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Ensuring Parliamentary Assembly members can travel freely to carry out their work

Doc. 16252: compendium of written amendments | Doc. 16252 | 02/10/2025 | Final version

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Amendment 1 Amendment 2 Amendment 3 Amendment 4

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ADraft Resolution

1The participation of members of the Parliamentary Assembly in its work is both a right and a responsibility. The Assembly cannot function effectively without the engagement and participation of its members. It is the responsibility and international obligation of the member States and in particular their national parliaments to facilitate the participation of members of the Assembly in its activities.
2The Statute of the Council of Europe (ETS No.1) and the General Agreement on Privileges and Immunities of the Council of Europe (ETS No.2) create clear legally binding international obligations prohibiting any administrative or other restrictions on the free movement of members travelling on Assembly business. Barriers, however, still exist, hence the need to strengthen the national authorities’ understanding of the legal requirements and the appropriate procedures to follow.
3National parliaments should facilitate travel and attendance by members of the Assembly in the exercise of their functions. National parliaments must endeavour to eliminate mechanisms or practices by which the right of Assembly members to participate in its meetings is hampered by discretion or interference by parliamentary or political authorities. Such political or administrative controls or delayed authorisations are not appropriate in a healthy, functioning pluralist democracy. There should be no discretion in issuing authorisations for members with a right to attend a meeting and any authorisation should be done well in advance, with best practice being to approve all attendance at all foreseeable meetings of the Assembly for the whole session. Budgetary considerations are not a justification for refusing travel to members with a role to play in Assembly meetings.

02 October 2025

Tabled by Mr Oleksii GONCHARENKO, Mr Vladimir ĐORĐEVIĆ, Mr Taras BATENKO, Mr Markus WIECHEL, Ms Iryna KONSTANKEVYCH, Mr Pavlo BAKUNETS

In the draft resolution, paragraph 3, after the first sentence, insert the following sentence:

"Authorisation procedures should be transparent, objective and consistent with national legislation and internal rules."

Explanatory note

To improve the clarity of the text in relation to the procedures to be followed for authorising travel.

4At a minimum, attendance should be guaranteed and funded by the national parliament for:

02 October 2025

Tabled by Mr Oleksii GONCHARENKO, Mr Vladimir ĐORĐEVIĆ, Mr Taras BATENKO, Mr Markus WIECHEL, Ms Iryna KONSTANKEVYCH, Mr Pavlo BAKUNETS

In the draft resolution, paragraph 4, delete the following words:

"At a minimum".

Explanatory note

Given the changes to the text made in committee the list is no longer a minimum.

4.1travel to Assembly sessions for all members of the national delegation (representatives and substitutes);
4.2travel to committee meetings for:
4.2.1full members of a committee;
4.2.2alternate members of a committee when replacing a full member; or when the alternate is a rapporteur and has a report on the agenda of a committee meeting, or is a candidate for appointment as a rapporteur;
4.3travel to meetings of the Standing Committee, Bureau or Presidential Committee where a member’s presence is required due to their obligations to their political group, national delegation, committee, or in respect of a report; and
4.4travel to election observation and other ad hoc committees.

02 October 2025

Tabled by Mr Oleksii GONCHARENKO, Mr Vladimir ĐORĐEVIĆ, Mr Taras BATENKO, Ms Iryna KONSTANKEVYCH, Mr Pavlo BAKUNETS

In the draft resolution, replace paragraph 4.4 with the following paragraph:

"travel to participate in ad hoc committees. In case of exceptional financial pressures, such participation can be organised on a rotational basis."

Explanatory note

This amendment is more accurate in acknowledging that travel to attend ad hoc committees may at times be subject to rotations if there are exceptional financial pressures.

5In case of conflicting obligations, it should be for the member of the Assembly concerned to determine how to balance their competing obligations as a member of the Assembly, a member of their national parliament, and any other relevant consideration affecting them.
6With respect to the composition of national delegations, the decision to remove a member’s name from the national delegation, despite that member being proposed by their national political party or group in accordance with the principle of fair representation of political parties or groups, is significant; it prevents that member from participating in the work of the Assembly and undermines the spirit of fair representation. In principle, it should be for national political groups within national parliaments to select their members on the national delegation, without interference.

