AN ANALYSIS OF PARLIAMENTARY IMMUNITY IN THE CONTEXT OF

FREEDOM OF EXPRESSION IN THE EUROPEAN CONVENTION ON

HUMAN RIGHTS

Maria Cecilia Kristina M. Africa1

I. INTRODUCTION

The European Convention for the Protection of Human Rights and Fundamental
Freedoms is composed of the primordial legal entitlements to protect human dignity and
integrity, to foster the harmony of human kind and to nurture a society respectful of
human rights. In the implementation of the Convention, one of the major priorities to
balance the interests of all human beings bound by its provisions. In the same light,
Member States are expected to maintain the integrity and independence of political
institutions to ensure effective implementation of the thrusts and norms enshrined in the
Convention.

Apart from the list of human rights to be enforced and protected, the Convention
describes the scope and bounds of these rights. Although these rights are extremely
essential, they are not absolute. They may be reasonably curtailed by limitations and
restrictions. These limitations and restrictions guide member states how to achieve the
balancing of interests of all and how to weigh one right against another. The rights of
private individuals must tip the scales with State power and ability to govern. One such
balancing act is the intersection of parliamentary immunity with the freedom of

1 Ms. Africa is a licensed law practitioner in the Philippines, who finished her Bachelor of Laws in San
Beda College in Manila. She obtained her LL.M in International Law of Human Rights and Criminal
Justice in Utrecht University in The Netherlands. She was a former legislative officer in the Senate of the
Philippines, providing research and bill drafting support for human rights issues. She participated in
internship programs in the International Criminal Court in The Hague, The Netherlands, and the
International Service for Human Rights doing UN related work during the General Assembly in the UN
Headquarters in New York, U.S.A. At present, she is engaged in election related activities in her native
Philippines.
expression.

Parliament is the primary government institution that relies on the freedom of expression
and public debate for its continued and meaningful existence in the workings of a
democratic society. If the freedom of expression is defeated within the halls of Parliament
and its members deprived of their right to speak freely, the Parliament will crumble as co-
equal in the triad of powers in government. This being so, most legal jurisdictions
sanction the existence of parliamentary immunity. This is unanimously recognized within
the Council of Europe and the European Union. However, this privilege may be subject
to abuse and disregard of rights of others. In the meanwhile, parliamentarians as elected
representatives are entitled to a wider scope of freedom of expression in the exercise of
their parliamentary functions. In view of the foregoing, does the essence of parliamentary
immunity negate the application of the three-pronged test? With a review of pertinent
case law on the freedom of expression of parliamentarians, how did the European Court
of Human Rights decide in such cases?

This writing seeks to dissect parliamentary immunity as a recognized principle among

States in the Council of Europe. As a reasonable condition to the exercise of fundamental
freedoms, a closer look will be made into its relationship with one of the core component
rights protected by a democratic society, the freedom of expression. The preliminary
chapters shall give a brief overview of what is covered by the freedom expression and the
nature and scope of parliamentary immunity. A review of pertinent case law decided by
the European Court of Human Rights shall follow, taking into account the freedom of
expression of parliamentarians and how immunity plays a part in these cases. Prior to the
analysis of the concepts described above in relation with the case law, it will be useful to
discuss the rules of parliamentary immunity, particularly those pertaining to non-liability,
among the respondent States as they appear in the review of the jurisprudence. The writer
will then proceed to analyze how the interplay of these two concepts comes about.
Finally, a conclusion will mark the end of this research.

II. FREEDOM OF EXPRESSION

Freedom of expression is one of the most heralded rights in majority of international
human rights instruments, as it is considered as one of the cornerstones essential to a
functioning democratic society. It protects every individual’s legal entitlement to hold
opinions, as well as to receive and impart information and ideas. These information and
ideas must be safeguarded regardless of whether they are favorable, inoffensive or those
that shock, offend or disturb. According to well established case law in the European
context, it is this balance that lays the foundation of a democratic society.

Article 10 of the ECHR recognizes the right to freedom of expression of “everyone”

which the Strasbourg Court had interpreted to mean every natural or legal person. The
special status of persons shall play a role only in an assessment of the validity of
interference of the freedom by a public authority.2 In the case of legal persons, it is
recognized that non-governmental organizations (NGOs) have the right to express
political opinions while private corporations possess the freedom to advertise their
products or corporate activities.3

Article 10, aside from protecting the freedom of expression, also safeguards the free flow
of opinions, information and ideas, from the originator to the recipient without
unnecessary or unlawful interference by any public authority. Freedom of expression of
opinion does not rely heavily on the content or essence of the opinion, but rather on the
specific means that the particular opinion is articulated. Any restriction of the means by
which it was conveyed would constitute a restriction of the freedom enshrined in Article
10(1). In the meantime, the terms “information” and “ideas” as they are found in the
provisions of Article 10(1) has been given a broad interpretation by the Strasbourg Court.
The Court pronounced that it was not necessary to draw a line between the two and to
describe how different they are from each other.4 What is essential though is that the
freedom to impart information and ideas is considered “an expression of opinion by an

2 Vogt v. Germany, Application No. 17851/91, Judgment of 02 September 1996.

3 Svahn, A., “Freedom of Political Expression,” A Master Thesis, University of Lund, Sweden,
http://www.jur.lu.se/Internet/Biblioteket/Examensarbeten.nsf/0/D96D6E1B61E62BA1C125724D004BFCE
C/$File/exam.pdf?OpenElement, last viewed 01 May 2008.
4 Groppera Radio A.G. and Others v. Switzerland, Application No.10890/94, Judgment of 28 March 1990.
informant or by a third person.”5

Political Expression or Public Debate

The large role that public interest plays in the protection of freedom of expression
highlights the importance of public debate and political expression. It is therefore well-
established that freedom of political debate is treated as one of the foundations of a
strongly established democratic society.6 This principle has been emphasized in a series
of ECHR cases. The Court enunciated in these cases that the normal bounds of acceptable
criticism shall not be similarly applied, in fact, wider, with respect to politicians than they
are with private individuals. The nature of the status and position held by the politician
permits a higher threshold for tolerance in meticulous scrutiny by the public of every
spoken word, writing published, as well as his deeds.7 The Court further reasons that due
to the fact that politicians enter the public arena voluntarily, it is therefore in that same
light that they must exhibit a higher level of tolerance in the midst of criticism.8

Freedom of expression, while being regarded as a most essential right in human rights
law, is not absolute. In certain instances, allowable interferences by public authorities
may be had. These circumstances are subject to narrow interpretation, with necessity and
legal bases sufficiently proved.9 These interferences, however, are subject to several
restrictions, as they are described in the second paragraph of Article 10. Commentators
note that the wording or construction of the second paragraph of the aforementioned
article is substantially different from related paragraphs found in Article 8, 9 and 11 of
the Convention.10 Article 10 mentions that the freedom of expression may be subjected to
the application of formalities, conditions and penalties, treated to be as restrictions
thereof. The list of legitimate aims provided for in the same paragraph is much longer,
finding therein, “territorial integrity”, “preventing the disclosure of information received
5 Van Dijk, P. et al. (eds) “Theory and Practice of the European Convention of Human Rights”, Intersentia,
Antwerpen-Oxford, p. 778.
6 Lingens v. Austria, Application No. 9815/82, Judgment of 8 July 1986.
7 Lingens, Ibid., paragraph 42.
8 Jerusalem v Austria, Application No. 26958/95, Judgment of 27 February 2001.
9 Handyside v. United Kingdom, Application 5493/72, Judgment of 7 December 1976.
10 Van Dijk, P. et al.,(eds), supra, p. 793.
in confidence” and “maintaining the authority and impartiality of the judiciary”.
However, it is with due note that the freedom to hold opinions is regarded as similar to
the internal freedom of thought and conscience (forum internum) found in Article 9, in
the sense that it may not be subject to any restriction.11

The criteria or standard used to assess the validity of these interferences are similar across
Article 8, 9, 10 and 11.12 It is required that the interference is prescribed by law; to
accomplish a legitimate aim and must be necessary in a democratic society.

Prescribed by Law

The first requirement is that the interference must be found and described in domestic
law. The Strasbourg Court ruled that “law” as it is understood, embraces both written and
unwritten law.13 Written law, which is taken to indicate not only those enacted by
national legislatures or parliament but also enactments of lower rank than statutes, must
be considered in the light of interpretative case law by their respective domestic
judiciaries. This holistic concept of “law” does not differ between civil and common law
systems. The Court pronounced that it would be irrational to emphasize the peculiarities
of both types of systems. In this regard, case law shall be covered by the definition of
"law" as it is the enactment in force as the competent courts have interpreted it in the
light, if necessary, of any new practical developments.

