PARLIAMENTARY PREROGATIVES. — Parliamentarians have traditionally been granted (v. an example in the English Bill of Rights of 13 February 1688) certain “prerogatives” (with corresponding immunities) to ensure their independence in the exercise of their functions. This independence, however, in a State governed by law such as modern democratic States generally are, including Italy, cannot be absolute and is therefore usually delimited by the constitution itself; for example, by Article 68 of the Italian Constitution.
Firstly, members of Parliament cannot be prosecuted for opinions expressed or votes cast in the exercise of their functions. Nevertheless, they are bound, in the formal modes of expressing such will (in the assembly, permanent or special committees, etc.), by the discipline laid down in the internal regulations of the Chambers and by the application thereof by their respective presidencies. Moreover, they are not covered by immunity for anything outside the exercise of their functions; for example, speeches made outside parliamentary proceedings (hypothetical speeches, insulting or defamatory remarks made in public or in private, and even in private within the parliamentary seat).
Deputies and senators may violate legal norms and thus be subject to the relevant sanctions; but if these are criminal sanctions, they enjoy a prerogative that formally pertains to procedure and may affect the judgment in the sense that proceedings may not even commence. Without the authorization of the Chamber to which they belong, no member of Parliament may be subjected to criminal proceedings; nor may they be arrested, or otherwise deprived of personal liberty, or subjected to personal or domiciliary searches, except when caught in the act of committing a crime for which an arrest warrant or order is mandatory, according to the provisions of the Code of Criminal Procedure. The competent judicial authority (public prosecutor), even before requesting authorization to proceed, may carry out any investigative act that does not restrict the parliamentarian’s liberty; and, on the other hand, the request for authorization cannot be omitted, even if an arrest in flagrante delicto has been made. Authorization must also be requested “to arrest or detain a member of Parliament in execution of a sentence, even if irrevocable”; it is not required, however (as there is insufficient ground), if the criminal trial results in a conviction only to a pecuniary penalty. The internal regulations of the Senate and the Chamber of Deputies may govern the procedure for requesting authorization.
From the abundant casuistry of parliamentary practice, no certain and precise rule can be derived regarding the criteria for granting or denying authorization. By right, authorization should generally be granted (especially after a conviction, lest a kind of right of pardon—albeit only suspensive or temporary—be exercised), but if the act attributed to the parliamentarian has a politically colored element, the Chambers tend to deny it; in effect, the full discretion of evaluation may in practice lead to recognizing immunities beyond those intended by the spirit of the norm, and ultimately at the discretion of the parliamentary institution. Once granted, authorization cannot be revoked; nor can it be renounced by the individuals concerned, since the prerogative is directed, more than to them personally, to the protection of the legislative bodies of which they are members.
The prerogative of a special forum, which existed under the monarchy for senators (judged by the Senate itself sitting as a High Court of Justice), a residual prerogative of a system of trial by peers, has no place in a democratic regime and has recently been abolished even in traditionally conservative England (Criminal Justice Act 1948, sect. 30, abolishing the special forum for members of the House of Lords).
The seats of the Chambers (Montecitorio Palace for the Chamber of Deputies and Madama Palace for the Senate) also enjoy a special immunity, which may be considered based on a constitutional custom and is regulated by their internal regulations. Consequently, the powers necessary for the police of the Senate and its seat belong (with respect to all those admitted) and are exercised by the President, assisted by the Questors, who give the necessary orders to the guard on duty and coordinate with the competent authorities. Public security forces may not enter the chamber unless ordered by the President (a kind of so-called house right) and after the sitting has been suspended or adjourned. In cases of contempt of the Senate or of any of its members (who are to be considered public officials for penal purposes) in the exercise of their functions or resistance to the President’s orders, the President may order the immediate arrest of the offender and their delivery to the competent authority. Similar norms apply to the Chamber of Deputies and its members.