Removal of MP Immunity – Reinventing of the wheel (again)

As is now clear, Ukrainian MPs will vote to remove their own absolute immunity – and thus hopefully their acts with absolute impunity will lessen – when the new RADA takes its seats.

As Mykola Tomenko stated yesterday, there is agreement that immunity over issues such as corruption will be abolished – yet problems still remain to be resolved.  An example he cited was a politician’s ability to hold a rally outside the parliament and to subsequently be arrested for doing so.

The issue then, one of the gap between non-liability and inviolability.

Parliamentary immunity derives its legitimacy from the fundamental right of individuals to govern themselves, with its main objective being to secure independence and freedom of expression.  This form of immunity guarantees the principle of the separation of powers.  Thus immunity makes it possible for parliamentarians to express minority opinions without being penalised for it, and this in turn contributes to a pluralist democracy.

As the European Court of Human Rights as ruled – “… tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance…….the Court is also careful to make a distinction in its findings between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to “offend, shock or disturb” others.” –  (Chamber judgment Erbakan v. Turkey, no. 59405/00, § 56, 6.07.2006)

Parliamentary immunity therefore puts a large burden on the personal integrity of those who enjoy it.  It creates a space between non-liability and any inviolability – or matters occurring within the exercise of an MPs duties, and something far more broad and absolute.  Ukrainian MPs have historically sat with absolute inviolability – acting with outrageous impunity because of it.

Personal integrity associated with non-liability, historically, is not a phrase that most would use in the same sentence as Ukrainian MP – unless in a derogatory/cynical/satirical/rhetorical sense.  Complete contempt for the rule of law associated with absolute inviolability is associated with Ukrainian MPs.

However, it remains incomprehensible that the Ukrainian political class seems intent upon reinventing the parameters of the non-liability verses inviolability wheel, and where in that gap they indend to pitch their tent.  It is an issue that a great many others have already dealt with in numerous nuanced ways within the theme:

There is the UK’s parliamentary privilege – non-liability, tried and tested over a great many years:

“Parliamentary privilege grants certain legal immunities for Members of both Houses which allow them to perform their duties without interference from outside the House. The privileges are: Freedom of speech, freedom from arrest (on civil matters), freedom of access to the sovereign and that ‘the most favourable construction should be placed on all the Houses’s proceedings’. Members are immune from legal action in terms of slander but must adhere to the principles of parliamentary language.”

With regard to inviolability in the UK, it consists of immunity from arrest and detention for all civil actions – which is almost entirely pointless and has almost no practical effect, because there are so very, very few civil cases for which a person can be detained.

There is also The European Parliament:

“Members of Parliament shall not be subject to any form of inquiry, detention or legal proceedings, in connection with civil, criminal or administrative proceedings, in respect of opinions expressed or votes cast during debates in Parliament, in bodies created by or functioning within the latter or on which they sit as Members of Parliament.”

However, it would be quite wrong to present the Ukrainian political class with only two examples, as they would be tempted to strive for a third option – so, a brief and less than scholarly overview of non-liability and  inviolability for some of the EU nations follows:

Austria – Non-liability:  MPs are not accountable for votes and written or oral opinions in the exercise of their parliamentary mandate. This immunity covers all votes cast and oral and written statements made by Members of the National Council during the proceedings of the plenary and the committee meetings, during parliamentary inquiries and in written statements recorded in parliamentary documents.

Inviolability:  Immunity covers acts punishable by a court of law, acts governed by administrative criminal law and acts amenable to prosecution under disciplinary law provided that they have been committed in connection with the political activities of the Member concerned. It does not afford any protection against civil proceedings in a court of law.  Derogations: in cases of flagrante delicto, MPs can be arrested. Legal action can be taken if the case is manifestly not connected with the political activity of the MP.

 

Belgium – Non-liability: A member is exempt from criminal, disciplinary and civil prosecution, and investigation/examination (i.e preliminary investigation, searches) for opinions expressed and votes cast directly related to the performance of parliamentary duties.