02 October 2025

Tabled by Mr Oleksii GONCHARENKO, Mr Vladimir ĐORĐEVIĆ, Mr Taras BATENKO, Ms Iryna KONSTANKEVYCH, Mr Pavlo BAKUNETS

In the draft resolution, paragraph 6, second sentence, replace the words "select their members on the national delegation, without interference" with the following words:

"fulfil the seats allocated to them on the delegation, without interference. Any changes to the delegation must be duly reasoned, transparent and communicated both to the Assembly and to the political group concerned."

Explanatory note

This clarifies the quality and fairness of decision-making expected in these cases.

7The Assembly notes that some impediments to the free movement of its members necessitate clarifying the application and operation of the provisions related to the regime of parliamentary immunities in the Assembly so that these are easier to follow for national authorities. The Assembly therefore amends Rule 73 of its Rules of Procedure and the Guidelines on the scope of parliamentary immunities enjoyed by members of the Parliamentary Assembly (Appendix III to the Rules of Procedure) as set out in the paragraphs 13 and 14 to 19 of this resolution, in particular with the aim of providing further clarity as to:
7.1the sorts of travel that fall within the exercise of a member’s functions for the purposes of parliamentary immunity;
7.2how to approach travel restrictions imposed as a result of criminal proceedings and which negatively affect a member’s ability to fulfil their functions (for example, a travel ban, house arrest, curfew or detention);
7.3the interrelationship of some of these immunities;
7.4the practical steps that need to be taken by parliamentary, judicial, investigatory and prosecutorial authorities when dealing with a case in which immunities of a member of the Assembly are engaged.
8The Assembly regrets that there remain instances of failures by national authorities to respect the immunities of its members, which consequently impedes the ability of those members to fulfil their functions. The Assembly resolves to clearly assert and defend these immunities in cases where they are not respected. The Assembly wishes to support the President of the Assembly in his prerogatives, and encourages the President to inform the Assembly of such cases so that appropriate measures can be taken.
9The Assembly recalls that parliamentary inviolability for words spoken and votes cast in national parliaments, and in interparliamentary assemblies, is a core democratic principle common to democratic States and is reflected in Article 14 of the General Agreement on Privileges and Immunities and Article 40 of the Statute of the Council of Europe.
10The Assembly deplores Azerbaijan’s reported “blacklist” of at least 77 members of the Assembly from at least 28 member States of the Council of Europe, including the President of the Assembly, whose names have been added to that list due to votes cast or opinions expressed in the Assembly and who have since been subject to “sanctions” such as a travel ban from entering Azerbaijan. The Assembly calls on the Azerbaijani authorities to approach to Azerbaijan’s obligations as a member of the Council of Europe in good faith and to immediately remove any “sanctions” imposed in consequence of protected activities such as voting or expressing opinions within the Assembly.
11The Assembly expresses concern at the politically motivated criminal proceedings against some of its members by the Russian Federation and notes concerns that the Russian Federation may seek to abuse international co-operation mechanisms such as Interpol to persecute foreign parliamentarians and members of the Assembly. The Assembly underlines that its members benefit from parliamentary immunities, including immunity from arrest, detention or prosecution. No arrest warrant, from Interpol or otherwise, should be issued or given effect, in respect of those highly politically-motivated criminal proceedings given their political nature and the immunities from which members of the Assembly benefit. The Assembly invites Interpol to take note of its position.
12The Assembly invites all Council of Europe member States to:
12.1inform the Assembly of their domestic parliamentary immunity provisions;
12.2provide clear guidance and appropriate training on the requirements of the General Agreement on Privileges and Immunities to national investigatory, prosecutorial and judicial authorities, building on the revised “Guidelines on the scope of parliamentary immunities enjoyed by members of the Parliamentary Assembly”, so that these authorities are aware of the Guidelines and of the actions to take if dealing with a case that concerns immunities of members of the Assembly;
12.3review their visa requirements for members of the Assembly travelling on Assembly business, to ensure that the length and complexity of the form; the cost; and the time taken in delivering the visa, are reduced to the minimum necessary, in accordance with the prohibition in Article 13 of the General Agreement on Privileges and Immunities on “administrative or other restrictions” impeding the free movement of members of the Assembly;
