Parliamentary Assembly Assemblée parlementaire

Doc. 10840
20 February 2006

Interpretation of Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe

Report
Committee on Rules of Procedure and Immunities
Rapporteur: Mr Erik Jurgens, Netherlands, Socialist group

Summary

During the last few years, the Assembly has, on the basis of immunity cases which have been dealt with by the Committee on Rules of Procedure and Immunities, built up a practice concerning the immunities of the Council of Europe which the members of the Assembly enjoy. This immunity exists in order to preserve the integrity of the Assembly and to safeguard the independence of its members in exercising their European office. One question which has previously raised difficulties on a regular basis is the scope of article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe. This report brings before the Assembly proposals for the interpretation of this provision which take into account the developments in the area of European parliamentary immunity and national and international precedents in this area. Furthermore, the report presents different proposals with a view to reinforcing the legal value of the laissez-passer of Assembly members issued by the competent authorities of the Council of Europe.

A.       Draft resolution

1.       The Parliamentary Assembly refers to its Resolution 1325 (2003) and Recommendation 1602 (2003) on immunities of members of the Assembly which underlined that immunities are granted in order to preserve the integrity of the Assembly and to safeguard the independence of its members in exercising their European office.

2.       The Assembly recalls that the protection granted to Assembly members by Article 40 of the Statute of the Council of Europe ("London Treaty"), Articles 14 and 15 of the General Agreement on the Privileges and Immunities of the Council of Europe and Article 3 of the Additional Protocol is part of a specific system of European immunity which is independent from any national immunities an Assembly member may enjoy. The autonomous character of the Council of Europe immunity is justified by the fact that the Assembly and its members have, independently from parliaments of the member States, a specific mandate to fulfil, to carry out the parliamentary functions arising from the application of the London Treaty of 5 May 1949.

3.       One feature of the Council of Europe’s institutional system is that the immunities of Assembly members are valid during the entire parliamentary year of the Assembly. It has always interpreted the terms “during the sessions“ in Article 15 of the General Agreement and “during a session” in Article 25.b. of the Statute as covering the parliamentary year.

4.       The Assembly recalls that, since 1952, the provisions governing the immunities of members of the European Parliament (Protocol on the Privileges an Immunities of the European Communities of 1965 and prior texts) and of the Parliamentary Assembly of the Council of Europe are identical. However, it is to be noted that the European Parliament (EP) has, in a resolution of 23 June 2005, called upon the EU member states to review the 1965 Protocol in respect of the provisions relating to members of the EP and to take the statute for members of the EP, approved on 3 and 4 June 2003, as a model. The Assembly hopes that the EU Governments will endorse these proposals and that they will be adopted at the next EU Intergovernmental Conference. Once the new EU Protocol has entered into force, it would be useful that the Assembly ask for a revision and up-dating of the General Agreement on the Privileges and Immunities of the Council of Europe (1949) and its additional Protocol (1952), insofar as Assembly members are concerned.

5.       On the basis of the existing 1965 provisions, the EP has developed a rich practice concerning the scope of these immunities. Recent immunity practice of the EP shows that national authorities have not correctly interpreted European immunities of members in important cases concerning members’ participation in demonstrations and their free movement. Sometimes, even the national parliamentary immunity provisions are not properly applied to EP members when in their home countries. On 15 November 2005, the EP adopted a resolution on a possible infringement of the Protocol on the Privileges and Immunities of the European Communities by a Member State (P6_TA-(2005) 0426).

6.       In its Resolution 1325 (2003), the Assembly agreed that the EP's practice should also form the basis for the interpretation of Article 15 of the General Agreement and, in particular, of its sub-paragraph a. concerning immunities of Assembly members on their national territory. Furthermore, in its Recommendation 1602 (2003), the Assembly invited the Committee of Ministers to take certain action with regard to the interpretation and application of Articles 14 and 15.a of the General Agreement.

7.       However, the Committee of Ministers have not taken the proposed follow-up action on Recommendation 1602 (2003). As far as can be seen, the national courts which had to apply the immunity regime of the Parliamentary Assembly have not adhered to the Assembly’s concept developed in Resolution 1325 (2003), but have given preference to a literal interpretation of Article 15.a. of the General Agreement, while not taking into account this provision in its entirety. In these circumstances, the Assembly has reviewed its position regarding Article 15.a.

