The Deputy: Immunity and Indemnity

2.2.1 Overview over Immunity and Indemnity

In a democracy, parliamentarians are the spokespersons of the people as their political power stems from the endorsement of the people.

Immunity however is an old instrument and over the past years the attitude of parliamentarians to immunity may have taken a different course: nowadays a media strom that a lifting of immunity is considered by Parliament may have a more dramatic impact on the reputation of the deputy than being faced with the actual criminal allegation in particular of an alleged misdemeanour in case there was no immunity at all and Parliament would not need to devote attention to the allegation. Therefore deputies at least in civil law countries sometimes wish, there was no immunity.

The other aspect why immunity is under increased public scrutiny is corruption: balancing issues of immunity is often fiercely debated in countries which fight with corruption and the reputation of office holders: Slovakia modified its constitutional provisions in art. 78 relating to indemnity four times up until 2012. This relates to the negative image that immunity is considered an unfair privilege to deputies. Firstly, driving under the influence of alcohol was excluded and later also administrative offences. In 2012 all criminal prosecution of deputies was permitted except for actions directly related to their function as members of Parliament.^[89]

Importantly, immunity is one of the topics where common and civil law countries follow a different path: Common law countries ordinarily do not grant immunity, whilst it remains a core principle in civil law jurisdictions (see Table 2.10).

2.2.1.1 Definition

Immunity provides parliamentarians with legal protection against restrictions of their personal freedom, for example in the forms of arrest, detention and criminal prose­cution (also called “inviolability” or “immunity in the strict sense”).^[90] This protec­tion may only be provided during the time when Parliament is in a debate, for the travel to and from parliament, during the whole parliamentary session or even beyond. Immunity in a narrower sense, that only protects the member’s freedom of speech, i.e. only applies to votes cast and opinions expressed in an official function, will in the following be dealt with under the term indemnity (also called “non-liability”, “non-accountability” or “parliamentary privilege”).^[91] Parliament can generally lift immunity, whereas indemnity is absolute in most countries.

2.2.1.2 Purpose and Function of Immunity and Indemnity

On a larger scale, the concepts of immunity and indemnity safeguard the separation of powers by protecting parliamentarians from wrongful charges from the judiciary and the executive.^[92] Indemnity also protects the parliamentarian’s freedom of conscience concerning votes cast and opinions expressed in parliament.^[93] Thereby the concepts of immunity and indemnity ensure the functioning of Parliament itself,^[94] and are not a protection of individuals’ rights (in opposition to art.

2.2.1.3 Legal Nature/Character

The rules on immunity and indemnity are exceptions from the general liability of a person subject to a particular legal system. The lifting of immunity and indemnity reverses this exception by restoring liability.

2.2.1.4 Historical Context

The protection of the “tribunes of the people” in Rome was probably the origin of parliamentary immunity. “[I]n ancient Rome, the tribunes of the people, who were to some extent the parliamentarians of the day, were held to be sacrosanct and accord­ingly enjoyed special protection. It was strictly prohibited to attack them or hinder them in the exercise of their functions. Anyone who infringed that prohibition placed themselves beyond the law and could be executed by the first person to come along.”.^[96] Indemnity was then set down in art. 9 of the English Bill of Rights of 1689^[97] and the French National Assembly declared immunity of parliamentarians on 23 June 1789, encompassing both immunity and indemnity. In earlier times, parliamentarians were constantly in danger of being suppressed and instrumentalised, as they were politically in a rather weak position and the composi­tion of the Parliament needed to be protected against manipulation by the execu- tive.^[98] Today, this danger has been extended to the members of the opposition party in most developed countries.^[99] What is more, the concept might be misused by parliamentarians to shield their liability for corruption and other criminal activities. Therefore, there is no right or wrong approach and rules on immunity and indemnity need to be adjusted to the political reality of the respective country.

2.2.1.5 Structural Approach and Guiding Questions

The structural approach in Fig.

