Will the immunity of Markwalder and Müller be cancelled?

31. May 2015 | categories: Politics

The Federal Public Prosecutor’s Office wants to investigate the two FDP National Councils Christa Markwalder and Walter Müller. She sees sufficient evidence for criminal proceedings. Since they are both members of the National Council, they are subject to immunity. The bar has now filed a motion that the immunity for the two politicians be lifted. But what are the chances that the immunity of the two parliamentarians will be waived?

The immunity protects the members of the Federal Assembly from prosecution. A distinction is made between two types of immunity. Absolute immunity protects politicians from criminal and civil prosecution. It applies to statements made in Parliament, the Commissions, offices and political groups. It cannot be repealed.

The situation is different with regard to relative immunity. It only protects the Council member from criminal investigations. It applies to offences which are directly connected with official activities. Relative immunity may be waived by the competent commissions at the request of a law enforcement agency. In order to waive immunity, both the National Council’s Immunity Commission and the Council of States’ Committee on Legal Affairs must decide to waive the immunity. Otherwise the immunity shall be maintained.

As a first step, the Commission is debating whether this is a case of relative immunity. If the Commission concludes that this is a case of absolute immunity, it does not intervene and notifies the prosecuting authority. In this case, the Council member may not be investigated further. If, on the other hand, it concludes that the activity has nothing to do with the official position, it will also not respond to the request. In this case, the Authority may prosecute the member of the Council. Only when both commissions accept the request will there be a debate on waiving immunity.

Once both Councils have responded to the request, the Commission weighs immunity against equality of rights. If it considers that equality of rights should be enhanced, it shall waive immunity. The immunity will only be waived if both commissions vote in favour of a waiver. Otherwise, the Council member shall remain protected.

In the specific case of Markwalder and Müller, the Immunity Commission of the National Council debates first, since they are members of the National Council. The cases are then also dealt with by the Legal Commission of the Council of States. It is highly likely that the commissions will respond to the request, as the alleged criminal cases are related to the activity of a member of the Council.

Since 2012, the commissions have been ultimately responsible for cases. Parliament used to deal with cases. In total, Parliament has carried out 44 procedures for waiving immunity. In eight cases, she did not respond to the request, five of them for absolute immunity. The commissions have only dealt with two cases. The Commission did not support the request for the waiver of Christoph Blocher’s immunity for all crimes committed prior to the swearing in.

Until now, immunity has been waived. In 1989, the Councils unanimously decided to waive the immunity of the resigned Federal Councillor Elisabeth Kopp. In all other cases, immunity has been maintained, including all cases of National Councils. The Commissions created in 2012 did not waive immunity in both cases (Alfred Heer; Christoph Blocher after taking office). Christoph Blocher’s decision in the National Council’s Immunity Commission with five to four votes was extremely narrow.

As both commissions have to agree to the rescission, the hurdles are very high. It is unlikely that the immunity of Christa Markwalder and Walter Müller will be waived. Even if one of the two commissions agreed to the repeal, the other commission would probably reject the motion. However, as the commissions have only dealt with two cases, it is difficult to make a precise forecast.

Photo: Parlamentsdienste 3003 Bern
Source: Factsheet Immunity