Angaben zur Quelle [Bearbeiten]
| Titel | Parliamentary Immunity. Background Paper prepared by the Inter-Parliamentary Union |
| Herausgeber | UNDP Initiative on Parliaments, Crisis Prevention and Recovery |
| Datum | September 2006 |
| Anmerkung | In association with the Inter-Parliamentary Union |
| URL | http://www.agora-parl.org/sites/default/files/UNDP-IPU%20-%20Parliamentary%20Immunity%20-%202006%20-%20EN%20-%20Parliamentary%20Institution.pdf |
Literaturverz. |
nein |
| Fußnoten | ja |
| Fragmente | 18 |
| [1.] Wy/Fragment 059 05 - Diskussion Zuletzt bearbeitet: 2013-09-13 07:50:47 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 59, Zeilen: 5-15, 18-22 |
Quelle: UNDP_Initiative_2006 Seite(n): 14, Zeilen: 27-42 |
|---|---|
| 6.2 The Scope of Potection191 [sic!]
6.2.1 Who is Protected Freedom from arrest applies only to members of parliament. However, among the countries covered by the UNDP(TheUnited [sic!] Nations Development Programme) initiative, there is one important exception: Article 13 of the Law on the Status of Deputies in the Republic of Moldova stipulates that members of parliament are deemed to be exercising their functions throughout their mandate, and that any aggression against them is considered an insult (outrage) to be punished in accordance with the law. 192 The same applies to family members (husband, wife, children and parents) if such aggression seeks to exert pressure on the parliamentarian concerned in connection with the exercise of his/her mandate. [...] 6.2.2 Time Frame The time frame during which freedom from arrest is valid is usually the same as in the case of freedom of speech with one crucial exception. Contrary to the privilege of freedom of speech, freedom from arrest is only afforded for the duration of the mandate. Once it has expired, members of parliament may [consequently be prosecuted for offences in respect of which parliament had not lifted immunity.] 191 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, [1]. 192 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament [2]. |
5.1. _The scope of protection_
(a) Who is protected? Inviolability applies only to members of parliament. However, among the countries covered by the UNDP initiative, there is one important exception: Article 13 of the Law on the Status of Deputies in the Republic of Moldova stipulates that members of parliament are deemed to be exercising their functions throughout their mandate, and that any aggression against them is considered an insult (outrage) to be punished in accordance with the law. The same applies to family members (husband, wife, children and parents) if such aggression seeks to exert pressure on the parliamentarian concerned in connection with the exercise of his/her mandate. (b) Time frame The time frame during which inviolability is valid is usually the same as in the case of freedom of speech (see above 4.2.) with one crucial exception. Contrary to the privilege of freedom of speech, inviolability is only afforded for the duration of the mandate. Once it has expired, members of parliament may [consequently be prosecuted for offences in respect of which parliament had not lifted immunity.] |
Art und Umfang der Übernahme bleiben ungekennzeichnet. FN 191 enthält die Quelle für die Übernahme. Nach einem eingeschobenen Satz über Deutschland setzt sich die Übernahme aus derselben Quelle fort. |
|
| [2.] Wy/Fragment 059 18 - Diskussion Zuletzt bearbeitet: 2013-09-24 16:00:11 Graf Isolan | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 59, Zeilen: 18-22 |
Quelle: UNDP_Initiative_2006 Seite(n): 14, Zeilen: 37-42 |
|---|---|
| 6.2.2 Time Frame
The time frame during which freedom from arrest is valid is usually the same as in the case of freedom of speech with one crucial exception. Contrary to the privilege of freedom of speech, freedom from arrest is only afforded for the duration of the mandate. Once it has expired, members of parliament may [consequently be prosecuted for offences in respect of which parliament had not lifted immunity.] |
(b) Time frame
The time frame during which inviolability is valid is usually the same as in the case of freedom of speech (see above 4.2.) with one crucial exception. Contrary to the privilege of freedom of speech, inviolability is only afforded for the duration of the mandate. Once it has expired, members of parliament may consequently be prosecuted for offences in respect of which parliament had not lifted immunity. |
Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [3.] Wy/Fragment 060 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:38:36 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 60, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 14-15, Zeilen: 41-43;1-16 |
|---|---|
| [Once it has expired, members of parliament may] consequently be prosecuted for offences in respect of which parliament had not lifted immunity. The Standing Orders of Timor-Leste and Argentina provide specifically that, in the case of a refusal to lift inviolability, the prescription period of a crime is suspended.194 However, there seems to be an exception to this rule in Iraq since Article 60 Cof [sic!] the Constitution 195 stipulates that a member of the Council of Representatives may not be arrested after the legislative term without the consent of the Speaker, unless he/she is accused of a felony or is caught in flagrante delicto committing a felony. With respect to judicial proceedings pending at the time of taking up office, in the majority of countries they cannot be pursued without the explicit authorization of the assembly.
6.2.3 Restrictions Based on the Nature of the Offence As regards restrictions based on the nature of the offence, there are many different practices. Some countries make no such distinction (Bolivia, Burundi, Cambodia, Lebanon),196 others exclude protection for serious offences and others, on the contrary, take the view that immunity should apply in serious cases only and not for minor offences (for example Rwanda, where parliamentarians suspected of a serious felony enjoy protection).197 6.2.4 Restrictions Concerning Criminal Procedural Acts 194 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, [3]. 195 Iraqi Constitution, Art.60, C, “A Council of Representatives member may not be arrested after the legislative term of the Council of Representatives, unless the member is accused of a felony and with the consent of the speaker of the Council of Representatives to lift his immunity or if he is caught in flagrante delicto in the commission of a felony.” 196 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament,[4]. 197 Id. |
Once it has expired, members of parliament may consequently be prosecuted for offences in respect of which parliament had not lifted immunity. The Standing Orders of Timor-Leste and Argentina provide specifically that, in the case of a refusal to lift inviolability, the prescription period of a crime is suspended (Article 8, para. 5, Article 5 of Law 25.320 on the Lifting of Parliamentary Immunity, respectively). However, there seems to be an exception to this rule in Iraq since Article 60 C of the Constitution stipulates that a member of the Council of Representatives may not be arrested after the legislative term without the consent of the Speaker, unless he/she is accused of a felony or is caught in flagrante delicto committing a felony. With respect to judicial proceedings pending at the time of taking up office, in the majority of countries they cannot be pursued without the explicit authorization of the assembly.
(c) Restrictions based on the nature of the offence As regards restrictions based on the nature of the offence, there are many different practices. Some countries make no such distinction (Bolivia, Burundi, Cambodia, Lebanon), others exclude protection for serious offences and others, on the contrary, take the view that immunity should apply in serious cases only and not for minor offences (for example Rwanda, where parliamentarians suspected of a serious felony enjoy protection). (d) Restrictions concerning criminal procedural acts |
Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [4.] Wy/Fragment 061 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:43:32 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 61, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 15, Zeilen: 18-37 |
|---|---|
| In most countries, freedom from arrest (inviolability) precludes either the institution of legal proceedings and/or arrest and detention of a Member of Parliament without the consent of parliament.198 As stated earlier, there is a clear tendency to restrict inviolability to the arrest and detention of members of parliament and to exclude from its scope the institution of criminal proceedings.199 Among the countries covered by the UNDP initiative, Afghanistan, Iraq, Philippines, The Former Yugoslav Republic of Macedonia and Timor-Leste afford inviolability only for the arrest of a Member of Parliament. 200 Such arrest is consequently subject to the consent of the parliament. In Argentina, the arrest of a member in the course of judicial proceedings (for the institution of which the consent of parliament is not required), is only possible with parliament’s approval, as is the search of the house and workplace of the parliamentarian concerned and the interception of mail and telephone conversations. This is also the case in Georgia, where in addition to arrest or detention, the search of the home, car or workplace or any personal search of a member needs to be approved by the parliament.201 In the other countries covered by the study (except of course those following British parliamentary tradition), the judicial authorities must seek parliament’s permission not only to arrest but also to institute judicial proceedings. In Thailand, members may not be arrested, detained or summoned as suspects in [criminal cases without the consent of parliament.]
198 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. 199 Id. 200 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament, [5] 201 Georgia Constitution, Article 52, Section2 [sic], Arrest or detention of a member of the Parliament, the search of his/her apartment, car, workplace or his/her person shall be permissible only by the consent of the Parliament, except in the cases when he/she is caught flagrante delicto which shall immediately be notified to the Parliament. Unless the Parliament gives the consent, the arrested or detained member of the Parliament shall immediately be released. |
In most countries, inviolability precludes either the institution of legal proceedings and/or arrest and detention of a member of parliament without the consent of parliament. As stated earlier, there is a clear tendency to restrict inviolability to the arrest and detention of members of parliament and to exclude from its scope the institution of criminal proceedings. Among the countries covered by the UNDP initiative, Afghanistan, Iraq, Philippines, The Former Yugoslav Republic of Macedonia and Timor-Leste afford inviolability only for the arrest of a member of parliament. Such arrest is consequently subject to the consent of the parliament. In Argentina, the arrest of a member in the course of judicial proceedings (for the institution of which the consent of parliament is not required), is only possible with parliament's approval, as is the search of the house and workplace of the parliamentarian concerned and the interception of mail and telephone conversations. This is also the case in Georgia, where in addition to arrest or detention, the search of the home, car or workplace or any personal search of a member needs to be approved by the parliament (Article 52 of the Constitution). In the other countries covered by the study (except of course those following British parliamentary tradition), the judicial authorities must seek parliament's permission not only to arrest but also to institute judicial proceedings. In Thailand, members may not be arrested, detained or summoned as suspects in criminal cases without the consent of parliament. |
Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [5.] Wy/Fragment 062 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:46:50 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 62, Zeilen: 1-9 |
Quelle: UNDP_Initiative_2006 Seite(n): 15, Zeilen: 35-45 |
|---|---|
| [In Thailand, members may not be arrested, detained or summoned as suspects in] criminal cases without the consent of parliament. In addition, they may not be prosecuted on a criminal charge without the consent of parliament202 unless the charge was brought under specific laws (electoral law, law on the Election Commission and law on political parties) provided that the trial proceedings do not prevent the member from attending the sittings of the House.
6.2.5 Freedom from Arrest and Flagrante Delicto As a rule, freedom from arrest (inviolability) does not apply to cases of flagrante delicto and members of parliament, when caught in the process of committing a crime may be arrested just like anyone else. 202 See, Thailand Constitution, Part 4, Section 131,[6]. |
In Thailand, members may not be arrested, detained or summoned as suspects in criminal cases without the consent of parliament. In addition, they may not be prosecuted on a criminal charge without the consent of parliament unless the charge was brought under specific laws (electoral law, law on the Election Commission and law on political parties) provided that the trial proceedings do not prevent the member from attending the sittings of the House.
