Doc. 9718 revised

25 March 2003

Immunities of Members of the Parliamentary Assembly

Report

Committee on Rules of Procedure and Immunities

Mr Olteanu, Romania, Socialist Group

Summary

The basic texts relating to the immunities of members of the Parliamentary Assembly date from 1949 and 1952 respectively. Since then, the rules governing parliamentary immunities have undergone significant development at both the national and the European level.

This report concerns the extent to which the Assembly’s procedure and practice regarding the immunities of its members should be adapted, amplified or reinterpreted.

It essentially seeks the following aims:

(1)       to clarify the parliamentary non-accountability enjoyed by members of the Assembly, bearing in mind the recent case-law of the European Court of Human Rights in this respect;

(2)       to remind national authorities lodging a request with a national parliament to withdraw its own parliamentary immunity from a Parliamentary Assembly member that they must make the same request with the Assembly;

(3)       to determine the criteria to be taken into consideration when the Assembly is to rule on a request to have parliamentary immunity waived;

(4)       to specify that the parliamentary immunity enjoyed by its members covers the entire parliamentary year.

I.       Draft Resolution

1.       The Parliamentary Assembly stresses that parliamentary immunity is one of the most ancient parliamentary guarantees in Europe. Its purpose is to preserve the integrity of parliaments and to safeguard the independence but not the impunity of its members in exercising their office. Immunity provides specific protection against the accusations to which parliamentarians are more exposed than other citizens. Moreover, in new democracies, in the initial stages of constitutional development the presence of immunities is highly important, particularly when the independence of the judiciary is still being consolidated.

2.       The Assembly recalls that it was the first international parliamentary institution in Europe to incorporate provisions in its Rules of Procedure for waiving the immunity of its members, giving practical expression to Article 40 of the Statute of the Council of Europe and the General Agreement on Privileges and Immunities of the Council of Europe (1949) and its additional protocol (1952).

3.       It notes that it has received very few requests to waive the immunity of members and also that few of its members have asked it to confirm their immunity in respect of proceedings against them at national level. It concludes that, on the one hand, knowledge of the system of immunity for Assembly members is lacking and, on the other hand, certain notions of the system are subject to narrow interpretations in states.

4.       It points out that the provisions relating to parliamentarians in the General Agreement on Privileges and Immunities of the Council of Europe and its additional protocol and those of the Protocol on privileges and immunities of the European Communities appended to the Treaty of 8 April 1965 are identical. Furthermore, the European Parliament has developed a concept of European parliamentary immunity and disposes of extensive case-law concerning the practical application of that immunity. The Assembly notes that negotiations are currently taking place on the status of members of the European Parliament which will also include immunities.

5.       As regards non-accountability/non-liability (parliamentary privilege) provided for in Article 14 of the General Agreement on Privileges and Immunities of the Council of Europe, the Assembly believes that such immunity should include the opinions expressed by the Assembly's Representatives and Substitutes when carrying out official functions in member states with the approval of the competent national authorities. It also believes that the possibilities of sanctioning Assembly members (Rule 20 of the Rules of Procedure of the Parliamentary Assembly) should be reinforced in the event of their expressing opinions containing defamation, insults or slander.

6.       The Assembly also notes that in its judgment of 17 December 2002 in the case of A. versus the United Kingdom (application no. 35373/97), the European Court of Human Rights stated, inter alia, that “In a democracy, Parliament or such comparable bodies are the essential fora for political debate. Very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein” and that “a rule of parliamentary immunity which is consistent with and reflects generally recognised rules within signatory states (of the European Convention on Human Rights), the Council of Europe and the European Union, cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 par. 1 (of the European Convention on Human Rights)”.

7.       Concerning parliamentary inviolability, guaranteed by Article 15 of the General Agreement, the Assembly emphasises that the procedure for waiving parliamentary immunity at the Parliamentary Assembly is separate from that of national parliaments. A national authority lodging a request to waive the immunity of a Parliamentary Assembly member in respect of their own national parliament must also therefore lodge a request with the Assembly. Moreover, the notion "during the sessions of the Assembly" should be defined. The Assembly further considers that the general principles of European parliamentary immunity, which were developed since the adoption of the General Agreement, should be taken into account for the purpose of defining the scope of Article 15 of that Agreement, insofar as they are compatible with the nature of the Assembly and its practice.

8.       Like other international parliamentary institutions, the Parliamentary Assembly will have to incorporate a provision in its Rules of Procedure whereby its members may request the Assembly to confirm their European immunity in respect of national proceedings.

9.       Finally, the Assembly believes that Rule 64 of its Rules of Procedure must be more precise where the handling of requests to waive immunity is concerned and be adapted to new developments.

10.       Consequently, the Assembly decides to amend Rule 64 of its Rules of Procedure as follows:

11.       The Assembly also invites national parliaments and the competent national authorities to take into account for interpreting the concepts of non-accountability/non-liability and inviolability, as well as the corresponding provisions of the General Agreement on Privileges and Immunities of the Council of Europe the criteria appended to the present report.

12.       It decides that the new provisions shall enter into force following their adoption.

II.       Draft Recommendation

1.       The Parliamentary Assembly refers to its Resolution ….(2003) on immunities of the members of the Parliamentary Assembly.

2.       It recalls that in the light of the ongoing work of the Assembly and its bodies throughout the year and the concept of European parliamentary immunity developed by the European Parliament, the notion "during the sessions of the Assembly" covers the entire parliamentary year.

3.       The Assembly points out that according to Article 15 (b) of the General Agreement on Privileges and Immunities of the Council of Europe, members of the Parliamentary Assembly enjoy on the territory of all other member states than their own state, exemption from arrest and prosecution. This immunity may only be lifted by the Parliamentary Assembly following a request submitted to it by a competent national authority.

4.       The Assembly further recalls that under Article 15 of the General Agreement, Representatives to the Assembly and their Substitutes continue to 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.

5.       The Assembly recommends that the Committee of Ministers invite member states:

i.       to interpret the immunities accorded under Article 14 of the General Agreement in such a way as to include the opinions expressed by Assembly members within the framework of official functions they carry out in the member states on the basis of a decision taken by an Assembly body and with the approval of the competent national authorities;

ii.       to remind the competent authorities of member states having a system of parliamentary inviolability and which wish to waive the immunity of a national parliamentarian who is at the same time a member of the Parliamentary Assembly, that they should also request the Assembly to waive the European immunity of that member which is granted to him/her under Article 15 (a) of the General Agreement;

iii.       to also remind their authorities that at all stages when parliamentary immunity is waived the presumption of innocence must be maintained;

iv.       to ask the competent authorities to notify the President of the Parliamentary Assembly in the event of measures to detain or prosecute a member of that Assembly.

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TABLE OF CONTENTS       Page

a.       introduction       8

b.       types of immunities granted to members of the parliamentary assembly       8

i.       Immunity under Article 14 of the General Agreement (non-liability/non-accountability)       9

ii.       Parliamentary privilege (Article 14 of the General Agreement) and the European

iii.       Immunity under Article 15 of the General Agreement (“parliamentary inviolability”)       13

      (a) Article 15 (a) of the General Agreement and concept of European parliamentary

      immunity evolved by the European Parliament       13

      (b) Article 15 (b) of the General Agreement       16

iv.       Immunity under Article 15 of the General Agreement, while members are travelling

v.       Immunity under Article 15 of the General Agreement granted to members “during

vi.       Beginning and end of parliamentary Assembly members’ immunity,

      incompatibility with the office of Assembly member        17

      (a) Beginning of the immunity       17

      (b) Immunity in respect of acts perpetrated by members of the Parliamentary Assembly

      before the beginning of their term of office       18

      (c) End of the immunity – members of the Assembly whose national parliamentary

      mandate has expired - incompatibilities       18

vii.       Scope of the provisions of Article 11 of the General Agreement on Privileges and

c.       procedure to be followed regarding requests for the waiver of the immunity       20

i.       The competent authority for requesting waiver of the immunity        20

ii.       Hearing by the Committee on Rules of Procedure and Immunities of the

iii.       Requests at both national and European level to waive the immunity of

iv.       Compliance with Article 6 of the European Convention on Human Rights and

v.       Confirmation of parliamentary immunity       22

vi.       Other procedural issues       23

d.       brief summary of the situation concerning parliamentary immunity

      at national level       23

i.       General remarks       23

ii.       Current trends regarding parliamentary immunities in the Council of Europe

      (a) Statistics on requests to waive immunity in national parliaments       24

      (b) Parliamentary non-accountability/non-liability       25

      (c) Parliamentary inviolability       25

iii.       Plans to reform parliamentary immunity regimes       26

iv.       The attitude of the media and the public towards parliamentary immunity       27

v.       Opinion polls on parliamentary immunities       29

e.       precedents and facts to be taken into account by the Parliamentary Assembly

      for developing a doctrine concerning requests for the waiver of members’

      immunity        29

f.       conclusions       31

appendix i: Criteria for interpreting the concept of non-accountability/non-liability (parliamentary privilege) and inviolability (general principles of European parliamentary immunity)       33

appendix II: Provisions concerning immunities contained in the Statute and the Assembly’s

Rules of Procedure       35

appendix III: State of ratification of and accession to the General Agreement on Privileges

and Immunities of the Council of Europe (1949) and its Protocol (1952)       37

III.       Explanatory memorandum by the rapporteur

A.       INTRODUCTION

1.       In April 2001, for the first time in its history, the Assembly referred to the Committee on Rules of Procedure and Immunities a request for the waiver of the immunity of one of its members, who, however, subsequently resigned in June 2001. For that reason, the file was closed. However, at its meeting on 27 June 2001, the Committee felt that this episode should be used as an opportunity to lay down general guidelines for considering any future requests for the waiver of immunity. It should be borne in mind that:

-       the Assembly’s Rules of Procedure contain few references as to how questions relating to immunity should be dealt with;

-       there are no precedents shedding light on the principles or practice in the Parliamentary Assembly regarding immunity questions;

-       the legal basis for the immunity of members of the Assembly, i.e. the 1949 General Agreement and its 1952 Protocol, is now somewhat inadequate;

-       the situation concerning parliamentary immunities is evolving at both European (European Parliament) and national levels.

2.       On 29 May 2002 the Standing Committee referred to the Committee on Rules of Procedure, for a report, a motion for an order on the immunities of members of the Parliamentary Assembly (Doc. 9439).

3.       It should be borne in mind that parliamentary immunity constitutes one of the oldest parliamentary guarantees in Europe. It serves to preserve the integrity of parliaments and to ensure the independence of its members in the discharge of their office (see Article 11 of the General Agreement and Article 5 of the Protocol thereto) and not their impunity in respect of the charges to which parliamentarians are more exposed than other persons amenable to justice. In other words, it is a matter of protecting parliamentarians from penal or judicial actions instigated by other State powers or by the citizens with a view to depriving the elected assemblies of a member’s co-operation or freedom of action.

4.       As rapporteur, I shall first of all outline the institutional provisions relating to the immunity of the Assembly members. I shall then describe the procedure to be adopted within the Assembly with regard to requests for the waiver of immunity and provide some information on the practice followed by national parliaments in such matters. Lastly, I shall indicate the factors to be taken into account in establishing Assembly doctrine in the field of immunity.

5.       In May 2002, the Committee on Rules of Procedure and Immunities sent a questionnaire to Assembly national delegations in order to obtain further information on parliamentary immunity systems. As at 15 February 2002, 32 replies had been received from member states. Note also that in January 2003 the Belgian delegation presented a memorandum on this draft report (cf. AS/Pro (2003) – French only).

B.       TYPES OF IMMUNITIES GRANTED TO MEMBERS OF THE PARLIAMENTARY ASSEMBLY

6.       A list of the Council of Europe’s texts governing the immunity of the Representatives of the Assembly and their Substitutes is reproduced in the Appendix. The basic principle, established in Article 40 (a) of the Statute of the Council of Europe, is that Assembly members shall enjoy in the territories of the Council’s member states such privileges and immunities as are reasonably necessary for the fulfilment of their functions. The General Agreement on the Privileges and Immunities of the Council of Europe, which was concluded on 2 September 1949 in conformity with Article 40 (b) of the Statute and its additional Protocol of 6 November 1952, supplement Article 40 (a) of the Statute. The state of ratification of and accession to the treaties is appended to this report.

7.       Under the Agreement, there are three types of immunities for members:

-       they are 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 (Article 14 of the General Agreement on Privileges and Immunities);

-        they enjoy:

      •on       their national territory the immunities accorded in the country concerned to members of parliament (Article 15 (a) of the General Agreement);•

      •on       the territory of all other member states, exemption from arrest and prosecution (Article 15 (b) of the General Agreement).8.