According to ECHR jurisprudence, the law must be adequately accessible. In this sense,
the law must be accessible to concerned citizens and it must be duly published.14 The
Court further noted that the law must provide the circumstances wherein the legal rules
will apply and that they must be sufficiently described in the said law. Likewise, it must

11 Van Dijk, P. et al., (eds) ibid, p. 794.

12 Sunday Times v. United Kingdom, Application No. 13166/87, Judgment of 26 November 1991.
13 Kruslin v. France, Application No. 11801/85, Judgment of 24 April 1990
14 Silver and Others v. United Kingdom Application Nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75;
7113/75; 7136/75, Judgment on 25 March 1983.
not be excessively rigid for the law to remain applicable despite the occurrence of
changing conditions over long periods of time. However, it must not be too vague or
ambiguous in such a way that the rules shall be dictated by application in actual practice.

Pursuant to a Legitimate Aim

The legitimate aims referred to in the second requirement are those that are mentioned in
paragraph 2 of Articles 10. As earlier pointed out, an exhaustive list of legitimate aims is
found therein. This includes national security, territorial integrity, public safety,
prevention of disorder or crime, protection of health and morals, prevention of disorder or
crime, protection of the reputation or rights of others, prevention of the disclosure of
information received in confidence and maintenance of the authority and impartiality of
the judiciary. This is seldom a contentious issue in cases involving interferences with
fundamental freedoms by public authorities. The Court takes due notice of this fact as
they are inferred by respondent States.

Necessary in a Democratic Society

The third requirement does not imply that the interference must be indispensable, as the
term necessary must be understood in its ordinary sense. It must, however, be taken to
address a “pressing social need”. In assessing this particular requirement, the Court is
tasked to review the interference utilizing a holistic view to arrive at a conclusion
whether the acts of public officers or officials are actually “proportionate to the legitimate
aim pursued.”15 Though the Court has not drawn a specific definition as to what a
democratic society is,16 the following factors are bound to affect the Court’s assessment if
the interference is necessary in a democratic society: the type of expression, the value of
the expression, the medium in which the expression was communicated, the audience, the
target for the expression, the accessibility for the audience, the objective of the
interference, the duties and responsibilities of the speaker, and the impact the interference
15 Hertel v. Switzerland, Application No. 25181/94, 25 August 1998.
16 Svahn, A. supra, p.36.
had on the applicant.17

III. PARLIAMENTARY IMMUNITY

Parliamentary immunity or parliamentary privilege is known to be the sum of peculiar

rights enjoyed by Parliament as a collective body, without which the members therein
cannot discharge their functions.18 This privilege is recognized as an exemption to some
general laws of the land. These rights which are granted to members of Parliament are
seen to exceed those rights possessed by other collective bodies and other individuals.
These immunities are propagated to ensure unimpeded use of services of its members.
Another one of the functions of this privilege is to strengthen the Parliament as an
independent institution from the executive and judiciary, in observance of the principle of
separation of powers.19 Further, the absence of parliamentary immunity might displace the
power delegated by the electorate to their representatives in parliament, the oversight of
which will be transferred to an unelected authority. 20 Finally, this immunity guarantees that
even minority opinions by elected representatives of the people are not blocked, to be
able to express the voice of the popular sovereignty.21 The European Court also echoed in
several decisions that parliamentary immunity as a well recognized principle among
signatory States within the Council of Europe and the European Union is considered as
an allowable restriction to the right of access to a court in Article 6 of the Convention. 22
In this manner, the integrity and peaceful existence of the Parliament as a pillar of a
democratic society is preserved.

The origins of parliamentary immunity date back to the fourteenth (14 th) century in
Anglo-Saxon law, when the House of Commons reviewed the right of Members of
17 Clayton, R., et al, “The Law of Human Rights”. Oxford: Oxford University Press 2000 p. 1077.
18 Boulton, C.J., (ed), “Erskin May’s Treatise on the Law, Privilege, Proceedings and Uses of Parliament
21st Edition”, London Butterworths, 1989. p. 69.
19 The Venice Commission of the Council of Europe, “Report on Regime of Parliamentary Immunity”,
Strasbourg, 04 June 1996, http://www.venice.coe.int/docs/1996/CDL-INF(1996)007-e.asp, last viewed on
01 May 2008.
20 Wigley, S., “Democracy and Politics of Parliamentary Immunity in Turkey, retrieved from
http://www.bilkent.edu.tr/~wigley/WigleyKocanparliamentaryimmunityturkey.pdf, last viewed on 04 May
2008.
21 The Venice Commission of the Council of Europe, Ibid.
22 See A. v. United Kingdom Judgment, Application No. 35373/97, Judgment of 17 December 2002, Al-
Adsani v. United Kingdom, Application No. 35763/97, Judgment of 21 November 2001 and Waite,
Kennedy and Others v. Germany, Application No. 26083/94, Judgment of 18 February 1999.
parliament to debate without undue interference from the King. Statutory recognition of
the freedom of speech of parliamentarians came into being in the Bill of Rights of 1689. 23
Article 9 therein states that, “the freedom of speech and debates or proceedings in
Parliament ought not to be impeached or questioned in any court or place out of
Parliament.” On the other hand, the non-liability of elected representatives regarding
opinions expressed in the course of their official functions was introduced by a
proclamation in 1790.24