8.       It resolves to interpret Article 15.a. as follows: Whatever the national regime of immunity, Assembly Representatives or Substitutes shall be protected against prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country.

9.       The Assembly also considers that it is appropriate for the relevant Assembly organs, when examining requests for the waiver of immunity and for the defence of immunity of its members, to bear in mind if the competent national authorities have respected the European Convention on Human Rights as interpreted by the European Court of Human Rights and other relevant Council of Europe legal instruments and texts which the respective countries have ratified or accepted. The Assembly should express its concern when Council of Europe norms have been obviously disregarded in respect of one of its members.

10.       The Assembly recalls that in the reply to Recommendation 1602 (2003), the Committee of Ministers invited the member states, where national legislation permits, to acknowledge unilaterally as an official document the laissez-passer issued by the competent Council of Europe authorities.

11.       Consequently the Assembly decides to:

11.1.       add the following paragraph after paragraph 6 in Rule 64 of the Assembly’s Rules of Procedure:

“a. When dealing with requests for the waiver of the Council of Europe immunity, or with requests to defend that immunity of an Assembly member, the competent Assembly organs shall interpret Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe as follows. Assembly representatives or Substitutes are immune from prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country.

b. The terms “in the exercise of their functions” include all official duties discharged by Assembly Representatives and Substitutes in the member states on the basis of a decision by a competent Assembly body and with the consent of the appropriate national authorities.

c. In case of doubt, the Bureau of the Assembly shall decide if Assembly members’ activities took place in the exercise of their functions.”

11.2.       invite the Bureau of the Assembly to take measures aimed at:

-       reinforcing the legal value of the laissez-passer issued by the competent Council of Europe authorities to members of the Parliamentary Assembly;

-       making more member states acknowledge the laissez-passer as an official document;

-       completing the information on the laissez-passer by adding the content of paragraph 11.1 above and its translation into the three working languages of the Assembly to it.

12.       The Assembly decides that the new provision shall enter into force upon the adoption of this resolution.

B.       Explanatory memorandum by Mr Jurgens

I.       Introduction

1.       In connection with a request to defend the immunity of an Italian member of the Assembly, the rapporteur wrote (see p.10 of document AS/Pro (2005) 5) that “to ensure that differences of interpretation by national authorities do not recur, the committee proposes that the Assembly should take a clear stand on the correct interpretation of Article 15 of the General Agreement on the Privileges and Immunities of the Council of Europe, relating to Assembly members”. It was also proposed that this interpretation should be included in the Assembly’s Rules of Procedure.

2.       The Committee on Rules of Procedure and Immunities endorsed these proposals and asked its Chairman to request the authorisation from the Bureau of the Assembly to elaborate a report on the interpretation of Article 15 of the General Agreement.

3.       On 29 April 2005 the Assembly ratified the Bureau’s reference of this matter to the Committee on Rules of Procedure and Immunities.

4.       This report will deal with the origin of Article 15 of the General Agreement and the various interpretations to which this provision has given rise in the past. The rapporteur will then submit his own proposals in this respect.

II.       Origin of Article 15 of the General Agreement on the Privileges and Immunities of the Council of Europe and general observations on this provision

1.       Origin of Article 15

5.       Article 15 (as well as Article 14) defines the immunities which are granted to Assembly members according to Article 40 of the Statute of the Council of Europe. Article 15 was elaborated by the so-called “Preparatory Commission” of the Council of Europe which had been instituted by the Conference of Ministers for Foreign Affairs which adopted the Statute of the Council of Europe (“London Treaty”) on 5 May 1949.

6.       The Preparatory Commission was active between May and July 1949. Its work was complicated by the fact that no precedent existed concerning the functioning of the Parliamentary Assembly, as it was the first parliamentary organ to be integrated into an intergovernmental organisation. When the Commission examined the privileges and immunities of the Council of Europe, the French delegation made the following proposal as regards Assembly members: “During the sessions of the (Consultative) Assembly, the representatives to the Parliamentary Assembly whether they be members of parliament or not, shall enjoy on the territories of member States the immunities granted to members of parliament of their country”. Subsequently, the Preparatory Commission considered that:

-       it was necessary to protect the Assembly representatives also when travelling to and from the place of meeting of the Assembly to their home countries;

-       they should be protected against any restriction imposed by their own or other governments on the free exercise of their functions.

