Parliamentary immunity, in its two forms – non-liability and inviolability – is a democratic safeguard, born of the need to preserve the integrity of parliaments, its operation and its acts, and to protect their members’ independence in the performance of their duties. The rules on parliamentary immunity vary considerably between European countries according to their traditions and political culture.
In addition, and quite apart from the national immunities they may enjoy, members of the Council of Europe Parliamentary Assembly are covered by special rules on immunity at European level, laid down by the General Agreement on Privileges and Immunities of the Council of Europe of 1949 (GAPI) and its additional Protocol of 1952 (ETS Nos. 2 and 10). These rules establish the same twofold principle of parliamentary non-liability and inviolability and provide in addition for the free movement of Assembly members within the territory of the member States.
The provisions on this immunity at European level have thus introduced a new element into the field of privileges and immunities: "a special system of immunities for representatives to the Assembly which would meet the same requirements as traditional parliamentary immunities, while at the same time being international in character", as the preparatory work to GAPI indicates.
The Assembly’s Rules specify the procedure to be followed to waive the immunity of a member of PACE, following a request by a competent national authority, as well as the role of the President in defending the immunity of a member of the Assembly who has been arrested or deprived of freedom of movement.
This file presents the relevant regulatory framework as well as a list of documents published by the Parliamentary Assembly and other Council of Europe bodies regarding the scope of immunity of members of the Parliamentary Assembly.
On 16 July 2024, following the arrest of Mr Marcin Romanowski (Poland, EC/DA), the President of the Parliamentary Assembly of the Council of Europe (PACE) sent a letter to the Speaker of the Polish Sejm, clarifying that, as a member of the Assembly, Mr Romanowski enjoyed parliamentary immunity under the special rules on immunity at the European level. On the same day, the Warsaw District Court confirmed that Mr Romanowski could not be detained, owing to his European immunity, and ordered his release. This decision was confirmed by an appellate court on 27 September 2024.
Following a request addressed to the President of the Assembly by the Minister of Justice and Public Prosecutor General of the Republic of Poland, Mr Adam Bodnar on 29 September 2024, the Assembly decidedon three days later, on 2 October 2024, to waive the immunity of Mr Romanowski “to allow justice to be administered”.
After considering whether the request was serious – namely that it should not be inspired by reasons other than the dispensing of justice – the Assembly, on the basis of a report by its Committee on Rules of Procedure, Immunitues and Institutional Affairs, prepared by Ms Heike Engelhardt (Germany, SOC), decided that “there are no sufficient reasons to doubt the genuine intention of the prosecution” against Mr Romanowski as aiming solely at the proper administration of justice.
The President of the Assembly communicated this decision to Minister Bodnar on the same day.
In 1994, Paolo Caccia, a member of the Italian delegation to PACE, was arrested after he lost his parliamentary seat following the dissolution of the Italian parliament.
The then President of the Assembly reminded the Italian authorities that Mr Caccia continued to benefit from his PACE immunities, and he was released by court order in May 1994.
As this example illustrates, immunity is not a privilege conferred upon a person but rather aims at safeguarding the proper functioning of a democratic institution. No one can invoke it to commit a crime, but no one can ignore it either. When the national legal proceedings are not inspired by reasons other than that of dispensing justice, the immunity should be lifted.
Resolution 2572 (2024) Request for waiver of the immunity of Mr Marcin Romanowski
Opinion for the Bureau of the Parliamentary Assembly on the status of Ms Nadiia Savchenko with regard to Council of Europe immunity
Relevant extracts
Resolution 2392 (2021) and Doc. 15364 on Guidelines on the scope of the parliamentary immunities enjoyed by members of the Parliamentary Assembly
Resolution 2127 (2016), Recommendation 2095 (2016) and Doc. 14076 on Parliamentary immunity: challenges to the scope of the privileges and immunities enjoyed by members of the Parliamentary Assembly
Relevant extracts
Resolution 2087 (2016), Recommendation 2083 (2016) and Doc. 13944 on Introduction of sanctions against parliamentarians
Resolution 1490 (2006) and Doc. 10840 on Interpretation of Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe
Relevant extracts
Resolution 1325 (2003), Recommendation 1602 (2003) and Doc. 9718 (Revised) on Immunities of Members of the Parliamentary Assembly
Reply from the Committee of Ministers
Relevant extracts
Judgment no. 35373/97, 17 December 2002 - A. v. the United Kingdom
