Art. 162 FC — Immunity

#Doctrine

#1. Legislative History

N. 1 Art. 162 FC essentially carried over the rules on parliamentary immunity at federal level that had been in force until 1999 and had previously emerged in fragmentary form from the Guarantee Act of 26 March 1934 (GarA, BS 1 152), the Government Liability Act of 14 March 1958 (GLA, SR 170.32) and the procedural rules of the two chambers. In the Dispatch on the reform of the Federal Constitution, the Federal Council stated that Art. 162 FC created a constitutional basis for the statutory rules on absolute immunity and the prosecution privileges of magistrates; para. 2 was intended in particular to reflect the existing statutory rules on relative immunity for members of the Federal Assembly, members of the Federal Council and Federal Supreme Court judges (BBl 1997 I 388).

N. 2 The provision remained substantively unchanged throughout the parliamentary process; the Federal Assembly accepted the Federal Council's wording without any material modification. Para. 1 codifies at constitutional level the absolute indemnity that has existed since the nineteenth century; para. 2 creates an express delegation provision authorising the legislature to extend the immunity regime beyond the constitutionally entrenched core. With the entry into force of the Parliament Act (ParlA, SR 171.10) on 1 December 2003, the law on immunity was systematically reorganised at statutory level: Art. 16 ParlA reiterates the absolute immunity provided for in para. 1, while Art. 17 ParlA (for members of the councils) and Art. 61a of the Government and Administration Organisation Act (GAOA, SR 172.010; for members of the Federal Council and the Federal Chancellor) govern relative immunity (JAAC 69.2, Federal Office of Justice opinion of 19 December 2003, para. I).

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#2. Systematic Classification

N. 3 Art. 162 FC is located in the 5th Section («Federal Assembly») of the 5th Chapter («Federal Authorities») of the Federal Constitution. The provision is an organisational norm, not a fundamental right. It does not confer on the individual member of a council a personal entitlement in the sense of a subjective right of defence; rather, it is an institutional guarantee designed to protect the functioning capacity of the Parliament as the supreme federal authority (→ Art. 148 FC). Its character as an organisational norm means in particular that Art. 162 FC does not produce direct fundamental rights effects and cannot be invoked by way of a constitutional complaint under Art. 113 BGG (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2704).

N. 4 Para. 1 establishes so-called absolute immunity (also referred to as «indemnity»): the protected statements are legally immune from any proceedings whatsoever and, according to the prevailing doctrine, constitute a personal ground for excluding criminal liability, not merely a procedural bar (BGE 100 Ia 1 E. 2; Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 4th ed. 2016, § 29 N 14). Para. 2 authorises the legislature to introduce, in addition, a conditional and thus revocable relative immunity; according to established practice, this operates as a condition for the admissibility of proceedings (TPF 2008 151 E. 2).

N. 5 The provision must be read in the light of → Art. 148 FC (supreme authority of the Federal Assembly) and → Art. 164 FC (legislative competence). For cantons, Art. 3 FC remains determinative: they are free to introduce their own cantonal immunity rules, provided these do not conflict with federal law (↔ Art. 49 FC). The absolute immunity under para. 1 is compatible with the ECHR; the ECtHR held in A. v. United Kingdom, no. 35373/97, 17 December 2002, that parliamentary immunity protection pursues a legitimate aim compatible with Art. 6 para. 1 ECHR, provided the immunity is designed proportionately.

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#3. Elements of the Provision / Normative Content

3.1 Para. 1: Absolute Immunity (Indemnity)

N. 6 Protected persons: Absolute immunity protects members of the Federal Assembly (members of the National Council and the Council of States), members of the Federal Council, and the Federal Chancellor. The protection applies to serving, but not former, magistrates: it is tied to the office, not to the person (Federal Office of Justice opinion JAAC 69.2, para. III). The possibility of extending protection to further persons — e.g. parliamentary secretaries or external experts — is reserved to para. 2.

N. 7 Protected conduct: Only «statements» are protected. The term is to be construed broadly: it encompasses oral and written submissions, votes, motions, reports, interpellations, motions, and other contributions within the parliamentary process. Actions (e.g. physical assaults) are not covered, even if carried out in the chamber. Mere physical presence in the chamber is likewise not protected. The President of the Commercial Court of St. Gallen extended the protection to the reproduction of the wording of a motion in the press and other media, provided the member of the council merely reproduced the parliamentary content (Commercial Court of St. Gallen, HG.2004.78 of 30 March 2005); this decision is not without controversy in legal scholarship (→ N. 17).