8.       Article 15 of the General Agreement and Article 3 of the Protocol specify that these immunities cover Assembly members when:

-       travelling to or from the venue of the Assembly meeting;

-       attending a meeting of an Assembly committee or sub-committee, or travelling to or from the meeting venue.

9.       Immunity cannot be invoked when a member is found committing, attempting to commit or just having committed an offence, nor can it obstruct the Assembly’s right to waive a member’s immunity (Article 15 of the General Agreement).

i.       Immunity under Article 14 of the General Agreement (non-liability/non-accountability)

10.       The first type of immunity (Article 14 of the General Agreement), i.e. non-liability/non-accountability is intended to ensure a climate of independence in the Assembly and enable its member to express their opinions and criticisms freely in the performance of their functions. Thanks to this guarantee, the factors possibly leading to pressure of any kind or risk of deterrence in the debates are neutralised. Moreover, in Council of Europe member States having absolute non-liability of members of parliament, it is considered that to give the judiciary authority over what members of parliament say in their deliberations would be regarded as an unacceptable transgression of the separation of powers. The immunity deriving from Article 14 is special in that no judicial authority could at any time, even after expiry of the term of office of a member, validly hand down a conviction on the evidence of opinions expressed or votes cast in the Assembly. Owing to its absoluteness, this immunity does not admit of a procedure to have it lifted. However, in the event of an Assembly member being implicated at the national level, it is for the competent national authorities to decide whether Article 14 of the General Agreement is applicable by interpreting the provisions in question, namely the terms “votes”, “words” and “in the exercise of their functions”. As early as 1951 (Doc. 91 (1951), Resolution 8 (1951), the Assembly proposed to reduce the risk of divergent interpretations of Article 14 at national level, through the Assembly’s adoption of a recommendation defining the scope of this provision, which would be transmitted by the Committee of Ministers of the Council of Europe to the member states. This idea was moreover broached in the questionnaire on immunities sent to

the Assembly’s national delegations. Most delegations that have replied so far were in favour of such a resolution (or recommendation). One reply pointed out that there was a long and established national tradition regarding the interpretation of the fundamental terms in the field of non-liability/non accountability.

11.       It should be pointed out that the general view held (cf. the European Parliament’s “Donnez report” - doc. A2-121 (1986)) is that the non-liability/non-accountability of members of European parliamentary assemblies applies not only to criminal but also to civil and administrative proceedings.

12.       The terms “words spoken” comprise both oral and written statements given by members in the exercise of their functions in or on behalf of the Parliamentary Assembly. The concept of “words spoken” does not take in abusive language used by a parliamentarian towards a person on the galleries. Non-liability/non accountability covers the literal reproduction of parliamentary speeches in

the records, or in the press. Conversely, a parliamentarian’s repetition, at a press conference, of terms which he/she used in plenary session or in committee, does not come under the non-liability/non accountability rule. Votes cast within the meaning of Article 14 of the General Agreement are those prescribed by the Rules of Procedure of the Assembly and their ancillary texts. Obviously the words “in the exercise of their functions” apply to plenary sessions and to meetings of Assembly committees, sub-committees and other subsidiary bodies of the Assembly in France and the member states. Non-liability/non accountability should also extend to the official activities performed by Assembly members in connection with meetings and conferences of other Council of Europe entities. The question arises whether duties carried out by a member on the basis of a decision by an Assembly body (e.g. election observation; missions accomplished as part of the monitoring procedure) fall within the ambit of protection of Article 14 of the General Agreement. Due to the international character of the Parliamentary Assembly, it is important that non-liability (non-accountability) be defined in relation to the typical activities of its members and not by reference to a notion of geographical location. Since the upheavals that occurred between 1989 and 1991, the Assembly and its members have been more involved on the ground: observation of elections, visits to the scene in the event of crises and in the course of parliamentary diplomacy, members’ negotiations with national officials as part of the accession procedure for countries requesting Council of Europe membership, and the monitoring procedure.

13.       A questionnaire on the immunities of Assembly members sent to national delegations asked whether the expression “in the exercise of their functions” covered the activities of Assembly Representatives and Substitutes. About 15 national delegations which replied expressly recognised that the immunity accorded under Article 14 of the General Agreement applied to members during visits to member states pursuant to an official decision by a competent Assembly body and approved by the competent authorities of the countries in question. Other delegations did not take a position on the matter either because of its political nature or because of a lack of precedent. One reply expressed reservations. It should be noted that the Austrian reply suggested that the Assembly give notice of an official journey by a delegation or by one of its members to the state concerned to enable the latter to grant the necessary immunities.

14.       The Parliamentary Assembly made earlier reference to the problem of protection for its members on official business in member states in a 1986 information report (Doc. 5605) noting among other points that Assembly members are often issued with diplomatic passports by the member states and thus enjoy the same protection as senior officials of the Foreign Affairs Ministries.

15.       The Committee on Rules of Procedure and Immunities deems it indispensable that the immunity deriving from Article 14 of the General Agreement should cover the opinions expressed by Assembly members in the course of official duties discharged in the member states on the basis of a decision by an Assembly body and with the consent of the appropriate national authorities. It would therefore be advisable that the Parliamentary Assembly invite the Committee of Ministers to adopt a recommendation to member states explicitly extending the immunity accorded by Article 14 of the General Agreement to the opinions expressed by Assembly members during official duties in member states. Another possibility would be for the Committee of Ministers to allow the Assembly to amend its Rules of Procedure accordingly. This method has already been used in the past (cf. paragraph 2 of Assembly Resolution 932 (1989).

16.       It should be borne in mind that the explanatory report (par. 174) to Resolution (69) 29 of the Committee of Ministers on privileges and immunities of international organisations even then drew attention to the fact that Assembly members on official business in a member state are not covered by Articles 14 and 15 of the General Agreement, nor by Article 3 of the first Protocol.

17.       However, I am of the opinion that this form of immunity should not cover parliamentary activities such as public talks, press conferences, radio and television debates and publications (cf. pp. 174 of “Parliamentary Immunity in the Member States of the European Union and the European Parliament”, Doc. W8 rev (1999) of the European Parliament).

18.       The conclusions presented publicly on behalf of a parliamentary delegation following an election monitoring mission constitute a special case. Indeed, this involves an official disclosure forming part of the delegation’s official programme and representing the views of the delegation’s members.

19.       The decisive factor for the scope of the immunity under Article 14 of the General Agreement is therefore reference to the activities of the Parliamentary Assembly, bearing in mind its competences both explicit (Statute of the Council of Europe, Rules of Procedure and other legal texts) and implicit (Assembly practice, implied powers).

20.       Interestingly, several parliamentary delegations stated quite categorically in their reply to the Committee’s questionnaire that they would not authorise any exception to the non-accountability/non-liability of members of the Assembly (Article 14) should they be held liable for opinions expressed,. Other delegations commented that thus far their national authorities had not been required to interpret the provisions of this article or that the reply would be given by members of the delegation themselves.

21.       Finally, let us observe that members are responsible, under the arrangements for maintaining order, for the expression of their opinions before the Parliamentary Assembly. Under Rule 20 of the Assembly’s Rules of Procedure, certain words or conduct by members are deemed to be inadmissible and are therefore not covered by the principle of non-liability. Members who do not comply with the conditions of Article 20 are liable to the sanctions provided for therein (for example, censure or exclusion from the Chamber for up to 5 days). In the opinion of the Committee on Rules of Procedure and Immunities, the system of penalties should be revised and reinforced.

22.       Supreme Courts and the European Court of Human Rights have brought significant clarifications to the rules governing parliamentary non-accountability. For instance, in a leading decision now firmly established, the Italian Constitutional Court observed that parliamentary office could not cover the entire political activity of a Deputy or a Senator, for such an interpretation would carry the risk of transforming a guarantee into a personal privilege. The Constitutional Court held, in a case in point, that “no link could be established between numerous allusions made during meetings, press conferences, television programmes (...) and a parliamentary question subsequently directed at the Minister of Justice (....) To conclude otherwise (would be tantamount to accepting) that no statement may be censured, even where gravely defamatory and (...) altogether unconnected with parliamentary office or activity”.

In recent judgments, the Italian Constitutional Court has specified that where opinions expressed outside Parliament are at issue, the possible existence of a link with parliamentary activities must be verified. In particular, there must be substantial correspondence between the opinions at issue and a prior parliamentary act (judgments nos. 50. 51, 52, 79 and 207 of 2002).

ii.       Parliamentary privilege (Article 14 of the General Agreement) and the European Court of Human Rights

23.       During the Conference of Speakers and Presidents of European Parliamentary Assemblies in Zagreb (9-11 May 2002), the Deputy Speaker of the House of Commons (United Kingdom) drew to the attention of participants a decision of 5 March 2002 in which the European Court of Human Rights declared Application No. 35373/97 (A. v. the United Kingdom) admissible. Amongst other things, this application concerned the fact that the applicant was unable to have access to a court to initiate defamation proceedings in respect of statements made by a member of the House of Commons before the whole House. Within the House, opinions expressed by a member in plenary session are protected by absolute immunity. No exception can therefore be made, even where the speech of a member of parliament is openly defamatory and injurious; as such, the statements in question cannot be challenged before a United Kingdom court. However, abuse of the freedom of expression is nevertheless subject to the self-regulation of the United Kingdom Parliament. The above-mentioned Court decision and the address by the Deputy Speaker of the House of Commons are reproduced in document AS/Pro (2002) 11 (available in English only).

24.       On 17 December 2002 the European Court of Human Rights rendered its judgement in this case1. The Court stated inter alia that:

-       “In a democracy, Parliament or such comparable bodies are the essential fora for political debate. Very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein”.-

-       “… a rule of parliamentary immunity, which is consistent with and reflects generally recognised rules within signatory States (of the European Convention on Human Rights), the Council of Europe and the European Union, cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 par. 1 of the Convention (see, mutatis mutandis, the above-mentioned Al-Adsani judgment, par. 56). Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by signatory States as part of the doctrine of parliamentary immunity (ibid)”.-“

-       “… the application of a rule of absolute parliamentary immunity cannot be said to exceed the margin of appreciation allowed to states in limiting an individual’s right of access to court”.25

25.       It is to be noted that in a separate concurring opinion appended to the judgment of 17 December 2002, Judge Costa said that “the reasoning in this judgment may be summarised as follows: “the absolute nature of immunity enjoyed by members of parliament in respect of their statements serves an interest that is so important as to justify the denial of access to court to seek redress”. While having no reservations abut the approach followed by the Court so far, Judge Costa raised, inter alia, the question if this principle should not be tempered since the relation between parliament and the outside world would have changed. Parliaments no longer were solely or chiefly concerned with protecting their members from the Sovereign or the Executive. Their concern should now be to affirm the complete freedom of expression of their members, but also perhaps to reconcile that freedom with other rights and freedoms that are worthy of respect.

In a dissenting opinion appended to the judgment of 17 December 2002, Judge Loucaides said, inter alia, that:

-       “there should be a proper balance between freedom of speech in parliament and protection of the reputation of individuals. … Such balancing implies that neither of the two rights should be allowed to prevail absolutely over the other, there should be a harmonious reconciliation, through appropriate qualification, so that the necessary protection is given to both rights”.-“

-       “… absolute immunity is a disproportionate restriction of the right of access to a court”.-“

-       “… the absolute privilege which protected the MP’s statements in parliament about the applicant, in my opinion, violated her right to respect for her private life under Article 8 of the Convention, because it amounted to a disproportionate restriction of that right.26

26.       In a judgment of 30 January 2003 (case of Cordova (No. 2) v. Italy – application no. 45649/99), the European Court of Human Rights noted that the statements of an Italian parliamentarian, having been made during an electoral meeting and thus outside a legislative assembly, had not related to the performance of parliamentary duties in the strict sense, but appeared to have been made in the context of personal disputes. In a case like this, the Court held that a denial of access to a court could not be justified solely on the ground that the dispute might be of a political nature or might relate to a political activity. In the Court’s opinion, the absence of an

obvious link with any kind of parliamentary activity meant that the notion of proportionality between the aim pursued and the means employed had to be interpreted narrowly. That was particularly true where restrictions on the right of access had resulted from a resolution passed by a political body.