12.4ensure that their border guards and customs officers are properly informed about the Council of Europe, the General Agreement on Privileges and Immunities and the Council of Europe laissez-passer. The Assembly notes that the agenda for a committee meeting contains the convocation for members of that committee. This should suffice for proving that the provisions of the General Agreement on Privileges and Immunities apply to members travelling to attend that meeting.
13Rule 73 – Waiver of the immunity of representatives and substitutes
13.1(73.1) Members of the Assembly enjoy the privileges and immunities provided for in the General Agreement on Privileges and Immunities of the Council of Europe (of 2 September 1949) and its Additional Protocol (of 6 November 1952). These immunities are granted in order to preserve the integrity of the Assembly and to safeguard the independence of its members in exercising their European office.
13.2(73.2.) Any request addressed to the President by a competent authority of a member State for the waiver of immunity of a representative or substitute shall be announced in a plenary sitting or Standing Committee meeting and then referred to the Committee on Rules, Ethics and Immunities (“the Rules Committee”).
13.3(73.3.) The Rules Committee shall immediately consider the request. It may issue an opinion on the competence of the requesting authority and on the formal admissibility of this request. It shall not make any examination of the merits of the case in question. In particular, the Rules Committee shall not, under any circumstances, pronounce on the guilt or otherwise of the member, or on whether or not the opinions or acts attributed to him or her justify prosecution. At the earliest opportunity, it shall provide the member concerned by the request, or another member of the Assembly representing the member, with an opportunity to be heard. The member concerned may submit any document which he or she deems relevant. The Rules Committee may ask the competent national authorities to provide it with any information and details it considers necessary to determine whether or not immunity should be waived. The report of the Rules Committee shall conclude with a draft resolution for the retention or the waiver of immunity. No amendment to that decision will be admissible
13.4(73.4.) The report shall be the first item of business of the Assembly on the first sitting day after the report has been tabled. The debate on the report shall be confined to arguments for or against the waiver of immunity. In the event of the request to waive immunity relating to more than one accusation, each of these may be the subject of a separate decision.
13.5(73.5.) The President shall immediately communicate the decision of the Assembly to the authority which submitted the request.
13.6(73.6.) In the event of a member of the Assembly being arrested or deprived of freedom of movement in supposed violation of their privileges and immunities, the President of the Assembly may take the initiative of confirming the privileges and immunities of the member concerned, where applicable following consultation of the competent Assembly bodies. The President of the Assembly may ask the competent national authorities to provide any information and details considered necessary. A member or former member may address a request to the President of the Assembly to defend his or her immunity and privileges. At the request of the President, the Bureau may, subject to ratification by the Assembly, refer the case to the relevant committee.
13.7(73.7.) When dealing with requests for the waiver of the Council of Europe immunity, or with requests to defend the immunity of an Assembly member, the competent Assembly organs shall interpret the General Agreement on Privileges and Immunities of the Council of Europe as follows:
13.7.1(73.7.a.) Assembly members (representatives and substitutes) are immune from prosecution, arrest and deprivation of their free movement in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country.
13.7.2(73.7.b.) The terms “deprivation of their free movement” include measures that contain administrative, legal, judicial or other restrictions on an Assembly member’s free movement and includes detention, house arrest, curfew, surrender of passport and travel ban (whether an absolute travel prohibition or a travel ban requiring judicial authorisation for travel). It does not include a measure that explicitly allows travel in the exercise of their functions as a member of the Assembly.
13.7.3(73.7.c.) The terms “in the exercise of their functions” include all official duties discharged by Assembly members in the member States on the basis of a decision by a competent Assembly body and, if necessary, with the consent of the appropriate national authorities. It includes (but is not limited to) travel to attend:
13.7.3.1Assembly sessions (for all members of the Assembly).
13.7.3.2meetings of the Standing Committee (for all members of the Assembly)
13.7.3.3meetings of the Presidential Committee (for members of the Presidential Committee or those covering for them)
13.7.3.4meetings of the Bureau of the Assembly (for members of the Bureau or those covering for them)
