B Explanatory memorandum
by Mr Sergiy Vlasenko, rapporteurNote
1 Introduction
1. The Parliamentary Assembly
cannot function if its members (both representatives and substitutes)
are prevented from travelling to attend meetings as part of their
European mandate. The legal instruments establishing the Council
of Europe therefore confer on members of the Assembly a special
regime of privileges and immunities in order to enable Assembly
members to contribute to the Assembly’s mission without hindrance.
2. This report is based on a motion for a resolution which made
clear that “the participation of members of the Assembly in its
work is both a right and a responsibility” and that it is “the responsibility
of national parliaments to facilitate the participation of members
of the Assembly in its activities”.
Note The motion for a resolution arose due
to the Committee on Rules, Ethics and Immunities (hereafter “the
Rules Committee”) being informed of various situations in which
restrictions or bans, administrative or otherwise, were imposed on
the freedom of movement of members of the Assembly preventing them
from fulfilling their functions and travelling as members of the
Assembly, seemingly contrary to the requirements of Article 13 of
the General Agreement on Privileges and Immunities of the Council
of Europe, 1949 (ETS No. 2) (hereafter “GAPI”).
3. In the context of the work on this report, I sent a questionnaire
to national delegations (to which 18 delegations replied),
Note held
numerous bilateral meetings with members of the Assembly affected
by limitations on their free movement, and carried out a fact-finding
visit to Armenia on 19-20 May 2025. I am grateful to all who have
engaged with me on these issues and in particular to the Armenian
authorities for organising and facilitating such a constructive
visit. My overall conclusion is that there are specific impediments
to the free movement of members of the Assembly that occur in particular
circumstances or countries. There are ways to avoid such violations
of Article 13 GAPI, as set out below and I propose amendments to
the Rules of Procedure of the Assembly and to the Guidelines on
the scope of the parliamentary immunities enjoyed by members of the
Parliamentary Assembly set out in Appendix III to the Rules of Procedure
(hereafter “the Guidelines on parliamentary immunities”). I also
propose to disseminate best practice for national authorities to
facilitate their understanding of the applicable law and requirements.
4. In this report, I will first set out the legal framework of
immunities that applies to members of the Assembly (chapter 2),
before recalling the situations in which members of the Assembly
have faced restrictions or bans on their freedom of movement preventing
them from fulfilling their functions and travelling as members of
the Assembly (chapter 3), I will then consider conclusions and proposals
including administrative barriers imposed by the national parliamentary
authorities, provisions concerning entry and exit requirements,
travel restrictions imposed as a result of criminal investigations
and proceedings and measures to enhance the consequences for a failure
by a member State to respect its obligations under GAPI (chapter
4).
2 The legal framework of immunities
that applies to members of the Parliamentary Assembly
2.1 Relevant provisions of the international
treaties
5. Article 40(a) of the Statute
of the Council of Europe, 1949 (ETS No. 1) provides:
“The
Council of Europe, representatives of members and the Secretariat
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.”
6. Article 40(b) of the Statute required the member States, as
soon as possible, to enter into agreement for the purpose of fulfilling
the provisions of Article 40(a). This led to the elaboration of
the GAPI. Article 13 GAPI provides in its first sentence:
“No
administrative or other restriction shall be imposed on the free
movement to and from the place of meeting of Representatives to
the Consultative [Parliamentary] Assembly and their substitutes”.
7. Article 14 GAPI provides:
“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.”
8. Article 15 GAPI provides:
“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.
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.”
9. The first Protocol to the General Agreement on Privileges
and Immunities of the Council of Europe, 1952 (ETS No. 10) further
clarifies in its Article 3:
“The provisions of Article 15 of [GAPI] shall
apply to Representatives to the Assembly, and their Substitutes,
at any time when they are attending or travelling to and from, meetings
of committees and sub-committees of the Consultative [Parliamentary]
Assembly, whether or not the Assembly is itself in session at such
time”.
10. Article 5 of that Protocol to GAPI provides:
“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. Consequently, a member has
not only the right but the duty to waive the immunity of its representative
in any case where, in the opinion of the member, the immunity would
impede the course of justice and it can be waived without prejudice
to the purpose for which the immunity is accorded.”Note
11. It should be noted that the immunities of the European Parliament
are based on the same textual provisions and therefore the two institutions
have had regard to each other’s interpretation of these provisions over
the decades.
2.2 The Parliamentary Assembly procedural
texts
12. Over the years the Assembly
has adopted resolutions and Rules of Procedure relevant to the exercise of
the privileges and immunities of its members. Rule 73 of the Rules
of Procedure of the Assembly (waiver of the immunity of representatives
and substitutes):
- recalls the
privileges and immunities as set out above and their purpose to
“safeguard the independence of [the members of the Assembly] in
exercising their European office” (Rule 73.1);
- makes provision for any request to waive immunity to be
addressed to the President of the Assembly, by a competent authority,
to then be announced in plenary or Standing Committee and referred
to the Rules Committee (Rule 73.2);
- sets out the process in the Rules Committee, including
that it may issue an opinion on the competence of the requesting
authority; that it may not examine the merits of the case; that
it may not pronounce on the guilt or otherwise of the member or
whether the acts in question justify prosecution; that it shall
hear from the member concerned or a member representing that member;
that the Rules Committee may ask the competent national authority
to provide it with any information or details necessary to determine whether
or not immunity should be waived; that the report of the committee
must conclude with a draft resolution for the retention or waiver
of immunity; and that no amendment to that decision will be admissible
(Rule 73.3);
- provides that the report on the request to waive immunity
must be the first item of business of the Assembly on the first
sitting day after the report has been tabled; that the debate on
the report must be confined to arguments for or against the waiver
of immunity; and that where a request to waive immunity relates
to more than one accusation, these may be the subject of a separate
decision (Rule 73.4);
- requires the President of the Assembly to immediately
communicate the decision of the Assembly to the authority that submitted
the request (Rule 73.5);
- provides that if a member of the Assembly is arrested
or deprived of freedom of movement in supposed violation of their
privileges and immunities, the President of the Assembly may confirm
those privileges and immunities. It further provides that a member
or former member may address a request to the President of the Assembly
to defend his or her immunity and privileges. It also specifies
that the Bureau may, at the request of the President and subject
to ratification by the Assembly, refer a case to the relevant committee
(Rule 73.6);
- makes provision as to the interpretation of Article 15.a
GAPI, such that members of the Assembly are immune from prosecution
and arrest in the exercise of their functions as Assembly members
of when travelling on Assembly business, whether inside or outside
of their national territory (where they are not active or travelling
on Assembly business, then the national regime applies). It further
provides that in case of doubt as to whether members are acting
in the exercise of their functions, the Bureau of the Assembly shall
so decide (Rule 73.7.a, 73.7.b and 73.3.c);
- clarifies that the Guidelines on parliamentary immunities
provide further clarity (Rule 73.7.d).
