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.
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”).
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.
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.
73.5. The President shall immediately communicate the decision of the Assembly to the authority which submitted the request.
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 their 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.
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.
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.
73.7.b. The term “deprivation of their free movement” includes measures that contain administrative, legal, judicial or other restrictions on an Assembly member’s free movement and includes detention, house arrest, curfew, surrender of a passport and a 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.
73.7.c. The 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:
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.
73.8. In cases where there are concerns that the immunities and privileges protected under the General Agreement on 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.
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.”
1. The 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.
2. Members 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.
3. Their practical implementation is further detailed in the Rules of Procedure and relevant Assembly resolutions, bearing in mind:
4. Parliamentary immunity is not a member’s personal privilege but an institutional privilege which members enjoy in their individual capacity.
5. The 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:
5.1. absolute immunity in respect of words spoken and votes cast in the meetings of the Assembly (Article 14 of the GAPI and Article 40 of the Statute);
5.2. 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 of the GAPI and Rule 73 of the Rules of Procedure). This includes and is linked to:
5.2.1. immunity from detention – unless the Assembly has waived such immunity (Articles 13 and 15 of the GAPI, Article 3 of the Protocol to the GAPI, Article 40 of the Statute and Rule 73 of the Rules of Procedure);
5.2.2. immunity 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 of the GAPI as read together, Article 40 of the Statute and Rule 73 of the Rules of Procedure);
5.2.3. immunity from arrest, except in a case of in flagrante delicto (Article 15 of the GAPI);
5.3. immunity from prosecution, specifically:
5.3.1. immunity from prosecution on the territory of other member States (Article 15.b of the GAPI, Article 3 of the Protocol to the GAPI, Article 40 of the Statute and Rule 73 of the Rules of Procedure);
5.3.2. on the national territory, immunity from prosecution on the same terms as national protections in respect of parliamentary immunity from prosecution (Article 15.a of the GAPI, Article 3 of the Protocol to the GAPI, Article 40 of the Statute and Rule 73 of the Rules of Procedure); the application of this immunity requires an understanding of the scope of the national law providing for parliamentary immunity.
6.1. 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 of the GAPI:
6.1.1. is 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;
6.1.2. is an institutional privilege; a member or a former member has no liberty to waive or to renounce it;
6.1.3. applies 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 may 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;
6.1.4. has 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;
6.1.5. given 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;
6.1.6. covers 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;
6.1.7. could, 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;
6.1.8. does not cover an inquiry into corruption-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.
6.2. It 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 their 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 GAPI.
6.3. Where 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 of the GAPI, in which case immunity cannot be waived.
6.4. It is inherent in Article 40.a of the Statute and Article 14 read together with Article 13 of the 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.
7.1. The 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:
7.1.1. members 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;
7.1.2. members 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;
7.1.3. according 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;
7.1.4. immunity 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;
7.1.5. at all stages when parliamentary immunity is waived the presumption of innocence must be respected;
7.1.6. when 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;
7.1.7. immunity 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;
7.1.8. where 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.
8.1. Article 13 of the 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.
8.2. The 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:
8.3. This 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.
8.4. A judicial, prosecutorial or investigatory authority wishing to impose a measure restricting a member’s travel (such as detention, a house arrest, curfew or travel ban or bail conditions restricting travel) that does not expressly allow all travel on Assembly business, would first need to make an application to waive immunity before imposing such a measure.
8.5. This immunity applies as follows:
8.5.1. members of the Assembly enjoy the immunity provided for in Articles 13 and 15 of the GAPI 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;
8.5.2. members of the Assembly enjoy the immunities secured by this provision when they are no longer members of their national parliament and until their replacement as members of the Assembly or until the opening of the next session;
8.5.3. according 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 members of the Assembly need to be at liberty to travel in order to fulfil their mandate; such protection is therefore necessary to ensure the full effectiveness of this immunity and their role. 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;
8.5.4. immunity cannot be invoked in cases of very short-term detention for offences committed 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 detention must only be of very short duration;
8.5.5. at all stages when parliamentary immunity is waived the presumption of innocence must be respected;
8.5.6. when 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 and 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;
8.5.7. immunity 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;
8.5.8. restriction of the liberty and free movement of an Assembly member requires very serious grounds as it prevents him or her from exercising their 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).
9.1. This 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.
9.2. A waiver of immunity is required prior to:
9.2.1. imposing measures which restrict the travel of a member of the Assembly – this includes arrest, detention, house arrest, a curfew, a travel ban or bail conditions restricting travel (such as the retention of a passport). If the measure expressly does not apply to travel on Parliamentary Assembly business, then a waiver of immunity is not required;
9.2.2. in 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;
9.2.3. in all other member States, initiating a prosecution of a member of the Assembly.
9.3. The procedure for seeking the waiver of immunity is as follows (subject to any national procedural requirements that may apply):
9.3.1. the “competent authority” (usually the judge in charge of the 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;
9.3.2. the request for the waiver of immunity must specify the reasons for the request, specifically what the waiver of immunity relates to, including:
9.3.2.1. whether 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;
9.3.2.2. the charges or offences to which the request relates;
9.3.2.3. 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, which measures and the reasons why they were or were not pursued);
9.3.3. the 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 the scope of parliamentary immunities enjoyed by members of the Parliamentary Assembly”.
9.4. Where 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:
9.4.1. the 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 the GAPI and the legal impossibility of imposing the relevant measure (travel restriction, detention or, if applicable, initiation of prosecution) without a 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;
9.4.2. if necessary, the President of the Assembly should write to the Speaker of the national parliament recalling the immunities under the 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, a travel ban or house arrest) or, if applicable, the instigation of prosecution.