13.7.3.5meetings of general committees, ad hoc committees, including ad hoc committees on the observation of elections, sub-committees and ad hoc sub-committees (for both full members and, where applicable, alternate members of those committees or sub-committees)
13.7.3.6meetings of networks, platforms and alliances of the Assembly
13.7.3.7travel on a mission as a rapporteur of the Assembly
13.7.3.8travel on a representative mission on behalf of the Assembly or a committee.
13.7.4(73.7.d.) In case of doubt, the Bureau of the Assembly shall decide if Assembly members’ activities took place in the exercise of their functions.
13.8(73.8.) In cases where there are concerns that the immunities and privileges protected under the General Agreement in Privileges and Immunities have not been fully respected, the President may make a statement during the next part-session. This statement should note any recent interference with such privileges and immunities, and, if necessary, may remind the competent authorities of their obligations set out under the General Agreement on Privileges and Immunities.
13.9(73.9.) The guidelines on the scope of parliamentary immunities enjoyed by members of the Parliamentary Assembly shall be appended to these Rules of Procedure as a complementary text.
14(A.) Purpose and general principles
14.1The following principles pursue the objective of clarifying the application of the existing rules under the Statute of the Council of Europe and under the General Agreement on Privileges and Immunities of the Council of Europe (hereafter “GAPI”) and the Additional Protocol thereto.
14.2Members of the Parliamentary Assembly enjoy privileges and immunities which serve to preserve the integrity of the Assembly and ensure the independence of its members in the discharge of their office. These privileges and immunities are granted by Article 40 of the Statute of the Council of Europe and by Articles 13 to 15 of the GAPI and Article 3 of the Additional Protocol thereto.
14.3Their practical implementation is further detailed in the Rules of Procedure and relevant Assembly resolutions bearing in mind:
14.3.1the need to protect the independence of the Assembly;
14.3.2the functional purpose underlying the concept of immunities;
14.3.3existing precedents.
14.4Parliamentary immunity is not a member’s personal privilege but an institutional privilege which members enjoy in their individual capacity.
15(B.) The immunities of members of the Parliamentary Assembly that are protected and guaranteed under the General Agreement on Privileges and Immunities of the Council of Europe
15.1The following immunities of Assembly members are protected and guaranteed under the GAPI, the Statute of the Council of Europe and the Rules of Procedure of the Assembly:
15.1.1Absolute immunity in respect of words spoken and votes cast in the meetings of the Assembly (Article 14 GAPI and Article 40 of the Statute).
15.1.2Free movement of members of the Assembly to and from meetings of the Assembly – with a clear prohibition on the imposition of administrative or other restrictions on such movement (Article 13 GAPI, Rule 73 of the Rules of Procedure). This includes and is linked to:
15.1.2.1immunity from detention – unless the Assembly has waived such immunity (Articles 13 and 15 GAPI, Article 3 of the Protocol to GAPI, Article 40 of the Statute and Rule 73 of the Rules of Procedure);
15.1.2.2immunity from other restrictions affecting travel on Assembly business, such as the imposition of a travel ban, house arrest or curfew, unless (1) that measure expressly allows all travel to Assembly meetings; or (2) the Assembly has waived such immunity (Articles 13 and 15 GAPI as read together, Article 40 of the Statute, as well as Rule 73 of the Rules of Procedure);
15.1.2.3immunity from arrest, except in case of in flagrante delicto (Article 15 GAPI).
15.1.3Immunity from prosecution, specifically:
15.1.3.1immunity from prosecution on the territory of other member States (Article 15.b GAPI, Article 3 of the Protocol to GAPI, Article 40 of the Statute and Rule 73 of the Rules of Procedure);
15.1.3.2on the national territory, immunity from prosecution on the same terms as national protections in respect of parliamentary immunity from prosecution (Article 15.a GAPI, Article 3 of the Protocol to GAPI, Article 40 of the Statute and Rule 73 of the Rules of Procedure); the application of this immunity requires an understanding of the extent of the national law providing for parliamentary immunity.
16(C.) Absolute immunity in respect of words spoken and votes cast (Article 14 of the General Agreement on Privileges and Immunities of the Council of Europe)
16.1 Freedom of expression is the most valuable tool enabling members to exercise their duties and it enjoys enhanced protection. Therefore, the immunity guaranteed by Article 14 GAPI:
16.1.1is absolute, permanent and perpetual in nature; it continues to apply after the end of a member’s mandate; it cannot be waived by the Parliamentary Assembly or a national parliament;
16.1.2is an institutional privilege; a member or a former member has no liberty to waive or to renounce it;