7.       As there were divergences of opinions among the members of the Preparatory Commission concerning immunities of Assembly members, a legal committee of parliamentary experts was set up and asked to find an agreement on the text of Article 15.

8.       The first draft text prepared by this expert committee read as follows: “no Representative or Substitute to the (Consultative) Assembly shall, during one week before the opening of sessions and during sessions be prosecuted, be subject to search, home search, be arrested in a criminal affair except when so authorised by the Assembly or when found committing, attempting to commit or just having committed an offence. The detention or prosecution of a representative or substitute to the (Consultative) Assembly shall be suspended at the Assembly’s request”.

9.       At a later stage the French delegation presented a new proposal for a text making a distinction concerning immunities of Assembly’s members

-       on their national territory;

-       on the territory of all member States.

10.       After some minor changes this proposal was adopted by the experts and the Preparatory Commission and became the current Article 15 of the General Agreement.

2.       Observations on Article 15

2.1.       General

11.       As can be seen from this summary description of the Preparatory Commission’s work concerning immunities of Assembly members quite different drafts had been examined.

12.       Thus, the current Article 15 is a combination of several elements which were at a certain moment envisaged as separate paragraphs or even articles. Because of its complex character Article 15 has given rise to interpretation problems.

13.       Moreover, only one year after its adoption, it emerged that Article 15 was incomplete, as it did not cover participation of members at Assembly committee and sub-committee meetings. This matter was settled in Article 3 of the Additional Protocol to the General Agreement of 1952, which reads as follows: “The provisions of Article 15 of the General Agreement shall apply to Representatives to the Assembly and their Substitutes, at any time when they are travelling to and from, meetings of committees and sub-committees of the (Consultative) Assembly whether or not the Assembly is itself in session at that time”.

14.       The incomplete character of Article 15 is shown by another fact. Members of the Common Assembly of the European Coal and Steel Community set up in 1952 were granted exactly the same immunities as members of the Parliamentary Assembly. However and contrary to the Assembly, the Common Assembly considered it as important to include in its Rules of Procedure an additional rule providing that if a member is arrested or prosecuted in flagrante delicto, every member may table a motion requesting the suspension of the prosecution or arrest. These requests were referred to the relevant committee for report. It is interesting that this proposal corresponds to the last sentence of the French proposal quoted above (paragraph 8).

15.       As has been explained in Mr Olteanu’s report on immunities of members of the Parliamentary Assembly (Doc. 9718 rev. from 2003), Article 15 establishes a system of immunity which

-       varies according to the nationality of the member when proceedings are brought against him/her in his/her own country (article 15.a.);

-       is common to all members in respect of proceedings brought in other member States (article 15.b.).

2.2.       The words “during the sessions” in Article 15

16.       As was said above, the Preparatory Commission has discussed different possibilities to limit the character of the immunities granted to Assembly members, such as the reference to the duration of the Assembly’s sessions.

17.       It has to be recalled however, that the words “during the sessions” (or “in session”) are not only to be found in Article 15 of the General Agreement, and Article 3 of its additional Protocol, but also in the Treaty setting out the Privileges and Immunities of the European Communities (EU) and the members of the European Parliament (EP). Because of the omissions in Article 15 (see paragraph 13 above), it had been necessary to widen the scope of the concept of “during the sessions” in Article 3 of the 1952 Protocol. In 1952 the authors of that provision overlooked the possibility that the Assembly and its members might have to take action in member states (e.g. negotiations in case of problems, election observation, fact-finding visits).

18.       Moreover, the words “during a session” are contained in Article 25.b of the Statute of the Council of Europe. 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 January the following year. This interpretation also corresponds to the Assembly’s practical needs, as the Assembly held respectively one and two sessions per year when the General Agreement was concluded in 1949 and its additional Protocol in 1952. 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 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.

19.       To sum up, for the application of Article 15 of the General Agreement and of Article 25.b. of the Statute, the Assembly bases itself on the Council of Europe’s institutional system and practice and not on national legislation.