To conclude otherwise would amount to restricting, in a manner incompatible with Article 6 § 1 of the Convention, the right of individuals to apply to a court in any case where the comments in issue had been made by a member of parliament. Elsewhere in the judgment, the Court adverted to the preservation of the fair balance that should be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

iii.       Immunity under Article 15 of the General Agreement (“parliamentary inviolability”)

27.       Inviolability protects parliamentarians in respect of acts not part of typical parliamentary activity. Unlike non-liability/non-accountability, which is a privilege of an objective kind, the inviolability granted under Article 15 of the General Agreement is accordingly designed to secure the personal protection of members and constitutes a procedural guarantee established to ensure that the work of the Assembly is not hampered. Thus immunity is also a guarantee of the Assembly’s independence and of that of its members vis-à-vis other institutions or authorities. Inviolability is intended to guard against situations where detention or laying of charges is manipulated in order to remove parliamentarians from active office and, by this expedient, parliament is wrongfully denied the co-operation or assistance of its members. Inviolability under Article 15 will only be granted if there is a link between the offences attributed to the parliamentarian and his/her political activities. It should also be noted that Article 5 of the Protocol to the General Agreement specifies that “privileges, immunities and facilities are accorded to the Representatives of member states 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”. It follows that inviolability does not seek to establish a field of exemption for possible unlawful acts committed by a parliamentarian, but rather to obtain an assurance that a criminal charge does not conceal a political or party attempt to remove a member from parliament2.

28.       In a report published in 2002 (Doc. A5-195-/2002), the European Parliament emphasised that Article 10 of the 1965 Protocol on the Privileges and Immunities of the European Communities (which uses the same terms in French as Article 15 of the General Agreement on the Privileges and Immunities of the Council of Europe) seemed insufficient as it established two different regimes – the one national and the other European – and did not in any way address the question of procedure. In the case of Wybot v. Faure before the Court of Justice of the European Communities (Case 149/85; ECR (1986) p. 2398) it was quite rightly pointed out that Article 10 of the 1965 Protocol established a system of immunity which varied according to the nationality of the member when proceedings were brought against him or her in his or her own country, but was common to all members in respect of proceedings brought in other member states.

(a)       Article 15 (a) of the General Agreement and concept of European parliamentary immunity evolved by the European Parliament

29.       Article 15 (a) of the General Agreement states that Assembly members shall enjoy on their national territory the immunities accorded in their country to members of Parliament. The Assembly is faced with a specific problem resulting from the fact that the extent of immunities varies considerably in the Council of Europe member states. The consequence of this is that differences in treatment as regards immunities between the members of one and the same parliament – the Parliamentary Assembly of the Council of Europe – are accentuated because of the nationality of its members. Let us remember that several member states do not have a system of parliamentary inviolability.

30.       In its application of Article 15 (a) of the General Agreement, the Assembly may also have to deal with certain issues – which are not always straightforward to address – raised by the legislation and practices in the country concerned relating to the immunities of members of the national parliament.

31.       As far as international parliamentary institutions in Europe are concerned, the provisions regarding parliamentary immunities are identical for the Parliamentary Assemblies of the WEU3 and the Council of Europe and the European Parliament. This fact has favoured the creation of a European parliamentary law concerning immunities. The European Parliament is a sovereign parliament, which has very significant autonomous legislative and budgetary powers. It has acknowledged the problem of differences in treatment (as regards immunities) between their members depending on their nationality. Furthermore, the European Parliament takes the view that what might be the rule for members of national parliaments in their own countries does not and cannot constitute a precedent for members of the European Parliament in a member state other than their own. Bearing these considerations in mind and on the basis of the Protocol on the Privileges and Immunities of the European Communities, the European Parliament has developed a consistent concept of European parliamentary immunity.

32.       This concept is based primarily on the following principles:

-       the purpose of immunity is to guarantee the independence of the European Parliament and its members vis-à-vis other authorities; it is not designed as a privilege for the personal benefit of the individual members;

-       in order to avoid any accentuation of the differences in treatment between members of the European Parliament arising from their nationality, immunity within the European Parliament is independent of that applied in the national parliaments of member states.

      In this connection, the European Parliament holds that whereas “parliamentary immunity is the same for national and European members of parliament, the waiving of immunity is the prerogative of each individual parliament”.

33.       In particular, the European Parliament does not waive immunity if the offences alleged to have been committed by one if its members fall under the heading of political activity.

34.       The European Parliament refuses to accept that the alleged acts of a member fall into the category of political activity if4:

-       the allegations are of a particularly serious nature; the European Parliament takes into account whether the acts at issue resulted in violence, material damage or caused prejudice to a third party;

-       the acts are deemed to constitute a threat to individuals or to democratic society;

-       the acts involve a clear-cut breach of criminal law or administrative rules or provisions, where there is no connection whatsoever with a member’s political activity;

-       the acts constitute defamation of people in an individual capacity and not as Representatives of an institution.

35.       It should be noted that the European Parliament takes account of the concept of “fumus persecutionis”, i.e. the presumption that behind the criminal proceedings there is an intention to interfere with the political activities of the member (for example, where anonymous denunciations are at the basis of the inquiry or where the request is submitted a long time after the alleged facts have taken place, etc).

36.       In particular, the European Parliament has taken into consideration any apparent link between the date of the denunciation and the date on which the member concerned was elected, the fact that only the MEP in question was being prosecuted whereas other persons could also have been charged, and whether the MEP was being prosecuted for decisions for which he or she was not responsible or where there was no evidence of his or her involvement in the events at issue.

37.       In several reports concerning requests for the waiver of parliamentary immunity, the European Parliament has also taken into account the fact that for the same offence attributed to an MEP, one EU member country may provide for stronger sanctions than another, or may even provide for no sanction (see, for example, paragraph 8 of EP document A5-0123/2001 of 17 April 2001).

38.       Examples of cases where the European Parliament has accepted and rejected requests to waive a member’s immunity are given in a study published by the European Centre for Parliamentary Research and Documentation5.

39.       In view of the lack of precedents in the Parliamentary Assembly concerning the scope of immunity provided for in Article 15 (a) of the General Agreement of Privileges and Immunities of the Council of Europe, the Assembly might wish to take into account for its approach on the principles developed by the European Parliament. It should be remembered that prior to 1979, when the European Parliament was first directly elected, it was composed of delegations of national parliaments, exactly as is the Parliamentary Assembly. Furthermore, it happens, albeit more and more seldom, that members of the European Parliament are at the same time members of their national parliament (i.e. they have a “dual mandate”). The situation as regards the immunities of these members of the European Parliament is therefore, at least in part, comparable to that of the Representatives to the Parliamentary Assembly and their Substitutes. Clearly, and this was emphasised by some of the members of the Assembly’s Committee on Rules of Procedure and Immunities at their meeting on 27 September 2001, these European Parliament principles cannot be transposed wholesale to the Assembly; it is essential not to lose sight of the differences between the European Parliament and the Assembly, and of the particular institutional features of the Council of Europe.

40.       The reply of the Czech parliament to the questionnaire on parliamentary immunity rightly observes that the formulation of the concept of European parliamentary immunity is a means to change by interpretation the content of the problematic Article 15 (a) of the General Agreement. However, that reply also stresses that it would be legally purer to negotiate at Council of Europe level the change of Article 15, so as to provide all Parliamentary Assembly members with the same treatment. It is to be noted in this connection that such change, to be applicable in all Council of Europe countries would require prior ratification by the forty-four member States and their parliaments. Even in the circles of the European Parliament, which for the time being only covers fifteen member States, it is considered that “the updating of the Protocol on privileges and immunities poses a real problem, if only because it requires agreement from all national parliaments” (see Agence Europe of 4 December 2002 (No. 8353). This opinion is fully justified, so the difficulties associated with an amendment of the fundamental texts guaranteeing the immunity of their members must be the reason why the European Parliament and also the Parliamentary Assembly have hitherto preferred an extensive interpretation of these texts to their revision.

41.       Where an Assembly member no longer holds a national parliamentary mandate, what is his position regarding immunity under the terms of Article 15 (a) of the General Agreement, when for example his former national parliament has been dissolved because of parliamentary elections? It has to be emphasised firstly that this immunity applies to the members of the Assembly, whether or not they are parliamentarians. Concerning the practical arrangements at national level, it is hoped for one thing that the national authorities will observe the general principles of European parliamentary immunity as set out in the operative part of this report.

Further, as suggested in the Belgian delegation’s memorandum to the Parliamentary Assembly (cf. AS/Pro (2003) 3), any national rules that exist should be applied mutatis mutandis.

(b)       Article 15 (b) of the General Agreement

42.       This provision stipulates that Assembly members shall enjoy on the territory of all member states other than their own exemption from arrest and prosecution. This is genuine European immunity as it is independent of any national legislation or practice, unlike Article 15 (a) of the General Agreement. The word “prosecution” is generally interpreted broadly to include any measure provided for in national criminal law preventing a member of parliament from discharging the functions inherent in his or her term of office in the Parliamentary Assembly (cf the above-mentioned European Parliament study (1999), page 177). On the other hand, Article 15 (b) is not applicable to civil proceedings (cf. report by the House of Lords Select Committee on the European Communities, “Privileges and immunities of the members of the European Parliament”, 18 March 1986, para. 29). This is also the position of the European Parliament with respect to the meaning of the similar article of the Protocol on Privileges and Immunities of the European Communities.

iv.       Immunity under Article 15 of the General Agreement, while members are travelling and “flagrante delicto”

43.       Immunity also applies when members are travelling to and from the venue of the Parliamentary Assembly’s meeting6. Article 3 of the Protocol to the General Agreement on Privileges and Immunities explicitly extends this immunity to Representatives of the Assembly and their Substitutes attending or travelling to or from meetings of Assembly committees or sub-committees. In 1998 the Assembly adopted Recommendation 1373 to the Committee of Ministers on freedom of movement of and the issue of visas to members of the Parliamentary Assembly, drawing attention to certain problems in connection with its members’ journeys in the member states. The Committee of Ministers responded by inviting governments to take a number of measures to ensure that members of the Parliamentary Assembly could enjoy all facilities for entry into the member states. A question still pending is that of issuing a laissez-passer to Assembly members and Council of Europe staff, which is acknowledged by the member states of the Organisation.

44.       Article 15 of the General Agreement specifies that immunity does not apply when Representatives or their Substitutes are found committing, attempting to commit or just having committed an offence (“flagrante delicto”). It is generally accepted that the concept of “flagrante delicto” is occasionally interpreted very broadly (cf the study published in 2000 by the Interparliamentary Union, entitled “The Parliamentary Mandate”, by Marc van der Hulst, page 87 and the aforementioned study by the European Centre for Parliamentary Research and Documentation, page 13). According to the reply by the Belgian parliamentary delegation to the questionnaire on parliamentary immunities, the concept of flagrante delicto presupposes that not more than 24 hours should have elapsed between the offence and the commencement of prosecution. The English version of the General Agreement on Privileges and Immunities defines flagrante delicto as offences which Representatives of the Assembly or their Substitutes are found committing, attempting to commit or just having committed. I consider that it is not necessary to go any further. Useful additional information concerning the flagrante delicto are to be found in a note from the Belgian delegation on this report (AS/Pro (2003) 3). While it must be acknowledged that the concept of “flagrante delicto” is a logical restriction on parliamentary inviolability, it should be stressed that it also entails certain dangers. As illustrated in the aforementioned Interparliamentary Union publication (page 88), it can be an ideal loophole for arresting a member of parliament protected by parliamentary immunity. By way of example, the study cites the case of two members of parliament from the opposition, found guilty by a court for taking part in an anti-government demonstration, which had started out peacefully but which had degenerated into acts of violence. Simply by taking

part in the demonstration, the two members of parliament were deemed to be co-perpetrators of the offences and were convicted of having been found in flagrante delicto, despite the fact that their parliamentary immunity had not been waived beforehand.

v.       Immunity under Article 15 of the General Agreement granted to members “during the sessions of the Assembly”

45.       Article 15 of the General Agreement specifies that the respective immunities are granted during the sessions of the Assembly. Under Article 3 of the Protocol to the General Agreement they also apply at any time when Representatives and their Substitutes are attending and travelling to and from meetings of Assembly committees and sub-committees, whether or not the Assembly is itself in session at that time.

46.       The words “session of the Assembly” also appear in Article 25 (b) of the Statute of the Council of Europe, which specifies, “No Representative shall be deprived of his position as such during a session of the Assembly, without the agreement of the Assembly”. It is the Assembly’s standing practice to interpret the terms “during a session of the Assembly” as covering the parliamentary year from the end of January to the end of the following January. This interpretation also corresponds to the Assembly’s practical needs, since when the General Agreement was concluded in 1949 and its additional Protocol in 1952, the Assembly held respectively one and two sessions per year. Its major committees did not meet each month and the intervals between the meetings of the Assembly’s steering bodies (the Bureau and the Standing Committee) were then much longer than is currently the case. Prior to 1989 it was very rare for the Assembly to observe national elections or carry out on-the-spot visits. Today, however, the Assembly and its various organs are active virtually all year round.