16.1.3applies to all legal proceedings (criminal, civil or administrative) which may arise in relation to words spoken and votes cast. As a corollary, no parliamentarian covered by such an immunity should be heard, including as a testifying witness, with regard to information obtained confidentially in the performance of their parliamentary duties which they do not see fit to disclose;
16.1.4has an autonomous scope, which could be different from the scope of the absolute immunity that protects national parliamentarians, to be established bearing in mind relevant statutory provisions, the case law of the European jurisdictions and relevant Assembly practices;
16.1.5given the exceptional protection, covers merely what is strictly necessary to allow the Assembly members to perform their duties, engage in respectful debate or express critical positions while precluding the misuse of the privileges and immunities for personal benefit. With this in mind, immunity does not cover activities prohibited by the Code of Conduct for members of the Parliamentary Assembly, such as paid advocacy;
16.1.6covers words spoken and votes cast by the members of the Assembly “in the exercise of their functions”, bearing in mind the present-day definition of core functions of the Assembly members;
16.1.7could, in addition to covering statements made by members during a debate in the plenary or during meetings of the committees and sub-committees, be also extended to verbal and written statements made by members outside official premises as well as to other activities performed by them in their capacity as Assembly members if there is an obvious and direct connection between these statements or activities and the exercise of their functions as Assembly members;
16.1.8does not cover an inquiry into bribery-related offences (for example, offering or requesting undue advantages in return for certain voting behaviour), given that those offences do not pertain to words spoken or votes cast.
16.2It is the responsibility of competent national courts to recognise that a member or a former member enjoys absolute immunity owing to the direct and obvious link to his or her parliamentary functions. By doing so, the relevant Council of Europe bodies and national courts must co-operate so as to avoid any conflict in the interpretation and application of the provisions of the Statute and the General Agreement on Privileges and Immunities
16.3Where a request for waiver of immunity is submitted to it by a national authority, the Assembly must first of all ascertain whether the facts giving rise to the request for the waiver are covered by Article 14 GAPI, in which case immunity cannot be waived.
16.4It is inherent in Article 40.a of the Statute, and Article 14 as read with Article 13 GAPI, that the imposition of sanctions, entry or exit restrictions or so-called “blacklisting” of members of the Assembly in consequence of words spoken or votes cast in debates of the Assembly is a violation of GAPI, of democratic principles and of a State’s obligations as member of the Council of Europe.
17(D.) Immunity from prosecution (Article 15 of the General Agreement on Privileges and Immunities of the Council of Europe)
17.1The purpose of this 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 and applies as follows:
17.1.1members of the Assembly enjoy the immunity provided for in Article 15 during the Assembly sessions. The term “during the sessions” covers the whole parliamentary year in view of the continuous activity of the Assembly and its bodies;
17.1.2members of the Assembly enjoy the immunities secured by this provision when they are no longer members of their national parliament, and do so until their replacement as members of the Assembly or until the opening of the next session;
17.1.3according to the Statute, protection afforded to members of the Assembly applies during their Assembly mandate. It could also cover proceedings initiated prior to becoming a member of the Assembly as long as those proceedings contain evidence of fumus persecutionis. This position, which intends to make protection fully effective, is in line with practices existing in several member States and does not contradict the Statute in that it links the acquisition of immunity to the beginning of the term of office. Nor does it contradict the principle of the functionality of parliamentary immunity in that the protection will only be granted if factual elements indicate that the intention underlying the legal proceeding predating the mandate of an Assembly member is to damage a member’s political activity and thus the Assembly. In all other cases if the prosecution is for no other reason than the proper administration of justice, immunity must be lifted at the request of the national authority;
17.1.4immunity cannot be invoked in cases of in flagrante delicto. As the objective of this provision is to quickly restore public order and reduce the risk of evidence disappearing, its use by national authorities shall not be inspired by concerns unrelated to the proper administration of justice;
17.1.5at all stages when parliamentary immunity is waived the presumption of innocence must be respected;
17.1.6when considering a request to waive immunity, the Assembly must consider the following elements: legal proceedings initiated against the member should not jeopardise the proper functioning of the Assembly; the request must be serious, that is, not inspired by reasons other than that of dispensing justice. If neither of these elements can be established, the Assembly should normally propose waiving immunity;
17.1.7immunity cannot be waived except by the Assembly at the request of a “competent authority” of the member State concerned. The competent authority is normally the judge in charge of the case, but it could also be the public prosecutor or the Minister of Justice. The request to waive immunity may be submitted by an authority of a member State other than the one of which the member in question is a national;
17.1.8where members are required to appear as witnesses or expert witnesses, there is no need to request a waiver of immunity provided that they will not be obliged to appear on a date or at a time which prevents them from performing their parliamentary duties or which makes it difficult for them to perform those duties, or if they are able to provide a statement in writing or in any other form which does not make it difficult for them to perform their parliamentary duties.
18(E.) Immunity from measures preventing travel on Assembly business, such as detention, a travel ban, house arrest or curfew, unless the measure expressly allows all travel on Assembly business (Articles 13 and 15 of the General Agreement on Privileges and Immunities of the Council of Europe as read together, Article 3 of the Protocol to the General Agreement on Privileges and Immunities of the Council of Europe, Article 40 of the Statute of the Council of Europe, and Rule 73 of the Assembly’s Rules of Procedure)
18.1Article 13 GAPI prohibits all administrative or other restrictions from being imposed on a member’s free movement to and from meetings of the Assembly. The purpose of this immunity is to allow the free movement of members of the Assembly travelling on Assembly business – that is to say, to ensure that members of the Assembly are able to travel in the exercise of their official functions and are not unduly prevented from performing those functions without an appropriate waiver of that immunity.
18.2The term “in the exercise of their functions” includes all official duties discharged by Assembly members in the member States on the basis of a decision by a competent Assembly body and, if necessary, with the consent of the appropriate national authorities. It includes (but is not limited to) travel to attend:
18.2.1Assembly sessions (for all members of the Assembly);
18.2.2meetings of the Standing Committee (for all members of the Assembly);
18.2.3meetings of the Presidential Committee (for members of the Presidential Committee or those covering for them);
18.2.4meetings of the Bureau of the Assembly (for members of the Bureau or those covering for them);
18.2.5meetings of general committees, ad hoc committees, including ad hoc committees on the observation of elections, sub-committees and ad hoc sub-committees (for both full members and, where applicable, alternate members of those committees or sub-committees);
18.2.6meetings of networks, platforms and alliances of the Assembly;
18.2.7travel on a mission as a rapporteur of the Assembly;
18.2.8travel on a representative mission on behalf of the Assembly or a committee.
18.3This includes immunity from the imposition of measures restricting travel (such as detention, house arrest, curfew, travel ban or the surrender of a passport) unless (i) that measure expressly allows all travel on Assembly business; or (ii) the Assembly has waived such immunity
18.4In the case of a judicial, prosecutorial or investigatory service wishing to impose measures restricting a member’s travel (such as detention, house arrest, a curfew, a travel ban or bail conditions restricting travel) that would not expressly allow all travel on Assembly business, then they would first need to make an application to waive immunity before imposing such a measure
18.5This immunity applies as follows:
18.5.1members of the Assembly enjoy the immunity provided for in Articles 13 and 15 during the Assembly sessions. The term “during the sessions” covers the whole parliamentary year in view of the continuous activity of the Assembly and its bodies;
18.5.2members of the Assembly enjoy the immunities secured by this provision when they are no longer members of their national parliament, and do so until their replacement as members of the Assembly or until the opening of the next session;
18.5.3according to the Statute, protection afforded to members of the Assembly applies during their Assembly mandate. It could also cover proceedings initiated or related to events that occurred prior to becoming a member of the Assembly, given that a member of the Assembly needs to be at liberty to travel in order to fulfil their mandate, and therefore such protection is necessary if this immunity and their role are to be fully effective. However, in cases where a measure is necessary for the proper administration of justice and no lesser options are feasible in the circumstances, immunity must be lifted at the request of the national authority;
