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Parliamentary immunity goes on trial

Precedents are lacking in the complex Christoph Blocher case Keystone

Two parliamentary committees must rule on whether parliamentarian and former justice minister Christoph Blocher, accused of violating banking secrecy, has immunity.

Parliamentary immunity has proved an essential instrument for the proper functioning of many democracies, enabling members of governments and parliaments to express their views openly, without fear of attracting lawsuits after every statement or debate.

Immunity shields political representatives from outside attempts to exert pressure or intimidate them.

However, given that all citizens are equal before the law, politicians cannot abuse this right, particularly at times when they are not actually exercising their public office.

In the past 20 years, even in Switzerland political debate has become rougher. Parliament has been called upon more frequently to decide on requests for immunity to be revoked when members are accused of defamatory or racist pronouncements.
To offset this trend, the Swiss parliament last year limited immunity. From December 5, the privilege was restricted to acts having a direct relationship with the function and official activity of elected representatives. To free the two houses of parliament from the burden of dealing with requests to lift immunity, the decision has now been entrusted to two parliamentary committees.

Leaked data

The case of Swiss People’s Party strongman Blocher accordingly takes on a particular importance as it is the first time that a call for lifting of immunity is being considered on the basis of the new, more restrictive rules.

The two committees must define criteria which will be the basis for dealing with all future applications. It is a case which has raised enormous interest for several reasons.
The accusations levelled against the prominent politician are linked to the resignation of Philipp Hildebrand as chairman of the Swiss National Bank on January 9. Hildebrand resigned amid a furore over private foreign currency transactions made by his wife. He was unable to prove he did not have prior knowledge of these, raising the spectre of a conflict of interest.

The story was broken by the German-language weekly Weltwoche, which has close ties to the rightwing People’s Party.

In early January, the magazine published details of the Hildebrand family’s banking data. The data was illegally copied by an employee of Bank Sarasin, who handed it to two People’s Party cantonal parliamentarians and to Blocher.

In the wake of the controversy, the Zurich public prosecutor’s office opened a criminal investigation into whether the four men violated Swiss banking law.

Defender of banking secrecy

As part of the criminal investigation, police have questioned and searched the homes and businesses of the four men, including Blocher. According to some press reports, Blocher went so far as to have prompted the bank employee to leak the data.

The accusations become more sensational when one considers Blocher’s role as a staunch defender of Swiss banking secrecy in the face of attacks from countries such as the United States seeking information about suspected tax evaders with bank accounts in Switzerland.
Blocher has rejected the accusations, claiming he acted only as a “postman”. On December 5, he forwarded the information he had about Hildebrand’s currency dealings to the then Swiss president, Micheline Calmy-Rey.

But this version of events failed to convince the Zurich prosecutor’s office, which at the end of March formally requested Blocher’s immunity be revoked. 

The case is not just bizarre, but also highly complex.

“To begin with, the committees are going to have to determine whether the actions imputed to Blocher are directly related to the discharge of his parliamentary mandate. If the answer is no, the case is back in the hands of the Zurich prosecutor’s office, which can then proceed,” explained Peter Cosandey, a specialist in criminal law.

“If the answer is yes, the commissions will have to decide whether to grant the request to revoke his immunity.”

The case is further complicated by the fact that, so far, it remains unclear whether the actions at issue happened before or after Blocher’s recent re-election to parliament; or even if his period of office counts from the date he was elected, October 23, or from the date he took the oath of office, which was December 5.

Political interest

Precedents are lacking on several points relating to this, leaving even the experts unsure of what may happen.

“The final decision is not in the hands of lawyers, but politicians, namely the members of these two committees. In the past, parliamentarians have almost always refused to deprive someone of their immunity. One might speculate that they were swayed by the thought that one day they might find themselves in the same situation,” Cosandey said.
However, with his autocratic style Blocher has made few friends in other parties. A heavyweight on the Swiss political scene over the past 20 years and the chief architect of the historic electoral triumphs of the People’s Party, the Zurich politician was voted out of government in 2007.

The question of revoking his immunity now assumes considerable political significance, all the more so since several times last year Blocher attacked the monetary policy being pursued by Hildebrand.
According to the People’s Party, parliament needs to clear up why the monitoring agencies ignored Hildebrand’s currency dealings and why the government at first shielded the central banker from the attacks against him.

However in March, parliament rejected a People’s Party motion to set up a parliamentary committee of inquiry into the Hildebrand affair. Meanwhile, the decision on Blocher’s immunity is not expected until the end of the summer.

In Switzerland members of parliament and the government enjoy full immunity for views expressed in an official context and capacity. Within those limits, no civil, criminal or disciplinary sanction may be invoked against them.

Parliamentarians and ministers also benefit from relative immunity for statements and actions outside their official activities. As of last December, however, this immunity covers only statements and actions which directly relate to their function.

In the past 30 years, parliament has adjudicated 38 requests

to deprive parliamentarians and ministers of their political immunity. Only once, in the case of a minister who had resigned, Elisabeth Kopp, was immunity in fact lifted. 

In the cases of three elected members, parliament found that the acts at issue had no relation to their parliamentary activity and left the way open to criminal charges.

The Zurich-based politician is due to appear on April 25 before the House of RepresentativesImmunity Committee, which met on March 28 to discuss his case. 

Over the last 20 years, Blocher has guided the People’s Party through five successful elections. The right-wing party has thus become the largest political grouping at national level, whereas in 1995 it ranked only fourth.
Blocher was a member of the House of Representatives from 1979 to 2003, the year in which he was elected to the Swiss government. In 2007, a majority in Parliament declined to reappoint him as a minister.
In 2011 Blocher, who is vice-president of the People’s Party, was again elected to the House of Representatives.

(Translated from Italian by Terence MacNamee)

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SWI - a branch of Swiss Broadcasting Corporation SRG SSR