2.2.2 Details of the Clause

2.2.2.1 Is Indemnity Guaranteed at All?

Whereas almost all countries constitutionally guarantee indemnity,^[100] in some countries a guarantee of indemnity is set out in the constitution but is not politically in effect. In Belarus, for example, the exception that legislators are not immune in cases of slander and insult has been (mis-)used to persecute members of parliament. In 2004, two members of the opposition party in Belarus were sentenced to 2 years in

Fig.

a labour camp because of alleged “public slander” of the president.^[101] Likewise, in Syria indemnity is granted by art. 66 of the constitution. In 2002, however, two legislators were nevertheless charged because they had tried to initiate political reforms.^[102] Indemnity only exists formally in Egypt, however. In practice, members of Parliament have been prosecuted for corruption and embezzlement for statements made in parliament.^[103] (see Table 2.5)

Indemnity is guaranteed in most countries as it safeguards parliament’s freedom of speech and thereby its independence of the other branches of power. Members of Parliament need to be able to express their opinion without fear of being held liable. Therefore, it is widely agreed that indemnity should be provided in the first place. A country that does not provide parliamentarians with immunity is Cuba. Although parliamentarians in Cuba cannot be arrested or placed on trial, they are principally liable for their statements and votes cast.

2.2.2.2 What Is the Scope of Indemnity?

In contrast to the question whether indemnity is guaranteed at all, bigger differences between the countries can be found with respect to the scope of indemnity (Table 2.6).

Almost all countries provide indemnity for votes cast in parliament. As voting is at the core of the office of a parliamentarian, not providing indemnity for votes cast would come close to not guaranteeing indemnity at all. The protection for votes cast

Table 2.5 | | Necessity of mechanism of indemnity

needs to be absolute. This broad protection does not encompass the acceptance of bribes, however, as not the vote itself constitutes a crime but the acceptance of the bribe.^[104]

Some countries only protect against civil proceedings (particularly countries with a British parliamentary tradition),^[105] others only against criminal proceedings, yet others against both. In most countries where protection is so wide that it covers both criminal and civil proceedings and in some cases even other forms of sanctions, the speaker or other bodies of Parliament can however apply disciplinary sanctions.^[106] This is for example the case in Denmark.^[107] As those sanctions are merely internal, they do not endanger the functioning of Parliament as a whole.^[108] They are in line with parliaments’ right to lift immunity (see Table 2.1). Internal sanctions provide a counterweight to broad rules of indemnity and serve the purpose of holding members of Parliament accountable for wrongful behaviour, therefore the possibility of internal sanctions should be considered where the scope of indemnity is wide.

Table 2.6 | | Scope of indemnity

Disciplinary actions by other bodies than Parliament could endanger parliament’s independence, however, and are therefore forbidden in some countries.^[109]

Most countries limit the material scope of indemnity rather by context than by locality. This is advisable as the public effect of a statement made in the context of the parliamentary mandate will generally be the same, whether it is made in the parliamentary building or not. Some countries, like Thailand and Malaysia are even so strict as to not only limit immunity to the parliamentary building but to the floor of assembly. Only protecting statements made in a certain locality however leads to the problematic question of how to deal with the repetition of such statements out of parliament,^[110] in particular within the constituency. Moreover, the locality where the statement is made should have no influence on the general protection of the parliamentarian’s independence. Therefore, the political context of the statement should be the decisive factor and not the location.

The personal scope of indemnity only protects parliamentarians in the strict sense in most countries. In New Zealand, Australia and Ireland for example, indemnity is not extended to other non-parliamentarians. The so-called principle of “qualified privilege” provides them with a defence in proceedings for slander, libel and defamation, however.^[111]

Generally, only spoken opinions are protected. For example, in Denmark^[112] and in Germany^[113] protection extends to symbolic action, however, and in the Netherlands, indemnity also applies for anything parliamentarians submit in writing. Broadening the scope of indemnity to other forms of expression safeguards a better protection.