13. The “Guidelines on parliamentary immunities” focus on Articles
14 and 15 GAPI. They do not, at present, cover Article 13 GAPI.
2.3 Relevant resolutions of the Parliamentary
Assembly
14. Relevant resolutions of the
Assembly include:
- Resolution 2392 (2021) “Guidelines on the scope of the parliamentary immunities
enjoyed by members of the Parliamentary Assembly”, which analysed
the immunity regime of Assembly members, focussing in particular
on Articles 14 and 15 GAPI. It established the “Guidelines on the
scope of the parliamentary immunities enjoyed by members of the
Parliamentary Assembly” (now found in Appendix III to the Rules of
Procedure). This resolution emphasised
the obligation on national competent authorities to request the
lifting of immunity of a member of the Assembly before any restrictions
could be imposed on a member.
- Resolution
2127 (2016) and Recommendation
2095 (2016) “Parliamentary immunity: challenges to the scope of
the privileges and immunities enjoyed by members of the Parliamentary
Assembly”, which highlighted challenges when immunities regimes
were perceived as being used to protect hate speech or corruption.
It noted that where the rule of law was well protected, parliamentary
inviolability was not necessary, but in other democracies in Europe
it was still needed. It set out a series of principles for member
States to consider when reviewing their national systems of parliamentary
immunity.
- Resolution
2126 (2016) “The nature of the mandate of members of the Parliamentary
Assembly”, which focussed on restrictions (“disguised” sanctions)
imposed by members’ own national parliaments, and highlighted shortcomings
in national procedures that enabled members to be replaced in national delegations
or have travel restrictions imposed that would prevent them from
participating in the work of the Assembly.
- Resolution
2087 (2016) and Recommendation
2083 (2016) “Introduction of sanctions against parliamentarians”,
in which the Assembly focussed on the issue of restrictive measures
imposed on foreign parliamentarians (often referred to as “blacklists”),
usually as part of a package of sanctions targeting a State. The
Assembly reiterated its call for member States to respect statutory
texts on the freedom of movement and the immunity regime and, noting
the increasing importance of “parliamentary diplomacy”, recommended
the imposition of legal guarantees governing the listing process
and appeal procedures for those on “sanctions” lists. It further
called for members of observer and partner for democracy delegations
to be granted privileges and immunities equivalent to those of members
(and this was subsequently endorsed by the Committee of Ministers).
- Resolution
1490 (2006) “Interpretation of Article 15.a of the General Agreement
on Privileges and Immunities of the Council of Europe”, which clarified
that the immunities of Assembly members guarantee their immunity
from arrest and detention when travelling on Assembly business and
in the exercise of their functions as Assembly members, regardless
of their country of origin. It clarified that this immunity from
arrest and detention could not be restricted unless it was previously
lifted by the Assembly. This position has been subsequently confirmed
by the Junqueras case (interpreting the mirror provisions applicable
to the European Parliament).Note
- Resolution
1325 (2003) and Recommendation
1602 (2003) “Immunity of Members of the Parliamentary Assembly”,
which (i) focussed on the evolving nature of the duties of members,
which covered official missions outside the Assembly precinct, as
well as meetings of committees and the plenary Assembly, and (ii)
resulted in the acknowledgement by member States of the laissez-passer
to facilitate travel by members of the Assembly.
2.4 The scope and interrelation between
Articles 13, 14 and 15 of the General Agreement on Privileges and
Immunities of the Council of Europe
2.4.1 Legal status of Article 13 of the
General Agreement on Privileges and Immunities of the Council of
Europe
15. Article 13 GAPI provides “No
administrative or other restriction shall be imposed on the free
movement to and from the place of meeting of Representatives to
the Consultative Assembly and their substitutes”. Representatives
and substitutes are “members” of the Assembly and I shall hereafter
use “members” to refer to both.
16. “Place of meeting” covers diverse obligations on members in
the exercise of their functions, including travel to attend plenary
sessions; meetings of the Standing Committee, Bureau, or Presidential
Committee; meetings of general or ad hoc committees, sub-committees,
or other networks, alliances or platforms; travel as part of the
functions of rapporteur (including co-rapporteur, general rapporteur
and youth rapporteur); or travel as part of an election observation
mission or a representative role. All of these are to be considered
as meetings to which the privileges and immunities protections would
apply. I propose clarifying this in the Rules of Procedure to help
with certainty and clarity of the extent of this provision.
17. Article 13 GAPI is an internationally binding obligation on
all States of the Council of Europe not to impose any administrative
or other restrictions on the free movement of Assembly members to
and from Assembly meetings. Article 13 GAPI does not allow for discretion
on the part of the authorities. Therefore, granting an authorisation
for an Assembly member to attend an Assembly meeting is not a discretionary
matter for any parliamentary, executive, judicial, prosecutorial,
investigative or other authority; it is a clear, legally binding
obligation.
2.4.2 Scope and interrelation between Articles
13, 14 and 15 of the General Agreement on Privileges and Immunities
of the Council of Europe
18. The immunities protected under
Articles 13, 14 and 15 GAPI necessarily interrelate. For example:
- restrictions on free movement
caused by restrictions relating to arrest, detention, prosecution
or travel restriction (including as part of bail conditions or under
a travel ban), necessarily involve a consideration of both Articles
13 and 15 GAPI;
- restrictions on free movement imposed on members as a
result on their voting and speech in Assembly meetings, necessarily
imply a consideration of both Articles 13 and 14 GAPI.
19. In light of the interwoven nature of some of the provisions
of Articles 13, 14 and 15 GAPI as well as the instructive recent
experience of dealing with immunities cases, the committee authorised
me to ensure that any amendments or recommendations also cover any
incidental reflections on Articles 14 and 15 GAPI to ensure coherence
in the approach taken to the overall approach to immunities of members
of the Assembly. This is important for example in considering:
- the approach to take to the
potential imposition of travel restrictions or detention, as a result
of criminal investigations or prosecutions, including to defend
and potentially to waive immunity (which involves a consideration
of Articles 13 and 15 GAPI);
- the purported “blacklisting” (imposition of an entry ban)
by Azerbaijan of at least 77 members of the Assembly due to their
voting as members of the Assembly (which involves consideration
of Articles 13 and 14 GAPI).
