Can the Prosecutor’s Office interrogate an MP?
On December 25, Zugdidi Prosecutor’s Office called Roland Akhalaia for questioning. It was not the first time a legislator was summoned to the Prosecutor’s Office: David Sakvarelidze and Paata Lezhava, both Georgian Parliament members, have also been called for interrogations shortly after the parliamentary elections.
All three lawmakers refused to appear in the Prosecutor's Office for questioning. Lezhava claimed he was subject to political persecution and did not intend to go to the interrogation. Akhalaia and Sakvarelidze offered the Prosecutor’s Office an alternative and expressed their readiness to publicly answer questions posed to them. Moreover, the minority representatives have repeatedly stated in their public speeches that summoning a Member of Parliament for questioning requires Parliament’s approval; otherwise, they have no obligation to obey the Prosecutor’s request.
Georgian legislation regulates the above issue in the following way:
Rules for summoning for interrogation, as one type of investigative action, are spelled out in detail in the 1998 Criminal Procedure Code which does not provide for any form of public questioning of witnesses. Public questioning would bring serious harm to the interests of the investigation as much as put personal, commercial or state secrets at the risk of being disclosed. Hence the proposals of Akhalaia and Sakvarelidze are not in any way justified.
Under the Georgian Constitution, an MP is granted immunity which prohibits the investigative authorities to detain, arrest, search etc. legislators without Parliament’s consent. On the other hand, the Constitution does not prohibit summoning am MP for questioning as well as bringing criminal charges against an MP (the ban was removed from the constitution by the Constitutional Law of April 23, 2004). Consequently, the appeals of the minority members that the Prosecutor's Office acts in violation of the Constitution are not grounded.
In many European countries, constitutional provisions dealing with immunity are not much different from those of the Georgian Constitution and they have analogous regulations in place regarding an MP. In Italy, for example, an MP can be called upon as a witness and even be indicted without a permission from Parliament, albeit the appropriate authorities have a relatively limited area for conducting investigative activities1; France allows for the search in an MP's house2; in Denmark, in addition to interrogation, fines are also permissible which do not need Parliament’s consent3.
Another interesting point is how much leverage a prosecutor has when a lawmaker summoned to a relevant body in accordance with all procedures refuses to do so. As regards persons not enjoying immunity, Article 149 of the Criminal Procedure Code allows for a possibility to bring the summoned person to questioning by force. In case of lawmakers, however, their immunity privileges protect them from any type of compulsory measure until Parliament issues a relevant permission. Accordingly, the obligation of an MP to testify has turned into a mere civic liability performed on voluntary basis, i.e. the prosecutor can summon an MP to interrogation but coercive action cannot be taken in the event of refusal. Subsequently, the only lever remaining with the Prosecutor’s Office is to address Parliament with the request of issuing a pertinent permit, which requires the support of the majority of those present at the plenary session, but not less than one-third of the total members of Parliament.
2Ibid., p. 10