20.       This is also the current practice at EU level, already at the time when the EP was not yet directly elected, but composed of national parliamentary delegations, like the Assembly. The EP, where the relevant legal texts concerning immunities are identical to those of the Council of Europe, decided in 1963/64, that the words “during the sessions” covered the whole parliamentary year.

21.       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 EP’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.

III.       Different interpretations of Article 15

22.       The Committee on Rules of Procedure and Immunities has dealt with the interpretation of Article 15 on several occasions (see in particular Doc. 9718 revised and AS/Pro (2005) 5).

1.       Immunity of Assembly members when on the territory of other member states than their own (Article 15.b.)

23.       Article 15.b. 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. The word “prosecution” includes 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.

24.       In the past, the interpretation of Article 15.b. has not created any difficulties at Assembly level.

2.       Immunity of Assembly members when on their national territory (Article 15.a.)

25.       Article 15.a. stipulates that members shall enjoy during the sessions of the Assembly, on their national territory the immunities accorded in those countries to members of parliament. It is this part of Article 15 which raises the difficulties of interpretation already mentioned and which are summarised below.

2.1.       Interpretation given at Council of Europe level

26.       As the Council of Europe does not have a Court with a general competence, no judiciary institution of the Organisation has yet interpreted Article 15.a. This does not rule out that the European Court of Human Rights has in different cases had to deal indirectly with Article 14 of General Agreement on Privileges and Immunities of the Council of Europe which is related to words spoken or votes cast by Parliamentary Assembly members (see the judgments quoted in Resolution 1325 (2003) and in document AS/Pro (2003) 17).

27.       The Assembly has not yet had the occasion to take a position in a concrete case, as the immunity problems which had emerged in some ten cases of Assembly members, could be solved otherwise than by a public debate and the adoption of a text.

28.       However, with respect to the (European) immunity of its members in general, the Assembly has in its Recommendation 1602 (2003 ) expressed the position that (at least) the competent authorities of a member state which has 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 should also request the Assembly to waive the European immunity of that member which is granted to him under Article 15.a. of the General Agreement. Furthermore, the Assembly has endorsed (see Resolution 1325) the concept of European parliamentary immunity developed by the EP. Its central idea is the following. The Agreements and Protocols relating to the immunities of the members of the European Assemblies and which in one of their clauses refer to the immunities accorded to members of national parliaments, do not preclude the European Assemblies from creating rules of their own aiming at developing a coherent concept of European parliamentary immunity. This concept is by definition separate from the national parliaments’ respective practices. It emanates from the practice of the European Assemblies (particularly the EP) when considering requests for the waiver of the immunity of members or for the defence of their European immunity.

2.2.       Interpretation by national Courts

29.       In so far as national Courts are concerned, the Rapporteur has been informed only of several decisions of Italian Courts in the Iannuzzi case. In practically all these decisions a literal interpretation of Article 15.a. had been given the preference.

2.3.       Interpretation by other Italian authorities than the Courts

30.       Other Italian authorities have interpreted Article 15.a. of the General Agreement in the same way as the Assembly’s Committee on Rules of Procedure and Immunities and thus differently from most of the Italian Courts.

31.       The Legal Service (Servizio del contenzioso diplomatico e dei trattati) of the Italian Ministry of Foreign Affairs has in an aide-mémoire of 28 September 2004 set out that:

-       the immunity of members of the Parliamentary Assembly is an instrument to allow the Assembly’s functioning; it is distinct and independent from possible national immunity and thus at the sole disposal of the Assembly;

-       the immunity according to Article 15.b. of the General Agreement on the Privileges and Immunities of the Council of Europe does not refer to the legislation of member states; therefore it is applicable also on their national territory and does not stop in front of the principle of territoriality;

-       the fact that an Assembly member is not subject to any measure restricting his personal liberty is also valid in his own member state as otherwise there would be an unjustified disparity of treatment of members of European Assemblies based solely on their nationality and contrasting with their status.

32.       On 13 January 2005, the Chairperson of the Italian Senate’s Committee on Elections and Immunity handed over a detailed aide-mémoire to the Rapporteur of the Parliamentary Assembly’s Committee on Rules of Procedure and Immunities. Afterwards, it was also forwarded to that Committee (see Doc. AS/Pro/Inf (2005) 1).