2.4.3 Parliamentary Assembly immunities
under the General Agreement on Privileges and Immunities of the
Council of Europe
20. The following Assembly immunities
are thus protected and guaranteed under the GAPI, the Statute of the
Council of Europe and the Rules of Procedure of the Assembly:
- absolute immunity in respect
of words spoken and votes cast in the meetings of the Assembly (Article 14
GAPI and Article 40 of the Statute of the Council of Europe);
- free 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:
- immunity 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);
- immunity from the imposition of a travel ban, unless (1)
that travel ban 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);
- immunity from arrest, except in case of in flagrante delicto (Article 15 GAPI);
- immunity from prosecution, specifically:
- immunity from prosecution on
the territory of all 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);
- on the national territory, immunity from prosecution on
the same terms as national protections in respect of parliamentary
immunity from prosecution (Article 15 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.
21. I propose that this more practical approach to immunities
and what they imply for some specific procedures in the criminal
justice system is set out in the revised Guidelines on parliamentary
immunities.
3 Situations in which members of the
Assembly have faced restrictions or bans on their freedom of movement
preventing them from fulfilling their functions and travelling as
members of the Assembly
22. From the outset it is important
to underline that restrictions on members travel have different
forms and natures and therefore the methods to address them are
also necessarily different. In the questionnaire and in my interactions
with members I have sought to better understand the type and nature
of the obstacles to the free movement of members of the Assembly.
The following obstacles have been identified:
- the internal rules or practices of national parliaments,
which restrict travel or prevent participation for example due to
(i) a lack of funding; (ii) restrictions on the participation of
substitutes/alternates; (iii) politically-motivated constraints
on attendance of opposition members of the delegation by the Head
of Delegation or the Speaker; or (iv) national parliaments or political
groups preventing members’ travel when there are votes in national
parliaments;
- exit restrictions preventing members from leaving a country
(this tends to be rare, but can occur in times of martial law, or
due to health restrictions as it was the case for example during
the Covid-19 pandemic);
- entry restrictions for example relating to visas, but
also blacklists of parliamentarians subject to sanctions;
- travel restrictions imposed as a result of ongoing criminal
proceedings which can prevent or impede members from fulfilling
their functions as members of the Assembly (for example a travel
ban, house arrest, curfew or detention).
3.1 Summary of the replies to the questionnaire
23. On 18 December 2024, I sent
a questionnaire to the secretaries of the national delegations to
the Assembly. Eighteen delegations replied and I produced an information
note summarising the responses.
Note Replies were received
from Andorra, Austria, Belgium, Bulgaria, Croatia, France, Germany,
Ireland, Italy, Latvia, Liechtenstein, Malta, the Netherlands, North
Macedonia, Portugal, Slovenia, Spain and Sweden.
24. The responses covered the composition of national delegations,
rules relating to funding of travel, parliamentary travel restrictions
(such as due to timetabling clashes), the impact of criminal proceedings affecting
the free movement of members of the Assembly, and entry and exit
restrictions.
25. As concerns the composition of national delegations, most
countries used proportional methods to allocate seats such as the
D’Hondt system, sometimes involving consideration of the overall
balance across representation in international parliamentary assemblies.
Most countries give autonomy to parties or parliamentary groups,
giving them the possibility to directly nominate their candidates.
The formal approval stage of delegations varies. Some countries
require a plenary vote to approve the composition of the delegation,
and for some, the composition of the delegation can be affected
through the need for the plenary vote.
26. As concerns rules relating to the funding of travel, in most
countries, all members can attend and were funded to attend plenary
meetings of the Assembly. In many countries, alternates only have
funding to attend committee meetings in the absence of the full
member of a committee, whereas in others, full members and alternates
of a committee can attend committee meetings. Many delegations operate
under a global budget or envelope, and in some countries, travel
is subject to budget availability or prior approval.
27. In relation to travel restrictions and parliamentary priorities,
formal parliamentary restrictions on Assembly participation are
rare, but there are few notable exceptions concerning Andorra, Germany,
Malta, North Macedonia or Spain. In all countries, national political
priorities and practices significantly influence decisions on attendance,
particularly when there are key votes in the national parliament.
Most countries offer members considerable autonomy in attendance
decisions, but decisions about travel are often guided by political
groups or parliamentary leadership.
28. Only a few countries have formal mechanisms in place in order
to address conflicts between national and international responsibilities.
Examples include the organisation of plenary and committee meetings
and votes so as to avoid clashes with the Assembly,
Note the possibility to delegate
a vote in national sessions when attending Assembly meetings,
Note a return journey being
offered during an Assembly session to return to vote,
Note pairing
systems allowing coalition and opposition parties to balance votes
and absences,
Note coordination
of the parliamentary agenda to account for absent Assembly members,
Note online
participation,
Note and remote voting.
Note
29. No respondent country imposes formal exit restrictions. As
concerns visas, some countries do not generally require visas for
Assembly members who hold diplomatic or official passports, whereas
other do, often depending on the type of passport and the issuing
country. National authorities provide various forms of support in
obtaining a visa, such as notes verbales, expedited processing,
or waiving the visa fee when official mission status is confirmed,
however practice varies considerably. The Council of Europe laissez-passer
is not typically sufficient to justify entry on its own, and official
mission verification, for instance through a note verbale, remains
necessary in most countries. There is a wide disparity in the awareness
and recognition of the laissez-passer, ranging from it seeming to
be of little significance, to enabling visa-free access.
30. As concerns criminal proceedings affecting the free movement
of members of the Assembly, laws and practices vary between different
Council of Europe member States. The majority of respondent countries
have little familiarity with any cases of travel restrictions related
to criminal proceedings being imposed on parliamentarians, whether
because this is not possible or because it does not occur in practice.
Others would request to waive immunity in order to restrict a parliamentarian’s
freedom of movement (for example France, Germany, Latvia). In North
Macedonia and Portugal court permission would be needed for a parliamentarian to
travel on Assembly business if the court imposed travel restrictions
during a criminal investigation.
3.2 Armenia and the imposition of travel
restrictions on a member of the Parliamentary Assembly
3.2.1 The background to the visit and the
case concerning Mr Gevorgyan
31. In the context of the work
on this report I visited Armenia on 19-20 May 2025. Armenia was
chosen for this visit because, in the context of an ongoing criminal
case, a member of the Assembly, Mr Armen Gevorgyan (Armenia, ECPA),
is subject to travel restrictions that have impacted his ability
to participate in the work of the Assembly as part of his functions.
