practice, implied powers)”.
42. The first observation which follows from these findings is
that the absolute immunity granted to the members of the Assembly
has an autonomous scope which could be different from the scope
of the absolute immunity which protects national parliamentarians,
if applicable. Both European jurisdictions have adopted a rather
conservative interpretation of parliamentary functions requiring
a substantial link between acts and the mandate. The
Patriciello judgment
Noteof the CJEU
has introduced the criterion of “direct and obvious link” to performance
of parliamentary duties. As is the case in national parliaments,
the absolute immunity has no “endpoint” and protects members of
the European Parliament during their term of office and beyond.
43. Second, it should be noted that the two official language
versions of Article 14 of the General Agreement (both of which are
authentic) differ from one another: the English version refers to
“words spoken” and the French version uses the term “opinions”.
In the explanatory report accompanying
Resolution 1325 (2003), the Rules Committee underlined that the term “words
spoken” comprises both oral and written statements. This interpretation
can be justified by historical and teleological arguments. Article
14 of the General Agreement seeks to protect the core duties of
the Assembly and therefore typical activities the members undertake
to carry out these duties. It is acknowledged that the way of performing
the core duties as well as the forms of political communication
have undergone some transformation since the basis text was drafted
in 1949 and may continue to evolve. Consequently, when assessing
the scope of Article 14, attention should be paid to what constitutes
typical or core activities of the Assembly members and the obvious
and direct link to their parliamentary functions.
Note For
instance, today Article 14 would also cover public talks, radio
and TV interviews, using traditional or digital media, as long as
those are performed in the exercise of the function of the Assembly members.
Note
44. Thirdly, the exceptional nature of the absolute immunity does
not mean that parliamentarians are allowed to say or do whatever
they wish. The term “non-accountability” may be misleading. It simply
means that parliamentarians benefit from absolute protection against
lawsuits for what they say inside the parliament and cannot be held
accountable in a national court (for example, they cannot be prosecuted
or ordered to pay damages for acts or words said in the context
of a debate in the Assembly). An example is the decision of the European
Parliament not to waive the immunity of Ioannis Lagos.
Note
5.2 How absolute is the absolute immunity?
45. Absolute immunity can be characterised
as a special regime that provides additional protection to a regime
established by international treaties to protect political speech.
This includes Article 10 of the European Convention on Human Rights
(ETS No.5) and subsequent interpretative case-law.
46. Knowing that one would not be prosecuted for an action could
open the door to abuses, for example provocative acts against political
opponents.
Note That said, by asserting
absolute immunity of its members before national authorities, the
Assembly, like any parliamentary assembly, nonetheless remains in
a position to place restrictions on freedom of expression, bearing
in mind the criteria laid down by the case law of the European Court
of Human Rights.
Note Immunity
does not exempt members from sanctioning powers of parliament, provided
these rules do not infringe with the member’s rights under the European
Convention on Human Rights.
Note
47. In this respect, two elements often come up: bribery on the
one hand, and the content and form of political discourse, especially
hate speech, on the other.
5.2.1 Absolute immunity and bribery
48. To what extent “words spoken”
or “votes cast” could be used as evidence relating to investigation
of bribery offences allegedly committed by an Assembly member in
the exercise of their duties? This point requires clarification
in the light of corruption allegations which the IBAC had investigated
and which had resulted or still could potentially result in a criminal
investigations being launched by national authorities.
49. In the United Kingdom, in 1998, in the context of the discussion
on how anti-corruption law could be improved, it was discussed how
the parliamentary privilege granted by Article 9
Note of
the 1689 Bill of Rights would apply in the context of criminal prosecution
in bribery cases involving parliamentarians.
Note Among options proposed by the Home
Office aimed at pairing historical parliamentary privileges, on
the one hand, and modern requirements to fight corruption, the Joint
Committee recommended the one which, should a member be brought
within the criminal law of bribery, would allow evidence to be admitted
in courts notwithstanding Article 9.
Note
50. The blanket prohibition from touching upon everything members
say or do in the precinct of parliament correlates with the underlying
idea of functionality of parliamentary privileges and the fact that
immunity could only be claimed to protect the core activity of the
parliament.
51. Much the same reasoning was adopted by the Supreme Court of
the United States in 1972
United States v.
Brewster where the Court held that the Speech or Debate
Clause
Note does
not protect a United States senator from prosecution for accepting
a bribe in return for a vote on pending legislation. The clause
only forbids inquiry into a legislative act or the motivation for
a legislative act (“An inquiry into the purpose of a bribe does
not draw in question the legislative acts of the defendant member
of Congress or his motives for performing them”).
52. Consequently, requesting, accepting or paying a bribe is no
part of the core parliamentary business which immunity is set to
protect. On the contrary, such behaviour would obstruct the functioning
of the parliament. What is to be investigated in such cases would
be the illegal conduct consisting of accepting or requesting undue
benefits, rather than “words spoken “ or “vote cast”.