According to the European Court of Justice, immunity is imminent as soon as a person is elected. This was established in Case C-502/19 in December 2019 when Mr Junqueras, who as Vice-President of Catalonia regional Government allowed the undertaking of a referendum on self-determination in Catalonia in 2017, was elected deputy of the European Parliament in May 2019. Despite the ruling of the European Court of Justice, the Supreme Court of Spain refused to grant immunity to Mr Junqueras on 9 January 2020.^[114]

2.2.2.3 Are There Exceptions for Certain Crimes?

Several constitutions make exceptions for specific crimes, like for example slander, or for statements with a specific content (Table 2.7).

Many countries do not grant immunity for slanderous or defamatory statements.^[115] It is viable that parliamentarians need to be held accountable if their statements in Parliament constitute crimes like slander or defamation. Such exceptions are, how­ever, susceptible to abuse. It is therefore preferable to uphold indemnity even in those cases and to only include the possibility to lift indemnity. The same applies for treason, breach of Islamic rules and criticism of judges or of the Head of State, as the risk of misuse of these exceptions is still higher.

Table 2.7 | Immunity exceptions for certain crimes

Table 2.8 | | Temporal limit of indemnity

2.2.2.4 Is There a Temporal Limit of Indemnity?

Indemnity is generally maintained after the term ended. Naturally, indemnity is not guaranteed for statements made before election or after the parliamentarian’s term ended (Table 2.8).

Contrary to immunity, indemnity would be undermined if parliamentarians could be prosecuted for their opinions expressed during the term or after the term has ended, as this would influence the behaviour during his term and thus obstruct the free mandate.^[116] As a consequence, indemnity should still apply after the parliamen­tary session ended for statements and votes made during that period. It is often not expressly stated in the constitution that indemnity is still guaranteed when the

member’s term ended but is implicit when no limitation is stated. Currently no countries impose a temporal limit on indemnity.^[117]

2.2.2.5 Is Immunity Guaranteed at All?

While many countries guarantee immunity, the immunity given by law has no effective political force in some of these countries (see Table 2.9). For example, art. 53 of the constitution of Togo technically grants immunity to deputies and senators. In practice, no immunity was in place for some time, though. Members of the opposition party had been arrested and even killed.^[118]

Immunity is generally not guaranteed in the common law tradition. For example, in the UK “freedom from arrest” only applies to civil proceedings within 40 days before and after the parliamentary session.^[119] On the contrary, in countries following the French legal tradition immunity is mostly guaranteed. An unreserved recommen­dation for the implementation of an immunity clause cannot be made, however. As a general guideline it might be said that the constitution should generally ensure immunity as immunity serves the independence of Parliament and the separation of powers.^[120] The protection of members of Parliament might be achieved through other political mechanisms as well, though.^[121] In countries in danger of corruption it might be considered not to grant immunity in order to prevent abuse. In the worst case, immunity could be an incentive to get elected.^[122] The Venice Commission also criticises that the mere existence of immunity might undermine the electorates’ trust in parliament.^[123] In principle the possibility of lifting immunity (see Sect. 2.2.8 in this chapter) would be sufficient to uphold public confidence and to prevent abuse and protect the right of due process (art. 6 ECHR), if the corruption does not extend to a majority in parliament. In Brazil, however, only the Supreme Court may prosecute parliamentarians. As the Brazilian Supreme Court is overburdened, indictment requests were accepted in just in 5.6% of cases between 2011 and 2016. Only 0.74% of defendants were convicted.^[124] The possibility of lifting can therefore only protect against corruption as long as the lifting is realistically enforceable.

2.2.2.6 What Is the Scope of Immunity?

The material scope of immunity can roughly be placed in two categories. Firstly, immunity might encompass only the restriction of personal liberty or other measures as well. Secondly, immunity might only be provided for certain grounds of arrests (Table 2.10).