A number of letters have been written from successive Presidents
of the Assembly to the Armenian authorities to set out Mr Gevorgyan’s
immunity as a member of the Assembly and the legally binding obligations
on Armenia under GAPI. The purpose of the visit was not, in any
way, to enquire into or to seek to influence that criminal case
which clearly falls outside of the remit of this report. My interest for
the purposes of this report was the practical experience of the
operation of the judicial travel ban on a sitting member of the
Assembly.
32. Although it would not be appropriate, in the context of this
report, to go into details concerning the criminal case, just to
assist understanding, Mr Gevorgyan is subject to criminal charges
relating to two separate factual contexts with both cases pre-dating
his election to parliament and thus being a member of the Assembly:
- Mr Gevorgyan, together with
others, was investigated and charged in 2018 in connection with
the use of force by the national police and military forces on 1
March 2008 to disperse the protesters as a result of which 10 people
were killed.
- Mr Gevorgyan was charged in 2021 following an investigation
into allegations of bribery and of money laundering.
33. Mr Gevorgyan, and his co-defendants, dispute these charges.
Mr Gevorgyan considers that the prosecution is politically motivated.
Many procedural arguments have been raised, including in relation
to (i) the respect for and extent of Mr Gevorgyan’s Armenian parliamentary
immunity; (ii) the respect for Mr Gevorgyan’s immunity as a member
of the Assembly; (iii) the statute of limitations; (iv) conduct
of the judiciary including in relation to impartiality and independence;
and (v) sufficient expedition in the conduct of the proceedings.
3.2.2 Parliamentary immunity in Armenia
and its relevance to Parliamentary Assembly immunities
34. Parliamentary immunity in Armenia
protects a member of parliament from the initiation of criminal proceedings
and from deprivation of liberty (except for a maximum of 72 hours
in cases of in flagrante delicto) unless
the authorities have obtained the consent of the National Assembly
(Article 96(2) of the Armenian constitution). A 2021 judgment of
the Constitutional Court clarified that Article 96(2) requires the
immediate release of individuals in detention who are subsequently
elected as members of parliament. It also provided that where a
criminal prosecution against a person was initiated prior that person
being elected to the National Assembly, there was no requirement
to obtain the consent of the National Assembly in order to continue
with the criminal prosecution against that person (namely a member
of parliament is not immune from the further continuation of a criminal
prosecution brought prior to his or her election to parliament).
In this respect, it is worth recalling that Mr Gevorgyan was elected
as a member of parliament in 2021 and the prosecution pre-dates
his election as a member of parliament.
3.2.3 Operation of the travel ban in the
context of criminal proceedings and Article 13 GAPI
35. A travel ban has been imposed
upon Mr Gevorgyan as part of “preventive measures” imposed in the context
of these proceedings since 2018. It is arguably one of the less
burdensome measures than can be imposed upon a defendant as alternatives
include bail (involving the payment of a security) or a full travel prohibition
(with no possibility of authorising travel).
Note For each Assembly meeting, this measure
requires Mr Gevorgyan to obtain the permission of the body, responsible
for the criminal proceedings (Court or Investigator), requiring
him to file a motion and to have a hearing before the judge to seek
authorisation with all the legal, time and other costs that this
implies. Mr Gevorgyan has encountered numerous difficulties in leaving
the country since 2018, including since becoming a member of parliament
and a member of the Assembly in 2021. In determining authorisation
for travel, it appears that the court is not always aware that there
is a legal obligation to authorise Assembly travel under GAPI. In
particular:
- From 2021-2022
Mr Gevorgyan was denied authorisation to attend meetings of the
Assembly by the judicial and/or investigative authorities. On 7
April 2022, the then President of the Assembly, wrote a letter confirming
and defending Mr Gevorgyan’s immunities as a member of the Assembly.
Subsequent letters were also sent to the Armenian authorities in
2022 and 2023 asking the Armenian authorities to take the necessary
measures to enable Mr Gevorgyan to attend meetings of the Assembly.
Some travel was authorised during 2022 and 2023, although there
continued to be some difficulties.
- The first instance judge in Mr Gevorgyan’s case was dismissed
on 16 July 2024 and was not replaced until September 2024. During
this period, Mr Gevorgyan was prevented from travelling due to the
lack of a judge to authorise travel. In September 2024, the President
of the Assembly, wrote a letter to the Speaker of the Armenian Assembly
recalling Mr Gevorgyan’s privileges and immunities under GAPI and raising
concerns at his being prevented from attending meetings of the Assembly.
- In November 2024 the anti-corruption court denied Mr Gevorgyan’s
request to attend the meeting of the Committee on Social Affairs,
Health and Sustainable Development on 5-6 December 2024. On 22 November
2024, the President of the Assembly consequently wrote to the Speaker
of the Armenian Assembly, again underlining the internationally
binding obligation on the Armenian authorities not to restrict the
movement of members of the Assembly in attending Assembly meetings
and seeking the Speaker’s assistance. Ultimately, Mr Gevorgyan was
able to attend the December meeting.
- In March 2025, there were continued concerns that the
court was reluctant to issue travel authorisations for Mr Gevorgyan
to attend Assembly meetings. On 4 April 2025, the President of the
Assembly sent a further letter to the Speaker of the Armenian National
Assembly again outlining the obligations under GAPI. Since then,
Mr Gevorgyan has been able to attend Assembly meetings, however
the administrative requirements remain unduly heavy.
36. The operation of the travel ban is complex because, instead
of allowing for all Assembly travel, the body responsible for the
criminal proceedings (the judge or investigator) requires a separate
motion to seek authorisation for each and every Assembly meeting
individually, which is clearly time-consuming, and creates an unnecessary
practical barrier to the effective operation of Article 13 GAPI.
In addition, the authorities do not seem to distinguish between
Assembly travel that ought to be protected as of right under GAPI,
and other “business trips”, seemingly considering them all as a
discretionary matter for the judge.
37. In my meetings there seemed to be varying degrees of awareness
of the existence and requirements of GAPI. There was general awareness
that, under Armenian law, internationally binding obligations on
Armenia, such as GAPI, were a legally binding part of Armenian law
– and indeed of a higher normative value than ordinary Armenian
law. However, familiarity with GAPI and its requirements seemed
less clear.
38. Better training and information for investigators, prosecutors
and the judiciary on their legally binding obligations when dealing
with cases concerning parliamentary immunity, and specifically immunities
of Assembly members under GAPI, could assist in addressing the sorts
of difficulties that have arisen in Mr Gevorgyan’s case.