Most legal jurisdictions recognize the dual nature of parliamentary immunity: non-
liability and inviolability. Non-liability pertains to immunity which protects Members of
Parliament from being subjected to judicial proceedings or interference from the
executive over opinions expressed and votes cast in the performance of their official
duties in Parliament. On the other hand, inviolability is that which pertains to the
prohibition from arrest or detention or prosecution by individual members of Parliament
without the consent of the Chamber in which he belongs.25 These two types of immunities
are considered as complementary to each other. As such, they must be analyzed from
successive angles as to their scope, acts to which they relate and implications in cases of
abuse.

Non- liability

The scope of non-liability or the legislative agency model,26 encompasses all sorts of
penalties, criminal or administrative (except those sanctioned by Parliament itself),
directed to acts committed by Members of Parliament in the conduct of their duties, more
especially those pertaining to their freedom of speech. This results in the exemption of
the Members of Parliament from any criminal or civil liability arising from such acts.
This non-liability has a perpetual character. The protection afforded to votes cast or
23 Boulton, C.J., supra, p. 73.
24 Macgee, S., (ed), European Centre for Parliamentary Research and Documentation, “Rules on
Parliamentary Immunity in the European Parliament and the Member States of the European Union” 2002,
p. 11.
25 MacGee, S., supra, p.10.
26 Wigley, S., “Parliamentary Immunity: Protecting Democracy or Protecting Corruption?” in the Journal
of Political Philosophy, Vol. 11, No.1, 2003, p. 24
opinions stated is not extinguished even beyond the mandate or term by which the
parliamentarian was elected. Among the acts covered by this immunity are: ballots cast
during Committee and Sub-Committee deliberations, as well as those conducted in the
House Chamber, opinions they express, whether oral or written. In some jurisdictions, the
United Kingdom, for example, the immunity extends to any person who shall participate
in proceedings in Parliament, as witnesses, or otherwise or in regional assemblies. This
does not mean, however, that the parliamentarians are not subjected to any kind of
penalty. In cases where opinions expressed in a parliamentary debate are of an insulting
or defamatory nature, the Member concerned is subject to the disciplinary control of the
Chamber to which he belongs. He may be censured for such conduct that is unreasonable
“having regard to his office and status”. The Venice Commission singled these cases out
as the qualification of the principle of non-liability.27

Inviolability

Inviolability or the Authorization Model,28 more popularly known as the freedom from
arrest, requires the authorization of Parliament before any of its members is arrested or
prosecuted for acts that are considered outside the scope of his or her duties. Acts
covered in this type of immunity are those which are criminal in nature. In some cases,
this immunity may not be availed of in case of commission of more serious offenses. In
contrast with non-liability, inviolability is effective only until the mandate expires. In
such cases, arrest or prosecution of the Member concerned is postponed upon the end of
the term.

IV. REVIEW OF ECHR CASE LAW

27 The Venice Commission, supra, paragraph 39.

28 Wigley, S., Ibid.
In the case of Castells v. Spain,29 a senator, who was a member of a political group
supporting the independence for the Basque country, was charged with insulting the
government under Article 161 of the Spanish Criminal Code. The applicant was quoted in
a published article by a weekly magazine, holding the Spanish government responsible
for the murder of several Basques. The Supreme Court then sought the authorization of
the Senate by requesting withdrawal of the parliamentary immunity of Mr. Castells,
which was subsequently granted by the Chamber via a majority vote. The Strasbourg
Court, after an exhaustive analysis of the case at bar, utilized the three-pronged test
described earlier and ruled that Spain committed a violation of Article 10 of the
Convention. The Court pointed out that though the Senator opted to express his views in
a periodical, instead of the Senate floor, he did not lose his right to criticize the
government. This is despite the fact that he shed himself from the protection of
parliamentary privilege. Despite his minority view, to the effect that he strongly criticized
the government, he remains as an elected representative of the people. As such, he is
tasked to draw attention to their situation and to advance their interests.30 The Court
continued to explain that,