53. Given the above, the rapporteur thinks that special mention
should be made in the guidelines of the fact that any abuse of parliamentary
privileges amounting to active or passive corruption is excluded
from the remit of the privileges granted by Article 14 given that
they do no pertain to opinions expressed or votes cast. This position
would be in line with the IBAC recommendation to make sure that
privileges and immunity cannot be invoked in cases of genuinely
suspected corruptive activities.
5.2.2 Does the protection of political speech
concern both content and form?
54. Visual expression is becoming
more and more widely used in the parliamentary precincts. A traditional way
of conveying a political message orally is, to a large extent, being
supplemented, if not replaced, by a visual message. It’s notorious
that perception in most people proceeds from images to texts, which
makes visual communication a powerful tool. A spontaneous gesture
or wearing a given sign allows to catch instantly the attention
of the auditorium and to deliver a quick message.
55. The European Court of Human Rights has interpreted the term
“expression” to cover different forms of expression, including expression
in words, images, video and conduct intended to convey an idea or information.
Note Therefore,
expression combined with physical conduct or the display of symbols
enjoys the protection afforded by Article 10 of the Convention.
56. In 2003 the Assembly already examined how the use of logos,
symbols, a special dress code or sonorous interactions had to be
dealt with by the Assembly in order to ensure the smooth running
of its meetings.
Resolution
1965 (2013) “The discipline of the members of the Parliamentary
Assembly” reaffirmed its commitment to the right to freedom of expression,
which may also cover the use of symbols expressing identification
with ideas or representing them, which “is the most important parliamentary
privilege and an essential precondition for the independence of
elected representatives of the people.” On the other hand, the Assembly
has also acknowledged the position reiterated by the European Court
of Human Rights on multiple occasions that the exercise of freedom
of expression also has duties and responsibilities “the scope of
which will depend on the situation and the means used”.
57. The above provides a sound justification why some limitations
could be imposed on the way the message is expressed during the
debate.
Note According to the case law of the European
Court of Human Rights,
Note both the manner in which the message
could be delivered and the disciplinary power in relation to orderly
debates, fall within the internal rules of parliament which could
impose some limitations.
Note If limitations are
to be set up, they could only concern the way the message is being
conveyed and could not normally touch the content of the message.
Note
58. These restrictions must be carefully considered, taking into
account the protective regime that political speech enjoys even
when it is provocative and the nature of parliamentary debate. These
limitations must provide adequate safeguards against abuse. Parliament’s
autonomy cannot justify the imposition of sanctions that are not
prescribed by the Rules or that are grossly disproportionate to
the alleged disciplinary violation. Procedural safeguards, such
as the right to be heard, must be in place.
59. There is no reason to believe that the nature of parliamentary
debate has undergone dramatic transformation. It continues to be
confined to fair and reasoned oral debate, discussion and voting.
So, there is no reason for special privileges to be extended to
what is necessary to carry out a respectful debate or to express
critical positions in the conventional manner.
5.2.3 Hate speech
60. The Assembly underlined in
its
Resolution 2127 (2016) that the absolute protection of the acts and statements
of members of parliament, especially as far as hate speech is concerned,
does indeed pose a problem in view of the rise in extremism and
nationalism against the backdrop of an upsurge in terrorism and the
migration crisis. The Assembly welcomed the fact that “in some States,
insulting or defamatory utterances
Note incitement
to hatred or violence or, in particular, racist remarks are not
covered by non-liability rules”.
61. The European Parliament took the view that parliamentary privilege
does not extend to statements contrary to Article 21 of the Charter
of Fundamental Rights (“prohibition of discrimination”).
Note Rule
10 of the European Parliament's Rules of Procedure recalls that
“the conduct of members shall be characterised by mutual respect
and shall be based on the values and principles laid down in the
Treaties, and particularly in the Charter of Fundamental Rights”.
NoteNote The
Assembly’s Rules of Procedure state more simply that “Words or expressions
which affront human dignity, undermine the right to respect for
private life, or which may prejudice orderly debate may not be used”
(Rule 22.6).
62. That being said, the Inter-Parliamentary Union questioned
the position of the Assembly expressed in
Resolution 2127 (2016) as regards the validity of some limitations imposed
on immunity by emphasising that “engaging in censorship, particularly
within parliament, regardless of how it transpires, is unlikely
to be a productive way of addressing even a very difficult social
problem. Instead, respectful debate about issues is likely to cause
underlying problems to surface, which opens the door to resolving
them”.
Note
63. It is true that the need to ensure discipline in the conduct
of parliamentary business may place restrictions on the manner in
which freedom of expression is exercised. On the other hand, a parliament
has “very little latitude to regulate the content of speech by parliamentarians”.
Note The rapporteur
considers that, even though the Assembly may take steps to call
its members to order for offensive statements, Article 14 should not
be interpreted as automatically excluding such statements, if no
fact of misuse of privileges can be established.
5.3 Who establishes if the absolute immunity
applies?
64. In most of the European countries
absolute immunity could not be waived either by the parliament or another
institution or be renounced by a parliamentarian himself. However,
there are also some countries in which the parliament could lift
the non-liability under certain circumstances.
Note
65. In some countries, the parliament can determine whether the
conditions for the application of absolute immunity have been met.
This decision becomes binding in national courts.
