Czech Constitutional Court says MP's anti-Romani remarks not covered by immunity

The Czech Constitutional Court (Ústavní soud – ÚS) has rejected a complaint filed by former MP Otto Chaloupka demanding immunity from prosecution. Last year the Czech Supreme Court rejected his appeal after he was given a suspended six-month sentence and put on probation for one year because of hateful remarks about Romani people that he posted to the Facebook social networking site.  

The ÚS justices did not review the criminal court’s verdict, addressing only the extent of a legislator’s immunity from prosecution. The former politician for the Public Affairs (VV) party argued that he had published the controversial posts in his role as MP, directly from the floor of the lower house.

In the past, the Czech Supreme Court handed down a controversial decision in the cases of Vít Bárta and three rebelling former MPs with the Civic Democratic Party (ODS) to grant them immunity from prosecution only for the sections of an indictment that concerned acts related to their performing their duties in the lower house. Chaloupka, however, was not provided similar protection by the Supreme Court.  

The controversial texts he posted to Facebook are said to have not been created in connection with his performance of his role as an MP and, therefore, are not covered by protections granted to speech made within the framework of competition between political forces. Judge-Rapporteur Kateřina Šimáčková said the ÚS identifies with the Supreme Court’s finding, even though it came to the same conclusion on the basis of a different argument.

The ÚS has specifically outlined three conditions under which an MP enjoys immunity from prosecution with respect to speech. The first condition must be that information or an opinion is being communicated through an image, verbally, in writing or in some other way.  

The second condition is that the politician must perform the speech during a meeting of the Chamber of Deputies, the Senate, or a legislative commission, committee or subcommittee. The finding did not mention sessions of party clubs.

The third condition is that the controversial speech must not be exclusively intended for the outside world, but must be directed toward the other participants in Parliamentary debate in the broader sense of the term, i.e., MPs, Senators, the President or another person attending the meeting. In the Bárta case, after the Czech Supreme Court’s ruling, he was not further prosecuted for having offered a loan on favorable terms to his fellow members in the VV party during a meeting of their club.

Bárta was ultimately acquitted even of the charges that the prosecution was permitted to pursue. The former MPs involved allegedly resigned from office in exchange for the promise of jobs in state-run firms.

They all faced prosecution, but ultimately the state had to apologize to them. The trio will also be receiving hundreds of thousands of crowns in compensation.

Constitutional Court narrows the interpretation of parliamentary immunity

Previously the ÚS had never had the opportunity to express its views on those Supreme Court decisions. It summarized its arguments in yesterday’s finding on Chaloupka’s remarks about Romani people on Facebook.

According to that finding, immunity from prosecution does not apply to a legislator’s private behavior and speech. "What this means is that if an MP, in the course of a meeting of the Chamber of Deputies, provides an interview to a statewide television channel, even if the interview takes place directly in the hall where the session is ongoing, that does not constitute speech protected by Parliamentary immunity because it is not speech directed at other MPs, but speech that is functionally identical with a speech on television made outside the Parliament building," Šimáčková said.  

The same applies to blog posts, SMS messages, or Tweets sent during a session of either the lower or upper house. The ÚS also inclined itself toward a functional, not a territorial, concept of the idea of Parliament.  

That means that those forums granting Parliamentary immunity are only those where the free exchange of opinions between MPs or Senators happens openly, not, for example, speech expressed on the sidelines, in the restaurants of Parliament, in private conversations, or after a session of a chamber has been closed. Chaloupka first published the online post at issue about events in the town of Duchcov in 2013, where a small group of Romani people assaulted a non-Romani married couple, sparking anti-Romani sentiment.

"Decent people have long put up with your aggression, theft, and unjustified demands for more and more advantages," he wrote in a text responding to the statements made by a certain Romani leader. In the following discussion of his post on Facebook he added that "people are on edge" and said that all it would take would be a couple more such provocations before "the massacre" would begin.

"I can already hear them roaring. It won’t matter how fast you can run," the politician wrote.