33.       In its conclusions it is suggested that the last sub-paragraph of Article 15 (“this immunity also applies when members are travelling to and from the place of meeting of the 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”) be interpreted as follows. This sub-paragraph protects the free movement of Assembly members in the same manner as the immunities of diplomats are protected and defines such prerogatives as “immunity”. It is not one of “the immunities” referred to in the first sub-paragraph of Article 15 and it applies regardless of any reference to the constitutional law of the member state concerned.

34.       Consequently, according to the memorandum, this is a different, absolute immunity based on international law as construed by the practice of the Parliamentary Assembly (which, as already mentioned, extends the duration of sessions to the whole parliamentary year). The fact that it is an absolute immunity is proven by the clause in the second sub-paragraph of Article 15 which establishes that that immunity does not apply to members found in flagranti. This clause concerns all Assembly members, even if they do not enjoy immunity from arrest under their national legislation. What it waives is not the immunity deriving from a national source - hypothetically non-existent - but the European immunity of a member deriving from an international treaty. Because of this European immunity common to all Assembly members, regardless of their country of origin, their liberty may not be restricted unless their European immunity has been previously lifted by the Parliamentary Assembly.

2.4.       Interpretation of similar provisions by the European Parliament

35.       As has already been indicated above, the contents of Article 15 have in particular (insofar as they are identical with the relevant provisions in force for members of the EP) been interpreted by the EP and a doctrine (“principles”) of European parliamentary immunity was developed (see in this connection, Assembly Resolution 1325 (2003) and the conclusions of the hearing held by the Committee on Rules of Procedure and Immunities in Bucharest on 27 October 2003). The EP bases this concept mainly on the following consideration. The fact that item (a) of the first sub-paragraph of Article 10 of the Protocol revising the Protocol on the privileges and Immunities of the European Communities (which is identical with Article 15 of the General Agreement on the Privileges and Immunities of the Council of Europe) refers to the immunities accorded to members of the national parliaments, does not preclude the EP from creating rules of its own, a kind of practice whose effect is to develop a coherent concept of European Parliamentary immunity which is by definition separate from the national parliaments‘ respective practices (see EP document A6-0059/2004).

36.       One reason why the afore-mentioned principles for European parliamentary immunity were developed was the need to ensure that, despite different national rules and traditions, the members of the European parliamentary institutions are treated equally in whatever country they are living, insofar as the basic elements of the European immunity are concerned. It has been argued that if these principles are applied for European immunity matters of a national parliamentarian staying in his country, he would be positively discriminated in comparison to his fellow parliamentarians. However, any European immunity granted could always be waived by the Parliamentary Assembly. This will be done unless a violation of the basic elements of this immunity was proven (i.e. prosecution or arrest for purposes of political persecution or individual harassment, clear violation of basic human rights).

37.       According to the principles for European parliamentary immunity, which – as already mentioned - were endorsed by the Assembly, a member is protected in particular when he is prosecuted for solely political reasons (fumus persecutionis). The principles also allow to take into account the fundamental European values (democracy, human rights, rule of law) and the relevant provisions of the European Convention of Human Rights (e.g. presumption of innocence) for European immunity matters concerning members of the European Assemblies.

38.       The practice of international European parliamentary institutions regarding requests for the waiver of immunity or the defence of European parliamentary immunity is in general regarded as an independent source of law and, in any case, constitutes a kind of soft law.

IV.       Proposals from the rapporteur for the interpretation of Article 15.a

1.       General

39.       The Rapporteur recalls that the provisions governing the immunities of members of the EP and of the Parliamentary Assembly of the Council of Europe are identical. The EP has developed a rich practice concerning the scope of these immunities. In its Resolution 1325 (2003) the Assembly agreed that this practice should also form the basis for the interpretation of Article 15 of the General Agreement and in particular of its sub-paragraph a. concerning immunities of Assembly members on their national territory. Furthermore, in its Recommendation 1602 (2003) the Assembly invited the Committee of Ministers to take certain action with regard to the interpretation and application of respectively Articles 14 and 15.a. of the General Agreement.

