The Council of the Inter-Parliamentary Union,

Referring to the outline of the case of Mr. Jean Eugène Voninahitsy of Madagascar, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/170/13.c(ii)-R.1), and to the relevant resolution adopted at its 169th session (September 2001),

Taking account of the observations provided by the President of the National Assembly in a letter dated 14 January 2002; taking account also of a communication from the source dated 6 March 2002,

Recalling the following information on file:

• Mr. Voninahitsy was arrested on 23 December 2000 in flagrante delicto under an accusation of having insulted the Head of the State in a statement he had made two months earlier, on 26 October, at which he revealed that the pontoon bridge the Head of the State had claimed to have purchased from the Ukrainian authorities had in fact been donated to the Malagasy population;
• On 26 December 2000, he was moreover charged with issuing nine uncovered cheques in June, July and August 2000 and was remanded in custody also in connection with each of those offences, which the authorities also regarded as committed in flagrante delicto;
• On 27 December 2000, the criminal Chamber of the Court of First Instance of Antanarivo, having rejected the arguments of unconstitutionality and irregular procedures put forward by the defence counsel, found Mr. Voninahitsy guilty on both counts; however, while the Court of Appeal quashed the sentence handed down in the first case, ruling that the defence based on the lack of flagrante delicto was founded, it upheld the sentence in respect of the issuing of uncovered cheques, but reduced it from 40 to 6 months’ imprisonment; according to the source, Mr. Voninahitsy had paid all the cheques, which explained the absence of plaintiffs or associated parties;
• 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 and was released on 23 June 2001;
• His conviction having become definitive, Mr. Voninahitsy was stripped of his parliamentary mandate pursuant to Articles 9 (6) and 25 of Order No. 93-007 of 24 March 1993, and on 19 July 2001 the Constitutional High Court took note of the vacancy of his seat and replaced him,

Recalling that, in his letter of 27 February 2001, the President of the National Assembly refers to French jurisprudence in explaining the "flagrante delicto" character of Mr. Voninahitsy's issuing of uncovered cheques; in his letter of 14 January 2002, he reiterates those observations, namely that Article 206 of the Code of Penal Procedure, identical to Article 53 of the French Code of Penal Procedure, ranks among flagrant crimes and offences the crime or the offence being or having just been committed, and the crime or offence already committed, unknown to other than the perpetrator or accomplice, but subsequently revealed by a clear piece of evidence leaving no doubt about the reality of the wrongdoing and the identity of its perpetrator; he reiterates further that the exact date of commission of the offence is of little matter in these circumstances, flagrancy being established not at the time at which the offence was actually committed but upon its revelation, such discovery needing to give rise simply to an uninterrupted sequence of acts of information; he states finally that Malagasy law refers to the case of flagrante delicto as a summary procedure and not a category of offence,

Considering that, in commenting on the resolution it adopted on this case on the occasion of the 106th Conference, the President states that the principle of parliamentary inviolability can never be a refuge enabling individuals to commit offences and escape all judicial proceedings and finds disturbing the position of the Committee "in that it attaches far more importance to procedure than to the merits of the case" and expressed his view that "the provisions of the resolution were not concerned with substantiating the facts and their imputability to the convicted person",

Considering finally that the President of the National Assembly stated in his letter of 14 January 2002 that, notwithstanding that he was convinced of Mr. Voninahitsy’s guilt under Malagasy law, the National Assembly was prepared to examine a bill providing for an amnesty in his favour; recalling that two previous proposals in Parliament to amnesty Mr. Voninahitsy have failed,

1. Thanks the Speaker for the observations provided;
2. Affirms that, in criminal matters, procedural guarantees are fundamental safeguards to ensure that individuals are not unjustly punished, and emphasises that they are therefore essential to human rights protection;
3. Stresses that parliamentary immunity is a safeguard against possibly politically motivated prosecution and that it is in Parliament's own interest to ensure respect for it;
4. Reiterates that flagrante delicto, according to common understanding and as acknowledged by the President, is a special procedure designed to enable police and judicial authorities to act rapidly in order to avoid losing manifest evidence and blurring trails leading to the culprit; it therefore gives investigators greater powers and provides lesser safeguards for the respect of individuals' liberties, and is strictly limited in time;
5. Reaffirms that the arrest of an MP accused of having issued uncovered cheques four and even six months earlier can in no way be carried out under a flagrante delicto procedure and therefore requires the lifting of parliamentary immunity; still fails to understand in this respect why the prosecution did not order Mr. Voninahitsy's arrest when it was notified by the Central Bank that his bank account showed an insufficient credit balance, and delayed such action until he was arrested on a defamation charge, again in flagrante delicto and unjustly, as confirmed by the Appeal Court judgement in the matter;
6. Remains concerned that the authorities may have had recourse to the flagrante delicto procedure to avoid scrutiny in Parliament;
7. Reaffirms that in making the statement which gave rise to his initial 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 by the executive branch of the State;
8. Notes therefore with deep concern that, as a consequence of Article 9, paragraph 6, of Order N° 93-007, Mr. Voninahitsy will be debarred for life from standing for election;
9. Calls again on the National Assembly to grant Mr. Voninahitsy an amnesty and so enable him to stand again for election;
10. Requests the Secretary General to convey this resolution to the Speaker and to the source;
11. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (September 2002).

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