47.       In some Council of Europe member states, however, national parliamentary immunity is granted to members of parliament only during meeting days of the plenary and of committees (see for more details the report by Robert Myttenaere on the immunities of members of parliament, published in “Constitutional and Parliamentary Information” No. 175, 1998).

48.       The European Parliament, where the relevant legal texts concerning immunities are identical to those of the Council of Europe, decided in 1963/64, when it was not yet directly elected but composed of national parliamentary delegations, like the Parliamentary Assembly, that the words “during the sessions” covered the whole parliamentary year. The precise nature of the concept covered by the phrase “during the sessions” was interpreted by the European Court of Justice in two judgements handed down, respectively, in May 1964 and July 1986. These confirmed the European Parliament’s decision. In the July 1986 judgment, the Court held that the term “during the sessions” should be interpreted exclusively in the light of Community law and not in relation to national legislation. The Committee on Rules of Procedure and Immunities feels that similar considerations apply to the situation in the Parliamentary Assembly.

49.       Given that certain replies to the questionnaire sent by the Committee on Rules of Procedure and Immunities to national delegations in May 2002 showed that there remained some uncertainty over the precise meaning of “during the sessions of the Assembly”, the Committee on Rules of Procedure and Immunities believes it important to make the requisite clarifications in the Assembly’s Rules of Procedure.

vi.       Beginning and end of Parliamentary Assembly members’ immunity, incompatibility with the office of Assembly member

(a)       Beginning of the immunity

50.       The above immunities are granted to Assembly members from the moment their credentials are ratified. In case the credentials are challenged, the immunities are guaranteed provisionally till the Assembly or the Standing Committee has reached a decision. Moreover, the immunities also apply when new Assembly members travel to the Assembly part-session during which their credentials will be ratified.

(b)       Immunity in respect of acts perpetrated by members of the Parliamentary Assembly before the beginning of their term of office

51.       Does the immunity also cover acts which were perpetrated by the member before the beginning of his/her term of office in the Assembly, particularly if proceedings had already been instituted? According to the comparative study quoted above (“The parliamentary mandate” (p. 83) by Marc Van der Hulst, 2000, published by the Interparliamentary Union), immunity is not suspended in cases where proceedings against a member of parliament are already in progress at the time the immunity is granted. The European Parliament (see “Parliamentary immunity in the member states of the European Union and the European Parliament”, October 1999, Doc. W 8 rev., p.172) has taken the view that immunity applies not only to actions during a member’s term of office but also retrospectively. This is based on the premise that the primary purpose of immunity is to protect the normal functioning of the parliamentary institution, a principle which might otherwise be jeopardised by actions occurring both before and after the commencement of a member’s term of office.

52.       In some national parliaments that accept the extension of inviolability to acts committed by members before taking office, this immunity has the effect that prosecution of or criminal proceedings against the member are suspended during the term of office, as are the limitation periods.

53.       The replies to the questionnaire on parliamentary immunities demonstrate that the national delegations are divided as to the expediency of also extending immunity under Article 15 of the General Agreement to acts with which a member is charged before the term of office in the Parliamentary Assembly commences.

54.        The rapporteur considers that with a view to

-       developments of European parliamentary law since the Council of Europe was founded,

-       the “raison d’être” of European parliamentary immunity,

-       the experience made so far in cases involving immunity at European level (see the examples mentioned in paragraph 74 below),

Article 15 of the General Agreement should also be applied to acts with which a member of the Parliamentary Assembly is charged before the term of office in the Assembly.

The decisive argument is that the practical situation for the Parliamentary Assembly is the same if an Assembly member is prosecuted or arrested for acts he is charged before or during the term of office in the Assembly. In both cases the member will not be (or risks being not) “available” for Assembly activities. That is why the Assembly should have the occasion in both cases to examine whether the conditions for a waiver of the immunity are fulfilled or not.

(c)       End of the immunity – members of the Assembly whose national parliamentary mandate has expired - incompatibilities

55.       Clearly, immunity no longer applies if a member of the Assembly resigns or if there is some incompatibility with the office of member. It must be recalled that as long as they are members of the Parliamentary Assembly and until their replacement as such, Representatives and their Substitutes retain their immunities in accordance with the General Agreement and Protocol of 1952, as prescribed by Article 15 of the General Agreement, because this is independent of national parliamentary office (“whether they be members of Parliament or not”). Rule 10, paragraph 3 of the Assembly’s Rules of Procedure reads: “Following parliamentary elections, the national parliament concerned or other competent authority shall make appointments to the Assembly within six months of the election. The credentials of the existing delegation shall expire at the opening of the first sitting of the Assembly or meeting of the Standing Committee following the appointment of the new delegation by the national parliament or competent authority.

56.       With regard to incompatibilities, Article 25 (a) of the Council’s Statute states that “each Representative must be a national of the Member whom he represents, but shall not at the same time be a member of the Committee of Ministers.” The Assembly and its Committee on Rules of Procedure and Immunities have had cause to interpret this provision on several occasions. In 1992 the Committee noted (see Doc. 6656) that the words “member of the Committee of Ministers” in Article 25 of the Statute of the Council of Europe should be very narrowly interpreted, excluding only Foreign Ministers from Assembly membership, and that this was also in line with the “travaux préparatoires” for the Statute of the Council of Europe. Now, ten years later, it would be useful to know if this interpretation is maintained by the Steering bodies of the Parliamentary Assembly.

57.       After the 1992 report, both Ms Suchocka (Poland) and Mr Vasile (Romania) remained members of the Assembly during their whole terms of office as Prime Ministers of Poland (1992/93) and Romania (1998/99) respectively. Mr Vasile addressed the Parliamentary Assembly in his capacity as Prime Minister on 20 April 1998. After Mr Nastase’s appointment as Prime Minister of Romania following the elections of 26 November 2000, he remained a member of the Assembly until the renewal of the Romanian delegation on 22 January 2001.

58.       A further incompatibility is explicitly mentioned in Article 36 (d) of the Statute: “No member of the (Council of Europe) Secretariat shall hold any salaried office from any Government or be a member of the [Parliamentary] Assembly or of any national legislature or engage in any occupation incompatible with his duties.” Moreover, in certain cases, the Parliamentary Assembly has called for members to resign where they have accepted specific Council of Europe posts (for example, where they have been elected members of the European Committee for the Prevention of Torture (CPT).

vii.       Scope of the provisions of Article 11 of the General Agreement on Privileges and Immunities of the Council of Europe and Article 5 of the Protocol to the Agreement

59.       In connection with the request for the waiver of immunity referred to the Committee on Rules of Procedure and Immunities on 23 April 2001, a number of questions were raised concerning the scope of Article 11 of the General Agreement on Privileges and Immunities and Article 5 of the Protocol to the Agreement, which state in virtually the same terms, “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.”

60.       I have already indicated my opinion that the immunity of members of the Assembly and the procedure for waiving it are independent of and should not be affected by national procedures. Parliamentary immunity is granted not for the personal benefit of the individual members themselves but in order to safeguard the independence of the Assembly and its members vis-à-vis other authorities. With an eye to consistency, it must be noted that Article 11 of the General Agreement, quoted above, comes under the section concerning Representatives to the Committee of Ministers and is not replicated in the section concerning the Assembly. There is all the more justification for this in that, contrary to the situation in respect of the Assembly, no Council of Europe legal text referring to the members of the Committee of Ministers contains any provision concerning a procedure for waiving immunity. It will be observed that the definition in paragraph 12 (b) of the term “representative” within the meaning of Article 11 does not include the members of the Assembly. This all goes to show that Article 11 of the General Agreement does not directly concern members of the Assembly. Like considerations apply to Article 5 of the Protocol. Plainly, the term “member” in the second sentence does not apply to the Assembly.

61.       Of course, although not bound by the provisions of Articles 11 of the Agreement and 5 of the Protocol, the Assembly adheres to the principles underlying these texts.

C.       PROCEDURE TO BE FOLLOWED REGARDING REQUESTS FOR THE WAIVER OF IMMUNITY

62.       In Article 15, the General Agreement on the privileges and immunities of the Council of Europe (1949) expressly recognises the right of the Assembly to waive the immunity of a member or Substitute. However, the Agreement and the protocol thereto (1952) are silent with respect to the procedure for waiving the immunity of Assembly members. Still, some details are specified in Rule 64 of the Parliamentary Assembly’s Rules of Procedure:

-       such requests must be made by the competent authority of a member state;

-       they are referred by the Assembly to the Committee on Rules of Procedure and Immunities;

-       the member of the Assembly concerned may be heard by the Committee on Rules of Procedure and Immunities;

-       the Committee’s report shall conclude with a draft resolution for the retention or the waiver of the immunity.

-       the Committee shall consider the request but shall not examine the merits of the case in question; in particular, it shall not take a decision on the guilt or otherwise of the member nor on whether or not the opinions or acts attributed to him/her justify prosecution, even if, when considering the request, it acquires detailed knowledge of the facts. The Assembly’s debate on the report shall be confined to arguments for or against the waiver of the immunity.

i.       The competent authority for requesting waiver of the immunity

63.       Recently the Assembly and its competent bodies agreed (see doc. AS/Bur (2001) 28 and Minutes of Proceedings of the Assembly’s sitting on 23 April 2001) that a request for the waiver of immunity coming from a competent national judge and forwarded via the President of the Supreme Court and the Permanent Representative of the corresponding member state to the Council of Europe had been made by a competent authority within the meaning of Rule 64 of the Assembly’s Rules of Procedure. At the same time it was indirectly acknowledged that a request for the waiver of immunity could be made by the authority of a member state other than that of which the person concerned was a national. The recent report by the European Parliament on reform of the procedure for waiving parliamentary immunity (A5-195/2002) contains a number of very relevant and qualified observations on the concept of competent authority which the Parliamentary Assembly might wish to take into account in the event of problems of interpretation.

64.       European Parliament practice further demonstrates that in certain member states various authorities can be competent in the matter. I therefore propose that Article 64 of the Rules of Procedure of the Parliamentary Assembly henceforth refer to “a competent authority”.

ii.       Hearing by the Committee on Rules of Procedure and Immunities of the Parliamentary Assembly member concerned

65.       As stated above, on 23 April 2001, for the first time in its history, the Assembly referred to the Committee on Rules of Procedure and Immunities a request for the waiver of the immunity of an Assembly member. The member concerned was invited to attend the meeting of the committee (on 25 April 2001) of which, moreover, he was a member. The committee held an exchange of views on the request and the person concerned was represented by another member of his national delegation. That member took part in the preliminary discussion. The Assembly’s Rules of Procedure should stipulate that a member affected by a request for removal of immunity may be represented by another Representative or Substitute belonging to the Assembly and may submit to the committee any document that he/she considers relevant. At the meeting of the Committee on Rules of Procedure and Immunities held on 29 January 2003, certain members stressed the need for the member concerned by a request to waive immunity, or the member’s representative, to receive the earliest possible hearing.

iii.       Requests at both national and European level to waive the immunity of a member of        the Parliamentary Assembly

66.       Where a request for the waiver of immunity is submitted not only to the Parliamentary Assembly but also to the national parliament of the member concerned, should the Assembly await the outcome of the national procedure before commencing its own examination of the matter? It is my opinion that the Parliamentary Assembly’s approach must depend on all of the factors relevant to each individual case, taking care of course not to go into the merits. One of these factors is the authority submitting the request, i.e. whether it has been submitted by an authority from the person’s own country or by an authority from another Council of Europe member state. It may be preferable for practical reasons and for reasons of political expediency to await the decision of the national parliament; similarly there may be cases where the opposite approach would be more appropriate. When the European Parliament is presented with a request to waive the immunity of a member who is at the same time a member of a national parliament, it awaits the position of the national parliament on the immunities of the member concerned before taking its own stand. This can lead to delay.

67.       The Parliamentary Assembly must be able to ask the competent national authority which submitted the request for the necessary additional information and clarifications. If that authority fails to co-operate, the Assembly may defer consideration of the request. It should be noted, however, that at the meeting of the Committee on Rules of Procedure and Immunities held on 29 January 2003, some members expressed anxiety about possible delays that could arise from such requests for information.

68.       A further question is whether a national authority which has already submitted a request to waive the immunity of a member of the Assembly to the national parliament must also submit the request to the Assembly. It should be remembered that the “European” immunity of an Assembly member is independent of the immunity he or she enjoys at national level and, as stated above, this serves to ensure that the work of the Assembly is not hampered. During the discussions in the Committee on Rules of Procedure and Immunities some members stressed that the mandate of members of national delegations to the Parliamentary Assembly derived from national parliaments. Handling the same immunity case twice, that is by the national parliament and the Assembly, could raise complications.