“The limits of permissible criticisms are wider with regard to the

Government than in relation to a private citizen, or even a politician. In a
democratic system the actions or omissions of the Government must be
subject to the close scrutiny not only of the legislative and judicial
authorities but also of the press and public opinion…”31

In Jerusalem v. Austria,32 the applicant, a member of the Vienna Municipal Council

delivered a speech during one of the council’s session, condoning the nature and
activities of IPM, a private organization. Mrs. Jerusalem branded the IPM as a “psycho-
sect”, and criticized its participation in the advancement of the drug policy of the
Austrian Political Party. She was then enjoined by the domestic court to repeat the said
statements.

29 Application No.11798/85, Judgment of 23 April 1992.

30 Ibid, paragraph 40.
31 Ibid, paragraph 46.
32 Application No. 26958/95, Judgment of 27 February 2001.
The European Court, finding in favor of the applicant, ruled that the interference was
unnecessary to a democratic society and disproportionate to the legitimate aim pursued.
The IPM, though a private organization, took part in public discussions on a highly
political issue, drug policy. More so, it is affiliated with a political party. As it has entered
in the public arena, it is not entitled to seek protection from harsh criticism as it were
acting as a private entity.

As the Court adjudged that the statements made were in fact, value judgments, it laments
that the Austrian Court adopted an inconsistent approach by requiring evidence as to
veracity of the said statements, but on the other hand, depriving the applicant of such an
opportunity to present supporting evidence in this regard. By doing so, the State went
beyond its margin of appreciation, amounting to an unlawful interference of freedom of
expression.

The case of Piermont v. France arose when a Member of the European Parliament
delivered a speech in a public meeting in French Polynesia.33 As an environmentalist and
pacifist, she condemned the continuation of nuclear testing and the French presence in the
Pacific. As a result, an order was issued denying the applicant from reentering the
territory of New Caledonia and was expelled from French Polynesia.

The applicant, according to the Court, could not be faulted for participating in a political
debate. As much as the impugned acts were part and parcel of her responsibilities as a
Member of the European Parliament,34 she conducted the same in a peaceful manner.

33 Application No. 15772/89, Judgment of 27 April 1995.

34 Article 9
"Members of the European Parliament shall not be subject to any form of inquiry, detention or legal
proceedings in respect of opinions expressed or votes cast by them in the performance of their duties."
Article 10
"During the sessions of the European Parliament, its members shall enjoy:
(a) in the territory of their own State, the immunities accorded to members of their Parliament;
(b) in the territory of any other Member State, immunity from any measure of detention and from legal
proceedings.
Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the
European Parliament.
Immunity cannot be claimed when a member is found in the act of committing an offence and shall not
prevent the European Parliament from exercising its right to waive the immunity of one of its members."
None of her acts may be considered seditious or injurious to public order. The Court
likewise mentioned that her status as a European citizen, as well as a member of the
European Parliament is reason enough for her not to be treated as an alien in the territory
of French Polynesia. It is of no moment to apply the provisions of Article 16.35

All in all, the Court interpreted the speech as an integral part of a democratic debate. As
there was political instability in the territory that would otherwise endanger the peace and
order situation as a result of the speech, the Court found the interference unlawful and
disproportionate to the legitimate aims pursued in a democratic society.

In Alinak and Others v. Turkey,36 the applicants were Members of Parliament from a
political party considered a threat to the territorial integrity of the State and its national
unity. Due to the purported character of the party, the National Assembly lifted the
parliamentary immunity of the applicants, among other co-members. The Constitutional
Court subsequently ordered the dissolution of the party. Thereafter, the applicants were
sentenced to imprisonment for delivering speeches under the PKK banner.

The Court, in finding a violation of the freedom of expression of the applicants,

underscored the role that the applicants played in the political arena as elected
representatives of the people. The speeches, though highly critical of the government and
condemning what they claim to be a “policy of violence” in areas populated by people of
Kurdish descent, were uttered in the context of public debate. Further, the Court pointed
out that despite the tenor of these speeches, they did not constitute hate speech, nor
resulted to incitement to violence or armed resistance.