18.5.4immunity cannot be invoked in cases of a short duration arrest in flagrante delicto. As the objective of this provision is to quickly restore public order and reduce the risk of evidence disappearing, its use by national authorities shall not be inspired by concerns unrelated to the proper administration of justice and must only be of a very short duration;
18.5.5at all stages when parliamentary immunity is waived the presumption of innocence must be respected;
18.5.6when considering a request to waive immunity, the Assembly must consider the following elements: legal proceedings initiated against the member should not jeopardise the proper functioning of the Assembly; the request must be serious, that is, not inspired by reasons other than that of dispensing justice. If neither of these elements can be established, the Assembly should normally propose waiving immunity;
18.5.7immunity cannot be waived except by the Assembly at the request of a “competent authority” of the member State concerned. The competent authority is normally the judge in charge of the case, but it could also be the public prosecutor or the Minister of Justice. The request to waive immunity may be submitted by an authority of a member State other than the one of which the member in question is a national;
18.5.8restriction of the liberty and free movement of an Assembly member requires very serious grounds as it prevents him or her from exercising his or her functions. Where there are no indications that the suspect is likely to evade justice, the proper conduct of the investigation shall be ensured, if possible, by other security measures (release on bail, for example).
19(F.) Practical Guide for judicial, prosecutorial or investigatory authorities in bringing a prosecution against a member of the Parliamentary Assembly
19.1This part of the guidelines is intended as a practical guide for investigators, prosecutors and judges when dealing with criminal cases concerning members of the Assembly.
19.2A waiver of immunity is required prior to:
19.2.1imposing measures which restrict the travel of a member of the Assembly – this includes arrest, detention, house arrest, curfew, travel ban or bail conditions restricting travel (such as the retention of a passport). If the measures expressly does not apply to travel on Parliamentary Assembly business, then a waiver of immunity is not required;
19.2.2in the member’s national country, initiating the prosecution of a member of the Assembly if such a waiver of immunity is required under national law;
19.2.3in all other member States, initiating a prosecution of a member of the Assembly.
19.3The procedure for seeking the waiver of immunity is as follows (subject to any national procedural requirements that may apply):
19.3.1the “competent authority” (usually the judge in charge of case, the public prosecutor or the Minister of Justice) must submit a request addressed to the President of the Assembly, in writing, seeking a waiver of immunity;
19.3.2the request for the waiver of immunity must specify the reasons for the request, specifically what the waiver of immunity relates to including:
19.3.2.1whether the request is to waive immunity for the purposes of (1) restriction of free movement (for example a travel ban, detention, house arrest, curfew or other travel restriction); and/or (2) initiation of prosecution;
19.3.2.2the charges or offences to which the request relates;
19.3.2.3whether any lesser measures have been considered that would still enable the member’s full participation in the activities of the Assembly (and if so, what measures and any reasoning as to why they have or have not been pursued).
19.3.3the Assembly, specifically the Committee on Rules, Ethics and Immunities, will consider the request immediately in accordance with the procedure set out in Rule 73 of the Rules of Procedure and the Guidelines on Parliamentary Immunities.
19.4Where an investigative, prosecutorial or judicial authority has imposed any of the measures listed in paragraph 18 above on a member of the Assembly without a waiver of immunity, the following actions should be taken:
19.4.1The parliamentary authorities (normally the Speaker of the national parliament) should write to the relevant judicial, prosecutorial and/or investigatory authorities underlining the existence of the immunities under GAPI and the legal impossibility of imposing the relevant measure (travel restriction, detention or – if applicable – initiation of prosecution) without the waiver of immunity by the Assembly. This letter should explain the procedure for requesting the waiver of immunity and the importance of not imposing (or annulling the imposition of) any such measures unless and until such immunity has been waived.
19.4.2If necessary, the President of the Assembly should write to the Speaker of the national parliament recalling the immunities under GAPI, asserting the defence of the immunity of the relevant member of the Assembly, and asking the Speaker to take the relevant steps to ensure that the national authorities (including the executive and judicial authorities) are fully aware of these obligations and of the steps to be taken to seek a waiver of immunity before the imposition of any measures restricting travel (for example detention, travel ban, house arrest) or – if applicable – instigation of prosecution