While admitting the necessary and close links between the Assembly and the national parliaments of member States, it has to be borne in mind that Article 15 of the General Agreement explicitly stipulates that the immunities are granted to members of the Assembly, whether they be members of parliament or not. This is a most important argument in favour of the independence of the European parliamentary immunity in comparison to the national one.

It is the opinion of the Committee on Rules of Procedure and Immunities that national authorities are obliged to co-operate with the Council of Europe and its Assembly where questions are raised concerning the immunity of Assembly members. That would presuppose an obligation to submit a request for the waiver of immunity to the Assembly, if the person concerned was a member, in parallel to the request submitted to the national parliament. However, it must be conceded that no Council of Europe or Assembly text spells out the arrangements for such co-operation between national authorities and the Parliamentary Assembly in the field of immunities. These aspects were raised in the questionnaire sent to national delegations to the Parliamentary Assembly in May 2002.

69.       The overall trend to be seen in the replies is that the obligations deriving from ratification of the General Agreement on the Privileges and Immunities of the Council of Europe and its additional Protocol are being honoured. Several replies pointed out that as there had been no requests to waive the immunity of members of the Parliamentary Assembly, their national parliaments had no precedents to follow. Four national delegations made explicit reference to the parallel waiving of national and European immunity, but said that no specific order had been agreed upon for submitting requests to waive national and European immunities.

70.       The Belgian reply made reference to two concrete cases concerning Belgian members of the Parliamentary Assembly. In the first case, the Belgian Senate in 1988 refused to waive the immunity of a member. In the second case (1990), the immunity was waived but on account of the relatively trivial nature of the charge (a traffic offence), no request was made for waiving European immunity. Moreover, at the time the Belgian Senate was taking its decision on parliamentary immunity, the Parliamentary Assembly was not in session. Your Rapporteur has been informed that further such restrictive interpretations of the words " during the sessions of the Assembly " have occurred in other member states.

71.       Therefore the Committee on Rules of Procedure and Immunities considers it necessary to specify, or to recall, in a recommendation of the Committee of Ministers to member states or in the Assembly’s Rules of Procedure that the words “during the sessions of the Assembly” cover the whole year. It is also appropriate to remind national parliaments of the need to request the waiving of the “European” immunity of a Representative who is both a member of the national parliament and the Parliamentary Assembly. As some member States do not have a system of parliamentary inviolability, they should be exempted from the above-mentioned obligation insofar as their national parliamentarians are concerned.

iv.       Compliance with Article 6 of the European Convention on Human Rights and the presumption of innocence

72.       At a meeting of the Committee on Rules of Procedure and Immunities on 25 April 2001 it was underlined that even if the Assembly agreed to waive the immunity of one of its Representatives or Substitutes, his/her rights under Article 6 of the European Convention on Human Rights (the right to a fair hearing) as interpreted by the European Court of Human Rights would be fully applicable in the ensuing procedures by the national authorities having requested the waiver. Moreover, it is generally acknowledged that at the stage when parliamentary immunity is waived, the presumption of innocence must be consistently respected, both by criminal courts and by the state authorities (see the report by the European Commission for Democracy through Law of the Council of Europe (Venice Commission) on the regime of parliamentary immunity, document CDL-INF (96) 7, p.15).

v.       Confirmation of parliamentary immunity

73.       The report written by Mr Duff of the European Parliament (Doc. A5-195/2002) quite rightly draws attention to this aspect, which also has a certain role to play in the activities of the Parliamentary Assembly. Quite regularly, members of the Assembly who are involved in judicial or other proceedings in their own member state refer to the Assembly bodies for clarification of their position as regards immunities in a particular case. Such a possibility has not been catered for in the Assembly’s Rules of Procedure. Nor is there any mention of what action the President of the Assembly could take when he is informed of a member’s arrest or restriction on his/her freedom of movement or that national authorities have omitted to request the waiving of immunity of a member of the Assembly. The Committee on Rules of Procedure and Immunities proposes that Rule 64 of the Rules of Procedure should make explicit reference to this question.

74.       Not long ago Mr Ilascu, a member of the Romanian parliamentary delegation, was detained at Tiraspol/Transnistria (cf. Doc. 9083) and Mr Cubreacov, a member of the Moldovan parliamentary delegation to the Assembly, was also detained (cf. AS (2002) CR 17).7

By a letter of 25 November 2002, the President of the Italian Senate, Mr Pera, informed the President of the Assembly of the situation of Mr Jannuzzi, Italian member of the Assembly with respect to the Italian justice. Furthermore, Mr Pera pointed to the fact that Mr Jannuzzi was subject of an arrest warrant from the Tribunale di Sorveglianza of Naples. In his reply of 2 December 2002 to the President of the Italian Senate, the Secretary General of the Assembly recalled the immunities which Mr Jannuzzi enjoyed in his quality as member of the Assembly.

vi.       Other procedural issues

75.       A further question is whether the Assembly has the authority to waive the immunity of a member with respect to the criminal charges he or she is facing but to retain it insofar as the arrest or detention on remand of this member is concerned. The Assembly could follow the practice adopted by the European Parliament and several national parliaments (e.g. the French parliament), which have maintained this option.

76.       The procedure for the Assembly’s consideration in plenary sitting of the report by the Committee on Rules of Procedure and Immunities must be able to satisfy the urgency of the matter but must also be reasonable. At the Committee’s meeting of 27 September 2001, the following points were made:

-       the Committee needed to be able to carry out its work with the required diligence to avoid, as far as possible, a situation where the member resigned before the Committee had approved the report on the request to waive immunity;

-       the Committee should organise its work in such a way as to be able to present the report at an Assembly plenary sitting and not at a meeting of the Standing Committee.

77.       Given that the draft resolution forming part of the committee’s report will conclude with retaining or waiving the immunity, no amendment should be permitted to that conclusion. Accordingly, where the Assembly rejects the Committee’s proposal, the contrary decision should be deemed to have been adopted. Any amendments to the other paragraphs of the draft resolution should, of course, be admissible. Should a request to waive immunity involve several charges, each charge may be the subject of a separate decision.

78.       It is especially important that the competent national authorities inform the President of the Parliamentary Assembly when one of its members is subject to custodial measures and judicial procedure. The Committee of Ministers could be invited to remind the national authorities of this obligation.

79.       According to its current version, Rule 64 of the Assembly Rules of Procedure contains information on the purpose of the inquiry by the Committee on Rules of Procedure and Immunities regarding requests to waive immunity. It would be advisable that the rule specify in addition that the committee may deliver an opinion on the formal admissibility of such a request.

D.        BRIEF SUMMARY OF THE SITUATION CONCERNING PARLIAMENTARY IMMUNITY AT NATIONAL LEVEL

i.       General remarks

80.       As the Council of Europe’s Parliamentary Assembly is a body formed from members of national parliaments, I feel it would be useful to provide a very brief summary of the characteristics of national parliamentary immunities. Of course, given the major differences between European and national parliamentary immunities, the features of the latter are only of relative usefulness in drawing up a regime of immunities for the Parliamentary Assembly. With one exception (United Kingdom)8, national parliamentary immunities are guaranteed by the constitutions of all the European Union member states. The situation is comparable for the countries in the Council of Europe9.

ii.       Current trends regarding parliamentary immunities in the Council of Europe member states

81.       The situation as regards immunities in European states has been dealt with in two comparative studies, as mentioned above: the 2001 study published by the European Centre for Parliamentary Research and Documentation (ECPRD) covering the member states of the European Union and the European Parliament, and the 1996 study by the Venice Commission which looked at the situation not only in the EU countries but also a further twenty countries which were members only of the Council of Europe. The two studies by and large – although not invariably – arrive at the same conclusions for those countries which feature in both analyses. The replies received from the questionnaire sent by the Committee on Rules of Procedure and Immunities to national delegations have made it possible to supplement the information provided by these studies.

(a)       Statistics on requests to waive immunity in national parliaments

82.       According to the information gleaned from the national parliaments which replied to the questionnaire, the situation in Autumn 2002 was as follows:

-       no request in the last five years: Luxembourg10, Azerbaijan, the Belgian Senate, Finland, Andorra, Norway, United Kingdom, Cyprus;

-       one request: Estonia (waiver of immunity), Latvia (waiver of immunity), Poland (waiver of immunity), Sweden (no waiver as parliament did not consider it to be a problem of immunity), “the former Yugoslav Republic of Macedonia” (rejected), Bosnia and Herzegovina (no waiver as the parliamentarian has forgone immunity);

-       two requests: Denmark and Ukraine (both accepted);

-       three requests: Belgian Chamber of Representatives (one accepted, one withdrawn and one still pending);

-       four requests: Switzerland (none accepted11);

-       five requests: Romania (three accepted, two still pending);

-       six requests: Bulgaria (four accepted);

-       seven requests: Albania (four accepted);

-       seventeen requests: Germany (all accepted); Spain (thirteen accepted); Czech Republic (last six years: ten accepted);

-       eighteen requests since October 2000: Serbia and Montenegro (six accepted, in two cases immunity was maintained and proceedings are still under way in the other ten);

-       nineteen requests between 1996 and 2000: Slovenia (three accepted);

-       thirty-seven requests: Austria (twenty-nine accepted);

-       sixty requests between September 1999 and January 2003: Portugal (thirty-eight accepted)

-       eighty-three requests: Hungary (accepted for criminal proceedings by the prosecution and rejected for proceedings brought by private individuals and cases involving defamation and slander);

-       one hundred and twenty-four requests: Greece (two accepted, twenty-five still under investigation);

-       two hundred and thirty-five requests (since April 1999): Turkey (two accepted);

-       three hundred and seventy-six cases involving non-liability/non-accountability between 1996 and 2002: Italy (two hundred and eighty cases decided by the houses of parliament, non-liability being confirmed in two hundred and sixty two cases and withheld in twenty four; six requests to allow the arrest of a parliamentarian were refused).

      In the vast majority of the parliaments in the countries in question, the number of requests to waive immunity has remained stable; only in two parliaments has there been an upward trend.

(b)       Parliamentary non-accountability/non-liability

83.       The authors of both studies mentioned above (paragraph 81) take the view that the question of “non-liability/non-accountability” (Article 14 of the General Agreement on the Privileges and Immunities of the Council of Europe) is dealt with in a relatively uniform and stable way in Europe and indeed in the world, and that this form of immunity goes generally unchallenged. The differences between the regime in force in the Parliamentary Assembly of the Council of Europe and those of national parliaments with the most recent rules in this field relate primarily to:

-       non-accountability/non-liability for opinions expressed and votes cast by members of

-       while criminal liability for the opinions expressed and votes cast by members cannot be

incurred, civil liability is often explicitly maintained.

84.       Other differences relate to the interpretation of the terms “in the exercise of their [parliamentary] functions”. A number of national texts stipulate that non-liability applies only within proceedings in parliament (e.g. the United Kingdom, Russia, Slovakia, Denmark). Other national texts are similarly worded as Rule 14 of the General Agreement and refer to “in the exercise of their functions, …” (Czech Republic).There is a third group of texts which specify the cases in which non-liability applies outside parliament (e.g. Moldova, Georgia and Bulgaria). There is also an observed tendency to place a broader construction on the concept of opinions expressed in the discharge of their office. This reflects the fact that more parliamentary delegations perform characteristically parliamentary tasks away from the headquarters of the parliament.

85.       In Italy, Article 68 paragraph 1 of the Constitution provides that “Members of Parliament shall not be called to account for opinions expressed or votes cast in the exercise of their functions”. The Italian Constitutional Court has specified that where a deliberation by the Senate or the Chamber of Deputies states that the conduct of one of their members comes within the ambit of the aforementioned provision, this precludes the introduction or continuation of all criminal or civil proceedings for the purpose of establishing the parliamentarian’s liability and obtaining redress of the damage incurred. Such a deliberation is not open to censure by the courts. However, where a judge considers that a deliberation by parliament concerning immunities amounts to unlawful exercise of the discretion conferred on the houses of parliament, he may invoke a conflict of State powers before the Constitutional Court.

