Opinion No. 492 / 2008
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
on the ISSUE OF the immunity of PERSONS
involved in THE ELECTORAL PROCESS
Adopted by the
at its 76th plenary session
on the basis of comments by
MIFSUD BONNICI (
Kaarlo TUORI (
By letter of 1 July 2008, the Human Rights Defender of Armenia, Mr Armen
Harutyunyan, requested an opinion on draft amendments to the Election Code of
In the same request, the Human Rights Defender of
3. In addition, the Venice Commission prepared at then same time a wider joint opinion with the OSCE/ODIHR on the Election Code of Armenia (CDL(2008)081) for adoption at the 76th plenary session of the Commission, on 17-18 October 2008.
5. According to the proposed amendments, the following provisions of the Election Code of Armenia would be revised: Article 33.2, Article 78.4, Article 111.6 and Article 127. These provisions establish a certain immunity for the members of the Central Electoral Commission, as well as the members of district and precinct electoral commissions (Article 33.2); Presidential candidates (Article 78.4); candidates for the National Assembly (Article 111.6); and candidates for mayor and municipal councils (Article 127).
7. Article 33.2: “Members of the Central Electoral Commission (during the entire period of the Commission’s operation) and members of Territorial and Precinct Electoral Commissions (during national elections) may be detained or subjected to administrative or criminal prosecution by courts with the consent of the Central Electoral Commission only.”
8. Article 78.4: “Presidential candidates may not be detained or subjected to criminal or judicial prosecution without the Central Electoral Commission’s consent. The vote of the two-thirds of the Central Electoral Commission members is required to pass decisions on such matters.”
9. Article 111.6: “MP candidates under proportional or majoritarian system may be detained or subjected to court mandated administrative or criminal prosecution only with the Central Electoral Commission’s consent. The vote of the two-thirds of the Central Electoral Commission members is required to pass decisions on such matters.”
10. Article 127: “Community leader and council member candidates may be detained only with the Territorial Electoral Commission’s consent. The vote of the two-thirds of the Territorial Electoral Commission members is required to pass a final decision on such matters.”
12. A distinction should be made between “immunities in the strict sense” shielding officials or parliamentarians from civil action and arrest, detention or prosecution, either absolutely or depending on the consent of the institution or chamber to which they belong, and “non-liability” or “immunity in the wider sense” of officials elected or appointed, or parliamentarians in respect of judicial proceedings for acts performed or not performed, or opinions expressed and votes cast in the discharge of their official or parliamentary duties.
The former kind has its origins in the notion that under United-Kingdom Common
Law in the United Kingdom, the “King could do no wrong”. In other countries, in
14. Parliamentary immunity was limited to what was uttered in Parliament, and it evolved so as to render parliamentarians free to express themselves, and their freedom from arrest when proceeding to the House was meant to defend them against undue interference, which would impede them from being present in Parliament to perform their people-delegated task. This interference could involve outside bodies: either from the executive branch of Government, or even from a non-independent Judiciary.
15. The non-liability of elected or appointed officials for acts performed in the discharge of their legal duties is a constitutional shield for the use of “legally authorised” discretion and is rendered necessary by the theory of separation of powers, in the sense that certain acts of executive discretion, parliamentary deliberation or even judicial determination, should not be subjected to judicial sanction.
17. In the United States, the Supreme Court also decided on the immunities of other, lower, Executive Officials. Thus, in the case Butz v. Economou (1978), the Court in a 4-to-5 opinion, noted that, “In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, […], subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.” But he added that “persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts.” The Court reasoned that the risk of making unconstitutional determinations is outweighed by the need to preserve independent judgement, through grants of absolute immunity to judges and other similarly situated decision-makers. The Court concluded that the similarity between the type of decision-making required of federal prosecutors and other administrative agents is sufficiently strong to warrant an extension of absolute immunity to the latter for decisions made in the course of their official duties. Judges and Magistrates have traditionally been held immune from any civil action in respect of their acts within the judicial function performed in good faith. Their criminal and civil liability for corruption or gross negligence is not in doubt.
