Political immunity

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As political immunity refers to the protection of a political mandate or public official from prosecution because of his duties or office. The immunity affects first of all

Historical aspects and criticism

The parliamentary immunity has been in the last 150 years to become a legal interest, which should serve two main purposes:

  1. To protect the emerging legislature from possible arbitrariness by the then still monarchical executive (for example from fabricated charges and arrests, which, for example, existed in the 19th century before important votes).
  2. To guarantee the freedom of expression ( freedom of speech ) especially for elected representatives, as they are committed to the interests of their electorate.

Immunity is often criticized when it serves power interests ; in some countries it was therefore restricted - for example in Italy in 2003 . In certain cases it can be repealed by the respective parliament . In 2014, the state parliament of North Rhine-Westphalia discussed the abolition of immunity for MPs in North Rhine-Westphalia .

MP immunity

A member of the German Bundestag or a member of the Federal Assembly has parliamentary immunity, which protects him from criminal prosecution , but not from claims under civil law . The immunity ( Article 46, Paragraph 2 of the Basic Law ) does not protect the MP himself from punishment (in contrast to indemnity ), but is intended to ensure that Parliament is able to work. It can therefore also be repealed by the respective parliament.

In Switzerland similar provisions apply ( Art 162nd BV and Art. 16 and 17 Art. ParlA ). In 2018, for the first time since the regulation was introduced in 1850, the immunity of a member of parliament was lifted; it was a former national councilor .

The German Bundestag has concerning his decision. " Abolition of the immunity of members of the Bundestag “basically authorizes the conduct of preliminary investigations. In specific cases, the Immunity Committee examines whether this approval applies or whether the proceedings are in connection with insults of a political nature. If necessary, the committee makes a recommendation on the basis of which the Bundestag makes its decision.

A member of parliament also loses immunity (except through a parliamentary resolution) when his mandate expires , so that he is then subject to normal jurisdiction again. This process can be regulated differently depending on the state.

In many states, the members of the federal states or regions also have immunity, such as members of the state parliaments in Austria and Germany or the cantonal parliaments in Switzerland . The right to refuse to testify is often associated with immunity .

These aspects are also the subject of various discussions with regard to the EU and the European Parliament . The immunity of MEPs is regulated by the "Protocol on the Privileges and Immunities of the European Communities". The plenary session of the European Parliament decides on the waiver of immunity at the request of a competent authority of a member state, based on a report by the Legal Affairs Committee.

Heads of state and governments

A head of state enjoys immunity abroad for acts during his term of office under customary international law . This immunity continues after the term of office has expired. Exceptions are crimes against humanity , genocide and similar offenses (see International Criminal Law , International Criminal Court ). For further details → main article diplomatic status, section heads of state . Domestic immunity, on the other hand, is not regulated by international law, but is determined by the provisions of national law.

The Federal President of the Federal Republic of Germany accordingly enjoys political immunity in Germany under Article 60 in conjunction with Article 46 of the Basic Law. He may only be prosecuted if the Bundestag decides by majority vote to lift the immunity, Art. 42 para. 2 sentence 1 of the Basic Law. The public prosecutor's office must first have submitted a corresponding application to the President of the German Bundestag , which forwards it to the immunity committee; the committee gives the Bundestag a recommendation for a resolution, Section 107 Rules of Procedure of the German Bundestag .

The members of the Swiss Federal Council also enjoy immunity in a system without an actual head of state in accordance with Article 162 of the Federal Constitution .

The German Chancellor and the other members of the Federal Government , however, have no immunity. Most of them are also members of the Bundestag and as such enjoy immunity.

In Austria, too, members of the government only enjoy immunity if they are MPs, which - unlike in Germany - is usually not the case. The President enjoys during his term immunity from judicial and other governmental persecution.

Diplomats and activities abroad

A diplomat enjoys diplomatic immunity under the Vienna Convention on Diplomatic Relations .

The immunity of citizens serving on UN missions from prosecution by the International Criminal Court is controversial . In June 2004 , however , the USA withdrew a draft resolution in this regard.

Location based immunity

Military immunity

In Turkey , the chief of staff and the commanders-in-chief of the army , navy and air forces enjoy absolute immunity; that is, they cannot be charged before a civil or military court .

Web links

Individual evidence

  1. Constitutional Commission disagreed: remove the immunity of MPs? landtag.nrw.de, accessed on June 19, 2014.
  2. «While protecting your immunity, ask for money as you please» . ( tagesanzeiger.ch [accessed on September 15, 2018]).
  3. Parliament lifts the immunity of former National Councilor Miesch. Retrieved September 15, 2018 .
  4. ^ Resolution of the German Bundestag regarding the lifting of immunity for members of the Bundestag (Annex 6 to the GO-BT).
  5. http://www.stern.de/politik/ausland/:Br%FCssel-Wie-EU-Abordnunge-Geld/612037.html?eid=609264&s=0
  6. Wording of the minutes in the current version Eurlex website
  7. Myth and Reality: Parliamentary Immunity , article on EP website, November 17, 2008
  8. [1]
  9. Juraexamen.info: Suspension of immunity from Federal President Christian Wulff
  10. Complex causes of riots in Athens, www.tagesschau.de ( Memento from December 10, 2008 in the Internet Archive ) (from December 9, 2008)
  11. Video The Generals and Democracy - Power Struggle on the Bosporos  in the ZDFmediathek , accessed on July 20, 2007. (offline)