(e) Inviolability and flagrante delicto As a rule, inviolability does not apply to cases of flagrante delicto and members of parliament, when caught in the process of committing a crime may be arrested just like anyone else. |
Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [6.] Wy/Fragment 062 12 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:48:42 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 62, Zeilen: 12-21 |
Quelle: UNDP_Initiative_2006 Seite(n): 15-16, Zeilen: 45-48;1-7 |
|---|---|
| There are some exceptions, however, as certain countries make distinctions based on the seriousness of the offence. Thus, in Iraq and Rwanda the flagrante delicto rule (arrest without consent of the parliament) applies only if a member is caught in the commission of a felony, in Serbia and Montenegro and The former Yugoslav Republic of Macedonia, Timor-Leste only in the case of a crime punishable by over 5 years’ imprisonment, and in Argentina only if the parliamentarian is caught while committing a crime punishable by death or one that is infamante or aflictivo.204 In some countries, parliament must be informed of the flagrante arrest of a Member of Parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional)[release of the parliamentarian concerned (Georgia, Lebanon, Thailand).]
204 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament,[7] |
There are some exceptions, however, as certain countries make distinctions based on the seriousness of the offence. Thus, in Iraq and Rwanda the flagrante delicto rule (arrest without consent of the parliament) applies only if a member is caught in the commission of a felony, in Serbia and Montenegro and The former Yugoslav Republic of Macedonia, Timor-Leste only in the case of a crime punishable by over 5 years’ imprisonment, and in Argentina only if the parliamentarian is caught while committing a crime punishable by death or one that is infamante or aflictivo. In some countries, parliament must be informed of the flagrante arrest of a member of parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional) release of the parliamentarian concerned (Georgia, Lebanon, Thailand). |
Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [7.] Wy/Fragment 063 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:12:12 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 63, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 16, Zeilen: 4ff |
|---|---|
| [In some countries, parliament must be informed of the flagrante arrest of a Member of Parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional)] release of the parliamentarian concerned (Georgia, Lebanon, Thailand). In the Republic of Moldova, in cases of flagrante delicto a Member of Parliament can only be placed under house arrest for 24 hours with the prior consent of the Prosecutor General, who in turn must inform the Speaker of Parliament. The latter can order the release of the member concerned.205
Although flagrante delicto is a logical restriction on parliamentary inviolability because the validity of the prosecution cannot be questioned, given that the facts constituting the offence and the identity of the perpetrator are clearly established, it may serve as an ideal loophole for arresting a parliamentarian protected by immunity. As the experience of the IPU Committee on the Human Rights of Parliamentarians has shown, flagrante delicto is sometimes easily invoked even failing any ingredients of a flagrante delicto offence. Examples concern the arrest of members of parliament for several days and even months after the alleged facts under the pretext of a “flagrant crime”, the arrest of parliamentarians who had participated in a peaceful demonstration, but were held responsible under the flagrante delicto procedure for acts of violence which occurred after they had left the premises, and the arrest of a parliamentarian for allegedly having signed uncovered cheques several months before his arrest. The Committee has consequently recalled that a broad interpretation of flagrante delicto may amount to voiding immunity itself of any real meaning.206 6.3 The Procedure of Lifting Parliamentary Inviolability As already stated, parliamentary inviolability does not offer an absolute protection, and certainly does not seek to afford members of parliament impunity. It entitles parliament only to ensure that members of parliament are not arrested [and prosecuted on baseless charges.] 205 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. 206 Resolution adopted by the Inter-Parliamentary Council on case SN/02,03,04, September, 1994. |
In some countries, parliament must be informed of the flagrante arrest of a member of parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional) release of the parliamentarian concerned (Georgia, Lebanon, Thailand). In the Republic of Moldova, in cases of flagrante delicto a member of parliament can only be placed under house arrest for 24 hours with the prior consent of the Prosecutor General, who in turn must inform the Speaker of Parliament. The latter can order the release of the member concerned.
Although flagrante delicto is a logical restriction on parliamentary inviolability because the validity of the prosecution cannot be questioned, given that the facts constituting the offence and the identity of the perpetrator are clearly established, it may serve as an ideal loophole for arresting a parliamentarian protected by immunity. As the experience of the IPU Committee on the Human Rights of Parliamentarians has shown, flagrante delicto is sometimes easily invoked even failing any ingredients of a flagrante delicto offence. Examples concern the arrest of members of parliament for several days and even months after the alleged facts under the pretext of a “flagrant crime”, the arrest of parliamentarians who had participated in a peaceful demonstration, but were held responsible under the flagrante delicto procedure for acts of violence which occurred after they had left the premises, and the arrest of a parliamentarian for allegedly having signed uncovered cheques several months before his arrest. The Committee has consequently recalled that a broad interpretation of flagrante delicto may amount to voiding immunity itself of any real meaning.35 5.2. _The procedure of lifting parliamentary inviolability_ As already stated, parliamentary inviolability does not offer an absolute protection, and certainly does not seek to afford members of parliament impunity. It entitles parliament only to ensure that members of parliament are not arrested and prosecuted on baseless charges. 35 Resolution adopted by the Inter-Parliamentary Council on case SN/02,03,04, September 1994. |
Ganzseitige Übernahme. Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [8.] Wy/Fragment 064 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:16:46 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 64, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 16-17, Zeilen: 29-47;1-7 |
|---|---|
| [It entitles parliament only to ensure that members of parliament are not arrested] and prosecuted on baseless charges. If they are satisfied that such is not the case, parliaments lift immunity. The relevant procedures are broadly similar and differ mainly in terms of the authority empowered to file a request for the lifting of immunity, the possibility of waiving one’s immunity, and the possibility of filing an appeal against the decision to lift immunity.
6.3.1 Procedure Generally Observed Generally speaking, the judicial authorities (prosecutor, court) must send a request to the Presiding Officer. A parliamentary committee, either a standing committee on privileges or an ad hoc committee, is then entrusted with examining the request and making a recommendation to the plenary, which takes a vote. The composition of that committee may of course influence the outcome of deliberations, as may majority requirements for the vote in the plenary. These differ from country to country but generally a simple majority must be obtained (in Iraq an absolute majority is required).207 In some cases, for example Timor-Leste and the Republic of Moldova, the Rules of Procedure stipulate that the vote has to be secret.208 During periods when parliament is not sitting, the Assembly Bureau is usually competent to examine requests for the lifting of immunity and to take a decision, which at the Assembly’s next sitting must be approved. In very rare cases, the Presiding Officer may decide on such matters. For example, the Speaker of the Iraqi Council of Representatives may authorize or not the arrest of a member after the expiry of his/her term.209 Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a [member of the respective Chamber or the taking of any measure against his/her personal belongings.210] 207 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.91. 208 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. [209 Id. 210 Id.] |
It entitles parliament only to ensure that members of parliament are not arrested and prosecuted on baseless charges. If they are satisfied that such is not the case, parliaments lift immunity. The relevant procedures are broadly similar and differ mainly in terms of the authority empowered to file a request for the lifting of immunity, the possibility of waiving one’s immunity, and the possibility of filing an appeal against the decision to lift immunity.
(a) Procedure generally observed Generally speaking, the judicial authorities (prosecutor, court, Minister of Justice) must send a request to the Presiding Officer. A parliamentary committee, either a standing committee on privileges or an ad hoc committee, is then entrusted with examining the request and making a recommendation to the plenary, which takes a vote. The composition of that committee may of course influence the outcome of deliberations, as may majority requirements for the vote in the plenary. These differ from country to country but generally a simple majority must be obtained (in Iraq an absolute majority is required). In some cases, for example Timor-Leste and the Republic of Moldova, the Rules of Procedure stipulate that the vote has to be secret. During periods when parliament is not sitting, the Assembly Bureau is usually competent to examine requests for the lifting of immunity and to take a decision, which at the Assembly's next sitting must be approved. In very rare cases, the Presiding Officer may decide on such matters. For example, the Speaker of the Iraqi Council of Representatives may authorize or not the arrest of a member after the expiry of his/her term (see also under 4b). Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a member of the respective Chamber or the taking of any measure against his/her personal belongings. |
Ganzseitige Übernahme. Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [9.] Wy/Fragment 065 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 14:52:23 Hindemith | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 65, Zeilen: 1ff (komplett) |
Quelle: UNDP Initiative 2006 Seite(n): 17, Zeilen: 3ff, 101-107 |
|---|---|
| [Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a] member of the respective Chamber or the taking of any measure against his/her personal belongings.210
It is important to stress that procedures should be in place which, as far as possible, prevent decisions on the lifting of parliamentary immunity from being taken along party lines. Parliamentarians should be aware that immunity issues are not partisan issues, but affect the institution of parliament as such. Recent developments in the Philippines are noteworthy in this respect: On 25 February 2006, a reportedly unlawful attempt was made to arrest five opposition members of parliament. They were able to enter the House of Representatives and remained there from 27 February until 8 May 2006. On 28 February, the House of Representatives unanimously adopted a resolution affirming the right of the persons concerned to due process and granting them “protective custody” in the absence of any judicially issued arrest warrant resulting from a preliminary investigation or indictment.211 6.3.2 Decision Made by Courts and not by Parliament In very rare cases and as notable exceptions to the separation of powers, it is not parliament but the courts which lift parliamentary immunity. This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a [report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution).] [208 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/ Docs/Global/IPU%20-%20UNDP% 20Immunity%20Paper.pdf. 209 Id.] 210 Id. 211 Charges of rebellion were brought against the parliamentarians concerned in February 2006; the court dismissed them on 4 May 2006. The prosecution brought new charges of rebellion on 11 May 2006. Pending a decision of the Supreme Court on a certiorari petition, the court suspended proceedings in August 2006, According to Section 11 of the Constitution, while Congress is in session, members of both chambers of parliament are privileged from arrest in all offences punishable by not more than 6 years’ imprisonment. The crime of rebellion carries more than six years' imprisonment; Quoted, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/ Global/IPU%20%20UNDP%20Immunity%20Paper.pdf. |
Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a member of the respective Chamber or the taking of any measure against his/her personal belongings.
