Members of the highest federal authorities protected from prosecution
Published: Monday, Nov 18th 2024, 21:00
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Members of the highest federal authorities, and therefore also members of the National Council and Council of States, are generally protected from prosecution by their absolute and relative immunity. It is extremely rare for immunity to be waived.
The purpose of these privileges is to maintain the functioning of the federal authorities. A distinction is made between absolute and relative immunity. The institutions cannot waive them of their own accord.
Direct connection Condition
Members of the Federal Assembly, the Federal Council and the Federal Chancellor enjoy absolute immunity for statements made in the councils and their bodies. They cannot be held criminally, civilly or disciplinary liable for these statements. However, internal disciplinary measures for members of the Council are permissible.
Members of the Federal Assembly, the Federal Council, the federal courts, the Federal Chancellor, the Attorney General, the two deputy Attorneys General and the seven members of the supervisory authority of the Office of the Attorney General enjoy relative immunity for criminal acts directly related to their official activities and position. This protects them from criminal prosecution, but not from civil prosecution.
Clear criteria
In contrast to absolute immunity, relative immunity can be waived. This must be requested by a prosecuting authority. The Immunity Committee of the National Council (IK-N) and the Legal Affairs Committee of the Council of States (RK-S) discuss the request one after the other. The committee to which the accused member of the Council belongs comes first.
Among other things, the commissions will not act on requests if there is no direct connection between the official position and the alleged offense. In this case, the prosecuting authority may take up the prosecution.
If the commissions come to the conclusion that the incriminating activity is directly related to the official position and activity, they then check in a second step whether the immunity should be waived. The first step is to check whether a criminal offense appears to have been committed. If this is not the case, they do not waive the immunity.
However, if a criminal offense appears to have been committed, they weigh up the public interest in the unhindered exercise of the parliamentary mandate against the public interest in criminal prosecution. If the public interest in prosecution prevails, the committees waive the immunity.
Around one application per year
Since 2012 and up until Monday, the parliamentary committees have made final decisions on a total of 15 requests to waive immunity. They did not take action on three requests: in 2012 for the then National Councillor Christoph Blocher (SVP/ZH), in 2016 for the then National Councillor and current SVP Councillor of States Pirmin Schwander (SZ) and in 2022 for SP National Councillor Fabian Molina (ZH), they saw no direct connection with the official position and activities. The respective prosecuting authority was therefore able to take up the prosecution.
The committees considered the twelve other applications and decided not to waive the immunity of the persons concerned in ten cases. In two cases, however, the immunity was lifted. These were former National Councillor Christian Miesch (SVP/BL) in 2018 and the then Attorney General Michael Lauber in 2020.
The applications concerning National Councillor Andreas Glarner (SVP/AG), SVP parliamentary group leader and National Councillor Thomas Aeschi and National Councillor Michael Graber (SVP/VS) are still pending. The Council of States committee still has to decide on Glarner's case. The National Council Committee has postponed its decision on Aeschi's and Graber's case.
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