To succeed, he/she must then be prosecuted before the
20. Whilst there is a wide variety of statutory formulation in the constitutional granting of immunity or inviolability, it can be safely said that blanket inviolability and immunity are to be avoided, when conceived as absolute and permanent, in as much as inherently against the Rule of Law.
21. Whilst provision for immunity from prosecution for acts performed in
the execution of a constitutional function is not unusual, even in the older
democracies, the whole area is still subject to considerable fluctuations, as
recent political developments in
Parliamentary immunity has been extended gradually to other persons such as
those participating in "proceedings in Parliament" (for example
“clerks at the table”, etc.) in the countries with British-style institutions (
In certain countries, this immunity or non-liability has been extended to the
members of electoral administrations (vide the Electoral Laws of Kenya,
24. It is to be noted that in the Venice Commission’s Code of Good Practice in electoral Matters under subheading “3. Procedural guarantees”, one finds notably these further requirements:
3.1. Organisation of elections by an impartial body
a. An impartial body must be in charge of applying electoral law.
b. Where there is no longstanding tradition of administrative authorities' independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level.
c. The central electoral commission must be permanent in nature.
25. The electoral commissions must be “impartial bodies”, applying electoral law and the Central Electoral Commission must have “a permanent nature” that is not merely organised for a particular election. This part of the Code of Good Practice in Electoral Matters ostensibly applies to all democracies. The previous quotation from the Code of Good Practice in Electoral Matters however makes reference to the existence or otherwise of a “longstanding tradition of administrative authorities' independence from those holding political power.” The truth is that the safeguards needed to ensure the electoral commissions’ impartiality, and indeed authority, will be contingent on the kind of tradition a particular country might have. The electoral administration model of the older established democracies, in which elections are administered by government departments or Ministries of Interior offices composed of a traditionally independent bureaucracy, over which political parties exercise some surveillance through specially appointed representatives, proxies observing the whole electoral process, with electoral disputes being decided upon by the ordinary courts, might not be the most appropriate for many of the new democracies. With the hope that having especially selected and authoritative electoral commissions as independent institutions managing elections might result in free and fair elections, generally accepted as such, many of the newer post-colonial or post-communist democracies charged these commissions with some combination of legislative, administrative, and adjudicative powers which would seem strange in traditional democratic settings.
26. In many of these new democracies, the bureaucratic apparatus would have been the one left behind by the colonial or communist set up, or another authoritarian regime, and could not be trusted to have cultivated the required impartial or independent frame of mind.
1. Electoral commission members shall be exempt from military musters and training exercises and, in the period of national elections, from military draft.
2. Members of the Central Electoral Commission (during the entire period of the Commission’s operation) and members of Territorial and Precinct Electoral Commissions (during national elections) may be detained or subjected to administrative or criminal prosecution by courts with the consent of the Central Electoral Commission only.”
28. Exemption from military musters or training during the election period does not appear excessive or overbearing, indeed it is obvious that preparing for elections would and should be an absorbing duty which would not leave time for military exercises. Even the freedom from detention and from administrative or criminal prosecution is defensible, though with some effort, if it is limited to the Central Election Commission’s period of operation, and can be waived by the Commission itself.
29. In its Guiding Principles for the Fight against Corruption, the Committee of Ministers of the Council of Europe has emphasised that immunity from investigation, prosecution or adjudication of corruption offences should be limited to the degree necessary in a democratic society.
30. In its Fifth General Activity Report, GRECO (Group of States against Corruption) stated that “compliance with Guiding Principle 6 requires that the categories of professionals benefiting from immunity be limited to a minimum.” However, it also added that “according to GRECO's standing practice each Member has been assessed on its own merits and, as a consequence, a few exceptions to the aforementioned rather strict interpretation of General Principle 6 have been accepted”.
In its Evaluation Report on Armenia adopted in March 2006, GRECO was concerned about the rather
wide scope of immunities and recommended “to consider reducing the categories
of persons enjoying immunity from prosecution and to abolish, in particular,
the immunity provided for parliamentary candidates, members of the central
electoral commission, members of regional and local electoral commissions,
candidate mayors and local council candidates.” This recommendation was
repeated in the compliance report on
33. Having stated that privileges and immunities should be limited to what is absolutely necessary (i) for the proper functioning of a Republic; (ii) what is strictly required by the separation of powers; and (iii) the delimitations of areas of discretion; it does not follow that all existing privileges and immunities, which can no longer be justified, should be done away with immediately, and that no consideration be given to the timing and method of such abolition.
