Political immunity - Is the Federal Chancellor protected from prosecution?
Donald Trump called the ruling a "big victory": The conservative majority at the Supreme Court decided on Monday that former presidents enjoy absolute immunity from criminal prosecution for official actions taken during their time in the White House. The highest US court thus further delayed the beginning of the election fraud proceedings against Donald Trump. It is unlikely that the process in Washington will begin before the presidential election in November.
Critics see in the ruling a dangerous expansion of power for US presidents. President Joe Biden described the decision as a "dangerous precedent." The New York Times wrote: "Since Monday, the principle that no one is above the law has been nullified."
Political immunity is intended to protect offices and office holders. It is controversial, with some considering it outdated. But what is the situation really like in Germany?
In the Federal Republic, the political immunity of the Federal President – unlike in the United States – is even enshrined in the Constitution, in Articles 46 and 60 of the Basic Law. The Federal President therefore cannot be prosecuted criminally – unless the Bundestag lifts the immunity on the request of the prosecutor general through a majority resolution.
Political Immunity for Parliamentarians
Most recently, the Hanover Prosecutor's Office requested the lifting of immunity against the then Federal President Christian Wulff in 2012. He was accused of bribery. Wulff resigned from his office before a decision by the Bundestag, thus losing his immunity. Later, he was acquitted.
Parliamentarians in the Bundestag and the state parliaments also enjoy political immunity. The immunity of parliamentarians is intended to ensure the functional capability of parliaments and prevent political opponents from being silenced with politically motivated lawsuits.
The Federal Chancellor is not fundamentally immune from prosecution
There is an exception: If a politician is caught in the act, they can be arrested. And the political immunity of parliamentarians can also be lifted. In the case of the Thuringia AfD chairman Bjoern Hoecke, the Justice Committee of the Thuringian Landtag has already granted seven investigations against Hoecke. He was sentenced to a fine on Monday for the use of a prohibited Nazi slogan.
Members of the Federal Government, that is, the Federal Chancellor and his ministers, do not enjoy immunity in Germany, at least not based on their offices. However, since Federal Chancellor Olaf Scholz and the ministers also have mandates in the Bundestag, they are protected as deputies. Immunity for them would also have to be lifted by a majority in the Bundestag.
The Supreme Court's decision in the USA has sparked debate about political immunity in Germany. Unlike the US President, the Federal President in Germany has constitutional protection against criminal prosecution, which can be lifted by the Bundestag with a majority vote. This was seen with former Federal President Christian Wulff in 2012.
In contrast to the US President, the Federal Chancellor and ministers in Germany do not have immunity based on their offices, but they are protected as Bundestag deputies. Therefore, the immunity of these officials would also require a majority vote in the Bundestag to be lifted.
The Supreme Court's ruling in the USA has raised questions about the principle that no one is above the law. In Germany, the immunity of parliamentarians is intended to protect the functional capability of parliaments and prevent politically motivated lawsuits against opposing politicians.
The decision by the Supreme Court in the USA has drawn criticism from some quarters, including President Joe Biden, who described it as a "dangerous precedent." Former President Donald Trump, however, celebrated the ruling as a "big victory."
