Centrul de Drept Constituțional și Instituţii Politice (CDCIP)

Corneliu Liviu POPESCU – MPs immunity from the perspective of European law of human rights

National legal systems of States members of the Council of Europe, as well as conventional rules specific to the Council of Europe and even to the European Union admit the existence of MPs immunity. According to the jurisprudence of the European Court of Human Rights, MPs immunity represents a limitation to the right of access to a judge as this last one is guaranteed through art.6 para. 1 of the European Convention on Human Rights. However, this limitation is foreseen by the Constitution or by a law, it has the legitimate purpose to protect the freedom of political expression of those elected within parliamentary debates and to maintain the separation between legislative and judicial powers. In case protection is granted to an MP for a  political speech, this limitation is proportional, meaning it is confined to the interior of the Parliament, on the occasion of parliamentary debates pertaining to issues of general interest, while recognition of MPs immunity for acts performed outside the Parliament, with no connection with issues of general interest or with the mandate of the MP and which aim at defaming a magistrate in the act of duty represent a disproportionate limitation to the free access to a court, and thus become a violation of this last one.