Note
66. In 2008,
Note the CJEU clarified
in a preliminary ruling some rules on the interpretation of the
absolute immunity granted by Article 8 of the PPI in respect of
opinions expressed by members of the European Parliament.
67. First, it was pointed out that this type of immunity could
not be lifted
Note and
the European Parliament has no authority to determine whether the
condition for the application of immunity has been met
Note such an assessment being “within
the exclusive jurisdiction of the national courts which are called
on to apply such a provision, and which have no choice but to give
due effect to that immunity if they find that the opinions or votes at
issue were expressed or cast in the exercise of parliamentary duties”.
NoteAccordingly,
“[o]nce the national court has established that the conditions for
the absolute immunity […] are met, the court is bound to respect that
immunity, as is the Parliament.”
Note
68. That being said, the “duty of cooperation applies in the context
of disputes such as those in the main proceedings. The European
Parliament and the national judicial authorities should therefore
cooperate in order to avoid any conflict in the interpretation and
application of the provisions of the Protocol.” Consequently, “where
the national court is informed of the fact that a member has made
a request” for defence of that immunity, “it must stay the judicial
proceedings and request the European Parliament to issue its opinion
as soon as possible”.
Note
69. The practical consequence of this is that the national authorities
should postpone proceedings until the European Parliament issues
its opinion on the request to defend the immunity. Also, where a
request for waiver of immunity is submitted to it by a national
authority, the European Parliament verifies first if the facts giving rise
to the request for waiver can be covered by Article 8 of the Protocol,
in which case immunity cannot be waived.
Note
70. The rapporteur is hesitant about granting national courts
the exclusive competence to establish if the conditions to apply
the absolute immunity have been met. Beyond the conflict in the
interpretation which may arise among national courts across member
States, another issue relates to the integrity or misuse
Note of the justice system.
71. At the level of the 47 Council of Europe member States, systemic
issues faced by some states in relation to the independence and
impartiality of the judiciary were pointed to by the European Court
of Human Rights and the Council of Europe Commissioner for Human
Rights in addition to evidence established in individual cases that
national courts were not sufficiently independent from the executive
authority,
Note or that public power was
misused to target specific groups
Noteor
to suppress political pluralism. It was acknowledged that the political climate
is capable of creating an environment which can influence certain
decisions by the national courts.
Note
72. Following this observation, it would be unwise and even contrary
to the institutional purpose of immunity – which is to grant parliament
independence from other branches – to entirely grant national jurisdictions
the authority to establish if conditions for the application of
absolute immunity have been met.
73. In the rapporteur’s view additional safeguards have to be
provided that make sure that national authorities are not guided
by politically-related motivations.
74. For instance, in a case where the President of the Assembly
has taken a decision to defend a members’ immunities in reaction
to restrictions the member faces or can face, this decision should
be considered by national authorities which have to provide compelling
reasons should they decide to depart from his or her conclusions.
75. In addition, where a request for waiver of immunity is submitted
to the Assembly by a national authority, the Assembly, before considering
immunity under Article 15 of the General Agreement, must first of
all ascertain whether the facts giving rise to the request for waiver
can be covered by Article 14 of the Protocol, in which case immunity
cannot be waived.
Note
6 Parliamentary inviolability (Article
15 of the General Agreement)
76. Parliamentary inviolability
protects parliamentarians when their acts do not constitute part
of typical parliamentary activities. It intends to grant protection
when charges against them have been manipulated with the objective
to remove them from active office.
77. Article 15 of the General Agreement, which provides for this
type of immunity, is a complex article and the accumulation of different
rules and concepts makes the reading of Article 15 difficult.
78. From the outset it grants, in its first sentence, two levels
of protection as it refers to the “national territory” and “the
territory of other member States”.
79. In its second sentence it also deals with “travelling immunities”
which applies when the members of the Assembly are travelling to
and from the place of meeting of the Consultative Assembly.
Note
80. Finally, in its third sentence, it rules out the application
of immunity in the case when a member is found committing, attempting
to commit, or just having committed an offence or when the Assembly
has waived the immunity.
81. The application of inviolability becomes problematic given
that it is defined, depending on where a member is located or where
legal proceedings are taking place, either by national legislation
or by the General Agreement itself.
Note As a consequence, it does not
grant equal protection to all Assembly members at all times.
82. A member who has participated in a TV interview or published
a statement, not in relation to his or her duties as Assembly member,
Note could
receive a protection, ranging from very limited to very extensive, depending
on his or her nationality or where charges against him or her were
brought. For instance, the Assembly would not be able to defend
the immunity of members of the UK delegation in relation to criminal proceedings
brought up in the United Kingdom (Article 15 (a)), given that members
of the UK Parliament do not enjoy immunities from criminal prosecution.
Note
83. In addition, in cases where legal proceedings were brought
against a member of the Parliamentary Assembly in his or her own
state, Article 15 (a) requires consideration and interpretation
of relevant national rules on immunities to decide if the immunity
applies and if so, whether it has to be lifted. It could result
in a delay in examining a request due to the availability of relevant
texts (for example the national case law) in official Council of
Europe languages.