In Pakdemirli v. Turkey,37 a member of the Turkish national assembly and Vice-President

35 Article 16: “Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens.”
36 Application No. 34520/97, Judgment of 04 May 2006 (French), Summary Retrieved from
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0ad4f5ba6f6a119bc125668f004c455e/3f3b167d1a06e6fbc12571
610041deea?OpenDocument, last viewed 03 May 2008.
37 Application No. 35839/97, Judgment of 22 February 2005 (French), Summary Retrieved from
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0ad4f5ba6f6a119bc125668f004c455e/030cc5452a7e6069c1256
faf0038882c?OpenDocument, last viewed on 03 May 2008.
of an opposition party delivered a speech at a press conference outside the halls of the
national assembly, labeling the incumbent President of the Republic as a “liar” and a
“slanderer. The President of the Republic then brought forth a case before the domestic
court for defamation to his person and his capacity as President of the Republic. The
Court sentenced the applicant guilty and ordered him to pay an amount which was the
highest fine for defamation ever ordered by the Court.

The Court found favor in the argument that the offensive remarks uttered by the applicant
were tantamount to purely personal attacks. They could hardly be considered as included
within the ambit of political debate, despite the longstanding political antagonism
between the two parties. However, the manner by which the domestic court assessed the
damages awarded to the President of the Republic was, in the opinion of the Strasbourg
Court, excessive. The Court observed that the award of damages was, in essence, a civil
fine. It was disproportionate to the gravity of the remarks uttered. Henceforth, it was not
necessary in a democratic society, giving rise to a violation of Article 10 of the ECHR.

In a case against Portugal,38 the applicant, Roseiro Bento, then the mayor of the town of
Vagos, engaged in a debate with one of the town councilors during a council meeting. A
heated exchange ensued, which resulted in a filing of a case against the applicant for
insulting behavior. The case was dismissed, so the town councilor proceeded against
Bento for damages. Upon receiving an adverse judgment thereto, the applicant brought
his case before the European Court interposing an unlawful interference with his freedom
of expression.

The Court highlighted the fact that the words uttered in a political debate may become
harshly critical or, to some point, defaming or excessively personal. However, it
rationalized that these have become inevitable to preserve the rightful balance in a
democratic society. The heated exchange happened during a town meeting, which while
participants thereof may not be vested with parliamentary immunity, this venue was
38 Roseiro Bento v. Portugal, Application No. 29288/02, Judgment of 18 April 2006, Summary Retrieved
from
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0ad4f5ba6f6a119bc125668f004c455e/34ffd85b83b06365c1257
154002ed6fc?OpenDocument, last viewed on 03 May 2008.
likened to the Parliament in the sense that the freedom of expression must be respected in
such cases. The Court underscored the rationale that “the Parliament and similar bodies
were vital forums for public debate.” Just like in the case of Pakdemirli, the Court found
that the adverse judgment of damages imposed on the applicant was in fact a civil fine. It
held that this judgment was not proportionate to the legitimate aim pursued. Absent any
reason convincing enough to allow interference with the freedom of expression, the Court
found a violation of Article 10 of the Convention.

V. RULES OF PARLIAMENTARY IMMUNITY OF NON-LIABILITY IN

RESPONDENT STATES MENTIONED IN PART IV

SPAIN

Deputies in Parliament in Spain are accountable only to the Chamber of which he or she is a
member. In cases of opinions expressed outside the parliamentary privilege, the deputy is
subject to the disciplinary supervision of the Speaker. The immunity grants unto the
deputies exemption from all criminal and civil prosecution for opinions expressed and votes
cast directly related to the performance of parliamentary duties, made in the Parliament. 39
The privilege is perpetual in duration, not dependent on the membership of the deputy.
However, it excludes all acts of violence against person or property, even if committed
inside parliament. Statements made in the context of meetings of parties or with
constituents, private encounters or journalistic activities are also not covered by the
immunity.40

AUSTRIA

39 In MacGee, S., supra, a list of criteria to determine the scope of non-liability was mentioned,
“… Acts protected by parliamentary immunity include the following: all statements in a plenary session or
committee, questions, appeals, requests, speeches, motions, judgments, amendments, private votes, agendas,
introduction of bills. Also included are actions which, although performed outside the place of the meeting are
performed in the exercise of the duties themselves, such as committees of inquiry or investigation. Official
publications and reports on deliberations made officially to the press are also protected…”
40 The Venice Commission, supra, paragraph 42.
Austria observes the same rules, in the case of France. In contrast thereto, however, the
duration of the immunity depends on the length of the mandate41 Aside from members of
Parliament, the same immunity is available to members of Regional Assemblies, as in
Jerusalem v. Austria, when the town council of Vienna acts as a Land Parliament.