N. 8 Spatial and substantive scope: «in the councils and in their committees»: The immunity protection is limited to statements made «in the councils», i.e. in plenary sessions of the National Council and the Council of States, and «in their committees». The committees of the Federal Assembly are exhaustively enumerated in Art. 31 ParlA: the parliamentary groups, the delegations, the standing and non-standing committees, and the Bureau. Statements made in party-internal bodies, at press conferences or at electoral events do not fall within the protection of para. 1 (FDPIC Recommendation of 24 August 2020, para. 16; Biaggini, BV-Kommentar, 2nd ed. 2017, Art. 162 N 3).

N. 9 Legal consequences of absolute immunity: A protected statement «shall not give rise to any legal liability». The protection is absolute and irrevocable: neither the Federal Assembly nor the protected member personally may waive the immunity. It is comprehensive in the sense that it cuts across the entire legal order: it excludes criminal, civil, administrative and disciplinary consequences (Tschannen, § 29 N 14; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1643).

3.2 Para. 2: Statutory Delegation Provision

N. 10 Para. 2 contains an express delegation provision to the federal legislature. The law «may» — there is no constitutional mandate — provide for further types of immunity and extend these to further persons. As a matter of substance, the federal legislature has made use of this authorisation in two respects:

• Relative immunity (prosecution privilege): Art. 17 ParlA protects members of the councils against criminal prosecution for acts directly connected with their official capacity or activity, unless the Federal Assembly lifts the immunity. Art. 61a GAOA contains a parallel rule for members of the Federal Council and the Federal Chancellor.
• Guarantee of participation in sessions: Art. 20 ParlA guarantees participation in council sessions by conferring a right to temporary release from pre-trial detention.

N. 11 Relative immunity under Art. 17 ParlA is in its nature a condition for the admissibility of proceedings: where the Federal Assembly refuses or fails to lift the immunity, a condition for the admissibility of proceedings is absent; the act is not exempt from criminal liability but merely temporarily not prosecutable (TPF 2008 151; BGE 100 Ia 1 E. 2). Procedural acts carried out before the parliamentary immunity has been definitively lifted are in principle void (TPF 2021 134).

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#4. Legal Consequences

N. 12 As regards absolute immunity under para. 1: any claim, complaint or appeal relating to a protected statement is inadmissible. Criminal authorities may not investigate, and civil courts may not entertain corresponding claims. Since no legal remedy is admissible, there is equally no procedure for lifting the immunity. The immunity operates by operation of law (ex lege) and requires no official act for its establishment.

N. 13 According to the prevailing doctrine, an absolutely immune statement constitutes a personal ground for excluding criminal liability: the act is not merely unprosecutable but materially exempt from punishment (BGE 100 Ia 1 E. 2; Giacometti, Das Staatsrecht der schweizerischen Kantone, p. 318). The opposing view — that immunity operates as a procedural bar even in the context of para. 1 — has not prevailed in Switzerland.

N. 14 The temporal scope is tied to the office: immunity exists only during the term of office. Statements made before taking up office or after leaving it are not protected (Federal Office of Justice opinion JAAC 69.2, para. III; Häfelin/Haller/Keller/Thurnherr, N 1645).

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#5. Contested Issues

5.1 Legal Nature of Absolute Immunity: Ground for Excluding Criminal Liability or Procedural Bar?

N. 15 The prevailing Swiss doctrine classifies absolute immunity under para. 1 as a personal substantive ground for excluding criminal liability (Giacometti, Das Staatsrecht der schweizerischen Kantone, p. 318; Tschannen, § 29 N 14; Häfelin/Haller/Keller/Thurnherr, N 1643). This means: the protected statement does fulfil the statutory elements of the offence, but punishment is excluded on grounds of state policy. The Federal Supreme Court expressly confirmed this classification in relation to cantonal immunity rules providing for unconditional immunity (BGE 100 Ia 1 E. 2).

N. 16 By contrast, part of the doctrine — notably in the older literature — treats even absolute immunity as having merely procedural effect (Hafter, Schweizerisches Strafrecht, Allg. Teil, 2nd ed., pp. 191 ff.; Schultz, Einführung in den Allgemeinen Teil des Strafrechts, p. 92). This view is difficult to sustain systematically, since Art. 162 para. 1 FC — unlike para. 2 — provides for no possibility of lifting the immunity at all, which removes the foundation for a purely procedural reading.

5.2 Scope of Protection in Respect of Media Reproductions

N. 17 It is contested whether absolute immunity covers statements that a member of the council repeats outside the chamber — in particular to the media. The President of the Commercial Court of St. Gallen answered this in the affirmative for the case where the member of the council merely reproduces the wording of their motion (HG.2004.78 of 30 March 2005). Legal scholarship is predominantly critical of this extension: Biaggini (BV-Kommentar, Art. 162 N 3) emphasises that the protection afforded by para. 1 is limited to statements «in the councils and in their committees»; extending it to statements made to the media would exceed the clear wording of the provision. Rhinow/Schefer/Uebersax (N 2706) share this restrictive interpretation. Already BGE 31 II 716 held, in the context of cantonal law, that a parliamentarian remains liable for newspaper articles written outside the council proceedings, notwithstanding a substantive connection with a speech delivered therein.

5.3 Extension to Further Persons (Para. 2)

N. 18 Para. 2 authorises the legislature to extend immunity to «further persons». Discussion centres on whether this authorisation may also cover delegates of cantons (→ Art. 150 FC), parliamentary staff, or invited experts in committee sessions. Legal scholarship answers this in the affirmative for persons functionally integrated into the parliamentary process (Biaggini, Art. 162 N 5; Tschannen, § 29 N 15). The legislature has to date made restrained use of this authorisation.

5.4 Relationship to the ECHR

N. 19 The ECtHR has recognised parliamentary immunity as compatible with Art. 6 para. 1 ECHR, provided it does not lead to a disproportionate denial of access to court for third parties (ECtHR, A. v. United Kingdom, no. 35373/97, 17 December 2002, §§ 75–83). In Swiss legal scholarship, it is disputed whether the absolute immunity under Art. 162 para. 1 FC infringes the right of access to a court protected by Art. 6 para. 1 ECHR when third parties have their honour or other legal interests injured by parliamentary statements. Rhinow/Schefer/Uebersax (N 2707) see no violation, since the restriction serves a legitimate aim — the protection of freedom of debate in parliament — and does not go beyond what is necessary.

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#6. Practical Notes

N. 20 Checklist for assessing a claimed immunity under para. 1: First, it must be established whether the person concerned belongs to the protected category of persons (member of a council, member of the Federal Council, Federal Chancellor). Then it must be examined whether the act in question constitutes a «statement». Finally, it must be determined whether the statement was made «in the councils» or «in their committees» (exhaustively listed in Art. 31 ParlA). Where there is doubt as to the material scope, it is advisable to consult Art. 31 ParlA and the FDPIC Recommendation of 24 August 2020, which gives further content to the concept of committees for data protection purposes.

N. 21 Relationship between absolute and relative immunity: Absolute immunity under para. 1 and Art. 16 ParlA must be clearly distinguished from relative immunity under Art. 17 ParlA. Absolute immunity requires no official act; it applies by operation of law. Relative immunity, by contrast, requires an express resolution of the Federal Assembly in order to be lifted (Art. 17 para. 2 ParlA). Criminal authorities wishing to investigate a member of the council must first examine whether the act alleged falls within the scope of Art. 16 (absolute immunity) or Art. 17 ParlA (relative immunity).

N. 22 Procedural consequences in the case of relative immunity: Procedural acts carried out before the relative immunity has been definitively lifted by the Federal Assembly are in principle void (TPF 2021 134). The lifting of immunity by the Federal Assembly authorises the criminal prosecution authorities only in respect of the specific set of facts designated therein (TPF 2021 134). Accordingly, in the event of new criminal charges, the prosecution authority is required to apply once again for the lifting of immunity.

N. 23 Change of office: Where a member of a council moves to the Federal Council, or vice versa, the applicable immunity regime is determined by the office held at the time the request for the lifting of immunity is dealt with. The decisive factor is the official magistrate function currently being exercised, not the time at which the act was committed (Federal Office of Justice opinion JAAC 69.2, para. IV 1).

N. 24 Burden of proof: The authority or the opposing party asserting the absence of immunity bears the burden of demonstrating that the conditions for protection are not met. In cases of doubt — in particular where it is unclear whether a statement is to be attributed to the parliamentary or the private sphere — the Federal Assembly and practice have consistently decided in favour of immunity (Federal Gazette of the Federal Assembly 1991, para. 3 on the Ziegler case, ch_vb_20019747).

