Summary

On 8 October 2012, the Chancellor of Justice refused to propose to the Riigikogu to consent to the criminal prosecution of two members of the Riigikogu. Besides the issues related to the immunity of members of parliament, the decision raised doubts as to whether the Chancellor of Justice, in interpreting the rules determining his competence, adhered to the principle of lawfulness set out in §3 of the Constitution, i.e., specifically can the Chancellor of Justice presume, in the reasoning of the decision refusing to propose to criminally prosecute a member of the Riigikogu, that the act regulating criminal procedure is contrary to the Constitution. This principal question is relevant, through §3 of the Constitution, to the legal order as a whole; on the other hand, it is closely connected with the institution of immunity as it requires clarification as to the considerations that justify that the Chancellor of Justice, taking into account his status in constitutional law, submits or does not submit the proposal set out in §76 of the Constitution. As demonstrated in the article, this topic brings us back to the meaning of the immunity of members of parliament in a democratic state that has a reliable judicial system.

First, to clarify the objectives of the immunity of members of parliament, an overview of the historical context in which this institution emerged and of types of regulations evolved over the time is given. The second half of the article is dedicated to the legal character and scope of immunity, issues related to the removal of immunity, as well as the role of the Chancellor of Justice in immunity proceedings. The author hopes that the article appeases those who are still not convinced in the justifiability of the 8 October 2012 decision of the Chancellor of Justice. However, the broader goal of the article is to induce a more substantial discussion about the necessity of parliamentary immunity in a state with stable representative democracy.