Resolution adopted without a vote by the Inter-Parliamentary Council
at its 169th session (Ouagadougou, 14 September 2001)

The Inter-Parliamentary Council,

Having before it the case of Mr. Jean-Eugène Voninahitsy, a member of the Parliament of Madagascar, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the "Procedure for the examination and treatment, by the Inter-Parliamentary Union, of communications concerning violations of human rights of parliamentarians",

Taking note of the report of the Committee on the Human Rights of Parliamentarians, which contains a detailed outline of the case,

Further taking account of the detailed information regularly provided by the President of the National Assembly,

Noting that paragraphs 2 and 3 of Article 69 of the Constitution of Madagascar guarantee parliamentary inviolability except in the case of flagrante delicto; considering, in the light of this provision, the following information on file:

• Upon his return to Madagascar from a parliamentary visit to Ukraine, Mr. Voninahitsy stated at a press conference on 26 October 2000 that the pontoon bridge which the President of Madagascar had claimed to have purchased from the Ukrainian authorities had in fact been donated to the Malagasy population, a statement which was published on 31 October 2000 in the journal "Ny Gazetiko";

• On 23 December 2000, Mr. Voninahitsy was arrested for insulting the Head of State, spreading false news and defamation on account of that statement, the authorities regarding this as a flagrante delicto offence punishable under Article 206 of the Code of Penal Procedure and hence not requiring the lifting of Mr. Voninahitsy's parliamentary immunity; a request for his release on grounds of procedural flaws and misinterpretation of flagrante delicto was rejected, as was a request for his release pending trial made by the President of the National Assembly on 23 December 2000;

• On 26 December 2000, Mr. Voninahitsy was moreover charged with issuing nine bad cheques in June, July and August 2000; Mr. Voninahitsy was remanded in custody also in connection with each of these offences, which the authorities also regarded as flagrante delicto,

• Referring to French legislation and jurisprudence and stating particularly that "the flagrante delicto nature of an offence is fixed not when it is committed but at the moment when it is revealed through an apparent sign", the authorities affirm that "the flagrante delicto nature and the very existence of the offence in question are revealed by the notice of non-payment due to insufficient funds sent by the bank; ... the proceedings evince no irregularities insofar as the prosecution process, from his summons by the police to his remand to the Public Prosecutor's Office, is unbroken"; moreover, according to the President of the National Assembly, "owing to the fact that he has confessed, Deputy Voninahitsy can hardly claim immunity from the proceedings initiated against him for issuing bad cheques";

• On 27 December 2000, after having rejected the defence of unconstitutionality and irregular procedure pleaded by the lawyers and their request that the trial hearing be adjourned to give them time to study the file, which had been communicated to them only in part and a mere 30 minutes before the hearing, the Correctional Chamber of the Court of First Instance of Antanarivo sentenced Mr. Voninahitsy to 42 months' imprisonment for issuing nine bad cheques and eight months' imprisonment for insulting the Head of State;

• On 30 January 2001, the Antanarivo Court of Appeal annulled the proceedings at first instance as regards insulting the Head of State, ruling that the defence based on the lack of flagrante delicto was founded, and ordered Mr. Voninahitsy's release "if he is not detained on other grounds"; with respect to the offence of issuing bad cheques, the Court upheld the first instance judgment as to guilt but reduced the sentence to six months' imprisonment;

• By Judgment 141 of 21 June 2001, the Penal Chamber of the Supreme Court upheld the sentence handed down on appeal against Mr. Voninahitsy, who had meanwhile served his sentence; his conviction having become definitive, Mr. Voninahitsy was stripped of his parliamentary mandate pursuant to Articles 9 (6) and 25 of Order No. 93007 of 24 March 1993, and on 19 July 2001 the Constitutional High Court took note of the vacancy of his seat and replaced him,

Considering that, on the strength of the above provisions, Mr. Voninahitsy will be unable to stand in the forthcoming elections,

Considering that (a) the essential element and very reason for the introduction into penal law of flagrante delicto offences is the short period of time between the commission of an offence and its disclosure, be it a flagrante delicto offence as such or an offence deemed to be flagrante delicto; (b) the ease with which an offence can be proven has nothing to do with flagrante delicto, whose aim is essentially to justify urgency and extended powers of the investigators; (c) according to Article 53 (paragraph 2) of the French Criminal Procedure Code, the model for the Madagascar Criminal Procedure Code, the investigation conducted following the commission of a flagrante delicto offence or crime must not last more than eight days,

Considering that under French legislation, to which the authorities have referred as a model for Madagascar, the issuing of bad cheques is no longer a criminal offence following the adoption of Law 91/1382 of 30 December 1991; that the custodial penalty has been replaced by a suspension of banking privileges,

Considering that Mr. Voninahitsy had paid all cheques, for which reason there was no plaintiff or civil party in the proceedings; according to the sources, the court added the bad cheques offence to make him out as a common law prisoner because they feared the reaction of the population that had come in their thousands the day of the trial to demonstrate their dissatisfaction and demand Mr. Voninahitsy's release; moreover, several members of the majority party reportedly issued bad cheques without ever having been prosecuted or, if so, were granted release pending trial,

Noting that the sources fear that the proceedings against Mr. Voninahitsy were launched to prevent him from standing in the elections of the governors, senators and the President of the Republic,

Noting that two proposals in Parliament to amnesty Mr. Voninahitsy have recently failed,

1. Thanks the President of the National Assembly for his cooperation, and commends him for the measures he took with a view to safeguarding Mr. Voninahitsy's parliamentary privilege;

2. Is alarmed that Mr. Voninahitsy was sentenced at final instance for issuing bad cheques, on the basis of flagrante delicto, hence without lifting of his parliamentary immunity, and that as a result he has now forfeited his parliamentary mandate;

3. Fails to understand, in the light of existing legislation and the very notion of flagrante delicto, how the latter could be applied in this case, given that the reportedly bad cheques were issued several months before charges were brought and after Mr. Voninahitsy had paid them; fails to understand why the prosecution took no action when, at the time, it had been notified by the Central Bank that there were insufficient funds in the account;

4. Considers consequently that Mr. Voninahitsy's arrest and detention for issuing bad cheques, without prior lifting of his parliamentary immunity, contravened Article 69 of the Constitution, which guarantees parliamentary inviolability;

5. Cannot share the view of the authorities that the bank's notice of non-payment due to insufficient funds constitutes in itself proof that the offence was committed; notes that the judgments handed down on him provide no evidence to prove that Mr. Voninahitsy acted in bad faith;

6. Notes that Mr. Voninahitsy was first arrested, unlawfully as subsequently established by the Court of Appeal, on a charge of insulting the President and spreading false news; that the charges of issuing bad cheques were brought three days later when there was strong protest at his arrest; also notes that the charges of insulting have not been pursued; considers that this sequence of events suggests that Mr. Voninahitsy's prosecution was prompted by other than legal motives;

7. Affirms that in making the statement which gave rise to his arrest, Mr. Voninahitsy merely exercised his right to freedom of speech and carried out his parliamentary mandate, comprising as it does criticism and denunciation of possible abuses of the executive branch of the State;

8. Expresses concern that Mr. Voninahitsy's conviction will now prevent him from standing in the forthcoming elections, and therefore calls upon the President of the Republic and Parliament to grant him an amnesty in order to remove all obstacles to his candidature for political positions in the future;

9. Requests the Secretary General to convey this resolution to the competent authorities as well as to the sources;

10. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (March 2002), in the hope that it will be able to close it in view of its satisfactory settlement.

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