Note
84. This twofold nature of parliamentary inviolability could also
lead to a situation when, having a “cross-border element”, namely
to face a lawsuit in a country which is not the member’s own State,
would result in far reaching protection granted to a member given
the authority of the relevant Council of Europe bodies not only to
apply national legislations as requested in letter (a), but to interpret
letter (b).
85. An illustrative example is the case examined by the European
Parliament in which a member of Parliament elected in Germany was
sued in Greece.
Note Consequently, the European
Parliament was in a position to interpret the terms “legal proceedings”
contained under letter (b) of Article 9 so as to extend them to
civil proceedings which, consequently, imposed procedural barriers
barring the lawsuit against Mr Sakellariou. Should Mr Sakellariou
make his statement in Germany and be sued in Germany too, German Law
would apply, which would prevent the European Parliament from developing
the present reasoning.
86. Discrepancies equally relate to procedural aspects. For instance,
in the case of lawsuits taken place in Poland against a Polish member
of the European Parliament in the context of a private prosecution
Noteit
is possible for a private person to submit a request for waiver
of immunities directly to the Polish Parliament without the prosecuting
authorities or the court of jurisdiction being involved. So, the
question would arise as to which authority is “the competent authority”
for the purpose of submitting the request to the Assembly. The European
Parliament has agreed to examine the request to waive the immunities
submitted by a private person in the case of the private prosecution
as long as these requests are formally transmitted by a court.
Note This solution
could also be adopted by the Assembly should it be dealing with
such a situation in future.
6.1 “European immunity”: the basic protection
afforded to all members of the Assembly
87. Despite its duality, Article
15 grants, however, a certain protection which could be described
as basis in that it uniformly protects from detention and prosecution
all members of the Assembly regardless where they find themselves:
in their national territory or in another member State (provided
they could act in their capacity as Assembly members).
88. Article 15 (b) already covers protection from arrest and prosecution
which occur in a member State other than the state of a parliamentarian.
89. Concerning the protection afforded to a member in his or her
own state, the conclusion by the Assembly and, recently, by the
CJEU
Note are
similar in that they consider that the immunity granted by relevant
articles
Note has
to shield a member from restrictive measures (such as detention)
even if it occurs in the territory of his or her own State which
may not have a relevant provision on inviolability.
90. Both institutions rely on the objective of immunity to establish
such interpretation.
Note Indeed, it would have been
contrary to the objective of immunity – to ensure that the Assembly
has full protection against interference in its work – if this immunity
would not shield a member from a restrictive measure imposed by
his or her own State in a case where immunity from arrest is not
afforded by national law. Because of this immunity common to all
Assembly members, regardless of their country of origin, their liberty
may not be restricted unless their European immunity has been previously
lifted by the Assembly.
91. This basic protection covers members when they exercise their
function as Assembly members. If they do not exercise such a function
and do not travel for Assembly business within the territory of
their member States, their national immunity applies
NoteNoteNote.
6.2 Duration of the immunity
6.2.1 The starting point
92. Article 25 (b) of the Statute
stipulates:
“The
term of office of representatives thus appointed will date from
the opening of the ordinary session following their appointment;
it will expire at the opening of the next ordinary session or of
a later ordinary session, except that, in the event of elections
to their parliaments having taken place, members shall be entitled
to make new appointments.”
93. The PPI, likewise the General Agreement, does not explicitly
state when the members of the European Parliament start enjoying
these immunities and, in particular, if the immunities could already
be enjoyed before the member’s credentials have been verified and
his or her term of office has begun.
94. In 2003, the Rules Committee took the view that the immunities
are granted to Assembly members “from the moment their credentials
are ratified. In case the credentials are challenged, the immunities
are guaranteed provisionally till the Assembly or the Standing Committee
has reached a decision. Moreover, the immunities also apply when
new Assembly members travel to the Assembly part-session during
which their credentials will be ratified.”
Note
95. In its decision adopted the same year,
Note the European
Parliament made a slightly different interpretation making immunities
effective “from time of publication of the results of the elections
to the European Parliament”, rather than as from the beginning of
a member’s term of office which, according to the Electoral Act
of 1976,
Note begins
at the opening of the first session following each election.
Note That being said, this interpretation
was not shared by all, given the wording of the Electoral Act of
1976
Note which,
like Article 25 of the Statute of the Council of Europe, links the
beginning of a parliamentary mandate to the opening of a session.
96. With its judgment in the
Junqueras case
of 19 December 2019
Note the
CJEU resolved this debate with regard to the “travelling immunity”
Noteby
stating that it takes effect before the term of office begins.
Note Consequently,
the persons elected to the European Parliament enjoy the travelling
immunities as from the proclamation of the official results and
not from the moment when they take office and their credentials
have been ratified.
Note
97. The reason for such interpretation was the need to close an
‘immunity gap’
Note between
two constituent events – the election and the first sitting, which
would be inconsistent with the objective of the parliamentary immunities
if a member was prevented from travelling to take office.
