Immunity usually protects against criminal prosecution

It has never come to this: the National Council’s immunity commission wants to lift Roger Köppel’s immunity. He is said to have leaked Commission secrets on his TV channel. But history shows that this decision is not definitive.

SVP National Councilor Roger Köppel is interested in parliamentary work from the journalist’s point of view. This is not unproblematic.

Anthony Anex / Keystone

Roger Köppel is not only a politician, but also a journalist. On March 24, he revealed in the “Weltwoche daily” podcast that the Russian authorities in Moscow had confiscated Swiss luxury watches from Audemars Piguet worth several million francs. The federal prosecutor’s office immediately applied for Köppel’s immunity to be lifted because the SVP National Council had reproduced certain passages from confidential documents from the Foreign Affairs Commission “largely congruently” in its broadcast. Everything points to breach of official secrecy.

Fabian Molina is not only a politician, but also an activist. On February 12, he took part in an unauthorized counter-demonstration in downtown Zurich at a rally by critics of the Corona measures and against right-wing extremists. This led to massive clashes, during which the city police used tear gas, rubber bullets and water cannons. The former Juso boss was reported by opponents of the measures. They accuse the politician of breaching the peace, taking part in an unauthorized demonstration and violating the ban on face masks.

The Council of States can decide otherwise

Two cases, two provocative characters – and politics walking a tightrope. On Wednesday, the immunity commission decided that Roger Köppel’s immunity should be lifted. If the legal commission responsible for this in the Council of States agrees with this opinion, it would be a small premiere in Swiss politics. The case of the Zurich SP politician Molina, on the other hand, is different. In this case, the Parliamentary Commission does not respond to the application for the waiver of immunity. She argues that his demo participation is not related to his office.

Köppel had claimed in vain that the content he had published was already available to him before the Foreign Affairs Commission informed him. That did not convince the majority of the commission members. As Commission President Aline Trede explained to the media on Wednesday, parliamentary mandates and journalistic professions would no longer be compatible per se.

But why do cases like that of Köppel and Molina cause such a stir? All people are equal before the law – only politicians are a little more equal: this is how it seems to work when members of the federal parliament come into conflict with the law. Because of their position, they are better protected from prosecution.

The relative immunity gives a lot to talk about. The judiciary cannot take automatic action against council members if a criminal offense is “directly related to the official position or activity”. In such cases, the relevant commissions of both councils must agree in order for the criminal justice system to take action. The affairs surrounding Molina and Köppel are typical examples of this.

Such guarantees are intended to ensure parliamentary operations. Because if council members had to wage a legal war after every trifle in the election campaign or on YouTube, parliamentary efficiency would soon be much worse than it already seems to be the case. However, it is not always entirely clear whether a criminal act is “directly related to the official position or activity”.

The suspicion always resonates that it is not at all about protecting parliamentary operations, but about merely privileging a political elite. Parliament has had lengthy debates on this in recent years, often involving spectacular cases.

fouling of the nest, racism and kidnapping

• Jean Ziegler: In 1991, a book by the eloquent socialist and national councilor Jean Ziegler caused a real scandal. Ziegler described Switzerland as a gigantic money laundering facility for dictators and mafia organizations. Immediately it rained ads. In 1991, the National Council and the Council of States, which were still responsible for the decision at the time, debated Ziegler’s immunity.

“Ziegler wants to drive the slurry tanker over the carpet in the living room and then avoid the cleaning costs,” scolded an FDP national councillor. SP President Helmut Hubacher countered that if freedom of expression applies, “then it also applies to Jean Ziegler”. On June 20, there was a showdown in the Council of States. With a majority of one vote, the council decided that Ziegler’s book publication did not fall under the immunity – and cleared the way for criminal proceedings. Later there was an avalanche of lawsuits.

• Rudolph Keller: A few years later, the Basel-based National Councilor Rudolf Keller from the national-conservative party of Swiss Democrats caused huge outrage. In the middle of the debate about Switzerland’s role in World War II, Keller launched a scandalous appeal: “Today we appeal to all Swiss people to boycott all American and Jewish goods, restaurants and holiday offers.” Keller signed the pamphlet as a member of the National Council.

The preliminary advisory commission wanted to lift Keller’s immunity. But there was an ugly rope-pulling in the National Council: When the CVP, fearing resentment in the home countries, submitted a counter-motion in favor of Keller, FDP National Councilor François Loeb, himself a Jew, spoke up: “The hair on the back of my neck stands on end in view of these tones .» The CVP clawed back, the National Council voted against Keller. And yet he retained his immunity in the end – this because the Council of States had a different view than the grand chamber.

• Pirmin Schwander: Rather unusual for a parliamentarian are the offenses that brought the SVP National Councilor Pirmin Schwander into the crosshairs of the judiciary: Assisting in the kidnapping and Assisting in the confiscation of minors. In 2016, the public prosecutor’s office in Bern investigated the politician from the canton of Schwyz. Schwander was accused of financially supporting a mother who hid her child from the Child and Adult Protection Agency (Kesb). She did not bring her then one and a half year old daughter back to the home, but went into hiding with the little girl in France.

The responsible committees of both councils came to the conclusion that there was no connection between the National Council mandate and support for women. Therefore, parliamentary immunity does not apply to Schwander. Based on these decisions, the public prosecutor’s office was able to initiate criminal proceedings. However, the notorious Kesb critic was not convicted. In 2019, the public prosecutor’s office came to the conclusion that Schwander had not committed a crime.

• Christopher Blocher: Ten years ago, SVP doyen Christoph Blocher was also at the center of a scandal in which the question of immunity became a hotly debated political issue. In March 2012, the former Federal Councilor, who was now a member of the National Council, was threatened with criminal proceedings for violating the Banking Act. It was about bank documents about private transactions by the then SNB boss Philipp Hildebrand, which were intended to document insider offences. Shortly after the matter became known, Hildebrand resigned.

But that was not the end of the story. The judiciary was interested in Blocher because he was an important lynchpin in this affair. The suspicion of incitement to violate banking secrecy quickly arose. Here, too, the question arose as to whether Blocher had acted in connection with his office – and therefore enjoyed immunity protection. At the time, however, the responsible commissions came to the conclusion that there was no such connection. The immunity therefore did not have to be lifted at all. The public prosecutor then opened criminal proceedings, but these were discontinued in 2015. The suspicion was unfounded.

“With all due respect, you are an asshole”

But the protection of parliamentarians from criminal justice goes even further: thanks to absolute immunity, they cannot be punished at all for statements made in parliament or in the commissions. Many parliaments are familiar with guarantees such as absolute immunity. They are intended to prevent parliamentarians from having to debate with scissors in their heads for fear of the judge. And they should protect the legislature in the originally still young democracies from attacks by the governments and the judiciary.

Because this protection is “absolute”, it is hardly ever an issue in the Federal Palace. The most famous use case does not come from Switzerland, but from Germany. In the 1980s, Joschka Fischer, who was still young at the time, rudely insulted the President of the Bundestag. “With all due respect, Mr. President, you are an asshole,” hurled the young Green star at Richard Stücklen. The example stands for a basic rule in politics, which Köppel and Molina also master masterfully. Provocation can be worthwhile, the brave are forgotten.

Fischer made himself politically immortal with his abusiveness and later became foreign minister. Nobody can remember Pieces today.

In a first version, the title incorrectly stated that Molina would remain protected from prosecution by immunity. We corrected this error shortly after publication.

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