3.3 Other case studies from recent years
39. Successive Presidents of the
Assembly have intervened to defend the immunities of members of
the Assembly over the years.
NoteNote Moreover,
failures by member States to respect immunities under GAPI are not new.
Note However, on other
occasions, States have clearly sought the respect the requirements
of GAPI, for example through requesting a waiver of immunity
Note or
through taking care to ensure free movement of members of the Assembly.
In recent years, specific issues have arisen highlighting ongoing
challenges to the respect for the immunities and free movement of
members of the Assembly, as set out below.
3.3.1 Ukraine: administrative restrictions
due to the operation of martial law
40. Since the Russian Federation’s
full-scale aggression against Ukraine, martial law has been declared
in Ukraine. For members of the Verkhovna Rada – the Ukrainian Parliament
– this requires approval by the Speaker of the Verkhovna Rada for
each and every trip abroad, including travel in the exercise of
their functions as members of the Assembly. Even if the imposition
of martial law can be understandable given the extreme context,
the requirements of martial law create administrative hurdles and
therefore potential barriers to the timely organisation of travel
for Ukrainian members of the Assembly.
41. Certain members of the Ukrainian delegation have faced barriers
with travel being refused – or being threatened to be refused. Some
of these issues stemmed from confusion as to which missions constituted travel
“in the exercise of their functions” as members of the Assembly.
It was necessary for the Assembly to explain to the Verkhovna Rada
that travel to meetings of the Bureau of the Assembly and to the
Standing Committee of the Assembly (for a chairperson of a committee
who was thus a member of the Bureau of the Assembly) was also required,
as part of the exercise of that member’s functions as a member of
the Assembly. This created a barrier to the travel on Assembly business
of Mr Oleksii Goncharenko (Ukraine, ECPA), who has been chairperson
of the Committee on Migration, Refugees and Displaced Persons since
January 2024, and who is thus required to attend meetings of the
Bureau and the Standing Committee as part of this role.
3.3.2 Members of the Assembly who are threatened
by arrest warrants from the Russian Federation
42. For a number of years, and
in particular since the Russian Federation’s full-scale war of aggression against
Ukraine, the Russian Federation has threatened various members of
the Assembly with arrest warrants – whether in advance of, or subsequent
to, purported criminal proceedings. This can create a chilling effect
on travel for such members of the Assembly if they are not confident
that their travel in the exercise of their functions as members
of the Assembly will be protected and that they will benefit from
full immunity from arrest or detention in relation to any such threats
from the Russian Federation (or indeed other countries).
43. There have also been concerns that the Russian Federation
may seek to abuse the Interpol process to try to seek an arrest
warrant through Interpol, for example in relation to Mr Oleksii
Goncharenko (Ukraine, ECPA). I consider it appropriate for the Assembly
to underline to Interpol the immunities from arrest or prosecution
that exist for members of the Assembly that are travelling in the
exercise of their functions as members of the Assembly. As a consequence,
arrest warrants would not be appropriate. Moreover, I consider that
Interpol should be made aware of the highly politically motivated
nature of these purported criminal proceedings in the Russian Federation.
3.3.3 Assembly members who face administrative
barriers to travel on Assembly business
44. At times, members of the Assembly
report having their proposed travel in the exercise of their functions restricted
or refused by the administration of their national parliament. It
is not always clear the reason for (1) the imposition of bureaucratic
administrative methods for approving travel on Assembly business;
or (2) refusals in individual cases.
45. Sometimes it seems that travel has been refused due to political
reasons – for example because the Head of Delegation or Speaker
was from a different political group than the member of the Assembly
and the refusal was a result of personal or political animosity.
Such barriers and refusals are of course an impermissible reason
to interfere with the free movement obligations and rights under
GAPI, and undermine the democratic, pluralist nature of the work
of the Assembly, especially if opposition members are prevented
from attending due to inappropriate controls and restrictions by
senior members of the ruling majority.
46. At other times, restrictions have been imposed due to specific
votes taking place in the national parliament. Whilst it is understandable
that politicians will have views on the desirability of members
staying in the national parliament for specific votes, it should
be for members of the Assembly (having regard, of course, to the
views of their political groups and the Speaker, and others) to
decide to attend a meeting of the Assembly or to prioritise other
matters. It is the responsibility of the member of parliament themselves
to decide on their own priorities, as it is that member who is accountable
to their electorate for their decision-making and prioritisation.
47. A concern was raised that travel had been refused for certain
members of the Romanian delegation to attend the June 2025 part-session
of the Assembly, apparently due to an important vote taking place
in the Romanian National Assembly concerning the formation of the
Government in Romania. Ms Dumitrina Mitrea (Romania, ECPA), in particular,
was refused travel contrary to her wishes as a member of the Assembly
(she did ultimately organise her travel herself).
48. Issues have arisen in the last few years in relation to a
member of the opposition Ms Bisara Kostadinovska-Stojchevska (North
Macedonia, SOC) being prevented from travelling (or having the approval of
her travel delayed) seemingly due to a mixture of unduly complex
administrative procedures requiring actions and approval by both
the Head of Delegation and the Speaker of the parliament; together
with challenges due to the member being from a different (opposition)
party; and purportedly budgetary constraints. A clearer system to
automatically approving all travel required as part of a national
delegation’s membership obligations would clearly assist in avoiding
such unnecessary disturbances to the effective participation of members
of a national delegation.
49. Travel restrictions are not limited to members of the Assembly,
but also to observer members. For example, recent concerns have
arisen that the Speaker of the Mexican Senate apparently refused
permission to travel for the June 2025 part-session for Senator
Marko Cortés Mendoza, a substitute member of the Mexican delegation
to the Parliamentary Assembly who was supposed to be replacing the
observer member. The suggestion was that this refusal was for political
reasons, which again, would be an inappropriate reason to refuse
travel and would affront the principles of pluralist democratic
debate.
Resolution 2087
(2016) and
Recommendation
2083 (2016) have already highlighted that members of observer, special
guest and partner for democracy delegations should benefit from
similar immunity protections as for members of the Assembly.
3.3.4 Assembly members whose travel has
been restricted due to budgetary or funding grounds
50. At times, members of the Assembly
report having their proposed travel in the exercise of their functions restricted
or refused on the grounds on budgetary or funding restrictions on
the part of their national Parliament. This is rarely the case for
travel to attend plenary sessions, but can occur for travel to attend
committees, sub-committees or ad hoc committees or sub-committees.