It is important to stress that procedures should be in place which, as far as possible, prevent decisions on the lifting of parliamentary immunity from being taken along party lines. Parliamentarians should be aware that immunity issues are not partisan issues, but affect the institution of parliament as such. Recent developments in the Philippines are noteworthy in this respect: On 25 February 2006, a reportedly unlawful attempt was made to arrest five opposition members of parliament. They were able to enter the House of Representatives and remained there from 27 February until 8 May 2006. On 28 February, the House of Representatives unanimously adopted a resolution affirming the right of the persons concerned to due process and granting them "protective custody" in the absence of any judicially issued arrest warrant resulting from a preliminary investigation or indictment.36 (b) Decision taken by courts and not by parliament In very rare cases and as notable exceptions to the separation of powers, it is not parliament but the courts which lift parliamentary immunity. This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution). 36 Charges of rebellion were brought against the parliamentarians concerned in February 2006; the court dismissed them on 4 May 2006. The prosecution brought new charges of rebellion on 11 May 2006. Pending a decision of the Supreme Court on a certiorari petition, the court suspended proceedings in August 2006. ,. According to Section 11 of the Constitution, while Congress is in session, members of both chambers of parliament are privileged from arrest in all offences punishable by not more than 6 years’ imprisonment. The crime of rebellion carries more than six years' imprisonment. |
Art und Umfang der Übernahme bleiben ungekennzeichnet. FN 208 mit der Quelle befindet sich auf S. 64. FN 209 befindet sich auf S. 65, während sich das zugehörige Fußnotenzeichen auf S. 64 befindet. |
|
| [10.] Wy/Fragment 066 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:03:08 Hindemith | Fragment, Gesichtet, KomplettPlagiat, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 66, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 17-18, Zeilen: 21-42;1-3 |
|---|---|
| [This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a] report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution). In Chile, it is the competent court of appeal that is entitled to lift immunity, and members of parliament may lodge an appeal against the decision to the Supreme Court. 212 In other countries, Israel for example, parliament’s decision to lift immunity is subject to judicial review by the Supreme Court. A decision of parliament may therefore be overturned by court.213 In a recent case concerning a member of the Knesset whose immunity had been lifted by the Knesset to permit his prosecution on terrorism-related charges, the question of parliamentary immunity was raised as a preliminary issue in the judicial proceedings. An appeal to the Supreme Court was lodged against the first-instance court’s decision to decide on this question at the end of the proceedings. In its ruling of 1 February 2006, the Supreme Court dismissed the charges against the member in question, taking the view that the offending statements came within the scope of his parliamentary immunity, the aim of which is to secure effective representation for all groups and political opinions in Israel.214
6.3.3 The Right to Defence An important issue is respect for the rights of the defence. In some countries, the right of the parliamentarians concerned to present his/her defence is explicitly recognized in the constitution or standing orders. This applies for example to Bolivia215 and the Republic of Moldova.216 Not in all countries, however, is it a [matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament.] 212 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament,http://www.asgp.info/ Resources/Data/Documents/ UJJICUIPKRGKNWTBNCAMSZFAGOKNXL.pdf. 213 Id. 214 Adalah The Legal Center for Arab Minority Rights in Israel, News Update, February 14, 2006. 215 Art. 27b of the Standing Orders of the Chamber of Deputies in Bolivia. [216 Art. 10, para. 2, of the Law on the Status of Deputies in Moldova.] |
This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution). In Chile, it is the competent court of appeal that is entitled to lift immunity, and members of parliament may lodge an appeal against the decision to the Supreme Court. In other countries, Israel for example, parliament’s decision to lift immunity is subject to judicial review by the Supreme Court. A decision of parliament may therefore be overturned by court. In a recent case concerning a member of the Knesset whose immunity had been lifted by the Knesset to permit his prosecution on terrorism-related charges, the question of parliamentary immunity was raised as a preliminary issue in the judicial proceedings. An appeal to the Supreme Court was lodged against the first-instance court’s decision to decide on this question at the end of the proceedings. In its ruling of 1 February 2006, the Supreme Court dismissed the charges against the member in question, taking the view that the offending statements came within the scope of his parliamentary immunity, the aim of which is to secure effective representation for all groups and political opinions in Israel.37
(c) The right to defence An important issue is respect for the rights of the defence. In some countries, the right of the parliamentarians concerned to present his/her defence is explicitly recognized in the constitution or standing orders. This applies for example to Bolivia (Art. 27b of the Standing Orders of the Chamber of Deputies) and the Republic of Moldova (Art. 10, para. 2, of the Law on the Status of Deputies). Not in all countries, however, is it a matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament. 37 Adalah The Legal Center for Arab Minority Rights in Israel, News Update, 14 February 2006. |
Die Quelle wurde lediglich auf S. 64 erwähnt. Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [11.] Wy/Fragment 067 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 14:59:35 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 67, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 18, Zeilen: 1-25 |
|---|---|
| [Not in all countries, however, is it a] matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament. One of the most recent examples is a case which occurred in February 2005 when the Cambodian National Assembly lifted the immunity of three of its members without hearing them and offering them the possibility of presenting their defence. The IPU has always held that it is a principle of natural justice that parliamentarians be heard and entitled to defend themselves, even if such right is not explicitly mentioned in relevant law.217
6.3.4 Monitoring of Judicial Proceedings The lifting of immunity opens the way to arrest and/or judicial proceedings. Apart from the cases referred to below, there are generally no specific provisions for parliaments to monitor proceedings against a member whose immunity has been lifted. However, such monitoring can be essential to ensure not only that the Member of Parliament in question receives a fair trial but also, generally speaking, that respect is strengthened for fair trial guarantees. In many cases, therefore, the IPU has recommended that parliaments monitor proceedings to this end. A case in Burundi shows that this may be effective.218 In July 2004 a member of the then Transitional National Assembly, coordinator of a former rebel movement, was arrested in flagrante delicto on account of the presence in his home of a presumed criminal, a member of an armed group which reportedly wished to join the peace process. The Bureau of the Transitional National Assembly lifted his immunity “to enable the judiciary to investigate the case [calmly and without hindrance” while reserving the right to review its position after a period of two months.] 216 Art. 10, para. 2, of the Law on the Status of Deputies in Moldova. 217 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, [8]. 218 Id. |
Not in all countries, however, is it a matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament. One of the most recent examples is a case which occurred in February 2005 when the Cambodian National Assembly lifted the immunity of three of its members without hearing them and offering them the possibility of presenting their defence. The IPU has always held that it is a principle of natural justice that parliamentarians be heard and entitled to defend themselves, even if such right is not explicitly mentioned in relevant law.