98. The rapporteur welcomes the fact that four year prior to this
judgement, the Rules Committee concluded that Ms Nadiia Savchenko,
appointed to the delegation of the Ukrainian Parliament while being
detained in a Russian prison, enjoyed Council of Europe immunities
for acts which occurred prior to her enjoyment of immunities and,
that the Russian judicial authorities were required to request that
the Assembly waive the immunity if they wished to continue the judicial
proceedings instituted against her. Regretfully, no request was submitted
by the Russian authorities at that time.
99. The
Junqueras interpretation
does not seem, however, to concern absolute immunity given that “opinions”
or votes” which are deemed to be protected by the absolute immunity
may normally occur only starting with the opening of the first constitutive
plenary session.
Note
100. As far as the immunity granted to new members to travel to
the first part-session (or the part-session where the credentials
are to be ratified), the 2003 Rules Committee position and the subsequent
2015 opinion on the “Status of Ms Nadiia Savchenko with regard to
Council of Europe immunity”
Notefollowed
the same lines as the recent conclusion by the CJEU in the
Junqueras judgment
.Note
101. That being said, in the
Junqueras judgment,
the CJEU operated a distinction, which the Committee on Rules of
Procedure had not examined, between the acquisition of the status
of a member (which occurs with the proclamation of official election
results in the case of the European Parliament) and the beginning
of the term of office, the latter aiming at merely establishing
an institutional link between a person and the institution”.
Note
102. The rapporteur wonders to what extent this reason could or
should be applied in the case of the Assembly.
103. He noted that the Statute of the Council of Europe (Article
25) and the Rules of Procedure (Rule 11.3) also use different terms,
namely the “term of office” and “the appointment of the new delegation”.
Note
104. The appointment of the delegation may take place several months
prior to the beginning of the term of office. For instance, in September
2019 the Parliament of Ukraine appointed a new delegation following elections
held in July 2019. As the new delegation decided not to submit their
credentials at the 2019 October part-session, according to Rule
11.3
Note of
the Rules of Procedure, the term of office of the former delegation expired,
while the term of office of the new delegation did not begin, because
the credentials had not been submitted and ratified. Consequently,
the term of office of the new delegation started on the first day
of the opening of the 2020 ordinary session, almost four months
after the appointment. Should the reasoning contained in the
Junqueras judgment apply
mutatis mutandis, the newly appointed
delegation would already enjoy immunities to travel to public Assembly
meetings.
105. However, the rapporteur does not wish to conduct any further
analysis on this particular point until it gives rise to a practical
case. Should such a case arise one day, according to the internal
hierarchy of norms, precedence
must be given to the Statute which, however, is to be interpreted
as to give full efficiency to relevant provisions.
6.2.2 The endpoint
106. The position adopted by the
Assembly in
Resolution
1325 (2003) echoed the position established by the CJEU according
to which, the period “during the sessions of the Assembly”, during
which the immunity applies, covers the entire parliamentary year.
Note
107. The explanatory memorandum to
Resolution 1325 (2003)Note stated that “[c]learly, immunity
no longer applies if a member of the Assembly resigns or if there
is some incompatibility with the office of the member. It must be
recalled that as long as they are members of the Parliamentary Assembly
and until their replacement as such, Representatives and their Substitutes
retain their immunities in accordance with the General Agreement
and Protocol of 1952, as prescribed by Article 15 of the General
Agreement, because this is independent of national parliamentary
office (“whether they be members of Parliament or not”).” The rapporteur sees
no reason to depart from this interpretation.
Note
108. In addition, the immunity ceases to apply in the case of incompatibilities
such as those mentioned in Article 25 (a)
Note and
Article 36 (d)
Note of the Statute or when the President
of the Assembly has been appointed as a member of a government.
Note Previously, the Assembly
has also called members to resign where they have accepted specific
Council of Europe posts (for example as members of the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment).
6.2.3 Does immunity apply to acts committed
before elections?
109. This question is slightly different
from the question of when immunity starts or ends. In a number of member
States even though protection afforded by inviolability starts with
the beginning of the mandate, it could also be applicable, in given
cases, to judicial proceedings instituted against MPs before their
election. It is the case in Bulgaria, Andorra, Denmark, Germany,
Greece, Hungary
Note (the
list is not exhaustive). In Czech Republic inviolability also covers
judicial proceedings instituted against MPs before their election.
However, if the Chamber has not been requested (or has not refused)
to give its consent, the MP can be prosecuted after the expiry of
the mandate. In Luxembourg inviolability protection does not cover
judicial proceedings instituted against MPs before their election.
However, such proceedings may be suspended by the Chamber for the duration
of the session. In other countries, for example in France or Estonia,
protection does not cover judicial proceedings instituted against
MPs before their election.
Note
110. The European Parliament would not remove protection afforded
to an MEP in any other member State (Article 9 paragraph 1(b) of
Protocol No 7) only on the grounds that proceedings pre-dated the
acquisition of the status of MEP and, thereby, the immunity. It
would look into the global context as to whether proceedings had
been jeopardized by
fumus persecutionis,
namely it could be claimed “that the judicial proceedings were launched
with the intention of hindering the future political activity” of
the member and thus the European Parliament.”
