The idea of lifting parliamentary immunity has been discussed for a long time in Ukraine, almost from the day the Constitution was adopted in 1996. Article 80 of the Constitution provided the MPs with an important constitutional guarantee. This guarantee should contribute to their effective work and provide them with the unhindered implementation of their rights and obligations. In practice, however, many of them were just hiding from law enforcement officers. August 3, the Verkhovna Rada significantly limited parliamentary immunity, leaving the immunity for the political position of an MP.
And does it work abroad? How protected MPs of other countries are?
The world uses two mechanisms for protecting lawmakers from political pressure – parliamentary indemnity and parliamentary immunity. The former means that member of the parliament is protected from legal responsibility outside the parliament for his statements and votes in parliament, and the latter term indicates the impossibility of bringing the deputy to legal liability for acts, which contain signs of crimes and / or offenses, without prior authorization by the parliament.
Before considering the features of the application of the most controversial mechanism of immunity, it is worth remembering about the duration and the responsibility of MPs for crimes committed before its entry.
Duration of immunity
Immunity usually lasts for the term of office of the parliament from the day of election or from the day of the oath, or during the session and the 40-day period before and after it.
|From the day of the election of a deputy||Australia, India|
|From the day of taking oath or confirmation of the mandate||Bangladesh, Croatia, Ukraine|
|During the term of office of the Parliament||UK, Belgium, France, Ukraine|
|During the parliamentary session||Czech Republic, Switzerland, USA, Philippines, South Korea, Japan|
|From the moment of announcing the election results, during the session and 40 days after its end, as well as within 40 days after the dissolution of parliament||Canada|
Responsibility for crimes, committed before the entry of immunity
|Criminal prosecution that began before the acquisition of immunity does not stop unless Parliament decides to stop it||Poland|
|The criminal prosecution does not stop if it began before the acquisition of immunity||UK, Estonia, Finland, Philippines, Zambia|
|Prosecution ceases from the moment immunity is acquired and might be extended by the Parliament||Denmark, Egypt, Greece, Germany, Czech Republic, Hungary|
|Criminal prosecution ceases upon acquisition of immunity||Ukraine|
Features of the application of immunity
Parliamentary immunity means the legal immunity of the MP, due to which he cannot be prosecuted, detained or arrested without the consent of the parliament. However, in most countries, when an elected representative is detained at the scene of a crime, he automatically loses his immunity, and arrest takes place without parliament’s sanction. For example, this is how it works in Bulgaria, Lithuania, Moldova, Germany, Hungary, France, Japan.
However, there are countries where the consent of the parliament is necessary to bring the culprit to justice (Austria, Bulgaria, and Hungary).
A number of countries limit immunity to criminal offenses; in Belgium, Germany, France, Italy, Lithuania, Latvia, Slovakia, Spain, Ireland, Colombia, UK, and other countries it is expanded to administrative, civil or disciplinary violations.
In the United States, Ireland, and Norway, MP cannot be arrested on his way to parliament or in the parliament. However, in Ireland, treason or violation of public order can be condemned without the consent of Parliament. In Spain, Romania, and the Netherlands, criminal cases brought against MPs are pending before the Supreme Court.
The parliamentary immunity cannot be applied in case of:
- Serious felonies, high treason and disorderly conduct (US).
- commission of any serious crime (Albania, Belarus, Bulgaria, Turkey, Croatia).
- crime, the punishment for which might be five or more years in jail (Serbia, Slovenia, Montenegro).
- crime, the punishment for which might be three or more years in prison (Portugal).
Latvia provides clear rules for depriving parliamentary immunity for crimes and offenses; there is a norm that deprives the mandate of neglecting the MP of his duties (missing more than half of the sessions of the current session without good reason). Ukraine wants to introduce the same practice.
In Albania, Belgium, MP cannot be deprived of his immunity due to the commission of a crime without substantial evidence of the guilt. There are also cases when one of the legislators is deprived of the mandate because the crime has nothing to do with his parliamentary activities (for example, in Austria). In Turkey, a parliamentary decision on the lifting of immunity can be appealed to the Constitutional Court within a week by any MP and must be considered within 15 days.
However, the rules on the lifting of immunity are not applied everywhere. For example, in Argentina, Indonesia and India, MPs have absolute inviolability under any circumstances.
In the EU countries, the parliament is responsible for removing immunity, in Andorra, this is the prerogative of the Criminal Court, in Chile – of the Court of Appeal of the relevant jurisdiction, and in Cyprus the immunity is canceled by a decision of the Supreme Court. Another interesting feature is the removal of immunity in Germany, where the MPs of each new convocation of the Bundestag make their general decision on the procedure for considering possible illegal actions of MPs.
The world countries tend to limit the inviolability principle in cases of criminal offenses, so Ukraine has taken the right step in this direction.