Where I live judicial independence was a hot topic for quite a while, namely that the politics should interfere as less as possible in justice.

This article shows an interesting case when getting immunity through a political process seems to interfere with the justice:

European Court of Justice grants immunity to jailed Catalan MEP-elect Oriol Junqueras

In a decision made public on Thursday morning, EU top judges say that the politician had immunity from the moment he was announced a winner in the May 26 vote and elected as an MEP – and thus, he should have been freed as soon as he got his seat following the election.

If I am not mistaken this is in sync with this Court of Justice of the European Union's press release:

A person elected to the European Parliament acquires the status of Member of that institution at the time of the official declaration of the results and enjoys, from that time, the immunities attached to that status

This sounds a little strange since it seems to override the justice independence principle.

Question: How does granting immunity to an already imprisoned person fit with judicial independence?

  • Presumably conflict of someone being in prison and being elected is presumably rare because anyone who gets a prison sentence of more than a year cannot run for European parliament for the next 5 years. (Doesn't quite fit the example case, though, because as I read that news article, there was no proper sentence yet) Feb 14, 2020 at 19:52

2 Answers 2


How does granting immunity to an already imprisoned person fit with judicial independence?

Judicial independence is a concept that protects the judiciary from undue influence by the other branches.

Parliamentary immunity is a concept that protects the legislative from undue influence by the other branches.

Parliamentary immunity doesn't support judicial independence, it mirrors it.

  • 1
    The idea of not being able to prosecute a sitting legislator is nice, and it can help avoid political prosecutions such as those that occur in some countries. But it could become a problem if a legislator were elected who were willing to go around shooting people in the middle of "Fifth Avenue," shall we say.
    – Obie 2.0
    Feb 14, 2020 at 10:32
  • 1
    @Obie2.0 I'm assuming the onus is then on their legislative colleagues to expel them so the judicial branch can deal with them. This would probably work better in a multi-party system like the EU Parliament than in a two party single country system. Whether that is the case in practice...
    – Jontia
    Feb 14, 2020 at 10:39
  • 2
    In Germany, the immunity of a member of the parliament can be suspended by parliament decision. Just had a look at the parliament's web page and saw that this year there were already 3 such cases. Feb 14, 2020 at 19:21
  • @cbeleitessupportsMonica I can't quite work out if that says good or bad things about the German system.
    – Jontia
    Feb 15, 2020 at 7:29
  • @Jontia: neither am I sure... Feb 15, 2020 at 19:28

If the justice system turns out not to be as independent as one would have hoped (especially relative to the executive), parliamentary immunity acts as a safeguard for the legislators' independence:

a regime of parliamentary inviolability is necessary in countries that do not provide their parliamentarians with adequate means of protection, especially because their judicial and criminal justice system provides insufficient safeguards, since it constitutes an important safeguard for the political minority and the opposition


[Usually, in democracies] it is the parliamentary opposition which is in danger of undue pressure. The rules on parliamentary immunity today function primarily as a minority guarantee.

On the other hand...

The Venice Commission observes that the main argument against parliamentary immunity is the principle of equality of all citizens before the law, one of the foundations of the rule of law: “Any form of parliamentary immunity by definition means that members of parliament are given a special legal protection that other citizens do not have. For democracy to function it is particularly important that the members of the legislature themselves stick strictly to the laws that they make for others and that they can be held both politically and legally accountable for their actions. Rules on parliamentary immunity are an obstacle to this, and they are open to misuse and the obstruction of justice. By their very existence they may also contribute to undermining public confidence in parliament and to creating contempt for politicians and for the democratic system as such.”

The degree of immunity (in the inviolability sub-sense) varies in countries in Europe, e.g.

The traditional model of parliamentary immunity is currently being called into question. Several countries (Estonia, the Slovak Republic and Ukraine) have chosen the path leading to a significant reduction or even the repealing of inviolability. By doing so, they will join a number of countries where traditional inviolability does not exist (the Netherlands, the United Kingdom) or is interpreted narrowly (Sweden).

And if you're curious about some EP stats in that regard:

Since 1974, the European Parliament has dealt with a number of requests to waive immunity. Statistics show that “between 1979 – when direct elections to the EP were held for the first time – and the 2009 elections, 157 immunity cases were discussed in the plenary. In 45 out of these 157 cases, immunity was waived or an MEP’s immunity not defended”. [...]

The CJEU has accepted that “the parliament has a broad discretion when deciding whether to grant or to refuse a request for waiver of immunity or defence of immunity, owing to the political nature of such a decision”.


Fumus persecutionis is the presumption that a judicial action has been brought with the intention of causing the member political damage.

There quite a enough examples of this in the report even in "established democracies". The report I quoted that from briefly illustrates it with cases from France, Germany, Italy and Poland.

(As an aside, I guess generating fumus persecutionis is what Democrats say Trump was after in the recent US impeachment drama.)

The (COE) report also has an interesting section on "prosecution of members of pro-autonomy or separatist parties", which would be most relevant to the example you've invoked.

As the European Court of Human Rights has emphasised, “one of the principal characteristics of democracy is the possibility it offers of resolving a country's problems through dialogue, without recourse to violence, even when they are irksome”. In a normal situation, “there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State's population and to take part in the nation's political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned”. [...]

The Court confirmed this position in its Stankov and the United Macedonian Organisation Ilinden v. Bulgaria judgment concerning the ban of a peaceful meeting of a Macedonian minority in Bulgaria. [...] In particular, the Court stated that “[d]emanding territorial changes in speeches and demonstrations does not automatically amount to a threat to the country’s territorial integrity and national security”.

I guess they might end up having to decide where organizing a referendum fits into that.

Beyond that we get into a discussion whether the branches should be co-equal or not in various other ways. See also "judicial supremacy" vs. "parliamentary supremacy" etc.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .