2y4(og Immunities in Ukraine — a Comparative Perspective I. Corruption-safeguards and immunity: two competing principles to protect the Parliament II. Overview: Ukraine' — European Parliamenti — Germany' UA EC D Non-liability (MPs) - Voting X - statements in Parliament - exception: defamation/insult X - Inviolability Applicability - President (of State) - MPs X X - Judges X X - S cope - criminal procedure and punishment X X X - search and seizure, surveillance, etc. X X .X - exceptions o caught in act of committing X o initiation of investigation X - - right of reclamation - - X Procedure - obligatory statement by MP X - - - hearing of evidence X - - - reference to Parliamentary Committee X X X - procedural time limit (days) 32 - - majority decision by Plenary X X X 1 Based on the GRECO Evaluation Report on Ukraine, I-II Rep (2006) 2E, http://www.coe.int/t/dgl/grecoievaluations /round2/GrecoEvall-2(2006)2_Ukraine_EN.pdf. 2 Case presented is: MEP not being on territory of his Member State. 3 Including the decision of the Bundestag relating to the waiver of immunity during electoral term. III. Possible models of inviolability (national examples4 in brackets) 1. Purpose of Inviolability: Individual right of MP or institutional right of Parliament 2. Scope a. Civil actions (UK) or criminal actions (France) or both (Spain, Sweden b. Detention and/or imprisonment only (France, Finland) c. Investigation and opening of procedures (Spain, Belgium, Denmark) d. Prohibition of searches on the MPs' premises (Germany) 3. Exceptions a. Caught in act of committing — „flagrante delicto" (France, Germany, Spain); in Italy and Finland a „vital need" is necessary for detention b. Minor offences (Germany) c. Serious crimes (U.S. — treason, crime or disturbance of peace; France — criminal offences; Sweden — two years of imprisonment, Ireland — treason) d. Final verdict (France) e. Plea of guilt by member of parliament (Sweden) f. Acts before entering into office (France) g. Acts oütside Parliament except on the way to it (US.) 4. Period of Protection a. Parliament in session (Belgium, Luxembourg) b. Session and recess (France, Denmark, Spain, Greece, Italy, Germany, Portugal) 5. Effect a. Statutory application (Germany) b. Application on request of Parliament (German states Hamburg, Brandenburg; France: detention and imprisonment — statutory, interrogation — to be invoked) 6. Procedures a. Right of motion (France — Attorney General; Germany — various people) b. Deciding Body: presidium (France); plenary (France in delaying procedures, Spain); court (Cyprus — Supreme Court) c. Discretion of Body or statutory limitations d. Minority opinion of committee members (Italy) 4 M ; The Knesset Research & Information Center, „Parliamentary Immunity Members of Parliament Inviolability, Comparative View", 19 May 2003, http://www.knesset.gov.il/mmm/data/docs/me00585.doc. e. Right of MP or attorney to be present (Ukraine: MP is present at hearing; Germany : no right of MP to speak an merits of the case) f. Timeframe: Austria (no decision by Parliament within eight months, immunity is lifted), Spain (no decision by Parliament within 60 days, request cancelled) g. Publicity of decision: (France — secret deliberation, public decision; Spain — „in camera") h. Vote: secret (Spain, Greece, Italy) or open. i. Quorum: simple majority (Germany) or specific majority (Poland — 2/3, Sweden —5/6 of those present) IV. Fighting corruption: the question of inviolability Inviolability does not per se render prosecution impossible, only during office. But: It can be an obstacle for quickly and directly collecting evidence. Therefore rules of inviolability must admit collecting evidence as much as possible. V. Possible modifications 1. "Lifting-Inviolability-Model" Advantage: full control by Parliament over inviolability. a. Narrowing the scope i. Exception: flagrante delicto ii. No immunity for judges b. Speedier procedure i. No hearing of evidence• immunity as institutional, not as individual right ii. No statement by MP . immunity as institutional, not as individual right iii. Narrow time limit or fast track decision for corruption offences — decision by presidium, court, committee "Reclaiming-Inviolability-Model" --+ Advantage: quick and full investigation of corruption crimes, at the same time adequate control by Parliament over inviolability. a. Quorum: majority or minority b. Recess: committee or presidium VI. Annex: German regulations Basic Law for the Federal Republic of German?, Article 46 (1) At no time may a Member be subjected to court proceedings or disciplinary action or otherwise called to account outside the Bundestag for a vote cast or for any speech -or debate in- the Bundestag or in any of its committees. This piovision shall not apply to defamatory insults. (2) A Member may not be called to account or arrested for a punishable offense without permission of the Bundestag, unless he is apprehended while committing the offense or in the course of the following day. (3) The permission of the Bundestag shall also be required for any other restriction of a Member's freedom of the person or for the initiation of proceedings against a Member under Article 18. (4) Any criminal proceedings or any proceedings under Article 18 against a Member and any detention or other restriction of the freedom of his person shall be suspended at the demand of the Bundestag. Rules of Procedure of the German Bundestag 6, Annex 6, Decision of the Bundestag relating to the waiver of immunity of Members of the Bundestag 1. The Bundestag shall grant permission, up to the end of this electoral term, for preliminary investigations to be conducted against Members of the Bundestag for criminal offences, with the exception of insulting statements of a political nature (Sections 185, 186, 187 a, paragraph (1) and 188, paragraph (1) of the Penal Code). Before preliminary investigations are initiated, the President of the Bundestag and, insofar as this does not impede the process of ascertaining the truth, the Member of the Bundestag concerned shall be informed; if the Member of the Bundestag is not informed, the President shall likewise be advised of the fact and of the reasons therefore. The right of the Bundestag to demand the suspension of proceedings (Article 46, paragraph (4) of the Basic Law) shall remain unaffected. In such cases preliminary investigations may be initiated at the earliest 48 hours after receipt of the notification by the President of the German Bundestag. In calculating the time limit, Sundays, public holidays and Saturdays shall not be taken into account. The President of the German Bundestag can, in agreement with the chairperson of the Committee for the Scrutiny of Elections, Immunity and the Rules of Procedure, provide for an appropriate extension of the time limit. 2. This permission shall not cover (a) the institution of criminal proceedings for a criminal offence and the request for the issue of an order of summary penalty; (b) in proceedings pursuant to the Regulatory Offences Law, the statement by the court that a decision an the offence may also be taken an the basis of a penal law (Section 81, paragraph (1), second sentence of the Regulatory Offences Law); (c) measures taken in the course of a preliminary investigation and involving deprivation or restriction of liberty. (d) the continuation of preliminary investigations the suspension of which the Bundestag demanded in the previous electoral term pursuant to Article 46, paragraph (4) of the Basic Law. [highlighting in bold letters by author] 5 http://www.bundestag.de/htdocs_e/parliamentifunction/legal/germanbasiclaw.pdf. 6 http://ww-w.bundestag.de/htdocs_e/parliament/function/legaVrules.pdf.