Immunity

The provisions of paragraph 3(j) grant Delegates and Members immunity for acts carried out within the scope of their duties in the Parliamentary Assembly. This is a functional immunity and differs from the absolute immunity enjoyed by members of parliament under the former Yugoslav system.²⁷⁶³ Even after the adoption of the Dayton Constitution, the Parliamentary Assembly of Bosnia and Herzegovina continued to recognise absolute immunity for Members of parliament.²⁷⁶⁴ Under this system, any civil or criminal action brought against a Member of parliament was suspended for the duration of his or her term of office.²⁷⁶⁵ A Member of parliament could not be arrested or detained for any reason.²⁷⁶⁶ Only the house of parliament to which the Member belonged could lift the Member’s immunity.²⁷⁶⁷

A new Law on Immunity of Bosnia and Herzegovina was imposed by the High Representative repealing the old law and clarifying the functional nature of immunity.²⁷⁶⁸ Under this law, immunity does not provide a general bar to criminal or civil proceedings against Members of parliament, but is available as a defence when such proceedings involve actions taken by a Member of parliament within the scope of his or her duties.²⁷⁶⁹ Under this law, the decision on whether or not immunity applies in any given case is to be made by a competent court.²⁷⁷⁰ This legislative change fundamentally altered the interpretation of the scope of immunity granted to Members of parliament.