51. As was clear from the questionnaire, whilst most national
delegations fund travel to plenary sessions for all members of the
national delegation, some countries suggested that they would only
fund travel for substitute members when replacing a representative
(for example Croatia, North Macedonia, Portugal, Slovenia and Spain).
Moreover, whilst many countries would fund travel for both full
members and alternate members of committees (for example France,
Germany and Sweden), some countries would only fund travel for alternates if
replacing a full member (for example Austria, Belgium, Croatia,
Ireland, the Netherlands, North Macedonia, Portugal, Slovenia and
Spain). Andorra seems to limit committee attendance further by only
funding travel to committees relevant to national interests of Andorra.
Many national delegations were subject to a global budget or envelope,
with specific limits in place (for example Croatia, Ireland and
Portugal).
52. Specific issues have occurred in respect of travel by a former
member of the Icelandic delegation, Ms Sunna Ævarsdóttir (Iceland,
SOC), a particularly active member of the Assembly from January
2017 – January 2025, who had her travel refused on the grounds of
budgetary limits to her travel for that year.
3.3.5 Azerbaijan’s “blacklists” based on
Parliamentary Assembly members’ voting on Resolutions of the Parliamentary
Assembly
53. Parliamentary inviolability
for words spoken and votes cast in national parliaments, and in interparliamentary
assemblies, is an essential element of all democracies and is reflected
in Article 14 GAPI and Article 40 of the Statute of the Council
of Europe.
54. Azerbaijan has reportedly developed a “blacklist” covering
members of the Assembly who have voted in favour of certain Assembly
resolutions, specifically
Resolution
2527 (2024) “Challenge, on substantive grounds, of the still unratified
credentials of the parliamentary delegation of Azerbaijan”, or made
speeches in conjunction with the work of the Assembly, that have
displeased the Government of Azerbaijan.
Note Those on this “black list” are apparently
prohibited from entering Azerbaijan. More recently, in April 2025,
President Aliyev announced that the President of the Assembly has
been added to that list.
Note
55. The so-called “blacklist” includes at least 77 members of
the Assembly from Andorra, Armenia, Austria, Belgium, Bosnia and
Herzegovina, Croatia, Denmark, Finland, France, Germany, Greece,
Iceland, Ireland, Italy, Lithuania, Luxembourg, Malta, Monaco, Norway,
Portugal, Romania, San Marino, Slovenia, Spain, Sweden, Switzerland,
Türkiye, and the United Kingdom. Thus, members of Parliament from
28 of the 46 Council of Europe members States are affected. The
existence of a blacklist of Assembly members in response to votes
and speeches in the hemicycle demonstrates a lack of good faith
in Azerbaijan’s approach to its membership obligations.
56. The conduct of the Azerbaijani authorities has not been limited
to making lists, but has an effect on Assembly members’ free movement.
For example, a Swiss member of the Assembly, Mr Niklaus-Samuel Gugger,
is on the “blacklist”. Mr Gugger, who was supposed to participate
in an OSCE PA election observation mission in Azerbaijan, was stopped
at immigration control and detained for 3 hours at the airport by
the police, who refused entry, confiscated his passport, and then
returned him to Türkiye – his passport only being returned to him
on his arrival in Türkiye.
Note
3.3.6 Poland and the case of Mr Marcin Romanowski
57. The arrest and prosecution
of Mr Marcin Romanowski (Poland, ECPA) in Poland, in 2024, prompted
the defence of his Assembly immunity by the President of the Assembly,
a request by the Prosecutor General of Poland to waive the immunity
of Mr Romanowski, and the adoption of a resolution of the Assembly
waiving the immunity of Mr Romanowski.
Note
58. Subsequent to the waiving of his parliamentary immunity, Mr Romanowski
left Poland to evade the Polish justice system and has since been
living in Hungary. Since then (that is to say since Autumn 2024) Mr Romanowski
has not attended any meetings of the Sejm (the Polish Parliament)
or of the Assembly.
59. Mr Romanowski’s name did not appear on the list of the Polish
delegation when their credentials were presented in January 2025
– instead there was a blank space for one of the PiS members (Mr Romanowski’s political
group). My understanding is that PiS wished for Mr Romanowski to
remain a member of the Assembly but that the authorities of the
Sejm (including the Speaker) removed his name given that he was
no longer attending meetings of the Sejm and was instead evading
the Polish justice system by living in Hungary. The Sejm authorities
invited PiS to present an alternate candidate, but they refused
to do so – a blank space was therefore retained on the list of the
Polish national delegation for PiS, in line with the fair representation
of political parties or groups in the delegation. On 26 June 2025,
under the authority of the Rules Committee, I wrote to Ms Agnieszka
Pomaska (Poland, EPP/CD) as head of the Polish national delegation
asking that she inform me of the procedure and the decision-making
process that led to the removal of Mr Romanowski from the Polish
delegation in January 2025. In particular, I asked to know (i) what
was the position of the PiS party; (ii) who decided to exclude Mr Romanowski
from the national delegation; (iii) what were the reasons for that decision
to exclude Mr Romanowski; and (iv) what was the decision-making
process. At the time of drafting this report, I had not received
any response to this letter.
4 Conclusions
and proposals
4.1 Administrative barriers imposed by
the national parliamentary authorities
4.1.1 Composition of the national delegation
60. Free movement of Assembly members
can obviously be impacted through changes to the composition of
a national delegation. National delegations to the Assembly should,
consistent with the principles of fair representation and gender
representation, and as required under Rule 6 of the Rules of Procedure,
reflect the political composition of the relevant national parliament.
61. Moreover, subject to a national parliament’s internal procedure
and in accordance with the principles on fair representation established
in
Resolution 1798 (2011) “candidates proposed by a political group should in general
be accepted as members – representatives or substitutes – if they
meet the criteria of the national procedural rules”.
Note This is obviously subject
to the requirement (in Rule 6.2.c of the Rules of Procedure) for all
members of the Assembly to undertake to respect the aims and basic
principles of the Organisation and to undertake to comply with the
Code of Conduct of members of the Parliamentary Assembly.
62. The decision to remove a member’s name from the national delegation
despite that member being proposed by their political group in accordance
with the fair representation split, is significant as (1) it prevents that
member from participating in the work of the Assembly; (2) national
delegations are often formed and selected for the duration of that
national parliament so it can interfere with an agreed split; and
(3) in the spirit of fair representation, I consider that, in principle
it should be for national political groups to select their members
on the national delegation (without interference from other political
groups, the speaker or the presidential committee). In my opinion,
it is the reputation of the political group that is engaged in their
selection of their members and it is not for others to interfere.
