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Resolution 2127 (2016)
Parliamentary immunity: challenges to the scope of the privileges and immunities enjoyed by members of the Parliamentary Assembly
1. No parliament of a Council of Europe
member State can consider itself immune in absolute terms to possible
attacks on its sovereignty and integrity or on the independence
and freedom of expression of its members in the exercise of their
mandate, even if it can rely on an age-old democratic tradition
and stable institutions.
2. The Parliamentary Assembly recognises that, despite a common
constitutional tradition, the system of parliamentary immunities
is strongly influenced by the traditions and the political culture
specific to each country and varies considerably in Europe, whether
in terms of its nature, scope or existing parliamentary practices.
Almost all member States grant their elected politicians parliamentary
immunity based on the need to protect the very principle of representative
democracy.
3. The Assembly reiterates that the primary purpose of parliamentary
immunity, in its two forms – non-liability and inviolability – lies
in the fundamental protection of the parliamentary institution and
in the equally fundamental guarantee of the independence of elected
representatives, which is necessary for them to exercise their democratic
functions effectively without fear of interference from the executive
or judiciary.
4. The system of non-liability is generally extremely stable
in the member States. In theory and as a matter of principle, non-liability
is absolute, permanent and perpetual in nature. It exempts members
of parliament from legal proceedings for acts carried out, statements
made, votes cast or opinions expressed in parliamentary debates
or in the discharge of their parliamentary duties.
5. Inviolability is a special form of legal protection enjoyed
by members of parliament, whereby certain legal measures, such as
arrest, detention or prosecution, may not be taken against them
for acts unrelated to their parliamentary duties without the consent
of the parliament of which they are members, except where they have been
caught committing an offence or have been handed a final conviction.
It is temporary in nature and applies only for the duration of the
term of office, and it can always be waived. There are significant
differences regarding the nature and degree of this protection granted
to members of parliaments in member States.
6. Since the adoption of Resolution
1325 (2003) on immunities of members of the Parliamentary
Assembly, the political situation in Europe has changed and criticism
has been voiced by civil society in the name of the principle of
equality before the law, calling into question the legitimacy of
some forms of immunity, which are condemned as granting members
of parliament virtual impunity.
7. The absolute protection of the acts and statements of members
of parliament, especially as far as hate speech is concerned, does
indeed pose a problem in view of the current rise in extremism and
nationalism against the backdrop of an upsurge in terrorism and
the migration crisis. The Assembly notes and welcomes the fact that,
in some States, insulting or defamatory utterances, incitement to
hatred or violence or, in particular, racist remarks are not covered
by non-liability rules.
8. Similarly, parliamentary immunity may be open to misuse or
the obstruction of justice, especially in connection with the fight
against corruption under way in many States. The Assembly notes,
as does the European Commission for Democracy through Law (Venice
Commission), that the existence of such a system of immunity may
undermine public confidence in parliament and discredit politicians.
9. The Assembly welcomes the development and consolidation of
the rule of law and democratic societies in Europe, which have reduced
the need for parliamentary inviolability, which is now no longer
considered an imperative form of protection and is restricted in
scope by some member States. The pan-European system of human rights
protection combined with the effectiveness of the judicial system
is today supposed to protect a member of parliament from any harassment,
undue pressure or wrongful accusation.
10. The Assembly is concerned about how the position taken by
the Venice Commission in 2014, in its report on the scope and lifting
of parliamentary immunities, could be interpreted, calling on States
“that have rules on parliamentary inviolability” to revise them
“in order to evaluate how they function and whether they are still justified
and appropriate in a present day context, or whether they should
be reformed”. It wishes to emphasise that the anchoring of a genuine
and stable culture of democracy throughout the European continent presupposes
the consolidation of a culture of political alternation, the transparency
of political life and respect for the rights of the political opposition
in all States. This stage has not yet been reached in some of the youngest
democracies in Europe that are not yet wholly free from their authoritarian
past and where there is real reason to fear that the government
will seek to bring false charges against political opponents and
that the courts may be subject to political pressure. Moreover,
in this context, the desire of incumbent governments to stay in
power is reflected in successive changes in the electoral laws and
amendments to the constitution aimed at weakening the opposition.
11. The Assembly notes that parliamentary inviolability continues
to fulfil its original fundamental role in countries that do not
provide their parliamentarians with adequate means of protection,
especially because their judiciary and criminal justice system provide
insufficient safeguards. In general terms, protecting members of
parliament against any judicial action based on the intention to
harm their political activities constitutes an important safeguard
for the political minority and a means of protecting the opposition.