Note
111. The fact of applying protection to proceedings pre-dating
the beginning of the mandate does not contradict the principle of
the functionality in that the global assessment should be made if
these proceedings had been initiated with the clear objective to
impede the political activity of the person, which after the person’s election
would also result in impediment of the functioning of the parliamentary
institution.
112. Therefore, if according to the Statute the inviolability is
undoubtedly effective only during the session of the Assembly it
could nevertheless apply in relation to actions committed before
the Assembly mandate had started too, provided evidence of
fumus persecutionis could be established.
Note
6.3 Act of committing an offence (“flagrante
delicto”)
113. The immunity granted to the
member of the Assembly does not apply when members are found committing,
attempting to commit or having just committed an office (flagrante delicto). Two interpretations exist.
114. According to the first, if a member of parliament is caught
in flagrante delicto, no authorisation
should be sought from the parliament of which he or she is a member
at any stage of the proceedings, that is neither for his or her
arrest nor for his or her possible referral to a court. The underlying
grounds for this interpretation is that it would be highly unlikely
that an on-the-spot offence would have a functional link to the
exercise of parliamentary function.
115. Another position explains that the interruption of immunity
is “only temporary, applying only at the moment of arrest proper
so as to enable the member States to put an end to a situation in
which public safety or law and order are endangered: once the danger
concerned has been removed, the general provisions concerning immunity
become fully applicable once again.”
Note
116. In 2003, the rapporteur on “Immunities of Members of the Parliamentary
Assembly” established, based on replies from national delegations,
that the meaning of
flagrante delicto requires
that not more than 24 hours should have elapsed between the offence
and the commencement of the prosecution. He also decided not to go
any further in exploring the potential issues which may arise from
the application of this concept. However, he recognised that its
application could be problematic by mentioning the case of two members
of parliament from the opposition, who had been found guilty by
a court of taking part in an anti-government demonstration, which
had started out peacefully but which had degenerated into acts of
violence. Simply by taking part in the demonstration, the two members
of parliament were deemed to be co-perpetrators of the offences
and were convicted of having been found in
flagrante
delicto, despite the fact that their parliamentary immunity
had not been waived beforehand.
Note An illustrative case
of the
flagrante delicto concerns
is the case of a member of the European Parliament who was arrested
while climbing over the fence of a military installation. Another
example concerned a member who had failed to comply with a police
order breaking up a demonstration.
Note The rapporteur
also thinks about a situation when a statement, with allegedly illegal
content, which has been published online, could trigger immediate
response by public authorities. In all these cases, the application
of the principle
flagrante delicto may
lead to convictions without immunity be lifted beforehand.
117. Therefore, the rapporteur is of the opinion that special safeguards
are needed to minimise the political motivation of flagrante delicto. First, the use
of this exemption to immunity should only be necessary, as the interpretation
of the European Parliament suggested at time, to restore public
order and reduce the risk of evidence disappearing. On the other
hand, the Assembly has to be able to determine whether the lawsuit against
a member of the Assembly is serious and not inspired by concerns
unrelated to the proper administration of justice.
118. Concerning the last point, the rapporteur suggests that if
there is a strong assumption that a member was groundlessly deprived
of his or her privileges by the application of the provision on flagrante delicto, the President
could take the initiative to assert the privilege and immunity of
the member concerned. The member could also petition the President
to defend his or her immunities. Both possibilities are already
encompassed in Rule 73.6.
6.4 Civil proceedings: experience of
the European Parliament
119. The question of civil proceedings
being covered by the immunities granted to members of the Assembly would
potentially concern a very limited number of cases. Under letter
(a) of Article 15, it would concern cases where the national rules
on inviolability also cover civil proceedings.
120. If a member’s situation falls under letter (b) of Article
15 (exemption from arrest and prosecution on the territory of all
other member States), it would be up to the Assembly to decide on
the opportunity to follow the precedents of the European Parliament.
Note
121. The immunity granted to members of the European Parliament
in the territory of other member States (Article 9, first paragraph,
letter (b)) shields them from detention and any legal proceedings.
The option of having this provision applied to civil proceedings
was for a long time ruled out given that the ECSC founding members
did not grant such privileges to members of their parliament.
Note However,
since 2003, the Parliament has been able to uphold the immunity
of a member in civil proceedings, if those proceedings are “a roundabout means
of taking legal action against Members in a manner similar to criminal
proceedings.”
Note Consequently, the
wording of Article 9 of the PPI is interpreted in such a way as
to cover civil proceedings if its objective is to secure punitive
damages.
122. In addition to the precedents decided by the European Parliament,
Note some
principles set out by the case law of the European Court of Human
Rights may also suggest that in some cases “prosecution” referred to
in Article 15, letter (b), could be interpreted as to cover civil
proceedings given the punitive nature of sanctions.
123. In some cases where restrictions to freedom of expression
were imposed, the European Court of Human Rights put the focus not
on the nature of the restriction – criminal or other
Note –
but to a “chilling effect” which a fear of sanction or punitive
measure may have on the freedom of expression and, consequently,
on unhindered functioning of the parliamentary institution. What
is important is to examine if the manner in which the proceedings
are used would have a similar deterrent effect on a member to criminal
proceedings
, to the detriment
of the functioning of the parliamentary institution.