4.1.2 The approach of the parliamentary
and political authorities to attendance and funding travel to meetings
of the Parliamentary Assembly
63. Whilst the majority of national
delegations and national parliaments demonstrate good practices
with regard to facilitating attendance and funding travel to members
to attend meetings of the Assembly, there are some variations. Impediments
often arise due to a lack of awareness of the legal obligations
flowing from membership to the Assembly, or due to the imposition
of unnecessarily heavy administrative practices that can operate
as a hindrance to full and timely participation in the work of the
Assembly. I consider that the below standards reflect the obligations
inherent in membership and should be practiced by all national delegations:
- Attendance at all meetings of
the Assembly should be facilitated and parliaments must endeavour
to eliminate all purported “controls” by parliamentary or political
authorities over which Assembly members may travel to its meetings.
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 of the meetings, ideally approving all attendance
at all foreseeable meetings of the Assembly for the whole session.
- Budgetary considerations are not a justification for refusing
travel to committee members or other members with a role to play
in Assembly meetings.
64. At a minimum, attendance should be guaranteed and funded by
the national parliament for:
- travel
to plenary meetings (namely part-sessions) for all members of the
national delegation (representatives and ideally also substitutes);
- travel to committee meetings for:
- full members of a committee;
- alternate members of a committee when replacing a full
member; the alternate is a rapporteur and they have a report on
the agenda of the committee meeting, or are presenting themselves as
a candidate for election/appointment as a rapporteur;
- travel 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.
65. In case of conflicting obligations on a member of the Assembly,
it should be for that member to determine (having regard to their
own and their political group’s priorities) how to balance their
competing obligations as a member of the Assembly, a member of their
national parliament, and any other relevant considerations that affect
that individual member. Their attendance should not be “permitted”
or “refused” by any other authority.
4.2 Entry and exit requirements
4.2.1 Visas and entry and exit requirements
66. Some countries continue to
require visas for members of the Assembly travelling on Assembly
business. I propose that all member States should review their visa
requirements for members of the Assembly travelling on Assembly
business, to ensure that (1) the length and complexity of the form;
(2) the cost; and (3) the time taken in delivering the visa, is
reduced to the minimum necessary, in accordance with the prohibition
in Article 13 GAPI on “administrative or other restrictions” impeding
free movement of members of the Assembly.
67. The approach of the border authorities in Schengen countries
– and in particular those of France, Germany and Switzerland – is
particularly important given that the plenary meetings of the Assembly
take place in Strasbourg and the majority of the committee meetings
outside of Strasbourg take place in Paris. Whilst the French and
German authorities have confirmed that their border guards are informed
about the existence of the Council of Europe laissez-passer, in
practice it seems that many French and German border guards are unfamiliar
with the Council of Europe, with the obligation to facilitate travel
of Assembly members to meetings of the Assembly, or with the Council
of Europe laissez-passer. It can occur, for example, that border
guards seem to limit or count the number of days that an Assembly
member has spent in the Schengen zone for Assembly meetings, suggesting
that entry will be denied if the quota of Schengen days has been
surpassed due to attendance at Assembly meetings. Whilst normally
this is unlikely to result in a member being returned from the airport
in Frankfurt or Paris, it can result in members of the Assembly
being significantly delayed at border controls. I propose to call
on Schengen countries – and in particular, France, Germany and Switzerland –
to ensure that their border guards are properly informed about the
Council of Europe (and not only the European Union), the General
Agreement on Privileges and Immunities and the Council of Europe
laissez-passer, so as to avoid future confusion.
68. I consider that in general there should be no exit requirements
for members of the Assembly and that where these are required for
exceptional reasons (such as martial law), then the procedures should
not be administratively burdensome. Any authorisations should be
either automatic or at the very least done swiftly and should cover
all official duties of members of the Assembly. In order to avoid
future confusion as to the official duties of members of the Assembly,
I propose to set out, in Rule 73 of the Rules of Procedure, as well as
in the Guidelines on parliamentary immunities, a non-exhaustive
list of the official duties covered by the Assembly immunities.
4.2.2 So-called “blacklists” based on Parliamentary
Assembly members’ voting and opinions expressed within the Assembly
69. 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 GAPI and Article 40 of the
Statute of the Council of Europe.
70. I propose to specify in the Guidelines on parliamentary immunity
that “It is inherent in 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 the GAPI, of democratic principles and of a State’s obligations
as member of the Council of Europe.”
4.3 Criminal investigations and proceedings:
travel bans or restrictions affecting a member’s ability to travel
4.3.1 Travel bans and immunities of Parliamentary
Assembly members
71. Article 13 GAPI is an internationally
binding obligation on all member States of the Council of Europe
not to impose any administrative or other restrictions on the free
movement of Assembly members to and from meetings of the Assembly.
Granting an authorisation for an Assembly member to attend an Assembly
meeting is not a discretionary matter for any parliamentary, executive,
judicial, prosecutorial, investigative or other authority; it is
a clear legally binding obligation.
72. It flows from this, that the imposition of a travel ban on
an Assembly member, preventing that member’s travel to Assembly
meetings without the explicit authorisation from a judge, prosecutor
or investigator is contradictory to Article 13 GAPI. This is also
reflected in Rule 73(6) of the Rules of Procedure which specifies that
“in the event of a member of the Assembly being arrested or deprived
of freedom of movement… the President of the Assembly may take the
initiative of confirming the privileges and immunities of the member concerned”.
73. Whilst Article 15 GAPI makes clear that immunity can be waived
if a judicial authority wishes to detain a member, Articles 13 and
15 are not explicit as to the procedure to be followed where an
authority wishes to impose the lesser measure of a travel ban. Ideally
a travel ban would not be imposed upon a member of the Assembly
as this clearly interferes with their mandate and their ability
to fulfil their functions as a member of the Assembly. However,
it is foreseeable that a court may wish to restrict travel so as
to ensure that a defendant does not evade justice. Whilst detention
could be an option (that would require a request to waive immunity), the
principles of justice require that detention is not used if a lesser
option (such as a travel restriction or bail) is available. If a
judicial, prosecutorial or investigatory authority wishes to impose
a travel restriction, a waiver of immunity would, however, be required
given the requirements of Article 13 and 15 GAPI as read together. Therefore,
reading together Articles 13 and 15 GAPI, it is clear that a travel
restriction cannot be imposed upon a member of the Assembly unless
the Assembly has expressly waived that immunity.