(d) Monitoring of judicial proceedings The lifting of immunity opens the way to arrest and/or judicial proceedings. Apart from the cases referred to below, there are generally no specific provisions for parliaments to monitor proceedings against a member whose immunity has been lifted. However, such monitoring can be essential to ensure not only that the member of parliament in question receives a fair trial but also, generally speaking, that respect is strengthened for fair trial guarantees. In many cases, therefore, the IPU has recommended that parliaments monitor proceedings to this end. A case in Burundi shows that this may be effective. In July 2004 a member of the then Transitional National Assembly, coordinator of a former rebel movement, was arrested in flagrante delicto on account of the presence in his home of a presumed criminal, a member of an armed group which reportedly wished to join the peace process. The Bureau of the Transitional National Assembly lifted his immunity "to enable the judiciary to investigate the case calmly and without hindrance" while reserving the right to review its position after a period of two months. |
Art und Umfang der Übernahme bleiben ungekennzeichnet. Das Fußnotenzeichen zur Fußnote 216 befindet sich auf der Vorseite. |
|
| [12.] Wy/Fragment 068 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 14:58:29 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 68, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 18, Zeilen: 0 |
|---|---|
| [The Bureau of the Transitional National Assembly lifted his immunity “to enable the judiciary to investigate the case] calmly and without hindrance” while reserving the right to review its position after a period of two months. The parliamentarian was released on parole in September 2004 and participated in the July 2005 elections, when he was indeed re-elected. However, charges of “association for the purpose of attacking persons and property” were still pending against him. The Bureau of the newly elected Assembly took up the case and refused to allow his prosecution finding that his flagrante delicto arrest was unjustified and that procedure had been substantially flawed since the Prosecutor General had failed to provide a report on the facts; the parliamentarian concerned had not been heard and the chairpersons of the parliamentary groups and standing committees had not been consulted, in breach of the relevant rules.
6.3.5 Waiving Parliamentary Inviolability In most countries, parliamentary inviolability is a matter of public policy and therefore cannot be waived. There are, however, exceptions to this rule and one of the foremost is the Philippines where members of parliament, and they alone, can waive inviolability either explicitly or by deciding not to invoke it under the relevant circumstances.219 6.3.6 Lifting of Inviolability Conditionally and Right to Request Suspension of Detention Generally, owing to the principle of separation of powers, parliaments are not entitled to impose any conditions on the lifting of immunity. However, in some countries (Belgium and France for example) a partial lifting of immunity is possible. In most countries, parliament is not entitled to suspend the detention of a [Member of Parliament or proceedings against him/her.220] 219 Marc Van der Hulst, The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.91. [220 Id.] |
The Bureau of the Transitional National Assembly lifted his immunity "to enable the judiciary to investigate the case calmly and without hindrance" while reserving the right to review its position after a period of two months. The parliamentarian was released on parole in September 2004 and participated in the July 2005 elections, when he was indeed re-elected. However, charges of "association for the purpose of attacking persons and property" were still pending against him. The Bureau of the newly elected Assembly took up the case and refused to allow his prosecution finding that his flagrante delicto arrest was unjustified and that procedure had been substantially flawed since the Prosecutor General had failed to provide a report on the facts; the parliamentarian concerned had not been heard and the chairpersons of the parliamentary groups and standing committees had not been consulted, in breach of the relevant rules.
(d) Waiving parliamentary inviolability In most countries, parliamentary inviolability is a matter of public policy and therefore cannot be waived. There are, however, exceptions to this rule and one of the foremost is the Philippines where members of parliament, and they alone, can waive inviolability either explicitly or by deciding not to invoke it under the relevant circumstances.38 (e) Lifting of inviolability conditionally and right to request suspension of detention Generally, owing to the principle of separation of powers, parliaments are not entitled to impose any conditions on the lifting of immunity. However, in some countries (Belgium and France for example) a partial lifting of immunity is possible. In most countries, parliament is not entitled to suspend the detention of a member of parliament or proceedings against him/her. 38 Marc van der Hulst, op. cit., p. 91. |
Ganzseitige Übernahme einschließlich FN. Quelle wird auf Vorseite genannt. Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [13.] Wy/Fragment 069 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:03:22 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 69, Zeilen: 1ff (komplett) |
Quelle: UNDP_Initiative_2006 Seite(n): 18-19, Zeilen: 43-45;1-18 |
|---|---|
| [In most countries, parliament is not entitled to suspend the detention of a] Member of Parliament or proceedings against him/her.220 There are exceptions, however, particularly in countries with a French parliamentary tradition, but also in Germany and Austria, where parliament may adopt such a decision either on its own initiative or at the request of a certain number of its members, or of the member concerned.221In Thailand, the speaker may request the release of a member who was detained during the investigation or trial before the start of parliament’s session.222
6.3.7 Right of Detained Members to Attend Parliamentary Sittings With respect to the right of a Member of Parliament held in preventive detention to attend sittings of parliament, only a few countries provide for this possibility (Greece, Mali, Thailand, Pakistan), 223 although this would be in accordance with the principle of presumption of innocence and the interest of parliament to secure the attendance and service of its members. Taking account of the fact that, while a parliamentarian is in preventive detention, his/her constituents are without representation, the IPU has held in several cases that parliamentarians should be authorized to attend parliamentary sittings so long as judgment has not been handed down. In most countries, parliamentarians lose [their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises.224] 220 Id. 221 Id. 222 See, Thailand Constitution, Part 4, Section 131, [9]. 223 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. [224 See, Marc Van der Hulst,The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.93.] |
In most countries, parliament is not entitled to suspend the detention of a member of parliament or proceedings against him/her. There are exceptions, however, particularly in countries with a French parliamentary tradition, but also in Germany and Austria, where parliament may adopt such a decision either on its own initiative or at the request of a certain number of its members, or of the member concerned. In Thailand, the speaker may request the release of a member who was detained during the investigation or trial before the start of parliament's session. (Constitution, Article 167)