(c)       Parliamentary inviolability

86.       The information in both studies shows that the question of inviolability (cf. Article 15 of the General Agreement) is much more complex and subtle since it concerns the acts of parliamentarians as “simple citizens”. The studies also show a great diversity among the various European legal systems. Furthermore, it is parliamentary inviolability which is increasingly being challenged in certain European states. Therefore, is why it is sometimes underlined that it is a procedural guarantee, limited in time and only applicable to criminal proceedings. As a result of pressure from, amongst others, public opinion and the media, and in the light of a number of notorious cases involving parliamentary immunity, certain countries (such as France, Belgium and Portugal) have since 1995 reformed their regime governing inviolability. In other countries, the public debate on immunities continues. Immunities are often attacked for being anachronistic and contrary to the

fundamental principles of modern democracies. It is also held that inviolability protects parliamentarians against the legal effects of arbitrary charges and indictments or misconceived complaints aimed at discrediting a political figure.

87.       Such criticism, raised in Ukraine and Moldova for instance, has been countered by those who argue that despite the problems which are well known, the reasons which originally lay behind the introduction of parliamentary immunity are still valid. In an opinion of July 2002 (CDL-AD (2002) 14) on the amendment of the Constitution of the Republic of Moldova, the European Commission for Democracy through Law of the Council of Europe pointed out:

- in new democracies, in the initial stages of constitutional development, the presence of such immunities vis-à-vis the judiciary must be considered very advisable, in order to avoid undue interference by the judicial organs in parliamentary affairs, particularly when the independence of the judiciary is still being consolidated;

- parliamentary immunities vis-à-vis the executive power, referring to detention, arrest, questioning, seizures, or any other interference of the police or security forces in the personal freedom of members of parliament (apart from cases of flagrancy) are a sine qua non requisite to guarantee the independence of the Representatives of the people in the performance of their functions.

88.       In over half of the 35 national European parliaments looked at in the above-mentioned studies, the situation as regards inviolability is comparable to that in the Assembly. In other words, members are exempt from detention and prosecution for offences as long as their immunity has not been waived by their own national parliament. The situation is very different in some 15 European parliaments. There is no inviolability in the Netherlands, and in Ireland and the United Kingdom it is very limited. Members of the Irish parliament are granted immunity only when travelling to and from parliament. In the United Kingdom, immunity from arrest and detention is restricted to civil actions, which are very rare, and does not apply to any criminal activities carried out by members of parliament.

The rules governing inviolability have been amended in various national parliaments, including France, Portugal and Belgium, to allow the preliminary stages of criminal proceedings (enquiries, questioning, etc) to begin without the prior authorisation of national parliaments (i.e. without immunity first having been waived). Moreover, in certain countries parliament’s consent is no longer required for the execution of sentences passed on a parliamentarian. In Andorra and Cyprus, waiver of parliamentary immunity has been entrusted to the courts.

89.       Some member states follow another approach in order to make the immunity regime less cumbersome. They lay down that beyond a certain duration of imprisonment for offences committed by a parliamentarian, he may be arrested without prior authorisation (waiver of immunity) by the competent parliament. The length of minimum sentences ranges from six months (Finland) to 5 years (Croatia). In Sweden it is 2 years and in Portugal, 3 years. It may be noted in passing that candidates registered for some countries’ election campaigns cannot be arrested or prosecuted except in the event of flagrancy.

90.       There are also further approaches adopted to differentiate between cases where immunity may be waived or not. One is to specify certain offences for which immunity is not granted. Examples are minor offences (Luxembourg) and non-criminal matters such as tax or civil offences (France).

91.       The study (p. 8) of the European Centre for Parliamentary Research and Documentation (ECPRD) also stressed that in those national parliaments where immunity was not waived in numerous cases, there was a tendency to interpret these immunities very widely.

iii.       Plans to reform parliamentary immunity regimes (in 2002)

92.       In several parliaments that replied to the Committee’s questionnaire, the regime of immunities is due to be either modernised or made more strict. The system in Romania will be reformed at the same time as the revision of the Constitution in accordance with proposals made by the political parties and civil society.

93.       Luxembourg is planning to restrict parliamentary immunity, and the procedure for amending the constitution has already begun. The reform will make it possible:

-       for the public prosecutor to initiate criminal proceedings against members of parliament, even during sessions, except for votes cast and opinions expressed in the exercise of their functions;

-       for sentences, including custodial sentences, handed down to members of parliament, to be enforced without the prior authorisation of the Chamber.

Of course, except in the case of “flagrante delicto”, a member of parliament could not be arrested or subject to any other custodial measure without the prior authorisation of the Chamber.

94.       The reply from the parliament of Serbia and Montenegro, which has special guest status with the Parliamentary Assembly (as at February 2003), says that following the redefinition of relations between Serbia and Montenegro, parliamentary immunity will be regulated in accordance with contemporary trends in this field.

95.       The Ukrainian reply states that reforms to the system of parliamentary immunity are contemplated in order to carry into effect the results of the consultative referendum of 2000 in which one question concerned abolition of parliamentary inviolability.

96.       A number of proposals to alter the Italian parliamentary immunity arrangements have been tabled in the Italian parliament and may be considered in the near future.

97.       In the Austrian parliament, reforms to immunities are under discussion but no move has been made as yet to amend the relevant provisions. Apart from that, a tendency to stop waiving immunity for certain types of alleged offences by parliamentarians is observed.

98.       Two reforms are planned in the field of parliamentary immunities in the Swiss parliament, although it is far from certain that they will come to practical results. First, it is hoped to make a stronger link between the offence a member of the Federal Assembly is alleged to have committed and his or her parliamentary activity. Following a parliamentary initiative, the Swiss National Council is set to decide on a proposal that the protection afforded by parliamentary immunity be removed for offences relating to racial discrimination.

99.       In Bulgaria, reforms to the regime of parliamentary immunities are under discussion. In 2002 the Turkish parliament rejected proposals for limitation of the scope of parliamentary privilege.

100.       In Spain and Germany, reforms are afoot as regards the procedural aspects (information to the Speaker of Parliament, time limits to be complied with) for waiver of immunity.

101.       The Slovenian delegation’s reply indicates that proposals have been put forward to amend the Constitution so as to extend parliamentary immunity to liability in tort.

102.       In the Parliament of the Czech Republic there have been eight bills since 1998 proposing a reform (limitation of parliamentary immunities). The Czech Government submitted one proposal, the Senate two and the Chamber of Deputies five. None of these proposals was adopted. Furthermore, the limitation of parliamentary immunity is a part of the political programmes of most of the Czech political parties.

iv.       The attitude of the media and the public towards parliamentary immunity

103.       The media and particularly the press have always seized upon cases concerning the waiving of parliamentary immunity. Media interest depends to a large extent on the number of requests made, the people involved, the questions at issue and the need for reform. Very many media reports, press articles and opinion polls in Russia and Ukraine have clearly shown that the purpose and scope of parliamentary immunities are not totally understood and that they are often viewed as a privilege. Several of the replies to the questionnaire of the Committee on Rules of Procedure and

Immunities give some idea of the attitude of the media. Luxembourg’s reply states that the press is relatively neutral about immunity issues. In Albania the press is interested in sensitive cases involving parliamentarians’ immunity. According to the Czech reply, the general opinion of the media in that country is that the range of activities covered by parliamentary immunities is too broad, should be limited only to the activities performed in the exercise of the function of a member of the parliament and should not include common offences. In Portugal one notes a growing incomprehension by the media with respect to parliamentary inviolability.

104.       In Romania, public opinion as reflected in the media seems to view parliamentary immunity and its objective as a means of circumventing the application of justice. This explains why Romanian political parties in their proposals for revising the constitution tend to reject the rules governing parliamentary immunity, or restrict them to non-liability/non-accountability in respect of votes cast or opinions expressed by members of parliament in the exercise of their functions.

105.       According to the Estonian reply, the media in this country only take an interest in the issues relating to parliamentary immunities when a member of parliament is likely to be deprived of immunity.

106.       In Poland, the media present commentaries on every procedure for waiving parliamentary immunity. While the articles are objective, journalists’ knowledge of the grounds and the procedure with regard to the request for waiver of immunity does not always enable them to give a thorough analysis of the aspects. The Greek delegation’s reply also stresses that the press seldom gets to the bottom of parliamentary immunity cases.

107.       In Slovakia, there was considerable discussion in the media when an amendment to the constitutional provisions concerning immunities came before parliament in 2001. The media wanted immunities to be restricted still further than provided for in the texts finally adopted.

108.       Before the revision of the system of parliamentary privilege in Belgium in 1997, the press and the public in general were to a certain extent hostile to parliamentary immunity, viewed as a privilege granted to members of parliament. On the other hand, the fact that before the 1997 reform the initiation of proceedings had required the waiving of parliamentary immunity meant that such proceedings were made public prematurely and as a result the parliamentarians in question often had to endure a veritable trial by the media. The 1997 reform may have put an end to these two tendencies

109.       The Italian reply indicates that Italian media interest in immunity issues is usually not great. The situation changes when important national political figures are involved or when it is a matter of waiving a parliamentarian’s exemption from custodial measures.13.

110.       The Turkish media sometimes criticise the extensiveness of parliamentary immunities.

111.       In Hungary, the media devote a lot of coverage to all proceedings relating to presumed instances of corruption on the part of parliamentarians. The media tended to publish at the end of the year figures on requests for waiving parliamentary immunity and details of the action taken.

112.       Lastly, in Ukraine, the media support various points of view. Some call for the abolition of parliamentary privileges whereas others demand that they be maintained, while at the same time putting forward proposals to make the constitutional provisions relating to immunities more flexible.

v.       Opinion polls on parliamentary immunities

113.       Opinion polls on parliamentary immunities have been held in Russia and Ukraine. An opinion poll was conducted in Russia in August 2000 on the meaning of the expression “parliamentary immunity” (cf. press statement of the Russian Duma of 2 August 2000). Almost 43% of the people surveyed were able to give an acceptable definition, even though it often had an “emotional” connotation because the Russian public often believe that members of parliament are entirely exempt from punishment and even that they are allowed to break the law. Only 2% of those surveyed knew the real aim of immunity, namely to enable parliamentarians to perform their role with total independence.

114.       In April 2000, a consultative referendum was held in Ukraine. One of the questions asked concerned the limitation of parliamentary immunity (abolishing parliamentary inviolability). The majority of those who voted were in favour of abolition. The Venice Commission raised objections at the time for the same reasons as those cited in paragraph 83 above (see document CDL-Inf (2000) 14, par. 14 et seq.).

E.       PRECEDENTS AND FACTS TO BE TAKEN INTO ACCOUNT BY THE PARLIAMENTARY ASSEMBLY FOR DEVELOPING A DOCTRINE CONCERNING REQUESTS FOR THE WAIVER OF MEMBERS’ IMMUNITY

115.       It must first of all be reiterated that no procedure for waiving immunity is provided for or admissible with regard to the non-liability/non-accountability of Assembly members established under Article 14 of the General Agreement on Privileges and Immunities of the Council of Europe.

116.       The Committee on Rules of Procedure and Immunities has so far not had to pursue to its conclusion the consideration of a request for the waiver of a member’s immunity guaranteed by Article 15 of the General Agreement. The referral to the Committee on Rules of Procedure for the waiver of a representative’s immunity in April 2001 did not result in a report presented to the Assembly as the member concerned resigned beforehand. Two cases regarding the waiver of representatives’ or Substitutes’ immunity were submitted to the Bureau of the Assembly (AS/Bur (10) PV 4 of 1958 and AS/Bur (31) PV 11 of 1980) but did not give rise to any substantive examination. In other instances, the President or Secretary General of the Assembly has written, at the request of Assembly Representatives or Substitutes, to the national authorities concerned, when questions regarding their immunity were at stake (see para. 74 above)14.

117.       In contrast, there are many precedents concerning the waiver of the immunity of members of the European Parliament (EP) and members of national parliaments. Insofar as is justified and compatible with the principles and practice of the Parliamentary Assembly and the particular institutional features of the Council of Europe, the Assembly could base its approach on these precedents. It should also be pointed out that the abovementioned studies on immunities carried out

by the Venice Commission and the European Centre for Parliamentary Research and Documentation provided an analysis of the common trends in dealing with requests to waive immunity and the criteria applied to justify a waiver or not. In addition, the replies to the committee’s questionnaire contain numerous useful particulars.

118.       It has already been shown that the immunities provided for under Article 15 of the General Agreement are granted only if there is a link between the acts which the member of the Assembly is alleged to have committed and his or her political activities. Moreover, the Committee on Rules of Procedure and Immunities is required to take a stance on the competence of the national authority having submitted the request for waiver of parliamentary immunity, and on the technical admissibility of the request (in particular the seriousness and non-arbitrariness of the request).

119.       The general criteria to be applied in accepting or rejecting a request for the waiving of immunity were set out in the study produced by the Venice Commission (pages 15 and 17) and the study by the European Centre for parliamentary research and documentation (page 7). National delegations to the Assembly were consulted on these criteria by means of the questionnaire sent to them by the Committee on Rules of Procedure and Immunities. Several of them approved these criteria. Some delegations have put forward supplementary suggestions which have been widely taken into account in this draft report. The general criteria, thus supplemented, are as follows:

For maintaining immunity:

-       failure to comply with the procedures concerning immunities (inadmissibility of the request);

-       obvious lack of grounds for the accusations against the member; imprecise and unacceptable nature of the request for waiving immunity; establishment of the mere existence of presumption;

-       the political nature of the acts considered criminal in the request for the waiver of the immunity (the acts referred to being the unforeseen consequence of a political act or an offence for which the political motives are obvious);

-       the purpose of the criminal proceedings is to unfairly persecute the member of Parliament and to jeopardize his freedom and independence in carrying out his mandate.

For waiving immunity:

-       the seriousness, sincerity and fairness of the request; in other words the request is admissible and the facts reported do not on the face of it lead to the conclusion that the request is based on fanciful, anomalous, proscribed or arbitrary considerations;

-       the particularly serious nature of the allegations15;

-       the necessity not to establish members’ immunity from punishment for offences committed;

-       the safeguarding of parliament’s reputation in this respect; public opinion has to be consulted in order to uphold public order;

-       the necessity of not intentionally obstructing the course of justice and the proper functioning of democracy.

Of course, there must ultimately be a weighting of the criteria in support of waiving or maintaining immunity in order to preserve the independence of parliament while at the same time endeavouring to stamp out misuses of immunity.

120.       The above-mentioned study of the Venice Commission also underlines :

-       the fact that the parliament to which a request for the waiver of the immunity is referred plays a fundamental role in carrying out stringent scrutiny of the request as to its seriousness, sincerity and fairness, as well as timeliness (particularly when the parliament’s term of office is drawing to a close) and procedural correctness;

-       the influence of public opinion, changing attitudes and the media on the application of the parliamentary immunity system.

Moreover, the study shows that there is an effort to define fixed, objective criteria.

121.       Finally, it is to be recalled that at all stages when parliamentary immunity is waived, the presumption of innocence must be respected, in order to avoid that the public believes the parliamentarian guilty.

122.       The Committee on Rules of Procedure and Immunities has given a favourable opinion in response to the suggestion that the aforementioned guidelines be taken into account as regards the scope of Article 15 of the General Agreement, insofar as they are compatible with the principles and practice of the Assembly (see paragraphs 39 and 40 above).

The Committee further points out that

-        the immunity according to Article 15 (b) of the General Agreement (enjoyment by members on

-        the competent authorities of member States having a system of parliamentary inviolability and which wish to waive the immunity of a national parliamentarian who is also a member of the Parliamentary Assembly, should also request the Assembly to waive the European immunity of that member which is granted to him/her under Article 15 (a) of the General Agreement).

The Committee is aware that the latter proposal raises problems with a view to a coherent system of European parliamentary immunity, besides which this compromise proposal could facilitate the adoption of the draft texts contained in this report by members of national parliaments having no system of parliamentary inviolability.

F.       CONCLUSIONS

123.       The system of parliamentary immunities has undergone development at both the national and the European levels. In many parliaments, inviolability and non-liability/non-accountability have been overhauled and more stable, objective criteria have been laid down for the procedure to waive immunity. Moreover, both in 2001 and in 2002 important issues regarding the immunities of its members were raised at the level of the Parliamentary Assembly (see paragraphs 74 and 114 above).

124.       In the light of these developments and the European Parliament’s standard practice regarding European parliamentary immunity, it is important to determine the extent to which the provisions of the General Agreement on the Privileges and Immunities of the Council of Europe and its Protocol dating from 1949/1952, and the Parliamentary Assembly’s approach to parliamentary privilege, should be adjusted or reinterpreted.

125.       With regard to the parliamentary non-liability secured by Article 14 of the General Agreement, it is proposed to broaden the concept “in the exercise of their functions” to include the typically parliamentary duties which members of the Assembly discharge in the field in accordance with its bodies’ decisions. The Committee on Rules of Procedure and Immunities further considers that the Assembly’s arrangements for maintaining order (Rule 20 of the Rules of Procedure) should be revised and reinforced in order to allow suitable action should a member’s expressed opinions seriously infringe the rights of a third person.

126.       As to the inviolability provided for in Article 15 (a) of the General Agreement, the Committee on Rules of Procedure and Immunities thinks that to interpret this guarantee regard should be had to the general principles evolved by the European parliamentary institutions and particularly the European Parliament, insofar as they are compatible with the nature of the Parliamentary Assembly and its practice.

127.       With respect to member States which have a system of parliamentary inviolability (Article 15 of the General Agreement) there is a need to remind the national authorities that in the case of a parliamentarian belonging to the Assembly who is accused of a wrongful act, both national and European immunity should be waived. Furthermore, member states should accept that, owing to a considerable increase in the Parliamentary Assembly’s activities, the concept “during the sessions of the Assembly” covers the entire parliamentary year.

It is also important to remind member States that according to Article 15 of the General Agreement, Representatives to the Assembly and their Substitutes continue to enjoy the parliamentary immunities secured by this provision when they are no longer members of their national parliament, and do so until their replacement as Assembly members.

128.       Another implication of this report is that Rule 64 of the Assembly’s Rules of Procedure, governing waiver of immunity, should be adapted to practical needs. This provision should also explicitly mention the possibility for members to have their privileges and immunities confirmed by the bodies of the Assembly.

129.       The draft resolution and recommendation accompanying this report reflect these aspects and contain specific points directed at the competent national authorities. It is especially important that upon adoption the texts are brought to the attention of the appropriate national judicial authorities.

130.       For the purposes of this report, the Committee on Rules of Procedure and Immunities has taken account of developments in the European Parliament. The European Parliament adopted on 11 June 2002 a resolution on reform of the procedure for waiving parliamentary immunity (Rule 6 of the European Parliament’s Rules of Procedure). On the same day, the Parliament adopted a resolution on the immunity of members elected in Italy and the practice of the Italian authorities in this connection, which contains a number of interesting passages on non-liability/non-accountability. It is anticipated that the European Parliament delegation to the Convention on the future of Europe will put forward proposals to revise the 1965 Protocol on the Privileges and Immunities of the European Communities. This initiative could be reflected in the work on a revised statute of members of the European Parliament.

131.       In the light of the results of the foregoing, the Committee on Rules of Procedure and Immunities of the Parliamentary Assembly of the Council of Europe could also discuss in due course whether the provisions of the General Agreement on Privileges and Immunities of the Council of Europe (of 1949) and its Protocol (of 1952) continue to be appropriate or should be updated.

APPENDIX I

Criteria for interpreting the concept of non-accountability/non-liability (parliamentary privilege) and inviolability (general principles of European parliamentary immunity).

It is recalled that the purpose of parliamentary immunity is to preserve the integrity of parliaments and to safeguard the independence and not the impunity of their members in exercising their office.

A.       Parliamentary non-accountability/non-liability (parliamentary privilege)16

1.       One trend in member states is to grant non-accountability/non-liability on condition that the opinions expressed by parliamentarians do not infringe the rights of third parties (through defamation for example). In the event of defamation, a parliamentarian may be prosecuted following authorisation by his parliament.

2.       The constitutions of other member states not containing such an exempting clause where parliamentary privilege is concerned do in some cases state that parliamentarians are subject to the disciplinary powers of their parliament in respect of opinions expressed.

3.       Furthermore, the notion of opinions expressed by members “in the exercise of their functions” is now more broadly interpreted by certain parliaments, given that there are more parliamentary delegations performing tasks outside the seat of parliament. In that case the term "in the exercise of their functions" is defined in relation to typical parliamentary activities and not in relation to a notion of geographical location.

B.       Parliamentary Inviolability17

1.       A number of European states which joined the Council of Europe after 1990 do not use the terms "immunities" and "waiving the immunity" in their constitutions, which instead state that members may not be prosecuted or detained without prior authorisation from parliament.

2.       Several member states have reformed the constitutional provisions relating to inviolability with a view to giving judicial bodies more opportunity to gather evidence before asking parliament to waive the immunity of one of its members. To that end, while the necessary guarantees are provided for, provisions have been amended so that most of the steps in criminal proceedings prior to the referral of the case to the judge for examination on the merits may be carried out without prior authorisation from parliament.

3.       Criteria for maintaining immunity (inviolability):

4.       Criteria for waiving immunity (inviolability):

*

* *

APPENDIX II

provisions concerning immunities contained in the Statute of the Council of Europe, the supplementary texts to the Statute and the Assembly’s Rules of Procedure

A.       Article 40 of the Statute (5 May 1949)

“a. 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;

b. The Members undertake…”.

B.       General Agreement on Privileges and Immunities of the Council of Europe

(2 September 1949)

Article 13: “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.

Article 14: “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”.

Article 15: “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:

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”.

C.       Protocol to the General Agreement (6 November 1952)

Article 3: “The provisions of Article 15 of the Agreement 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.”

Article 5: “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”.

D.       Rule 64 of the Parliamentary Assembly’s Rules - waiver of the immunity of Representatives and Substitutes18

64.1.       Any request addressed to the President by the competent authority of a member State for the waiver of immunity of a Representative or Substitute shall be transmitted to the Assembly and then referred without prior discussion to the Committee on Rules of Procedure and Immunities.

64.2. The Committee shall immediately consider the request but shall not make any examination of the merits of the case in question.19 The Representative or Substitute concerned may, if he wishes, be heard by the Committee. The report of the Committee shall conclude with a draft Resolution for the retention or the waiver of the immunity. No amendment to this conclusion shall be admitted.

64.3.       The report of the Committee shall be the first item of business of the Assembly on the first sitting day after the report has been tabled.

64.4.       The debate on the report shall be confined to arguments for or against the waiver of the immunity.

64.5.       The President shall immediately communicate the decision of the Assembly to the authority which submitted the request.

APPENDIX III

State of ratification of and accession to the General Agreement on Privileges

and Immunities of the Council of Europe (1949) and its Protocol (1952)

General Agreement on Privileges and Immunities of the Council of Europe
(Accord général sur les privilèges et immunités du Conseil de l'Europe)
ETS n° : 002

Status as of 10/03/03

Opening for signature :
Place : Paris
Date : 02/09/49

Entry into force :
Conditions : 7 Ratifications.
Date : 10/09/52

Member States of the Council of Europe:

States

Date of
signature

Date of
ratification

Date of entry
into force

Notes

R.

D.

A.

T.

C.

O.

Albania

 

04/06/98 a

04/06/98

 

 

 

 

 

 

 

Andorra

 

24/11/98 a

24/11/98

 

 

 

 

 

 

 

Armenia

 

25/06/01 a

25/06/01

 

 

 

 

 

 

 

Austria

 

09/05/57 a

09/05/57

 

 

 

 

 

 

 

Azerbaijan

 

16/01/02 a

16/01/02

 

 

 

 

 

 

 

Belgium

02/09/49

05/04/51

10/09/52

 

 

 

 

 

 

 

Bosnia and Herzegovina

 

 

 

 

 

 

 

 

 

 

Bulgaria

 

07/05/92 a

07/05/92

 

 

 

 

 

 

 

Croatia

 

11/10/97 a

11/10/97

 

 

 

 

 

 

 

Cyprus

 

30/11/67 a

30/11/67

 

 

 

 

 

 

 

Czech Republic

 

28/04/95 a

28/04/95

 

 

 

 

 

 

 

Denmark

02/09/49

02/09/53 a

02/09/53

 

 

 

 

 

 

 

Estonia

 

11/01/95 a

11/01/95

 

 

 

 

 

 

 

Finland

 

16/11/89 a

16/11/89

 

 

 

 

 

 

 

France

02/09/49

10/03/78

10/03/78

 

 

 

 

 

 

 

Georgia

 

25/05/00 a

25/05/00

 

 

 

 

 

 

 

Germany

 

10/09/54 a

10/09/54

 

X

X

 

X

 

 

Greece

02/09/49

17/11/53 a

17/11/53

 

 

 

 

 

 

 

Hungary

 

06/11/90 a

06/11/90

 

 

 

 

 

 

 

Iceland

 

11/03/55 a

11/03/55

 

 

 

 

 

 

 

Ireland

02/09/49

21/09/67

21/09/67

 

 

 

 

 

 

 

Italy

02/09/49

07/02/52 a

10/09/52

 

 

 

 

 

 

 

Latvia

 

15/01/98 a

15/01/98

 

 

 

 

 

 

 

Liechtenstein

 

16/05/79 a

16/05/79

 

 

 

 

 

 

 

Lithuania

 

22/07/98 a

22/07/98

 

 

 

 

 