74. Consequently, in Article 73 of the Rules of Procedure and
the Guidelines on Parliamentary Immunities it is necessary to clarify
that:
- a travel ban (whether
an absolute travel prohibition or a travel ban requiring judicial
authorisation for travel) may only be applied to an Assembly member
following a waiver of immunity by the Assembly under Article 73
of the Rules of Procedure. Article 73 of the Rules of Procedure
and the guidelines in Annex III of the Rules of Procedure should
be updated to clarify this;
- a travel ban which does not apply to travel to meetings
of the Assembly does not require a waiver of immunity by the Assembly.
Notification (but not authorisation) of attendance at Assembly meetings
can be part of such a travel ban. In such circumstances a list of
planned Assembly meetings for the year (session) can be communicated
in advance to the relevant authorities, and supplemented where additional
meetings for that Assembly member are introduced into the calendar.
75. It is important that investigating, judicial and prosecutorial
authorities are aware of the requirements of GAPI and what this
means if they are dealing with a case involving a member of the
Assembly. Necessarily, issues of parliamentary immunity, and specifically
Assembly immunity, will arise only rarely in the work of most criminal
investigators, prosecutors and judges. It is therefore important
that they are aware of the need to seek out the relevant guidance
in cases where such issues arise. To assist the Assembly should
update the Guidelines on parliamentary immunities (which currently
only address Articles 14 and 15 GAPI; not Article 13 GAPI) and ask
that the guidelines be incorporated into or referred to, as appropriate,
in national guidance to the relevant investigations, prosecutorial
and judicial authorities.
76. It is important that the Guidelines on the scope of parliamentary
immunities take a practical approach to assist prosecutorial and
judicial authorities navigating specific practical challenges and
questions (such as detention, prosecution or travel restrictions)
and not only a principled approach which can perhaps be less clear for
practitioners unfamiliar with the requirements of GAPI. I propose
that the Assembly require all national authorities to disseminate
those updated guidelines and to take the necessary steps to ensure
that they are reflected in national guidance and training for investigators,
prosecutors and judges. The Assembly could additionally consider
whether a HELP (European Programme for Human Rights Education for
Legal Professionals) course based on the guidelines could assist
with this.
77. Further, it is important that national investigative, prosecutorial,
judicial and parliamentary authorities understand the extent and
application of their own parliamentary immunity protections. This
is important as a matter of the rule of law, so that the law is
applied uniformly and correctly, and because it has a bearing on
the application of Article 15 GAPI. I consider that all national
authorities should communicate to the Assembly secretariat and through
it to the Rules Committee, the extent and application of their national
parliamentary immunity laws. The results of these communications
should be collated and published on the Assembly website to improve
the clarity and understanding of the operation of Council of Europe
member States’ respective parliamentary immunity laws and their
interaction with Article 15 GAPI.
4.3.2 Procedure to follow where a waiver
of immunity of a member of the Parliamentary Assembly may be necessary
under Articles 13 and 15 GAPI
78. Where an investigative, prosecutorial
or judicial authority wishes to impose restrictions on a member
of the Assembly, or perhaps may even have imposed restrictions on
a member – whether through a travel ban, detention or through the
instigation of criminal prosecution without the necessary waiver
of immunity, the following actions should be taken:
- The parliamentary authorities
(normally the Speaker of the Parliament) should write to the relevant authorities
underlining the existence of the immunities under GAPI and the legal
impossibility of imposing the relevant restriction (travel ban,
detention or – if applicable – instigation of prosecution) without
the waiver of immunity from 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.
- If necessary, the President of the Assembly should write
to the Speaker of the 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 travel ban, detention or – if applicable – instigation
of prosecution.
79. The Guidelines on the scope of parliamentary immunities should
be updated to make clear the procedure for seeking the waiver of
immunity as follows (subject to any national procedural requirements
that may apply):
- the “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;
- the request for the waiver of immunity must specify the
reasons for the request, specifically what the waiver of immunity
relates to including:
- whether
the request is to waive immunity for the purposes of (1) detention;
(2) restriction of free movement (for example a travel ban or other
travel restrictions); and/or (3) initiation of prosecution;
- the charges or offences to which the request relates;
- whether 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).
4.3.3 Updating the “Guidelines on the scope
of the parliamentary immunities enjoyed by members of the Parliamentary
Assembly” in Annex III of the Rules of Procedure and amending Rule
73 of the Rules of Procedure
80. I propose making amendments
to Rule 73 of the Rules of Procedure to further clarify the circumstances in
which immunities apply, the procedures to be followed in case assistance
is required to assert immunity, the circumstances in which a waiver
of immunity is required, and to specify that a waiver of immunity
is required prior to:
- imposing
travel restrictions of a member of the Assembly (unless the restriction
expressly does not apply to travel on Assembly business);
- detaining a member of the Assembly;
- in the case of 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; or
- in all other member States, initiating a prosecution of
a member of the Assembly.
81. I propose updating the Guidelines on Parliamentary Immunities
which currently only cover Articles 14 and 15 GAPI, to:
- additionally cover Article 13
GAPI;
- include a section destined as a “how to” guide for investigators,
prosecutors and judges when dealing with criminal cases concerning
members of the Assembly. This should clearly set out the correct procedure
to follow if requesting a waiver of immunity (in light of the experience
of the cases of Mr Marcin Romanowski and Mr Armen Gevorgyan). The
aim is that these guidelines can serve as a template for national
authorities when developing their internal guidance on the steps
to follow when dealing with criminal cases against members of the
Assembly.
4.4 Consequences for a failure by a national
delegation or a member State to respect its obligations under the
General Agreement on Privileges and Immunities
82. At present the respect for,
and enforcement of, the GAPI is largely dealt with by the President
of the Assembly in dealing with individual issues that arise, in
line with Rule 73(6) of the Rules of Procedure. Most issues or potential
issues can be resolved expeditiously through informal or formal
discussions, which can involve letters and meetings of the President
of the Assembly and steps being taken by the relevant national authorities
to prevent a repetition. However, on occasion, issues persist.
83. It is necessary to explore potential actions for the Assembly
to clearly assert and defend immunities of Assembly members in cases
where immunities under GAPI are not respected. This could be through
the President making a statement during a part-session, noting any
recent impediments to free movement of members of the Assembly and
calling for the relevant State and its competent authorities to
take the necessary steps to prevent the recurrence of such violations
of the obligations set out under the GAPI. I propose an amendment
to Rule 73 to make clear this possibility as a mechanism of encouraging
compliance with GAPI, and in particular with the free movement provisions
of GAPI.
