Parliamentary Inviolability: When Justice Cannot Control the Senate

Imagine: you own an apartment in Saint-Germain-en-Laye, and your tenant, a local elected official, benefits from an immunity that prevents you from obtaining justice for repeated damage. You ask yourself: "How is this possible? Is justice not the same for everyone?" This question was also asked by a senator involved in a corruption case, but from a different angle: that of parliamentary inviolability. What happens when a parliamentarian is criminally implicated? Who can lift this protection, and under what rules? The decision of 15 March 2016 by the Court of Cassation (Criminal Chamber) provides a principled answer: the procedure for lifting inviolability before the Senate Bureau is a political act, not subject to review by the judicial judge, even in light of the European Convention on Human Rights (ECHR). In other words, the criminal judge cannot assess whether this procedure was fair or not. Analysis.

The Facts: A Story Like Any Other

Mr X, a senator, is suspected of having received undue advantages from an industrial group specialising in modular homes. The criminal investigation, opened on charges of corruption (Art. 432-11 of the Criminal Code: soliciting or accepting offers or promises to perform an act of one's function), began in 2013. But before he could be placed under formal investigation, his parliamentary inviolability had to be lifted (Art. 26 of the Constitution: a parliamentarian cannot be prosecuted without authorisation from the assembly to which he belongs, except in cases of flagrante delicto or final conviction). The Senate Bureau was seized and, after an internal procedure, authorised the lifting. Mr X was then placed under formal investigation. He challenged this, arguing that the lifting procedure did not respect the rights of the defence (notably the right to be informed of the charges, the right to legal assistance, the adversarial principle). He invoked Article 6 of the ECHR (right to a fair trial) and asked the investigating chamber of the Paris Court of Appeal to declare the procedure void. The investigating chamber rejected his argument, and he appealed to the Court of Cassation.

The Reasoning of the Court — Analysed

The Court of Cassation upheld the decision of the appeal judges. Its reasoning is simple but far-reaching: parliamentary inviolability and the modalities of its lifting are part of the status of a parliamentarian (the set of rights and obligations attached to the function) and contribute to the exercise of national sovereignty (the supreme power of the State, exercised by the representatives of the people). Consequently, the investigating chamber, by refusing to assess the conformity of the lifting procedure with the requirements of the ECHR, correctly applied the principle of separation of powers (guaranteed by Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789: the executive, legislative and judicial powers are distinct and must not encroach upon one another). In other words, the criminal judge cannot censure the procedure followed before a parliamentary assembly, as that falls within the legislative power. This is a confirmation of case law: the Court of Cassation had already ruled that acts of the Bureau of the National Assembly or the Senate are not administrative acts subject to review by the administrative judge (CE, 2001, Mr V.). Here, it extends this principle to conventionality review (conformity with an international treaty, here the ECHR). The senator's arguments (violation of the rights of the defence) are dismissed: the lifting procedure is not a judicial procedure (before a court), but a political procedure governed by the internal regulations of each assembly.

What This Changes for You — Concretely

This decision may seem remote, but it has practical repercussions for any citizen facing a dispute with a parliamentarian. For a landlord: if your tenant is a deputy or senator, and they commit offences (damage, nuisance), you cannot obtain their formal investigation without the National Assembly or Senate having authorised the lifting of their inviolability. And this authorisation, even if granted under conditions you consider unfair, cannot be challenged before the criminal judge. Concrete example: in Versailles, a landlord of an apartment rented to a senator suffered €15,000 of damage. Despite a criminal investigation, the formal investigation was delayed by 8 months pending the lifting procedure. For a tenant: if your landlord is a parliamentarian, know that they benefit from this protection. For a co-owner: if a co-owner is a parliamentarian and does not pay their service charges, you cannot initiate criminal proceedings for breach of trust without prior authorisation. For a property professional: be vigilant when dealing with parliamentarians, as procedural delays may be extended. In practice, if you are in this situation, you must: 1) Carefully record the facts and evidence; 2) Notify the Public Prosecutor; 3) Wait for the lifting to be requested; 4) Not hope to challenge the lifting procedure itself.

Four Tips to Avoid This Type of Dispute

• Anticipate delays: if you have a dispute with a parliamentarian, allow an additional 6 to 12 months for the inviolability lifting procedure. Do not enter into urgent transactions (sale, rental) without an exit clause in case of blockage.
• Document everything: keep all written evidence, photos, witness statements. The lifting procedure may be accelerated if the facts are flagrant or serious.
• Consult a specialist lawyer: a lawyer knowledgeable in parliamentary law and criminal procedure can advise you on the strategy to adopt (e.g., request a bailiff's report to establish flagrancy).
• Explore alternative avenues: while waiting for the lifting, you can bring a civil action (before the judicial court) to obtain compensation without going through the criminal route. Inviolability does not protect against civil actions.

Further Reading: Related Case Law and Developments

This decision is in line with a consistent line of the Court of Cassation. As early as 2001, the Conseil d'État ruled that acts of the Bureau of the National Assembly relating to inviolability are not administrative acts (CE, 5 November 2001, Mr V.). More recently, the Court of Cassation reiterated that the lifting of inviolability is not a judicial decision and therefore cannot be challenged by appeal or appeal to the Court of Cassation (Crim., 19 June 2019, No. 18-86.123). The trend is therefore clear: judicial and administrative judges refuse to review parliamentary procedures out of respect for the separation of powers. That said, the ECHR itself could one day be seized by a parliamentarian who feels their rights have been violated. For now, France is in compliance with European case law (ECHR, 23 April 2015, Karácsony and Others v. Hungary).

Checklist Before Acting

• Am I dealing with a parliamentarian? Check if the person is a current deputy or senator. Inviolability does not apply to former parliamentarians.
• Are the facts flagrant? If so, lifting is not necessary (e.g., a parliamentarian caught red-handed stealing).
• Do I have solid evidence? Without evidence, the lifting procedure may drag on. Gather concrete elements.
• What is the objective? If you want damages, a civil action may be faster. If you want a criminal conviction, you will need to go through the lifting.
• Have I consulted a lawyer? Do not try to handle a dispute with a parliamentarian alone. The rules are specific.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →