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Constitutional act no. 98/20013 Coll.

The extent of immunity of (not only) Members of Parliament in the Czech constitutional system has been widely criticized for a long time. The limitation of this immunity (for both the Members of Parliament and for the Constitutional Court’s judges) brought about by the constitutional act no. 98/20013 Coll. can thus be seen as a reaction to public demand.

Before this constitutional amendment, immunity of the Members of Parliament was quite far-reaching. Indemnity, i. e. substantive immunity that covers expressions and voting in the Parliament was interpreted very extensively by the Czech courts (esp. the Supreme Court), but the new case-law of the Constitutional Court has reversed this trend and moved towards a narrower understanding of indemnity (cf. Constitutional Court judgment I. ÚS 3018/14, of 16. 6. 2015). Besides indemnity, Members of Parliament enjoyed procedural immunity “for life”. They could only be criminally prosecuted with the consent of the respective chamber of the Parliament; if consent was not given, the criminal prosecution was foreclosed forever. Such an extent of immunity was exceptional from the European as well as from the world-wide perspective (cf. van der Hulst 2000, p. 82-84). Some states only provide for indemnity and those that guarantee procedural immunity usually foreclose criminal prosecution (in case relevant consent was not given) only for the duration of parliamentary mandate (Denmark, Italy, Spain. Poland, Greece or Germany) or even for the durations of parliamentary sessions (Belgium, France or Switzerland)

Immunity of the Constitutional Court’s judges was governed by similar provisions. A judge of the Constitutional Court could only be criminally prosecuted with the Senate’s consent. If consent was not given, the criminal prosecution was foreclosed forever as well.

The commented amendment has changed this rather exceptional situation considerably; if a chamber of parliament does not give its consent with the criminal prosecution of the Member of Parliament (or if the Senate does not give its consent with the criminal prosecution of the Constitutional Court’s judge), it is foreclosed only for the duration of his/her mandated. Immunity of the President of the Republic was similarly trimmed by constitutional act n. 71/2012 Coll. (cf. the relevant commentary).

The new regulation is more in line with the logic and function of parliamentary immunity; its objective is not primarily to protect a particular individual, but rather to protect the Parliament itself before incursions by the executive power. After the end of the mandated, the connection between immunity of a former Member of Parliament and protection of the legislative assembly disappears.