Inviolability:  A member may not be committed for trial or summoned directly before a court or tribunal, or arrested without prior authorisation of the House, except in flagrante delicto.  Other investigative acts (e.g. questioning, searches and seizures, etc.) do not require prior authorisation.  There are, however, additional procedural guarantees (e.g. presence of (a representative of ) the Speaker of an assembly when a search takes place).

 

Bulgaria – Non-liability: Parliamentary non-accountability applies to words spoken and written by MPs both within and outside Parliament while performing their duties as Members of Parliament.  MPs are therefore exempt from any criminal liability.  Derogations: Offence or insult.

Inviolability:  It applies only to criminal proceedings, covers all offences and protects MPs from arrest and from being held in preventive custody, from the opening of judicial proceedings against them and from their homes being searched.  The permission of the National Assembly is needed in order to subject the Member to detention or rather criminal prosecution.  Derogations: In cases of grave crimes committed in flagrante delicto or if the MP gives their consent, MPs can be arrested.  However, Parliament or, between sessions, its President, shall be notified.

 

Cyprus -Non-liability:  Representatives shall not be liable to civil or criminal proceedings in respect of any statement made or vote by them in the House of Representatives. Therefore the non-liability is limited to votes and statements performed in the House itself.

Inviolability :  Immunity, applied to both criminal and civil proceedings, protects Members from arrest, from being held in preventive custody (imprisonment), from the opening of judicial proceedings against them and from their homes being searched, without leave from the Supreme Court.  In cases where the Member is apprehended in the act of committing an offence punishable with imprisonment of five years or more, the MP can be arrested without leave by the Supreme Court.

 

Czech Republic – Non-liability:  No Deputy or Senator may be disciplined for his or her voting in the Chamber of Deputies or in the Senate, or in their bodies.  No Deputy or Senator may be criminally prosecuted for statements made in the Chamber of Deputies or in the Senate, or in their bodies and, in this case, a Deputy or Senator shall be subject only to the disciplinary jurisdiction of the chamber of which he or she is a member.  In other cases, no Deputy or Senator may be criminally prosecuted without the consent of the chamber of which he or she is a member.  If the respective chamber denies its consent, criminal prosecution shall be excluded forever.   A Deputy or a Senator who has committed a transgression shall be subject only to the disciplinary jurisdiction of the chamber of which he or she is a member, if he or she requests so.

Inviolability:  Member enjoys protection from criminal proceedings, except where they are apprehended in the act of committing a criminal offence (flagrante delicto) or immediately thereafter.  In this case, the competent agency shall immediately report the detention to the chairman of the Chamber of which the detainee is a Member.  If the chairman does not give his consent within 24 hours of the detention to the surrender of the detainee to a court, the competent agency shall release the detainee.

 

Denmark -Non-liability:  A member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution for opinions expressed and votes cast directly related to the performance of parliamentary duties, made not only on the floor of the Folketing but also elsewhere – for instance in standing committees of the Folketing or while away on business with such committees.  The deciding factor is whether the opinions expressed are directly related to the performance of parliamentary duties.

Inviolability:  The member enjoys protection from prosecution or imprisonment of any kind without the consent of the Parliament, except where the member is apprehended in flagrante delicto.  This immunity covers only public criminal prosecution and applies neither to investigation, interrogation and fines, nor to civil or criminal cases resulting from private prosecutions.

 

Estonia – Non-liability:  A member will not bear legal liability for votes cast or political statements made by them in the Riigikogu or in any of its bodies.

Inviolability:   A member may be detained as a suspect, preventive measures may be applied and searches, seizure of property, inspections and physical examinations may be conducted, only if the Riigikogu has granted consent to the preparation of a statement of charges with regard to such person.  A member may be detained as a suspect without the consent of the Riigikogu if the person was apprehended in the act of commission of a criminal offence in the first degree.  In such cases, the person and any premises associated with them may be searched and the person subjected to inspections and physical examinations without the consent of the Riigikogu, as appropriate.  Criminal charges can be brought against a member if the majority of the membership of the Parliament consents.

 

Finland – Non-liability:  The member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution, arrest, detention and investigation/examination, for opinions expressed, behaviour/conduct, and votes cast directly related to the performance of parliamentary duties, made on the floor of the House.