40.       However, the Committee of Ministers has not taken the proposed follow-up action on Recommendation 1602 (2003). As far as can be seen, the national courts (particularly those in Italy), which had to apply the immunity regime of the Parliamentary Assembly, did not adhere to the concept developed by the Assembly in Resolution 1325 (2003), but gave preference to a literal interpretation of Article 15.a. of the General Agreement, while not taking into account this provision in its entirety. This is important as the origins of Article 15 show that it is a rather complex provision (see paragraph 12 above).

41.       In these circumstances, the Rapporteur proposes that the Committee on Rules of Procedure and Immunities review its position and take into account the experiences in connection with the immunity cases which were handled by the Assembly in the last years, and in particular, the Iannuzzi case (see AS/Pro (2005) 5).

42.       On this basis the Rapporteur proposes that Article 15, sub-paragraph a. of the General Agreement should be read in the context of the second paragraph of this provision (“This immunity also applies when they are travelling…”). This means that - whatever the national regime of immunity is - an Assembly member is always protected from prosecution and arrest when travelling on Assembly business or otherwise being active as an Assembly member, whether this is inside or outside his country. If he is not active within this meaning or not travelling on Assembly business, than the national immunity regime applies within his own country. This interpretation is justified by the consideration that a member can otherwise not fulfil his duties as Representative or Substitute of the Parliamentary Assembly. It does therefore not mean that an Assembly member has an absolute immunity within his own country. In any case the Assembly would always, at the request of a national authority, rapidly lift the immunity of a member if this was justified.

2.       Discussions in the Committee on Rules of Procedure and Immunities – in how far do Assembly members need protection?

43.       At the meeting of 23 June 2005 some members of the Committee considered that Assembly Representatives and Substitutes should not be better treated as their fellow parliamentarians on their national territory. This would mean that if their countries do not have any parliamentary inviolability, the corresponding Assembly members would enjoy no immunity even when performing duties for the Assembly or travelling to and from Sessions and meetings of the Assembly and its committees in such states.

44.       The rapporteur should first like to point out that the protection of Assembly members according to the general agreement on Privileges and Immunities of the Council of Europe is no impunity. Beyond the individual it is his/her office and thus the Assembly itself whose independence is guaranteed by the General Agreement. In the interest of the Council of Europe’s and the Assembly’s efficiency and in order to allow it to carry out its functions, the immunity constitutes a procedural obstacle to arresting one of its members before the Assembly has had the opportunity to consider if the immunity should be lifted or not. The rapporteur is convinced hat this would be done rapidly by the Assembly if a request for the waiver of the immunity was justified.

45.       Moreover, the rapporteur considers that a minimum immunity as proposed above still is necessary for members of an international Assembly which is active during almost the whole parliamentary year in the whole of Europe, including 46 states. A similar conclusion has been reached in the EP in June 2003 and June 2005 (“Parliamentary immunities play a role today”), which for the time being has members from 25 member states. The EP has in particular found that immunity problems existed mainly concerning the free movement of its members and their right to participate in demonstrations. In a resolution of 5 July 2005 the EP criticized that the French Court of Cassation had not applied Article 10 of the Protocol on the Privileges and Immunities of the EC/EU in a judgment of 16 March 2005 concerning a French EP member. The EP also called for the said judgment to be annulled or overturned and at all events for it to cease to have any practical or legal effect. The risk of problems is even greater, also with respect to members’ freedom of expression, in the wider area covered by the Council of Europe. The Organisation even includes countries with regions where frozen conflicts exist. It is recalled in this context that on 29 November 2005, the President of the Parliamentary Assembly expressed his concern at reports from a member state that a peaceful demonstration by opposition supporters in the country had been violently dispersed by the police.

46.       At the committee meeting on 23 June 2005 one member considered that the proposed interpretation of Article 15 should also explain the meaning of the words "in the exercise of their functions". This is done in the draft resolution included in the present report.