Therefore, the Assembly condemns methods of exerting political pressure
that take the form of opening or re-opening proceedings against
members of parliament with no connection to their parliamentary
mandate whatsoever, such as taxation matters, or instituting criminal
proceedings against members of their family. Accordingly, it reaffirms the
need to maintain a system of inviolability that, as the European
Court of Human Rights has pointed out, makes it possible to prevent
“any possibility of politically motivated criminal proceedings (fumus persecutionis) and thereby
protects the opposition from pressure or abuse on the part of the
majority” (Kart v. Turkey judgment,
3 December 2009).
12. The Assembly calls on member States that are considering reviewing
their system of immunities that protect members of parliament, or
have already begun to review it in response to criticism, to take
into consideration the following general principles:
12.1. immunity is a fundamental democratic
safeguard born of the need to preserve the integrity and independence
of parliaments, their operation and their acts as institutions;
it is not a personal attribute available to the elected representative
and its aim is not to protect his or her individual interests;
12.2. parliamentary immunity protects the free exercise of the
parliamentary mandate and, whether it covers acts strictly bound
up with or unrelated to their parliamentary duties, it must not
be open to misuse or the obstruction of justice; the exercise of
elective office involves compliance with ethical behaviour and the
obligation to account for one’s acts; immunity is not a system of
impunity;
12.3. the basic rules of parliamentary immunity must be enshrined
in legal provisions with constitutional status, at least as far
as its most important aspects are concerned, such as its scope and
extent and the rules for waiving it; its recognition at the top
of the hierarchy of norms allows the integrity of parliaments and
the independence of their members in the exercise of their mandate
to be permanently guaranteed in the case of political instability
or any attempt by the executive to interfere;
12.4. a revision of the scope and extent of parliamentary immunity
must be carefully examined with regard to its objectives, its criteria
and its impact; based on a rational approach free from any demagogy or
populism; debated objectively and open to wide-ranging public discussion;
such a revision should avoid any disruptive change in the system
of immunity, such as switching from a set of rules that provides a
great deal of protection to the total elimination of parliamentary
safeguards;
12.5. in this context, account must be taken of the crucial
need to preserve the rights and integrity of members of the political
minority during and after the end of the parliamentary mandate;
12.6. freedom of speech is an intrinsic part of parliamentary
work and elected politicians must be able to debate, without fear,
many different issues of public interest, including controversial
or divisive subjects or matters relating to the operation of the
executive or the judiciary; however, remarks and statements inciting
hatred, violence or the destruction of democratic rights and freedoms
can be excluded from the scope of non-liability; members of parliament
who misuse the public forum could render themselves liable to internal
disciplinary action in accordance with a transparent and impartial regulatory
procedure, or even the withdrawal of their parliamentary mandate
in the case of serious and persistent violations;
12.7. the procedure for waiving parliamentary inviolability
must comply with the principles of transparency, legal certainty
and foreseeability and respect procedural safeguards relating to
the rights of the defence, in order to prevent any possibility of
a selective or arbitrary decision.
13. The Assembly reminds its members that they are covered by
specific rules of immunity that they share with the members of the
European Parliament. This immunity is autonomous in nature as it
is distinct from and independent of the national parliamentary immunity
which members of parliament may enjoy in the territory of their
own State. The Assembly recognises the validity of the criteria
developed in the last few years by the European Parliament when
considering requests for members’ immunity to be waived.
14. The Assembly emphasises that the immunities provided for its
members by the Statute of the Council of Europe (ETS No. 1) and
Articles 13, 14 and 15 of the General Agreement on Privileges and
Immunities (ETS No. 2) extend to an Assembly member immediately
on becoming a member of the Assembly and cover the whole period
of his or her activity as a member of the respective national delegation
to the Assembly during the sessions of the Assembly.
15. The Assembly invites member States to take all necessary measures
to ensure compliance with obligations under the General Agreement
on Privileges and Immunities of the Council of Europe and its protocol
(ETS No. 10), on which they have not expressed a reservation or
made an interpretative declaration. It is concerned about the changes
to national systems of parliamentary immunity, in particular by
means of amending or suspending constitutional provisions, which
lead, in practice, to render ineffective Article 15.a of the General Agreement on Privileges
and Immunities, and to remove de facto protection
accorded to members of the Assembly on the territory of their own
State, as defined by the Assembly in its Resolution 1490 (2006) on the interpretation
of Article 15.a of the General
Agreement on Privileges and Immunities of the Council of Europe.
16. The Assembly reminds member States that it must decide on
the lifting of the immunity of its members in cases where national
law requires authorisation from a national parliament prior to the
criminal prosecution of its members. It considers that the need
to ensure respect for the rule of law and to prevent any disguised attempt
to cause political damage to a member by judicial action (fumus persecutionis) requires the
Assembly to examine the lifting of immunity which members enjoy
under Article 15.a of the
General Agreement on Privileges and Immunities, regardless of the
procedure that could take place at national level.
17. In this context, the Assembly urges member States to act in
strict compliance with their obligations under Article 40 of the
Statute of the Council of Europe and Articles 13, 14 and 15 of the
General Agreement on Privileges and Immunities of the Council of
Europe and its protocol and to guarantee their effective application. It
strongly condemns the breaches by some States of the immunity status
of Assembly members and, in particular, of the principle of free
movement, and reiterates that a violation of these statutory provisions
falls within the scope of Rule 8 of the Assembly’s Rules of Procedure
(challenge of still unratified credentials on substantive grounds).
18. The Assembly decides to request the opinion of the Venice
Commission on the suspension by a provisional clause of Article
83 of the Constitution of Turkey, which guarantees the parliamentary
inviolability of members of the Grand National Assembly.