Inviolability:   The member is provided with protection from arrest or detention before the commencement of a trial, except where the member is, for substantial reasons, suspected of having committed a crime for which the minimum punishment is imprisonment for at least six months.

 

France – Non-liability:  A member is not liable for opinions expressed and votes cast in the performance of their parliamentary duties: they will not be subjected to prosecution, search, arrest, detention or trial. At the same time, jurisprudence has established that some actions which cannot be equated with opinions expressed or votes cast in the exercise of their parliamentary office do not fall under the heading of non-liability (e.g. remarks during a radio conference or in an interview).

Inviolability:   A member is inviolable in criminal and administrative proceedings and will therefore not be arrested or subjected to restrictions on their freedom of movement (preliminary investigations and searches excepted) without prior authorisation by the Bureau of the National Assembly.  Such authorisation is not required in case of certain routine law enforcement inquiries and serious crimes or other major offences committed in flagrante delicto.

 

Germany – Non-liability:  At no time may a member incur legal or disciplinary proceedings for votes cast and/or opinions expressed on the floor of the House or in one of its bodies, nor held accountable outside the House.  This does not apply to defamatory insults, which can, however, be dealt with through parliamentary disciplining.

Inviolability:   Only upon prior authorisation of the Bundestag may a member be held accountable or detained for acts punishable by a court of law, except in flagrante delicto, or when apprehended in the course of the next day.  Prior authorisation of the Bundestag is also required for any other restrictions of a member’s personal freedom or for the initiation of legal proceedings against a member.

 

Greece – Non-liability:  The member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution, and investigation/examination. Non-liability of MPs is operative concerning criminal and civil proceedings and disciplinary measures for opinions expressed and votes cast directly related to the performance of parliamentary duties inside as well as outside the Chamber (as far as there is a direct link of the expression of opinion or vote to the exercise of the mandate).  Derogations: Defamation.

Inviolability:   The member enjoys protection from criminal and administrative proceedings (though not against preliminary investigation or searches) and arrest, except where the member is apprehended in flagrante delicto (in this case no authorisation by the Parliament is required).

 

Hungary – Non-liability:  A member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal prosecution for opinions expressed and votes cast directly related to the performance of parliamentary duties.  Active or former members cannot be held accountable before court, or by any other authority for their votes cast, or facts and opinions stated in the course of the duration of their mandate.  This immunity shall not be applicable in case of violation of state secrets, of defamation or libel, and in connection with the accountability of MPs under civil law.

Inviolability:   A member enjoys protection from criminal and civil proceedings (including preliminary investigation or searches) and arrest, except where the member is apprehended in flagrante delicto.  MPs can only be arrested in case of flagrante delicto.  Criminal procedures or legal procedures for petty offences against MPs can only be started and pursued with prior permission given by Parliament.  Prior permission by Parliament is also required for law enforcement against MPs in criminal procedures.

 

Ireland – Non-liability:  The member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution, and investigation/examination. Immunity protects members of parliament against any legal action likely to reduce their freedom of speech and action.  It covers opinions expressed and votes cast/utterances directly related to the performance of parliamentary duties, made on the floor of one of the two Houses and while going to and returning from parliament.  Derogations: Treason, felony and breach of peace. Immunity covers all official reports and publications of the Houses.  Immunity extends to statements made outside the Houses of the Oireachtas where these are identical to statements made within the Houses. Officials, experts and certain witnesses are also covered within parliamentary committees.

Inviolability:   Any measures that might restrict the personal freedom of members when they go to the parliament, are sitting or are returning from there are prohibited.

 

Italy – Non-liability:  A member is exempt from criminal and civil prosecution, and investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties.  MPs may not be required to give account of any opinions expressed or votes cast in the exercise of their functions.  Deputies and Senators are therefore exempt from any civil, criminal, administrative or disciplinary liability which could stem from an opinion expressed or votes cast when carrying out their parliamentary activities.