3.       The European Convention of Human Rights and other Council of Europe legal instruments and texts which the respective member States have ratified or accepted and immunity cases involving Assembly members

47.       The Assembly has the duty to protect the human rights of its members against any unjustified violations. The Iannuzzi case is a practical illustration of the need to bear in mind the European Convention on Human Rights and other relevant legal instruments and cases which the corresponding countries have ratified or accepted when handling Assembly members’ immunity matters. Mr Iannuzzi risked imprisonment for cases of libel by means of the press. However, according to existing guidelines from the OSCE (accepted by the Council of Europe), it is a fundamental principle of media freedom and a generally accepted international norm that no journalist should be in prison for performing his or her professional duties and that cases of libel should be dealt with by a civil Court, and under no circumstances result in penal sanction.

48.       Furthermore, in its judgment of 17 December 2004 in the case Cumpana and Mazare vs. Romania (No. 33 348/96) the European Court of Human Rights held that imprisonment for defamation by journalists was only compatible with the freedom of journalistic expression under exceptional conditions.

49.       Strictly speaking the European Convention on Human Rights and other Council of Europe texts accepted by the member state concerned are no criteria for judging if the waiver or defence of a member’s immunity is justified or not. However, the Assembly may well, when examining an immunity case, express its concern when Council of Europe norms have been disregarded.

4.       Need for the waiver of the European immunity of a Parliamentary Assembly member before his freedom is restricted – autonomous nature of Council of Europe immunity of Assembly members

50.       In this connection the Rapporteur considers it important to draw attention to the need for a waiver of members’ European (Council of Europe) parliamentary immunity by the Assembly, before their liberty to travel to and from Assembly and committee meetings and to be otherwise active for the Assembly may be restricted.

51.       The Council of Europe immunity is autonomous in respect to the national parliamentary immunity of a member (see the judgment of the Court of Justice of the European Communities, Wybot vs France, 149/85, coll. 1986, p.2403). The autonomous character is illustrated by the fact that, according to the General Agreement and its Additional Protocol, the immunities are applicable to Assembly members who no longer have a national parliamentary mandate.

52.       Furthermore, the autonomous nature of the European immunity is accentuated by the provisions of the second paragraph of Article 15 of the General Agreement. This paragraph, together with Article 3 of the Additional Protocol of 1952, protects the free movement of Assembly members (travelling to and from the place of Assembly plenary sittings and Assembly committee and sub-committee meetings) and defines such prerogatives as “this immunity”. It is an absolute immunity based on international law. It applies to all Assembly members, even if they do not enjoy immunity from arrest under their national legislation. The second paragraph of Article 15 also contains a clause for in flagranti offences. It would not be necessary if the European immunity was not independent. This European immunity is interpreted by the Parliamentary Assembly, which alone has the competence to lift it (see Article 15), if so requested.

53.       Because of this Council of Europe immunity common to all Assembly members, regardless of their country of origin, it must be lifted by the Assembly before their personal freedom or liberty of movement for Assembly business is restricted.

V.       Considering the Council of Europe immunity for the laissez-passer issued to members of the Assembly

54.       Members of the Assembly receive a laissez-passer in the two official languages of the Council of Europe which contains details of the holder (name, date and place of birth, nationality, address, photograph), the date of issue and validity, as well as the relevant extracts from the General Agreement on Privileges and Immunities of the Council of Europe. Despite several reminders (see Recommendation 1602 (2003) and reply from the Committee of Ministers, Doc. 10403), the Committee thinks that an insufficient number of member states acknowledge the laissez-passer as an official document.

55.       In these circumstances the Committee considers it to be appropriate to invite the Bureau to take measures aimed at:

-       reinforcing the legal value of the laissez-passer;

-       making more member states acknowledge the laissez-passer as an official document;

-       completing the information on the laissez-passer by adding the content of paragraph 11.1 of the draft resolution in this report and its translation into the three working languages of the Assembly to it.

VI.       New developments concerning immunity matters in international parliamentary institutions

56.       The Rapporteur should like to take this occasion to give short information on some new developments. The Association of Secretaries General of Parliament, functioning within the Inter-Parliamentary Union (IPU), held a topical discussion on parliamentary privileges and immunities during its October 2005 meeting in Geneva. A written contribution presented by the Secretary General of the Questure of the French Senate contained an important section on why parliamentarians should be protected against whom and against what. That contribution also rightly suggested that instead of referring to parliamentary privileges and immunities, the appropriate generic term was that of protection. It simultaneously embraced both the contents and the aim of a notion that is of universal and permanent value while covering a host of subjects.