FRANCE

A Member of Parliament is accountable only to the Chamber to which he belongs. As such,

he or she submits to the coercive powers of the Chamber upon the discretion of the Speaker
if and when the Member commits acts or utters remarks outside the realm of parliamentary
immunity. French rules of parliamentary procedure describe the immunity of non-liability to
cover opinions and votes cast “directly related to the performance of parliamentary duties”
which is not strictly confined to the halls of Parliament. The immunity, with respect to non-
liability is of unlimited duration.

EUROPEAN PARLIAMENT (in Piermont v. France)

A Member of the European Parliament is exempt from all forms of inquiry, detention or
legal proceedings in respect of opinions expressed or votes cast by them in the performance
of their duties. Further, they are entitled, in the territory of their own State, to the immunities
accorded to Members of their Parliament. Moreover, in the territory of any other Member
State, they are immune from any measure of detention and from legal proceedings. The
duration of the privilege described is indefinite.

TURKEY

41 The Venice Commission, supra, paragraph 40.

While Turkey follows the seemingly universal rule of non-liability, the bounds of
parliamentary immunity of freedom of speech are particularly wider in the case of Turkey.
Members of Parliament, in fact, enjoy immunity even for "offences of defamation".42 In
addition, the same statements, even those defamatory in character, which are repeated
outside Parliament also enjoy immunity unless the Bureau of the Grand National Assembly
decides otherwise.43

PORTUGAL

In Portugal, the scope of non-liability as to votes cast and opinions expressed while in the
performance of parliamentary duties is limited only to those made on the floor of the House.
However, there is also an extension of immunity for remarks uttered which are defamatory
in nature. The duration of this privilege is independent of the mandate of the Member of
Parliament. The protection is absolute in this sense.

VI. ANALYSIS

In the case of Castells v. Spain, the act complained of, i.e. the publication of strongly critical
remarks of a Senator in a weekly periodical, was one found outside the scope of
parliamentary immunity of non-liability. According to the report of the Venice Commission,
it is explicitly described as one of the acts excluded from parliamentary privilege in the
jurisdiction of Spain. Nonetheless, the applicant was accorded due consideration. His vital
role as a parliamentarian gave him a wide leverage in terms of his freedom of speech.
Freedom of political expression will be in peril if remarks that shock, disturb or offend shall
be disallowed especially in the context of public debate. The three pronged test was made
the basis of such a conclusion. The Court reasoned out that regardless of whether his acts
were outside the ambit of the parliamentary privilege, it was necessary in a democratic
society to consider his remarks as admissible.

42 The Venice Commission, supra, paragraph 36.

43 The Venice Commission, supra, paragraph 34.
The case of Jerusalem v. Austria was quite peculiar in the sense that the town council of
Vienna had a dual character. Apart from acting as a town council, it also served as a regional
parliament. As a regional parliament, members may avail of their parliamentary immunity.
The Court noted that had the applicant decided to deliver such remarks during a meeting
convened by the town council as a regional parliament, it would have been protected by
parliamentary immunity. 44 The Court, at this juncture, described how fora comparable
(town councils, public meetings, etc.) to the Parliament are as important as the legislative
body itself, which was also discussed at length in the Roseiro Bento v. Portugal case. In its
analysis, the Court still took into considerable account, that the position of the applicant
grants unto her the right to a wider freedom of expression while in the performance of her
duties in the town council. A more intensive debate in airing all interests concerned in the
discussion of the drug policy was instrumental in further improving the same. The integrity
of public debate may be compromised if the applicant is constricted in the manner that she
will deliver the message. Henceforth, this will be detrimental in the protection of the
freedom of expression of the electorate, which the applicant duly represents.

Members of the European Parliament, as mentioned above, are entitled to the same
privileges of Members of Parliament in each signatory State, save for certain conditions. In
the case of Piermont v. France, however, the freedom of expression of the applicant was in
question for uttering allegedly “seditious” remarks during a public gathering in French
Polynesia. Since Members of the European Parliament are entitled only to immunity from
legal arrest and detention in the territory of other Member States, the applicant could not be
shielded by parliamentary immunity of non-liability in the case at bar.45 However, the more
lenient approach in interpreting the freedom of expression of parliamentarians applies to her
case.

