THE Supreme Court’s decision to allow the prosecution of DISY MP Andreas Themistocleous for traffic offences has raised the issue of the broad protection afforded by the constitution.
The matter was raised by the Supreme Court in its decision, essentially paving the way for changing the current state of affairs.
“The basic human right, which is linked to the existence of parliamentary immunity, that is, the protection of an MP during their term, is freedom of speech,” Supreme Court President Myron Nicolatos said.
“According to contemporary legal views, parliamentary immunity cannot be used as a shield against criminal prosecution relating to common law offences, unless there is serious suspicion that the criminal prosecution has a political motive, aiming at the political extermination of the MP or preventing them from executing their duties.”
Article 83.1 of the 1960 constitution protects MPs from civil or criminal proceedings in respect to any statements or vote in parliament.
However, Article 83.2 affords them extensive protection except when the offence is punishable with “imprisonment for five years or more”.
In these cases, authorities can arrest the culprit but “continuation of the prosecution or detention” must be permitted by the Supreme Court as long as they continue to be MPs.
Supreme Court Judge Stelios Nathanael also read a decision that extended the interpretation of the article in the constitution about immunity.
Nathanael said in most European countries, lifting immunity was left to parliament, which assumes the responsibility for its members.
It is possible for permission to be required for acts punishable with imprisonment of five years plus, as long as the individual continues to be an MP, if they could be linked with or are a consequence of the work of the legislature, Nathanael said.
However, it would be close to impossible to attempt such a connection, he said.
“To a great extent, an MP’s actions outside parliament — that have no relation with freedom of speech or voting – possibly don’t need permission, or else there is a violation of the overriding principle included in Article 83.1 and its objective.”
The decision, Attorney-general Costas Clerides said, raised the issue of examining the broad scope of the immunity afforded to MPs by the constitution.
Clerides said the deputies’ immunity should be limited to their duties and not include other matters.
“We should proceed to place some restrictions towards this direction,” he told reporters.