57.       On 29 November 2005, the EP organised a hearing on “Parliamentary immunity – a European approach”, in which the Assembly was represented. The experts and participants at the hearing discussed in particular

-       the improvements to be made to the current Protocol on privileges and immunities of the European Communities , having regard in particular to the changed status of the EP since the adoption of the Protocol;

-       the interpretation of the terms “in the performance of their duties”;

-       the defence of European immunity.

58.       The participants underlined that the current provisions regarding the protection of members of the EP and the Parliamentary Assembly of the Council of Europe were outdated. The rapporteur hopes that it will be possible, once the EC/EU Protocol on privileges and immunities has been revised, to achieve a reform of the provisions concerning Assembly members which are contained in the General Agreement on privileges and immunities of the Council of Europe (1949) and of the additional Protocol thereto (1952).

59.       The “Giuntŕ della elezioni e delle immunitŕ parlamentari” of the Italian Senate has started an enquiry of the immunity systems in Europe. Until end November 2005, the Giuntŕ had already visited the Parliaments in London and Paris.

60.       It is recalled that the rapporteur has already been in contact with the Chairperson of the Giuntŕ (see paragraphs 31 - 33 above).

61.       Considering that academic or scientific publications on European parliamentary immunity are rare, the rapporteur should like to point out that an article on the parliamentary immunity of the Council of Europe has been published in Italy in 2005 (G.Baiocchi, Immunitŕ parlamentare del Consiglio d’Europa, in «Rassegna parlamentare», pp 775-790). This article first deals with the Council of Europe rules concerning the immunity of members of the Assembly. It then analyses the application of these rules to three cases involving Italian members of the Assembly. Finally, the article contains a reflection on the emergence of the concept of European parliamentary immunity.

VII.       Conclusions

62.       The Committee on Rules of Procedure and Immunities adopted unanimously the draft resolution contained in this report. The Committee considers that the proposed interpretation of article 15.a. of the General Agreement on Privileges and Immunities of the Council of Europe will help solving the practical problems with this provision which have emerged in several concrete cases.

* * *

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

Reference to committee: Reference N° 3084 of the Bureau of the Assembly on 29.04.2005.

Draft resolution unanimously adopted on 12 December 2005.

Members of the committee: Mr Andreas Gross, (Chairperson), Mr Andrea Manzella, Mrs Ganka Samoilovska-Cvetanova (Vice-Chairpersons), Mr Sándor Albert (alternate: Mrs Angyalova), Mr Gulumhuseyn Alibeyli, Mr Alexander Arabadjiev, Mr Birgir Ármannsson, Mr Ioannis Bougas, Mrs Anne Brasseur, Mr Aslan Cebeci, Mr Jonas Cekuolis, Mr Manlio Collavini, Mrs Helen D'Amato, Mrs Krystyna Doktorowicz, Mr Miljenko Doric, Mr Vangjel Dule, Mr Mats Einarsson, Mr Adolfo Fernandez Aguilar, Mr Herbert Frankenhauser, Mr Tihomir Gligoric, Mr John Greenway, Mrs Arlette Grosskost, Mr Gerd Höfer, Mr Serhiy Holovaty, Mr Tomáš Jirsa, Mr Armand Jung, Mr Erik Jurgens, Mr Tibor Kékesi, Mrs Mojca Kucler-Dolinar, Mr Markku Laukkanen, Mr Alan Meale (alternate: Mr Vis), Mrs Ana Mendonça, Mr Per Erik Monsen, Mr Jakob-Axel Nielsen, Mr Alexey Ostrovsky (alternate: Mr Fedorov), Mr Christos Pourgourides, Mrs Valentina Radulovic Šcepanovic, Mr Armen Rustamyan, Mr Peter Schieder, Mr Yuri Sharandin, Mr Christophe Spiliotis-Saquet, Mrs Rodica Mihaela Stanoiu (alternate: Mr Paunescu), Mr Victor Stepaniuc, Mr Karim Van Overmeire, Mr G.V. Wright.

NB: The names of those members present at the meeting are printed in bold.

Secretaries of the committee: Mr Mario Heinrich, Ms Linda Nylund.