7 Status of the witness
124. Neither the General Agreement
nor the PPI do not contain any specific provision concerning whether
the immunity has to be lifted in order for a member to be able to
testify as a witness or expert witness. The European Parliament
has adopted a position whereby its members do not require, and should
not require, Parliament’s authorisation to appear as witnesses or
experts. This conclusion was reached based on a duty of loyal co-operation
between the European Union and national institutions, provided it
does not create any prejudice to members’ independence. A special
rule has been added to the Rules of Procedure to reflect the institutional
character of the immunity: members can appear as witnesses as long
as it does not hinder the proper functioning of the institution
– for example they will not be obliged to appear on a date or at
a time which prevents them from performing their parliamentary duties.
Also, the European Parliament completed this rule by a provision
which exists in some national parliaments and which allows members
to refuse to testify in court if such testimony were to relate to
their activities as members of parliament. This provision does not differentiate
between the type of immunities and leaves at the discretion of members
the decision to testify or not if the matter concerns parliamentary
duties.
125. In its Opinion “On the request for the waiver of the parliamentary
immunity of Mr Dick Marty”, the Rules Committee took the view that
no parliamentarians covered by such immunity may be heard, including
as a witness, without however excluding the possibility that the
member wishes to do so.
126. The rapporteur suggests combining both positions in the guidelines.
8 Procedural strand: how immunity could
be invoked or asserted?
8.1 Binding decision following a request
to waive the immunities
127. The members could invoke the
immunities granted to the Assembly members if there are serious grounds
to believe that the proceedings initiated against them or any restriction
imposed on the right to travel to or from the Assembly meetings
pursue the aim of causing damage to members’ political activities
and of depriving the Assembly of the member’s co-operation and his
or her freedom of action.
128. The competence of the Assembly to waive the immunity of a
member of the Assembly is expressly provided for in Article 15,
third sentence, of the General Agreement. Therefore, the decision
reached according to this provision is binding on judicial authorities
of the Council of Europe member States. Rule 73 of the Rules of
Procedure encompasses the procedure related to submitting and examining
a request to waive the immunity granted in Article 15. As this article
was introduced to the Rules of Procedure in 2003 and followed similar
lines to the corresponding Rule of the European Parliament, the
rapporteur will examine if some modifications need to be introduced
given the revision of the rules of the European Parliament which
took place after 2003.
129. In the rapporteur’s view, the guidelines should mention that
as a general principle immunity has to be lifted in order to prevent
impunity and effectively grant the principle of equality before
the law, unless there is a strong presumption that the legal proceedings
have been instituted with the intention of causing damage to the
member’s political activities.
130. When considering a request to waive immunity the Assembly
has to consider the following elements: that the legal proceedings
initiated against the member do not jeopardise the proper functioning
of the Assembly, and the request is serious, namely not inspired
by reasons other than that of dispensing justice. If none of these
elements can be established, the Assembly should normally propose
to waive immunity. The following elements, developed by the European
Court of Human Rights, could constitute evidence that the legal proceeding
may have a political background:
Note
- the
broader political and legal context in which the legal proceedings
against a member were launched;Note
- the timing of the prosecution;Note
- any indication of specific and personal targeting;Note
- a member’s specific status and activitiesNote even though the absence of a particular
political status does not rule out political motivation behind the
legal proceedings;
- the gravity of charges in comparison to what an ordinary
citizen would face and the sufficient connection with the objectives
of criminal justice;Note
- uncertainty as to the status and sources of the evidence
presented as a basis for charges;
- the reasoning and the elements on which the request for
waiver of immunity is based;
- procedural safeguards.
8.2 Defence of the immunity (Rule 73.6)
131. Under Rule 73.6 a current member
involved in legal proceedings can request the President to have
his or her immunity defended.
Note The request can be submitted
where it is alleged that an infringement of the privileges and immunities
of a member by the authorities of a member State has occurred or
is about to occur. In particular, such a request for the defence
of privileges and immunities may be made if it is considered that the
circumstances would constitute an administrative or other restriction
on the free movement of members travelling to or from the place
of meeting of the Assembly or an administrative or other restriction
on an opinion expressed or a vote cast in the performance of their
duties or the involvement of a member or a former member in legal
proceedings in relation to an opinion expressed or a vote cast in
the performance of their duties as Assembly members.
Note
132. The rapporteur considers that
the possibility to submit such a request has to be open to former members
too given the perpetual nature of the absolute immunity and
proposes to modify Rule 73.6 accordingly.
133. The rapporteur believes that if a member is detained, the
President should, in the decision to defend the immunity, draw the
attention of national authorities to the fact that holding an elected
representative in detention for an unreasonable period prevents
him or her from taking up his or her seat and in this way jeopardises
the independence of the legislative and the effectiveness of the
electoral process designed to determine the will of the people.
This argument is all the more valid insofar as there are other security
measures (for example release on bail) in criminal law which can
ensure the proper conduct of the investigation where there are no
indications that the suspect will evade justice.