The personal scope of immunity normally also protects those ministers who are not simultaneously members of Parliament as well as any other parliamentarians.^[125] Most countries grant immunity to the members of both chambers.^{[126] [127]}

Some countries only protect against arrest on civil grounds. For example, in Belgium, “imprisonment for debt” is prohibited (art. 59 (2)). If immunity is granted at all, it is consistent to protect against arrest on both civil and criminal grounds. The possibility and scope of investigations into a matter should not be limited substan­tially, as investigations might be necessary to collect evidence for a later prosecution. Too extensive investigations might, however, have an incriminating effect by themselves and thereby obstruct the parliamentarian’s work. As a result, investigations should be allowed in a reasonable scope which does not obstruct the parliamentarian manifestly. Preliminary investigations should be allowed in any 91 case.

In most countries, immunity does not apply to disciplinary measures by Parlia­ment itself, as immunity is regarded to protect the rights of Parliament as a whole and

Table 2.10 | | Scope of immunity

not the individual rights of members.^[128] With regard to politicians of the opposition, this exclusion is questionable, as disciplinary measures can have oppressive effects, especially on minority fractions.

Countries with exceptions for serious crimes or for crimes with a minimum time of imprisonment rely on the reasoning that the offence is so serious, that immunity cannot be granted.^[129] This general exclusion is just as prone to abuse as not granting immunity at all. If the key decision on that point was to generally grant immunity, serious crimes would consequently need to be dealt with by lifting their immunity. Inversely, countries with exceptions for minor offences argue that proceedings in serious cases are more likely to affect the parliamentary mandate than proceedings in less serious cases.^[130] This line of argumentation is reasonable in so far as the investigations in a minor case would not necessarily require imprisonment and the member in question could still participate in plenary sessions. Even in minor cases the political impact can be significant as well due to media attention. Minor offences could, however, be regulated as a category in which the parliamentarian can waive his immunity. This would result in an easier procedure and less media attention. Generally, it might be difficult to draw the line between serious and non-serious offences, though. In the end the decision for or against an exception for minor crimes should depend on the likeliness of undue prosecution and possible abuse of the rules in the particular country. An exception for serious crimes should not be made.

The exception of flagrante delicto exists in most countries that guarantee immu­nity.^[131] It is then generally the responsibility of the courts or the prosecution to determine whether the prerequisites of the exception are met.^[132] In some countries the legislature can demand the release of a parliamentarian even if he was caught in flagrante delicto (e.g. art. 32, Dominican Republic). In other countries the exception of flagrante delicto does not apply for crimes punishable by a minimum term of certain years of imprisonment (e.g. Portugal,^[133] Philippines,^[134] North-Macedonia,^[135] Estonia^[136]), or it applies only for such crimes (Croatia). In some countries the exception even applies until a day after the day on which the crime was committed, for example in Germany (art. 46 (3)). The reason for allowing prosecution if a parliamentarian is caught in the act of committing the crime is that it is considered to be obvious that the motivation for the arrest is non-political.^[137] Moreover, swift action might be needed to collect evidence. Therefore, it is viable to include the exception into a constitution. In a politically unstable country, the inclusion of the exception should be handled with care, however, as it might be susceptible for abuse.^[138]

2.2.2.7 Is There a Temporal Limit to Immunity?

Unlike indemnity, most countries only guarantee immunity during the parliamentarian’s term of office,^[139] starting generally with the beginning of the term (then the individual has become “a member of parliament” in the sense of the section) (Table 2.11). In Lithuania, immunity is already guaranteed during the electoral campaign.^[140]

In most countries, immunity is only guaranteed during session period of Parlia­ment This generally encompasses crimes committed before the beginning of the term.^[141] Some countries extend the immunity in the event of re-election. The distinction between the immunity being extended and new immunity being granted is usually only a formal one, however, because there is no gap between the end of one session and the beginning of the next.^[142] The only instance in which this might make a difference is the case that proceedings are not suspended upon election.^[143] A parliamentarian could then be withheld from Parliament because proceedings were instigated in-between sessions.