Inviolability:   A member enjoys protection from arrest, detention, searches, investigations, surveillance and interception of communications, except in cases of flagrante delicto, when an arrest warrant is compulsory.  No previous authorisation of the competent Chamber is necessary in order to subject a Member of the Parliament to criminal proceedings.

 

Latvia – Non-liability:  The member is not liable to disciplinary measures and is exempt from criminal and civil prosecution, and investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties.  They also have the right to refuse to give evidence in specific cases.  Members may not be called to account by any judicial, administrative or disciplinary process in connection with their voting or their views as expressed during the execution of their duties. But court proceedings can be brought against a member if they, albeit in the course of performing parliamentary duties, disseminate defamatory statements which they know to be false, or defamatory statements about private or family life.  They also have the right to refuse to give evidence in specific cases regarding other non-liable Members (Example: Concerning persons who have entrusted to them, as representatives of the people, certain facts or information).

Inviolability:   Immunity applies only to criminal and administrative proceedings, covers all offences and protects MPs from arrest and from being held in preventive custody, from the opening of judicial proceedings against them, from their homes being searched, and from administrative fines being levied. Members may not be arrested or their premises searched or their personal liberty be restricted in any way without the consent of the Saeima.  They may be arrested if apprehended in flagrante delicto.

 

Lithuania – Non-liability:  No civil or criminal action may be brought against an MP for the opinions expressed and votes cast in the exercise of his parliamentary duties.  The member is only liable for personal insult or slander and is exempt from criminal and civil prosecution, and investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties, made on the floor of the Seimas.

Inviolability:   Criminal proceedings may not be instituted against a Seimas Member; they may not be arrested and may not be subjected to any other restrictions of personal freedom without the consent of the Seimas, except in cases when caught in flagrante delicto.

 

Luxembourg – Non-liability:   Parliamentary non-accountability applies to words spoken and written by MPs both within and outside Parliament provided MPs said or wrote them in the exercise of their functions. Derogations:  Insult of Parliament or its President.

Inviolability:   Immunity applies to criminal and civil proceedings, covers all offences and protects MPs from arrest and from being held in preventive custody and from the opening of judicial proceedings against them without authorisation of the Chamber.  As for their homes being searched, there is no jurisprudence in Luxembourg.  Derogations: In cases involving flagrante delicto, inviolability does not apply.

 

Malta – Non-liability:  No civil or criminal proceedings may be instituted against any Member of the House or a committee thereof or by reason of any matter or thing brought by them therein by petition, bill, resolution, motion or otherwise.  This non-liability does not seem to concern activities of the member performed outside the House.

Inviolability:   For the duration of any session Members of the House of Representatives enjoy the immunity from arrest for any civil debt “provided that it is not fraudulent or otherwise in contravention of the Criminal Code.”

 

The Netherlands – Non-liability:  A member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution, and investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties, made on the floor of the House.  The non-liability principle covers all procedures (civil, criminal, administrative and disciplinary) but is strictly limited to positions (oral and writing) taken in deliberations (during parliamentary sessions).

Inviolability:   MPs have the same status as ordinary citizens and enjoy no immunity whatsoever.

 

Poland – Non-liability:  The member is exempt from criminal and civil prosecution, disciplinary accountability and investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties, e.g. made on the floor of the parliament or its bodies.  In case of infringement of the rights of third parties (e.g. offence/defamation and slander), a member may only be proceeded against before a court upon consent of the Sejm.  The following activities fall within the scope of the non-liability principle: Tabling proposals, speeches and votes during sessions of parliament and other parliamentary meetings as well as other acts related to the performance of parliamentary duties.

Inviolability:   Criminal proceedings (“criminal accountability” being interpreted broadly, also covering petty crimes) instituted against a person before the day of their election as Deputy shall be suspended at the request of the Sejm until the time of expiry of the mandate.  A deputy shall not be subjected to criminal accountability without consent of the Sejm.  They shall neither be detained nor arrested without the consent of the Sejm, except when apprehended in flagrante delicto, and when detention is required for securing the proper course of the proceedings.  Any such detention shall be communicated immediately to the Marshal of the Sejm, who may order an immediate release of the deputy.

 

Portugal – Non-liability:  A member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution, and investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties, made on the floor of the House.

Inviolability:   A member enjoys protection from criminal and administrative proceedings (though not against preliminary investigation or searches) and arrest, except where the member is apprehended in flagrante delicto, or if the alleged offence is punishable by more than three years imprisonment.

 

Romania – Non-liability:  A member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution, as well as investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties, made on the floor of the House.

Inviolability:   The Deputies and Senators may be subject to criminal investigation, or criminally prosecuted for acts that are not connected with their votes or their political opinions expressed in the exercise of their office, but shall not be searched, detained or arrested without the consent of the Chamber they belong to, after being heard, and may be apprehended in flagrante delicto.  The investigation or prosecution shall only be carried out by the Public Prosecutor’s Office attached to the High Court of Cessation and Justice.

 

Slovakia – Non-liability:  No Member of Parliament shall be prosecuted for his voting in the National Council of the Slovak Republic or in its committees, not even after expiration of his or her mandate.  No Member of Parliament shall be prosecuted for statements presented in duration of the post in the National NC SR or in its body, not even after expiration of his or her mandate. The MP is subject to disciplinary powers of the NC SR.  The member is only liable to disciplinary measures by the Speaker-Chamber (i.e. call to order, censure) and is exempt from criminal liability because of his voting and statements in the National Council of the Slovak Republic or its bodies.  Furthermore, he/she cannot be subject to investigation/examination, for opinions expressed and votes cast directly related to the performance of parliamentary duties without the consent of the NC SR, made on the floor of the NC SR or its bodies.

Inviolability:   No Member of Parliament shall be held in pre-trial detention without approval of the National Council of the Slovak Republic.

 

Slovenia – Non-liability:  A member is not criminally liable for opinions expressed or votes cast at sessions of the National Assembly/National Council or its working bodies.

Inviolability:   No deputy may be detained nor, where such deputy claims immunity, may criminal proceedings be initiated against them without the permission of the National Assembly, except where such deputy has been apprehended in flagrante delicto, committing a criminal offence for which carries a prison sentence of over five years.  The National Assembly may still grant immunity in the aftermath.

 

Spain – Non-liability:  The member may not be required to give account of any opinions expressed or votes cast directly related to the performance of parliamentary duties, in the exercise of their functions. Deputies and Senators are therefore exempt from any civil, criminal, administrative or disciplinary liability which could stem from an opinion expressed or votes cast when carrying out their parliamentary activities.

Inviolability:   The member enjoys protection from criminal and administrative proceedings and arrest, except where the Member is apprehended in flagrante delicto.  The authorisation of the Chamber to which the Member belongs is needed in order to subject the Member to judicial measures.

 

Sweden – Non-liability:  A member is only liable to disciplinary measures by the Speaker/Chamber (i.e. call to order, censure) and is exempt from criminal and civil prosecution for opinions expressed and votes cast directly related to the performance of parliamentary duties.

Inviolability:  The member is provided with protection from criminal and administrative proceedings and arrest, except where the Member is apprehended in flagrante delicto, if the minimum penalty for the alleged offence is imprisonment for at least two years, or if the Member pleads guilty.

 

So that is a general summary of some of the EU Member States positions on non-liability and inviolability when it comes to their political class.  It is possible to go on and on when considering non-EU nations of course – Norway, Canada, Australia etc., but with so many existing EU examples to use as a legislative guide relating to “European integration” and Ukrainian compatibility thereto, there is surely enough choice to simply copy a model that a consensus can agree upon amongst the coalition partners.

They all certainly address the non-liability example given my Mr Tomenko that is seemingly so perplexing for the Ukrainian political elite.

The goal for Mr Tomenko and colleagues should be crystal clear – A robust non-liability that provides for the sensible exercising of strictly legitimate political engagement,  combined with the minimum possible inviolability (if any at all), to definitively display that absolute immunity with impunity is over in Ukraine.

Naturally it will be too much to expect the Dutch or UK model to be copied – but even so, when there are so many functioning precedents to choose from, really, this cannot be that difficult!

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