134. Unlike the procedure for waiver of immunities which has its
grounds in the General Agreement, the procedure for defence of immunities
was inspired by national laws and practices and has its grounds
in the Rules of Procedure only.
135. With respect to the procedure for defence of immunity introduced
into the Rules of Procedure of the European Parliament, the CJEU
has held that even the Rules of Procedure, which are rules of internal organisation,
cannot grant powers to the Parliament which are not expressly acknowledged
by the Protocol and, therefore, a decision to defend immunity would
constitute “an opinion which does not have binding effect with regard
to national judicial authorities”
Note; it also emphasised the
duty of both interpretive authorities to cooperate
Note “to avoid any conflict in the interpretation”,
which would also require from the national authorities that they
delay the judicial proceedings until the Parliament takes a position.
8.3 Urgent procedure to assert immunity
(Rule 73.6)
136. Rule 73.6 of the Rules of Procedure
describes a specific procedure which allows the President to apply a
specific procedure in the event of a member of the Assembly being
arrested or deprived of freedom of movement in an apparent violation
of privileges and immunities. The objective of this procedure is
to provide an emergency response to a situation which amounts to
supposed violation of provisions on privileges and immunities before
other proceedings aiming at establishing the violation have been
concluded or to prevent or minimise the potential (irreversible)
harm the alleged violation may create. Before taking such a decision,
the President may, where applicable, consult the competent committee.
137. According to the above provision, the President shall decide
ex officio whether or not to take
an urgent initiative to confirm the immunity of a member who has
been arrested or deprived of his or her freedom of movement (the
President “may take the initiative”). The President is under no
obligation to take such an initiative and the decision to confirm
a member’s immunity remains entirely at the discretion of the President.
Note
9 Free movement vs “travelling immunity”
138. Finally, the rapporteur would
like to draw attention to two different provisions contained in
the General Agreement. Both have the same objective, namely, to
safeguard the normal functioning of the Assembly and freedom of
movement but trigger different mechanisms of protection.
139. Article 13 sets the general obligation to avoid restriction
on free movement of the members of the Assembly to and from place
of the Assembly meetings which could be set either by their own
government or by the authorities of other members. It encompasses
a large variety of possible restrictions of administrative, custom
or of other nature and is not at variance with special formalities
which could be complied with to avoid those restrictions. Therefore,
Assembly members are in principle subject to the general visa regime,
even though a member State hosting an official meeting or event
organised by the Assembly shall issue a visa to the members concerned.
However, this provision must be applied in fairly and lawfully.
For instance, a member State would not be entitled to prevent an
Assembly member from entering its territory on the grounds of his
or her political views or his or her national or ethnic origin.
140. The travelling immunity (Article 15) deals with the concrete
example of restrictions (arrest and detention) which applies to
all members of the Assembly regardless of their state of origin
and independent of the protection accorded by the relevant national
laws. It guarantees to members of the Assembly immunity from arrest
and detention while travelling on Assembly business including inside
the territory, regardless of the immunity granted by the national
law. Should a member State maintain or decide on detention of a
member exercising its function as Assembly member, it has firstly
to request the Assembly to lift this immunity.
10 Conclusions
141. The present report tends to
summarise the principles governing the application of the immunity
regime granted to the Assembly members and to establish the application
criteria which were made necessary to address the concern of efficient
protection of members of the Assembly, especially in the light of
new political risks, but also by the need to set clear and objective
criteria enabling the privileges and immunities to comply with their
institutional purpose while preventing the eventual misuse of privileges
by parliamentarians for personal benefit.
142. After having examined the scope of immunities granted to Assembly
members, the rapporteur has reached a preliminary conclusion that
the Council of Europe has a solid basis to combine both needs.
143. Of course, a twofold immunity regime of Article 15 which provides
for different scope of protection and creates different situations
makes protection less efficient. On the other hand, the underlying
reasons for such a regime – the dual mandate of the members of the
Assembly – is still valid today. Also, all the Assembly members
enjoy, while acting as Assembly members, the “core” immunity from
arrest and detention independent from their country of origin and
their national legislation.
144. A pragmatic approach means not embarking on the long and difficult
process of revising the General Agreement. Therefore, the rapporteur
sets the objective of clarifying the application regime and reminding member
States of the already existing obligations. This approach is in
full line with the position of the Committee of Ministers which
was “of the opinion that an efficient implementation of these rules
[
governing privileges and immunities]
would solve most of the issues highlighted by the Parliamentary
Assembly
[inRecommendation 2083 (2016) “Sanctions against parliamentarians”].
145. The rapporteur highlights in addition that the core interpretation
principles would avoid situations of unilateral interpretation by
member States and reassure the Assembly competence over the lifting
of immunities of its members.
146. The guidelines contained in the draft resolution do not create
new rights and privileges. They simply summarise internal practices,
including those of the European Parliament with which the Assembly
shares the immunity regime; introduce principles and interpretation
set out by the European jurisdictions and provide some practical
information to make more fluid the handling of immunity-related
requests and provide safeguards against misuse.
147. Finally, the guidelines will allow more visibility to the
Assembly members as to the privileges and immunities they enjoy.