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#Principal Legal Bases

• Art. 162 FC (SR 101)
• Art. 16, 17, 20, 31 ParlA (SR 171.10)
• Art. 61a GAOA (SR 172.010)

#Bibliography

• Biaggini Giovanni, BV-Kommentar, 2nd ed., Zurich 2017, Art. 162
• Häfelin Ulrich/Haller Walter/Keller Helen/Thurnherr Daniela, Schweizerisches Bundesstaatsrecht, 10th ed., Zurich 2020, N 1643–1648
• Rhinow René/Schefer Markus/Uebersax Peter, Schweizerisches Verfassungsrecht, 3rd ed., Basle 2016, N 2704–2707
• Tschannen Pierre, Staatsrecht der Schweizerischen Eidgenossenschaft, 4th ed., Berne 2016, § 29 N 13–17
• Giacometti Zaccaria, Das Staatsrecht der schweizerischen Kantone, Zurich 1941, pp. 318 ff.
• Federal Office of Justice opinion, Prosecution privileges of magistrates, JAAC 69.2, 19 December 2003

#Dispatch

• BBl 1997 I 388 (Dispatch on the reform of the Federal Constitution of 20 November 1996)

Art. 162 BV

#Case Law

#I. Foundations of Parliamentary Immunity

BGE 100 IA 1 of 23 January 1974 Lifting of parliamentary immunity by cantonal parliament Parliamentary immunity is an institution of constitutional law that is intended to ensure the freest possible exercise of parliamentary activity. In the case of conditional immunity, failure to lift immunity constitutes only a procedural barrier to criminal prosecution; a procedural requirement is lacking.

«Parliamentary immunity, which most Swiss cantons recognize, can mean that a parliamentarian cannot be held criminally, civilly or disciplinarily liable for his statements. [...] If, however, immunity is conditional in the sense that parliament can lift it in individual cases and thus give authorization for criminal prosecution, then the deputy's act is not exempt from punishment. If immunity is not lifted, there is only a procedural barrier to criminal prosecution; a procedural requirement is lacking.»

BGE 113 IA 187 of 1987 Refusal to testify based on parliamentary immunity Parliamentary immunity under cantonal constitutional law is intended to guarantee deputies the right to express their considerations regarding parliament's decisions. It does not permit the refusal to testify in connection with incidents outside parliamentary activity.

«La règle d'immunité [...] vise à mieux garantir l'expression par les députés des considérations à la base des décisions prises par le Grand Conseil, notamment dans le cadre de la surveillance exercée sur l'administration cantonale. Cette règle ne s'étend pas au refus de témoigner en justice sur les circonstances ayant permis à un député d'avoir connaissance d'un dossier sans l'autorisation de l'organe administratif compétent.»

#II. Federal Assembly Procedure

TPF 2008 151 of 18 November 2008 Procedural requirements and lifting of parliamentary immunity The lifting of relative parliamentary immunity of a member of parliament by the Federal Assembly constitutes a procedural requirement that must be fulfilled before criminal prosecution begins. A parliamentarian cannot be accused before the Federal Assembly has lifted his immunity.

«The lifting of relative parliamentary immunity of a member of parliament by the Federal Assembly constitutes a procedural requirement that must be fulfilled before criminal prosecution begins. Consequently, any criminal prosecution is excluded in the absence of or upon refusal to lift immunity. The Federal Assembly's consent to lift relative parliamentary immunity thus constitutes authorization to initiate criminal proceedings within the meaning of Art. 17 para. 1 ParlA.»

«A deputy cannot be accused before the Federal Assembly has lifted his relative parliamentary immunity, otherwise this institution would lose all meaning, because it is precisely intended to prevent a parliamentarian from being criminally prosecuted.»

#III. Scope and Limits of Immunity

TPF 2021 134 of 2021 Material scope of immunity lifting The lifting of parliamentary immunity is limited to the specifically designated set of facts. The mandate for criminal investigation extends only to the area for which immunity was lifted.

«It is established that the immunity of former Attorney General B. has been lifted for the time being only in relation to the set of facts ‹informal meetings› with the appellant and other persons. This set of facts alone forms the subject of the mandate that was granted to the respondent by the Federal Assembly to conduct a criminal investigation.»

BB.2020.291 of 10 March 2021 Procedural acts before immunity lifting Procedural acts performed before the legally binding lifting of parliamentary immunity are fundamentally null and void. This particularly concerns interrogations and other coercive measures.

«The steps that the Office of the Attorney General must take to achieve the lifting of parliamentary immunity of a deputy suspected of a criminal offense constitute merely preparatory acts with a view to the possible opening of criminal prosecution and not official acts or default.»

#IV. Federal Constitutional Principles

Regarding Art. 162 para. 1 BV, no specific federal court case law exists, as absolute immunity for statements in the chambers and their organs is legally undisputed and practically does not become the subject of judicial proceedings.

Regarding Art. 162 para. 2 BV, the law authorizes the provision of additional types of immunity. This occurs primarily in the Parliament Act (Art. 15–18 ParlA), which regulates relative immunity for acts outside parliamentary activity.