Committee for the Scrutiny of Elections,
Immunity and the Rules of Procedure
Immunity protects Members from prosecution and arrest, thereby ensuring that Parliament is able to conduct its business at all times. Originally, when Germany was still a monarchy, immunity was introduced to prevent the king from attempting to force Parliament to bow to his will by ordering the arrest of a Member or Members who opposed him. Of course, this danger no longer exists in a democracy. But the principle of immunity has nevertheless been retained in order to prevent Members from being inundated, by whomsoever, with criminal actions, in particular for alleged insults of a political nature, and thereby unduly restricted in their parliamentary work.
In accordance with Article 46 of the Basic Law, Members may only be called to account or arrested for a punishable offence with the permission of the Bundestag, unless they are apprehended in the act of committing the offence or in the course of the following day. The Bundestag's permission is also required for any other form of restriction of Members' personal liberty. If a Member is to be called to account, the Public Prosecutors' Office must, therefore, request the President of the Bundestag to lift his or her immunity before it can initiate criminal proceedings. This request is passed on immediately to the Committee for the Scrutiny of Elections, Immunity and the Rules of Procedure.
Since 1969 it has been standard practice for the Bundestag, on the basis of a decision taken anew at the beginning of each electoral term, to grant general permission for preliminary investigations to be initiated against any of its Members for criminal offences, with the exception of insults of a political nature. However, before such investigations can commence the President of the Bundestag must be informed and, unless there are reasons to believe that this might obstruct efforts to ascertain the truth, so too must the Member concerned. In this way, the Bundestag in effect grants its permission for criminal proceedings to be initiated, not, however, for charges to be brought, arrests to be made or any other measure to be taken which might restrict the liberty of Members, such as, for instance, search and seizure operations in Members' residential or business premises outside the Parliament buildings.
In all other cases involving parliamentary immunity, the Committee submits a recommendation for a decision to the plenary, which adopts it without prior debate. Generally speaking, the Bundestag only refuses to waive a Member's immunity in the case of insults of a political nature. Requests for permission to search rooms used by a Member of the Bundestag present a particular problem. In one case, the Bundestag even had to be recalled from its summer recess. Should the Bundestag grant such permission, it does so only on the condition that a representative of the parliamentary group to which the Member in question belongs is present during the search.
A distinction must be made between immunity, which serves to protect Parliament as a whole, and parliamentary indemnity which, pursuant to Article 46, paragraph (1) of the Basic Law, serves to protect individual Members, even after they have left the Bundestag, from prosecution of any kind for any remark made (unless it constitutes a defamatory insult) or vote cast in the Bundestag or any of its committees, parliamentary groups or other bodies. Indemnity guarantees Members' freedom of speech and expression in their parliamentary work. Without it, they would not be able to carry out their duties as elected representatives of the people.
The Committee spends the bulk of its time dealing with procedural matters. For instance, the new version of the Rules of Procedure adopted by the Bundestag during the 8th electoral term (1976-1980) was the result of deliberations in the Committee over many years. Since the rules governing parliamentary procedure must meet with the approval of both the majority and the minority, at the time the Committee endeavoured, successfully, to reach a unanimous decision on all the amendments. Since then, further amendments have been incorporated into the Rules of Procedure in the same way, most recently at the end of 1995 (Thursday debate, extended public committee meetings)
Often, the Committee is requested to clarify procedural disputes since, with the exception of procedural questions raised during plenary sittings and resolved on a case-by-case basis by the President of the Bundestag, it is the body responsible for interpreting the Rules of Procedure. The President of the Bundestag, a committee, a parliamentary group, a quarter of the members of the Committee may demand that a procedural ruling by the Committee be submitted to the Bundestag for a decision by the plenary. Otherwise, the Committee decides itself in what form it makes its interpretations known.
The Committee is also involved in the legislative process. It is the committee responsible for deliberating on all bills concerning the legal status of the Bundestag or its Members, unless they entail an amendment of the Basic Law in which case responsibility lies with the Legal Affairs Committee. Amending the Act on the Legal Status of Members of the Bundestag and, for example, deliberating on bills providing for the setting up of committees of inquiry are also among the Committee's tasks. It is asked for an opinion on all bills which touch upon its sphere of competence, for instance those proposing amendments to the Federal Electoral Act.
For the task of electoral scrutiny, the Bundestag elects nine Members and nine alternates for the duration of the electoral term. They make up the Committee for the Scrutiny of Elections. Only the Bundestag can alter the composition of this committee.
In accordance with Article 41 of the Basic Law, responsibility for the scrutiny of elections lies with the Bundestag. An objection challenging the validity of a federal election can be lodged with the Bundestag within two months of the announcement of the election result. The result of elections to the European Parliament can also be challenged. The Committee considers each objection individually and in its deliberations may hear witnesses, experts and other persons concerned with the case. In response to each objection, the Committee submits a recommendation for a decision to the Bundestag stating the reasons for its position. A decision is then taken by the plenary. The details of this procedure are laid down in the Scrutiny of Elections Act.
Several dozen objections are lodged against the outcome of every election to the Bundestag. Until now, not one has led to an election being declared invalid, either because the objections were unfounded or because they related to matters which would have had no influence on the outcome. Objections to the decisions of the Bundestag may be lodged with the Federal Constitutional Court. Until now, the Court has confirmed every decision of the Bundestag.
Also on the basis of a recommendation by the Committee, the Bundestag decides whether during an electoral term a Member has forfeited his or her seat (for instance in the case of a loss of civic rights).
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