 

 

Luxembourg

02/09/49

10/09/52 a

10/09/52

 

 

 

 

 

 

 

Malta

 

22/01/69 a

22/01/69

 

 

 

 

 

 

 

Moldova

 

02/10/97 a

02/10/97

 

 

 

 

 

 

 

Netherlands

02/09/49

18/03/50

10/09/52

 

 

 

 

X

 

 

Norway

02/09/49

01/12/49 a

10/09/52

 

 

 

 

 

 

 

Poland

 

16/03/93 a

16/03/93

 

 

 

 

 

 

 

Portugal

 

06/07/82 a

06/07/82

 

 

 

 

 

 

 

Romania

 

04/10/94 a

04/10/94

 

 

 

 

 

 

 

Russia

 

28/02/96 a

28/02/96

 

 

 

 

 

 

 

San Marino

 

22/03/89 a

22/03/89

 

 

 

 

 

 

 

Slovakia

 

05/12/96 a

05/12/96

 

 

 

 

 

 

 

Slovenia

 

08/11/94 a

08/11/94

 

 

 

 

 

 

 

Spain

 

23/06/82 a

23/06/82

 

 

 

 

 

 

 

Sweden

02/09/49

25/09/50 a

10/09/52

 

 

 

 

 

 

 

Switzerland

 

29/11/65 a

29/11/65

 

 

 

 

 

 

 

the former Yugoslav

Republic of Macedonia

 

10/04/97 a

10/04/97

 

 

 

 

 

 

 

Turkey

02/09/49

07/01/60 a

07/01/60

 

 

 

 

 

 

 

Ukraine

 

06/11/96 a

06/11/96

 

 

 

 

 

 

 

United Kingdom

02/09/49

25/09/50

10/09/52

 

 

 

 

 

 

 

 

Total number of signatures not followed by ratifications :

0

Total number of ratifications/accessions :

43

Notes :
a: Accession - s: Signature without reservation as to ratification - su: Succession - r: Signature "ad referendum".
R.: Reservations - D.: Declarations - A.: Authorities - T.: Territorial Application - C.: Communication - O.: Objection.

Source: Treaty Office on http://conventions.coe.int

Protocol to the General Agreement on Privileges and Immunities of the Council of Europe
(Protocole additionnel à l'Accord général sur les privilèges et immunités du Conseil de l'Europe)
ETS n° : 010

Treaty open for signature by the member States signatories to treaty ETS 2 and for accession by the States having acceded to treaty ETS 2

Status as of 10/03/03

Opening for signature :
Place : Strasbourg
Date : 06/11/52

Entry into force :
Conditions : Ratification by Parties to Treaty ETS 002.
Date : 11/07/56

Member States of the Council of Europe:

States

Date of
signature

Date of
ratification

Date of entry
into force

Notes

R.

D.

A.

T.

C.

O.

Albania

 

04/06/98 a

04/06/98

 

 

 

 

 

 

 

Andorra

 

24/11/98 a

24/11/98

 

 

 

 

 

 

 

Armenia

 

25/06/01 a

25/06/01

 

 

 

 

 

 

 

Austria

 

09/05/57 a

09/05/57

 

 

 

 

 

 

 

Azerbaijan

 

16/01/02 a

16/01/02

 

 

 

 

 

 

 

Belgium

06/11/52

24/07/53

11/07/56

 

 

 

 

 

 

 

Bosnia and Herzegovina

 

 

 

 

 

 

 

 

 

 

Bulgaria

 

07/05/92 a

07/05/92

 

 

 

 

 

 

 

Croatia

 

11/10/97 a

11/10/97

 

 

 

 

 

 

 

Cyprus

 

30/11/67 a

30/11/67

 

 

 

 

 

 

 

Czech Republic

 

28/04/95 a

28/04/95

 

 

 

 

 

 

 

Denmark

06/11/52

02/09/53

11/07/56

 

 

 

 

 

 

 

Estonia

 

11/01/95 a

11/01/95

 

 

 

 

 

 

 

Finland

 

16/11/89 a

16/11/89

 

 

 

 

 

 

 

France

06/11/52

10/03/78

10/03/78

 

 

 

 

 

 

 

Georgia

 

25/05/00 a

25/05/00

 

 

 

 

 

 

 

Germany

 

10/09/54 a

11/07/56

 

X

X

 

X

 

 

Greece

06/11/52

17/11/53

11/07/56

 

 

 

 

 

 

 

Hungary

 

06/11/90 a

06/11/90

 

 

 

 

 

 

 

Iceland

 

11/03/55 a

11/07/56

 

 

 

 

 

 

 

Ireland

06/11/52

21/09/67

21/09/67

 

 

 

 

 

 

 

Italy

06/11/52

11/07/56

11/07/56

 

 

 

 

 

 

 

Latvia

 

15/01/98 a

15/01/98

 

 

 

 

 

 

 

Liechtenstein

 

16/05/79 a

16/05/79

 

 

 

 

 

 

 

Lithuania

 

22/07/98 a

22/07/98

 

 

 

 

 

 

 

Luxembourg

06/11/52

29/06/53

11/07/56

 

 

 

 

 

 

 

Malta

 

22/01/69 a

22/01/69

 

 

 

 

 

 

 

Moldova

 

02/10/97 a

02/10/97

 

 

 

 

 

 

 

Netherlands

06/11/52

19/06/53

11/07/56

 

X

X

 

X

 

 

Norway

06/11/52

24/04/53

11/07/56

 

 

 

 

 

 

 

Poland

 

16/03/93 a

16/03/93

 

 

 

 

 

 

 

Portugal

 

06/07/82 a

06/07/82

 

 

 

 

 

 

 

Romania

 

04/10/94 a

04/10/94

 

 

 

 

 

 

 

Russia

 

28/02/96 a

28/02/96

 

 

 

 

 

 

 

San Marino

 

22/03/89 a

22/03/89

 

 

 

 

 

 

 

Slovakia

 

05/12/96 a

05/12/96

 

 

 

 

 

 

 

Slovenia

 

08/11/94 a

08/11/94

 

 

 

 

 

 

 

Spain

 

23/06/82 a

23/06/82

 

 

 

 

 

 

 

Sweden

06/11/52

30/04/53

11/07/56

 

 

 

 

 

 

 

Switzerland

 

29/11/65 a

29/11/65

 

 

 

 

 

 

 

the former Yugoslav Republic of Macedonia

 

10/04/97 a

10/04/97

 

 

 

 

 

 

 

Turkey

06/11/52

07/01/60

07/01/60

 

 

 

 

 

 

 

Ukraine

 

06/11/96 a

06/11/96

 

 

 

 

 

 

 

United Kingdom

06/11/52

18/11/54

11/07/56

 

 

 

 

 

 

 

 

Total number of signatures not followed by ratifications :

0

Total number of ratifications/accessions :

43

Notes :
a: Accession - s: Signature without reservation as to ratification - su: Succession - r: Signature "ad referendum".
R.: Reservations - D.: Declarations - A.: Authorities - T.: Territorial Application - C.: Communication - O.: Objection.

Source: Treaty Office on http://conventions.coe.int

Committee responsible for the report : Committee on Rules of Procedure and Immunities

Reference to committee: Assembly’s decision of 23.04.2001 and Reference 2727 of 29.05.2002 (Doc. 9439)

Draft resolution and draft recommendation adopted by the committee on 29 January 2003

Members of the committee: Mr Holovaty, (Chairperson), MM. Vis, Olteanu, Mrs Posada (Vice-Chairpersons), MM. Akçam, Aliyev, Mrs Auken, MM. Bernik, Calmes, Ceder (Alternate: Mr Timmermans [Rule 46.7. of the Rules of Procedure]), Collavini, Debono-Grech, Mrs Doktorowicz, MM. Dule, Flajolet, Frankenhauser, Mrs Herczog, MM. Himmer, Höfer, Janssen van Raaij, Jung Armand, Kroupa, Laakso, Lydeka, Magnusson, Maissen, Malins, Mme Mintas-Hodak, MM. Miššík, Monsen, Occhetto, Pentchev, Pereira Coelho, Mrs Pericleous-Papadopoulos, Mrs Ragnarsdottir, MM. Riccardi, Salaridze, Sharandin, Stepaniuc, Taliadouros, Wright, Zernovski

N.B. The names of members who took part in the vote are printed in italics.

Secretary of the committee: Mr Heinrich.


1 It should be recalled, that parliamentary immunity matters are also dealt with in application No.25646/94 (Young v. Ireland), decision of the European Commission of Human Rights of 17 January 1996, DR 84-A p. 126.

2 These general considerations are well set out in the reply by the Andorran Parliament to the questionnaire on parliamentary immunity.

3 Agreement on the status of the Western European Union, international Representatives and staff of 11 May 1955).

4 Cf. Doc W8 rev, op. cit, pp. 187-190 and the study by the European Centre for Parliamentary Research and Documentation: “Rules on parliamentary immunity in the European Parliament and the member states of the European Union”, 2001, p. 54.

5 “Rules on parliamentary immunity in the European Parliament and the member states of the European Union”, 2001, p. 50.

6 At the meeting of the Committee on Rules of Procedure and Immunities held on 29 January 2003, a member rightly pointed out the superfluity of this clarification, considering that the concept “during the sessions of the Assembly” covers the entire year (see paragraphs 46-48 of this report). Allowance should nevertheless be made for the origin of this provision, which dates from the period when the Assembly and its bodies had no activities which were spread continuously over the whole of the year (for details, see paragraphs 40 and 46 of this report).

7 Other cases where members of the Parliamentary Assembly have experienced problems over their privileges and immunities are recorded in a contribution on the waiving of immunity before the Council of Europe Parliamentary Assembly for a symposium in Brussels on 15 October 1997 by Mr G. P. Castenetto, former Assembly Secretariat officer: “La levée de l’immunité devant l’Assemblée parlementaire du Conseil de l'Europe” in “les droits de la défense devant les parlements exerçant des prérogatives juridictionnelles”. Actes du séminaire du 15 octobre 1997, organisé à Bruxelles par les Instituts des droits de l’homme des barreaux de Paris et de Bruxelles , éditions Bruylant, Bruxelles, 1998, pp. 51-56. It is to be recalled that Assembly Resolution 1030 (1994) dealt, inter alia, with immunities of Turkish parliamentarians. Assembly Recommendation 482 (1967) concerns the immunities of international organisations and their staff.

8 In the United Kingdom, immunities of Members of Parliament are regulated by the Bill of Rights.

9 Parliamentary immunity is regulated by provisions in texts other than the constitution in Russia (the Law on the

status of members of parliament) and Switzerland (federal law).

10 Between 1969 and 1994 there were 13 requests, 5 of which were accepted.

11 One request was accepted by only one of the two chambers in the Swiss parliament.

12 In an opinion delivered in July 2002 (CDL-AD (2002) 14), the European Commission for Democracy through Law had reservations about the proposal in a parliament to confine non-accountability to political “views” expressed.

13 The above-mentioned case of Mr Jannuzzi (see para. 74) aroused considerable interest in the Italian press. “La Stampa” (of 27.11.2002) referred to a “conflict between the judicial authorities and the national parliament”.

See also the press coverage of a case of search of the parliamentary office of an assistant of a German member of Parliament (Frankfurter Allgemeine Zeitung of 15 January 2003).

14 It is to be noted that par. 36 of the report (Doc. 9571) on which is based Resolution 1303 (2002) on the functioning of democratic institutions in Moldova, mentions parliamentary immunities in that country; this is also the case in the expert study on the law on the status of members of the Moldovan Parliament (see Doc. SG/Inf (2002) 41 of the Secretary General of the Council of Europe.)

15 Certain national delegations stressed that the seriousness or otherwise of an act held against a member has no effect.

16 It should be noted that two judgments delivered by the European Court of Human Rights on 17 December 2002 (case of A. v. United Kingdom, Application No. 35373/97) and 30 January 2003 (case of Cordova v. Italy, Application No. 45649/99) give clarifications on the rules governing parliamentary privilege.

17 Some member states do not recognise this form of immunity. In other states parliamentary inviolability may also cover civil proceedings.

18 See Statute of the Council of Europe, Article 40, and General Agreement on Privileges and Immunities, Articles 13 to 15, and Protocol thereto, Articles 3 and 5.

19 Guidance on the meaning of this phrase can be found in Rule 6 (a) paragraph 7. of the Rules of Procedure of the European Parliament which provides: “The Committee(…) shall not, under any circumstances, pronounce on the guilt or otherwise of the Member nor on whether or not the opinions or acts attributed to him or her justify prosecution even if, in considering the request, it acquires detailed knowledge of the facts of the case.”