(f) Right of detained members to attend parliamentary sittings With respect to the right of a member of parliament held in preventive detention to attend sittings of parliament, only a few countries provide for this possibility (Greece, Mali, Thailand, Pakistan), although this would be in accordance with the principle of presumption of innocence and the interest of parliament to secure the attendance and service of its members. Taking account of the fact that, while a parliamentarian is in preventive detention, his/her constituents are without representation, the IPU has held in several cases that parliamentarians should be authorized to attend parliamentary sittings so long as judgment has not been handed down. In most countries, parliamentarians lose their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises. |
Ganzseitige Übernahme. Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [14.] Wy/Fragment 070 01 - Diskussion Zuletzt bearbeitet: 2013-12-12 23:44:48 Schumann | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 70, Zeilen: 1-2 |
Quelle: UNDP_Initiative_2006 Seite(n): 19, Zeilen: 16-18 |
|---|---|
| [In most countries, parliamentarians lose] their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises.224
224 See, Marc Van der Hulst,The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.93. |
In most countries, parliamentarians lose their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises. |
Art und Umfang der Übernahme bleiben ungekennzeichnet. |
|
| [15.] Wy/Fragment 181 13 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:24:32 WiseWoman | Fragment, Gesichtet, KomplettPlagiat, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 181, Zeilen: 13-21 |
Quelle: UNDP_Initiative_2006 Seite(n): 23, Zeilen: 8-16 |
|---|---|
| Without a doubt, a well-defined system of parliamentary privileges is absolutely necessary for the functioning of a parliament, without which parliaments would degenerate into polite and ineffective debating forums. It is clear that this protection is all the more necessary for parliaments operating in a difficult environment, as is the case in transitional societies. But parliaments do not operate in a vacuum and are largely relyed [sic!] on their political environment and its respect for democratic and human rights principles. Therefore, it is also clear that parliamentary privilege in itself is not sufficient to create the space of liberty and independence that parliaments require. | There is no doubt that a well-defined system of parliamentary immunities is absolutely necessary for the functioning of a parliament, without which parliaments would degenerate into polite and ineffective debating forums. It is clear that this protection is all the more necessary for parliaments operating in a difficult environment as is the case in transitional societies. But parliaments do not operate in a vacuum and are largely dependent on their political environment and its respect for democratic and human rights principles. It is therefore also clear that parliamentary immunity in itself is not sufficient to create the space of liberty and independence that parliaments require. |
Kleine Umformulierungen mit zusätzlichem Fehler. Ohne Quellenangabe. |
|
| [16.] Wy/Fragment 182 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 15:27:38 WiseWoman | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 182, Zeilen: 1ff (komplett) |
Quelle: UNDP Initiative 2006 Seite(n): 23, Zeilen: 17-38 |
|---|---|
| In countries with a strong executive dominating the parliament, parliamentary privilege may fail to afford the protection it is meant to provide,547 and it is easy to see why: in such parliaments, the Presiding Officer and parliamentary authorities- generally members of the majority party and often inclined to support its interests - may use their disciplinary powers to the detriment of the opposition, censor opposition members for statements critical of the government, suspend their mandate and even expel them from parliament. If Rules of Procedure (Standing Orders) are not handled impartially, the opposition as such may end up being greatly hampered in effectively carrying out its mandate. Moreover, government-dominated parliaments may sometimes find it difficult to accept opposing views, and there have been cases where all - apparently legal - possibilities were resorted to in order to oust opposition members from parliament. 548 Among the prominent cases is certainly that of the first ever opposition member in the parliament of Singapore, Mr. Joshua B. Jeyaretnam, who was stripped of his parliamentary mandate in 2001 after the then Prime Minister and Foreign Minister and others won a series of defamation proceedings against him, followed by bankruptcy proceedings. The IPU Committee and many other human rights organizations took the view that in making the allegedly offending statements, Mr. Jeyaretnam was exercising his freedom of speech and that, moreover, the sequence and timing of the defamation and bankruptcy proceedings brought against him suggested a clear intention to target him for the purpose of making him a bankrupt and thereby removing him from parliament.549
547 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. 548 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. 549 Resolution adopted by the IPU Governing Council at its 170th session (March 2002). |
In countries with a strong executive dominating the parliament, parliamentary immunity may fail to afford the protection it is meant to provide, and it is easy to see why: in such parliaments, the Presiding Officer and parliamentary authorities- generally members of the majority party and often inclined to support its interests - may use their disciplinary powers to the detriment of the opposition, censor opposition members for statements critical of the government, suspend their mandate and even expel them from parliament. If Rules of Procedure (Standing Orders) are not handled impartially, the opposition as such may end up being greatly hampered in effectively carrying out its mandate. Moreover, government-dominated parliaments may sometimes find it difficult to accept opposing views, and there have been cases where all - apparently legal - possibilities were resorted to in order to oust opposition members from parliament. Among the prominent cases is certainly that of the first ever opposition member in the parliament of Singapore, Mr. Joshua B. Jeyaretnam, who was stripped of his parliamentary mandate in 2001 after the then Prime Minister and Foreign Minister and others won a series of defamation proceedings against him, followed by bankruptcy proceedings.45 The IPU Committee and many other human rights organizations took the view that in making the allegedly offending statements, Mr. Jeyaretnam was exercising his freedom of speech and that, moreover, the sequence and timing of the defamation and bankruptcy proceedings brought against him suggested a clear intention to target him for the purpose of making him a bankrupt and thereby removing him from parliament.46
45 Members of the parliament of Singapore enjoy only the privilege of freedom of speech; they forfeit their mandate if declared bankrupt. 46 Resolution adopted by the IPU Governing Council at its 170th session (March 2002). |