34. One can concede that the range of privileges and immunities in
35. Some of the privileges and immunities could give rise to a
resurrection of the happily buried right of sanctuary, which provided an
umbrella of protection, at times, temporary and brief as respite, at other
times, for some scandalously long or indefinite period, to people absconding
from justice. In the generosity for protection,
36. On the other hand, the procedure for pruning and lopping off what is
excessive should however be agreed upon by wide consensus. Immediate excision
of these rights might be considered by the opposition as a threat. Given that
37. It can be considered exceptional that immunity is extended to mere candidates for public office. The only conceivable justification for such an extension is to prevent undue pressure on the candidates and guarantee that elections are not affected by ungrounded indictments or detentions. This justification must be balanced against the reasons favouring the limitation of immunity and underpinning the GRECO recommendations.
Taking into account the importance of the office in the political system, in a
young democracy such as
39. Regarding the electoral administration and more particularly the central organ of this administration, i.e. the Central Election Commission, it would be advisable to distinguish the members vis-à-vis the staff members. The members, all appointed by elected stakeholders (political parties sitting at the National Assembly and the President of the Republic), themselves stakeholders highly involved by their decisions – occurring in the Central Election Commission sessions – in the organisation of the elections, should enjoy immunity during their entire mandate, due to the high level of risk of pressure they could undergo from political factions, Government, etc. In spite of the GRECO recommendations regarding the members of the Central Election Commission, the Venice Commission recommends for the time being maintaining immunity to the Central Election Commission’s members. On the contrary, it seems excessive to provide the staff of the electoral administration with immunity; such personnel should be considered comparable to other civil servants, in spite of the fact that they are staff members of a body independent from any Ministry or national Agency.
 Clinton v. Jones, 520
 On this purpose, see as well the case Forrester v. White, 484 U.S. 219 (1988), No. 86-761. Argued November 2, 1987, Decided January 12, 1988.
 Butz v. Economou, 438
 Scheuer v. Rhodes, 416
 Basic Law of
 Vide the Venice Commission’s Report on the regime of Parliamentary immunity, CDL-INF(1996)007.
 Law on the National Assembly and Presidential Elections – This Act defines an elector for the first time – as a person whose name is included in the register of electors. Hence the electors in a presidential election must be registered as voters.
“Law on the Electoral Commission (EC) […] – Section 3A [p]rovides for the immunity of the Electoral Commission members and officers from personal liability for actions they may take in the course of their duties.”
 Mozambique Electoral Law – Law no. 20/2002 of the 10th October 2002, published in the Official Bulletin of the Republic (October 10, 2002, Edition 1, no. 41):
“Article 15 (Legal immunity): During their terms of office the members of National Electoral Commission enjoy legal immunity except in those cases in which their activities might have an improper effect on the final result of elections or referenda.”
 CDL-AD(2002)023rev, II. 3.1.
 CDL-AD(2002)023rev, II. 3.1. c.
 CDL-AD(2002)023rev, II. 3.1. b.
 See the
examples quoted above as well as
 Inter alia,
 Regarding the GRECO’s recommendations notably, it is recommended to refer to the Venice Commission’s Opinion on the draft amendments to Article 23.5 of the Law on the Human Rights Defender for more details (CDL(2008)087).
 Council of Europe Resolution (97)24 on the Twenty Guiding Principles for the Fight Against Corruption, Committee of Ministers (adopted by the Committee of Ministers on 6 November 1997 at the 101st session of the Committee of Ministers), Guiding Principle no. 6.
 Fifth General Activity Report (2004), adopted by GRECO at its 22nd Plenary Meeting (Strasbourg, 14-18 March 2005; Greco (2005) 1E Final).
 Joint First and Second Evaluation Round – Evaluation Report on Armenia, adopted by GRECO at its 27th Plenary Meeting (Strasbourg, 6-10 March 2006; Greco Eval I-II Rep (2005) 2E), par. 56.
 See par. 31 of the present opinion.