In the Czech Republic immunity for crimes committed during the term is still guaranteed after term ended. If Parliament refuses to authorise proceedings against a member, proceedings are also prohibited after the term ended.^[144] Contrary to the Czech provision, immunity should however expire with the tenure of office. The guarantee of immunity only serves the purpose of not allowing an obstruction of the business of parliament. In particular, individual members should not be hindered from attending Parliament and from voting by being deprived of their personal freedom. Extending immunity beyond the term of office would go beyond this purpose, as “justice should be merely delayed, not denied”.^[145]

To counteract difficulties due to the amount of time passing between the offence and the prosecution, the running of time limits should be suspended.^[146] The evidence

Table 2.11 | Temporal limits of immunity

Van der Hulst (2000), p. 83

needed for prosecution can be collected beforehand and “stored” for the later prosecution. Politically unstable countries could, however, face the difficulty that an incentive to stay in Parliament might be created.^[147]

2.2.2.8 Can Immunity/Indemnity Be Lifted?

In most countries the possibility to lift immunity correlates with the scope of immunity granted.^[148] If the scope of immunity is very limited, no large scope of authority to lift it is needed. In Germany, immunity is generally lifted at the start of every parliamentary session.^[149] The German practice serves the purpose of not

Table 2.12 | Lifting of immunity/indemnity

opening every discussion about the lifting of immunity to the public. For example, members of the opposition could gain private information that could be used in the media to demean the relevant person. Moreover, the presumption of innocence might not be effective anymore if there had been a political discussion of the case already. The German Parliament reserves, however, the right to reverse the lifting in individual cases. Most other countries have practices on lifting as well. In Denmark for instance, Parliament generally consents to criminal prosecution, but as a rule never lifts indemnity (see Table 2.12).^[150]

Immunity is generally lifted by Parliament, in some cases by a court, but not by the President as seen in July 2021 by President Saied in Tunesia.^[151] In Austria, according to art. 57 (4) the National Council’s consent to prosecution counts as granted if within 8 weeks it has not given a ruling. This approach is rather restrictive but accounts for the general rule that parliamentarians are responsible for their misdemeanours like every citizen. The possibility for Parliament to step in and uphold immunity is in general sufficient. Other countries, on the contrary, foresee additional hurdles for the lifting of immunity. In Estonia immunity can only be lifted by Parliament on proposal of the Legal Chancellor. In the Netherlands, only the Supreme Court can try the parliamentarians for offences committed in office.

Countries that guarantee immunity generally also provide the opportunity of lifting it. The only counterexample to be named is Greece, where immunity can only be lifted in cases of malicious slander. Therefore, lifting is practically very limited in Greece and thus almost not possible. The process is generally that the constitution grants immunity, which can in a second step by lifted by parliament. In Poland, on the contrary, the proceedings continue unless Parliament demands suspension.^[152] This is only regulated by statutory law though.^[153] Likewise, in Belgium the Parliament can suspend proceedings on request of the parliamentarian. If only a suspension is possible, this limits the parliamentarians’ rights substantially. As far as immunity is concerned, this is acceptable in politically sufficiently stable countries because undue arrests are unlikely in any event. The better approach is followed by Austria, however, where according to art. 57 (4) the National Council’s consent to prosecution counts as granted if within 8 weeks it has not given a ruling. This approach is rather restrictive, too, but accounts for the general rule that parliamentarians are responsible for their misdemeanours like every citizen. The possibility for Parliament to step in and uphold immunity is in general sufficient to protect the parliamentarian’s rights. Other countries, on the contrary, foresee addi­tional hurdles for the lifting of immunity. In Estonia immunity can only be lifted by Parliament on proposal of the Legal Chancellor. In the Netherlands, only the Supreme Court can try the parliamentarians for offences committed in office. Creating higher hurdles is not a good idea, however, as it might encourage wrongdoings by parliamentarians.