The rules on parliamentary immunity on free speech in Turkey are comparatively wider than
other Member States. However, this was not applied as such in the case of Alinak and
Others. The speeches that the applicants delivered, regardless of their defamatory character

44 Jerusalem v. Austria, supra, paragraph 36.

45 Ms. Piermont was a German citizen at the material time of the incident, See Piermont v. France, supra,
paragraph 8.
or the place where they were delivered, were supposed to have been covered by the
parliamentary immunity of non-liability. However, the highly sensitive political situation
was made the reason for the lifting of parliamentary immunity and the dissolution of the
political party where the applicants were members thereof. By giving attention to the plight
of areas populated by citizens of Kurdish origin in a peaceful and orderly manner, absent
any indications of seditious intent or attempts to incite violence, the domestic court adjudged
as criminal the legislative agency of the applicants when, in fact, they were privileged to
deliver the speeches.46

In the Pakdemirli case, the same situation will be observed. The Court noted that the
remarks of the applicant were bordering on a personal attack, rather than an utterance that
could well be covered by parliamentary immunity. However, it is inevitable that
situations such as these may arise in the course of a highly intense political debate,
especially when the parties engaged have had a longstanding political antagonism. By
looking at the rules of parliamentary immunity in Turkey, this case would have been
bound by the parliamentary privilege. It may be observed that the parliamentary
immunity was actually not lifted. This prerequisite is essential before bringing forth a
legal proceeding against Pakdemirli. Surprisingly, the Strasbourg Court overlooked this
fact. Instead, it made a point of departure by zeroing in on the exorbitant award of
damages that would send a chilling effect on parliamentarians to air the grievances and
opinions of the electorate that they represent.47

VII. CONCLUSION

It can be seen from the discussion made above that parliamentary immunity on non-liability
is a principle well respected among States within the Council of Europe. There is not much
contested debate that parliamentary immunity is a special case of freedom of expression, in
that in its absolute character, it is not subject to any restriction or limitation. In fact, the
Venice Commission articulated that the immunity, as such, is not prone to question in most
countries it had surveyed. It may be gleaned by the seeming uniformity of rules observed

46 Wigley, S., Democracy and Politics of Parliamentary Immunity in Turkey, supra, page 134.
47 Wigley, S., Ibid.
across the entire region. The respect for the system put in place to advance the freedom of
expression of parliamentarians may account for the very few cases in the European Court
discussing the intersection of parliamentary immunity on freedom of expression. More cases
in the European Court involving parliamentary immunity, in fact, deal with the application
of the right to access to court under Article 6 by persons defamed or adversely affected by
opinions or remarks made by parliamentarians. Nonetheless, the Court recognizes that
parliamentary immunity must remain inviolable in the face of obstruction of individual
rights for the protection of Parliament as an institution.

This study reveals that there is absolute non-interference on the part of the regional human
rights court in cases of parliamentary immunity over votes cast in each Chamber. No case
touching on this issue was found. Instead, cases dealt with the issue of the qualification of
parliamentary non-liability with regard to opinions expressed in the performance of their
duties. Further, it was found in the analysis of pertinent case law that the recognition of
parliamentary immunity or the wider scope or discretion afforded to expressions of
parliamentarians does not preclude the application of the three pronged test. The criteria that
an interference prescribed by an accessible and foreseeable law, pursuant to a legitimate aim
and necessary in a democratic society remain to be essential, notwithstanding the position or
status of the parliamentarian as an elected representative.

In the decisions rendered by the European Court, there is a strong pattern of upholding the
freedom of expression of the parliamentarian, in view of his or her status as an elected
representative and his or her role to bring forth the opinions and interests of the citizenry that
he or she may represent. This principle is recognized in all the cases discussed in Part IV
and applied indiscriminately, regardless of the application of parliamentary immunity. The
situations surrounding the cases against Turkey hereby exhibits that parliamentary
immunity, if disregarded, will put the integrity of the Parliament at risk, amidst the power of
control of the judiciary or executive in times of political turbulence or societal unrest. The
Court recognizes this stark reality and continues to defend the integrity of the Parliament
even outside the realm of parliamentary immunity, by relying on the principle of elected
representation of the people.
In fine, parliamentary immunity may be treated as a special area in the application of
freedom of expression. While the rights and interests of private citizens are, most often than
not, the primary concern in the protection of this cornerstone of a democratic society,
parliamentary immunity safeguards the institutions that cradle freedom of expression as the
core of its existence. The deference of domestic courts to parliamentary immunity is strictly
observed by the European Court, well knowing of its essential role in a human rights
friendly society.

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