Ganzseitige wörtliche Übernahme nicht als solche gekennzeichnet. |
|
| [17.] Wy/Fragment 183 01 - Diskussion Zuletzt bearbeitet: 2013-09-11 21:16:48 Graf Isolan | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 183, Zeilen: 1ff (komplett) |
Quelle: UNDP Initiative 2006 Seite(n): 23-24, Zeilen: 23:39-42 - 24:1-19 |
|---|---|
| Moreover, in parliaments with a majority that is obedient to the government, requests for the lifting of inviolability are usually accepted without any resistance, especially if they concern opposition parliamentarians, and the only protection inviolability then affords just covers the time the parliament needs to lift the immunity of the parliamentarian concerned, sometimes just enough to enable the parliamentarian concerned to leave the country to avoid arrest. A good example is the case of the opposition leader in Cambodia, Mr. Sam Rainsy, whose immunity was lifted in February 2005 when he went into exile until his pardoning by the King and return to the country a year later.550
Moreover, parliamentary privilege may be of little use if the law enforcement officials are unfamiliar with this institution, fail to respect parliament and its members, especially if they belong to the opposition, and know that they will in any event enjoy impunity for arbitrary actions even if they concern parliamentarians. Examples abound [sic] Suffice to mention the situation that prevailed in Zimbabwe in the context of the 2000 parliamentary and 2002 presidential elections, when scores of opposition parliamentarians were arbitrarily arrested and detained for various periods of time, some of them being beaten up and even tortured.551 Likewise, courts may not always be aware of the privileges attached to the parliamentary office - even though in most countries the privilege of freedom of speech is part of the general and public law and must be judicially noticed. Therefore, they may fail to examine whether or not parliamentary immunity was properly lifted and they are competent to pursue a case. Moreover, in a country [with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public.552] 550 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. 551 Details may be found in the report on the IPU mission to Zimbabwe, March/April 2004. [552 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.] |
[Seite 23]
Moreover, in parliaments with a majority that is obedient to the government, requests for the lifting of inviolability are usually accepted without any resistance, especially if they concern opposition parliamentarians, and the only protection inviolability then affords just covers the time the parliament needs to lift the immunity of the parliamentarian concerned, sometimes just enough to enable the [Seite 24] parliamentarian concerned to leave the country to avoid arrest. A good example is the case of the opposition leader in Cambodia, Mr. Sam Rainsy, whose immunity was lifted in February 2005 when he went into exile until his pardoning by the King and return to the country a year later. Moreover, parliamentary immunity may be of little use if the law enforcement officials are unfamiliar with this institution, fail to respect parliament and its members, especially if they belong to the opposition, and know that they will in any event enjoy impunity for arbitrary actions even if they concern parliamentarians. Examples abound. Suffice to mention the situation that prevailed in Zimbabwe in the context of the 2000 parliamentary and 2002 presidential elections, when scores of opposition parliamentarians were arbitrarily arrested and detained for various periods of time, some of them being beaten up and even tortured.47 Likewise, courts may not always be aware of the privileges attached to the parliamentary office - even though in most countries the privilege of freedom of speech is part of the general and public law and must be judicially noticed. They may therefore fail to examine whether or not parliamentary immunity was duly lifted and they are competent to pursue a case. Moreover, in a country with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public. 47 Details may be found in the report on the IPU mission to Zimbabwe, March/April 2004. |
Ganzseitige wörtliche Übernahme einschließlich der FN nicht als solche gekennzeichnet. |
|
| [18.] Wy/Fragment 184 01 - Diskussion Zuletzt bearbeitet: 2013-09-11 21:02:34 Graf Isolan | BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy |
|
|
|
| Untersuchte Arbeit: Seite: 184, Zeilen: 1ff (komplett) |
Quelle: UNDP Initiative 2006 Seite(n): 24, Zeilen: 17-36 |
|---|---|
| [Moreover, in a country] with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public.552
The above shows that the general human rights context and the respect for human rights prevailing in a country has a major impact on the ability of parliamentarians, and particularly opposition members, to carry out their mandate, notwithstanding their parliamentary immunity which in such situations may become quite inoperative. One must at the same time note, however, that parliament is a guardian of human rights and thus largely responsible for adopting the laws required to protect and promote human rights and for ensuring that they are implemented and create an environment conducive to human rights. We are thus faced with a vicious circle:553 a weak parliament (weak also because of the failure of immunity to operate) may not be able or even willing to carry out an appropriate oversight function and thus ensure respect for human rights; and this in turn prevents it from acquiring a stronger position. In such a situation, the prospect for a parliament to contribute meaningfully to conflict prevention, conflict settlement and recovery is dim indeed. Any measures designed to improve such a state of affairs must include efforts not only to strengthen the opposition but also to convince members of the majority to carry out their oversight function effectively. A strong and well-understood privilege regime is necessary to this end. 552 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf. 553 See, Id. |
Moreover, in a country with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public.
The above shows that the general human rights context and the respect for human rights prevailing in a country has a major impact on the ability of parliamentarians, and particularly opposition members, to carry out their mandate, notwithstanding their parliamentary immunity which in such situations may become quite inoperative. One must at the same time note, however, that parliament is a guardian of human rights and thus largely responsible for adopting the laws required to protect and promote human rights and for ensuring that they are implemented and create an environment conducive to human rights. We are thus faced with a vicious circle: a weak parliament (weak also because of the failure of immunity to operate) may not be able or even willing to carry out an appropriate oversight function and thus ensure respect for human rights; and this in turn prevents it from acquiring a stronger position. In such a situation, the prospect for a parliament to contribute meaningfully to conflict prevention, conflict settlement and recovery is dim indeed. Any measures designed to improve such a state of affairs must include efforts not only to strengthen the opposition but also to convince members of the majority to carry out their oversight function effectively. A strong and well understood immunities regime is necessary to this end. |
Ganzseitige wörtliche Übernahme nicht als solche gekennzeichnet. |
|