Some countries, like Finland require a certain quorum for Parliament to lift immunity. In Burkina Faso, on the contrary, immunity can already be lifted by a majority of one third, with a majority of two thirds in both Uruguay and Romania.^[154] Requiring a higher quorum (like in Finland) can be reasonable, too, to protect parliamentary minorities as well. A lower quorum like in Burkina Faso, where immunity can be lifted with only one third of the votes,^[155] is not advisable, however.

If immunity can be lifted, it can generally be lifted by Parliament itself. As immunity is not an individual right of the parliamentarian but a right vested in the whole body of parliament,^[156] the parliamentarian is in most jurisdictions not allowed to waive his rights. In the UK parliamentarians may waive the necessity of consent by Parliament only in trials for slander and defamation as implemented by the 1996 reform of the Defamation Act.^[157] By allowing only Parliament itself to lift immunity, parliamentary independence and separation of powers is safe-guarded and Parlia­ment cannot be made subject to undue pressures from other branches of power.^[158] The Venice Commission warns, however, that Parliament is a political institution and not as impartial as a judge would be.^[159] This is normally acceptable, however, as opposition politicians would vote on the lifting as well and thus no imbalance would arise. Detailed rules on the procedure are very rare. The Venice Commission recommends^[160] that clear rules should be set out and gives guidelines both on the criteria for lifting immunity^[161] and on the lifting procedure.^[162] For an example of a comprehensive set of rules on the lifting procedure see Rule 64, Rules of Procedure of the European Parliament and Resolution 1325 (2003) of the European Parliament. In particular, it should be decided beforehand which bodies or individuals have the right to propose a lifting of immunity,^[163] the decision should be made publicly available and indicate grounds.^[164] Moreover, a hearing should be granted to the incriminated parliamentarian.^[165]

The Venice Commission considers limiting immunity through specific exemptions preferable to the possibility of Parliament lifting immunity, since that means that limits to non-liability will be expressly laid down by law and are subject to judicial review.^[166]

If a right to waive immunity is not explicitly stated in the constitution, neither immunity nor indemnity can generally be waived.^[167] A “factual” waiver is possible, however, if indemnity is only guaranteed in Parliament buildings as the parliamentarians can simply repeat the statement outside of the house.^[168] The

Table 2.13 | | Judicial review of immunity

possibility to waive indemnity might, however, create a pressure on the parliamen­tarian to waive his rights which would then inhibit his freedom of speech. Therefore, a possibility to waive indemnity should not be provided. On the contrary waiving immunity should be possible. The public opinion might be influenced if the case is not tried and the parliamentarian should therefore be able to request a hearing to either prove his innocence or to at least get the matter resolved in a fair manner.^[169] In Greece and Thailand Parliament may lift immunity on proposition of a parliamen­tarian, but leave is deemed to be conclusively denied if Parliament does not decide within a certain number of days.^[170] The Greek approach might frustrate justice and therefore arguably takes matters too far.^[171] A different question concerns the case that a member is actually sentenced and has to serve time in prison. Only a few countries allow attendance of sittings in that case (Greece, Mali, Thailand).^[172]

2.2.2.9 Can a Court Review the Decision?

A judicial review of the decision to lift immunity is very rare^[173] and usually does not prevail at all in countries with parliamentary supremacy (Table 2.13).

On the one hand, subjecting the decision to judicial review involves a different branch of power and therefore decreases separation of powers. On the other hand, judicial review promotes a balancing of powers. Again, the answer depends on the political reality of the country and the risk of the judiciary compromising parliaments’ independence. The Venice Commission, as well as the author, however recommends subjecting the decision to judicial review.^[174]

In Brazil, parliamentarians can only be prosecuted by the Supreme Court (art. 53 § 1), which is the highest court of the country. Therefore, no further judicial review is possible.