Article 57 governs National Council consent for a member's arrest, the eight-week period, parliamentary recess and the in flagrante exception.
Mag. Christopher Angerer, Rechtsanwalt
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The planned arrest of a member of the National Council raises a specific constitutional question before the detention issue can be assessed. Article 57(2) of the Federal Constitutional Law generally requires the consent of the National Council when a member is to be arrested because of a criminal offence. The exception concerns being caught in the act while committing a felony.
Article 57(4) and (5) also regulate when consent is deemed to have been given after a request, how the parliamentary recess affects the eight-week period and which response remains possible after an in flagrante arrest. These rules concern parliamentary immunity. The general requirements for pre-trial detention under the Code of Criminal Procedure remain separate.
This decision tree separates a planned arrest, being caught in the act, the eight-week period and the political connection assessment.
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For a planned arrest because of a criminal offence, the first question is whether the National Council has given consent or still has to decide. The consent requirement under Article 57(2) is a separate constitutional preliminary question.
The first review should include the authority request, the planned arrest order and the current status of the parliamentary procedure.
The exception to prior consent applies only where the member is caught in the act while committing a felony. The authority must immediately notify the President of the National Council of the arrest.
The National Council, or during the parliamentary recess the standing committee responsible for these matters, may require the detention to be lifted or the prosecution to be abandoned altogether.
Article 57(4) provides that consent is deemed to have been given if the National Council has not decided on a corresponding request from the authority responsible for prosecution within eight weeks. The parliamentary recess is not included in that period.
The request, its arrival, the parliamentary sitting periods and the decision status must therefore be documented. The President must put the request to a vote no later than the second-last day of the period.
Article 57(3) concerns other forms of prosecution and whether the criminal offence is obviously unrelated to the member’s political activity. If the member or one third of the standing committee responsible requests a decision, the prosecution measure must immediately stop or be discontinued.
This assessment cannot replace the consent required for a planned arrest under Article 57(2). The arrest and other prosecution measures must be classified separately in the file.
Article 57(2) of the Federal Constitutional Law protects members of the National Council against arrest because of a criminal offence unless the National Council has consented. For a planned arrest, this consent is therefore a separate constitutional requirement. It exists alongside the criminal-procedure requirements that must be met for a deprivation of liberty.
Consent by the National Council does not decide guilt or innocence. It also does not replace the assessment of strong suspicion, a ground for detention, proportionality or less intrusive measures. Those issues belong to the applicable criminal-procedure framework. The parliamentary decision answers the separate question whether parliamentary immunity prevents the arrest.
The exception is narrow. Article 57(2) excludes being caught in the act while committing a felony. Mere temporal proximity to an offence or a general suspicion is not enough. The decisive points are the concrete basis for the arrest and the classification of the alleged conduct.
Article 57(4) sets a decision period for a corresponding request from the authority responsible for prosecution. If the National Council has not decided within eight weeks, consent is deemed to have been given in the cases covered by the provision. The wording links that consequence to a corresponding request and the absence of a decision within the period.
The parliamentary recess is not included in the eight-week period. A reliable calculation therefore requires the request, its arrival, the periods that count and any parliamentary procedural steps to be recorded chronologically. Looking only at a calendar date cannot reliably show the statutory period.
To allow a timely decision, the President of the National Council must put the request to a vote no later than the second-last day of the period. This statutory step is separate from the outcome of the vote. The file should therefore preserve both the decision status and the handling of the request.
The constitutional routes have different requirements and legal consequences.
| Situation | Legal basis | First review step |
|---|---|---|
| Planned arrest Arrest because of a criminal offence | Article 57(2) | Review National Council consent and the detention documents |
| Caught in the act Caught in the act while committing a felony | Article 57(2) and (5) | Review immediate notification and a possible request for release |
| Pending request No decision within eight weeks | Article 57(4) | Calculate the recess and the decision status |
| Other prosecution Political connection of the criminal offence | Article 57(3) | Distinguish the prosecution measure from an arrest |
The table identifies the constitutional preliminary question. The criminal-procedure requirements for deprivation of liberty must also be assessed.
If a member of the National Council is caught in the act while committing a felony, the authority may make the arrest without a prior consent decision. Article 57(5) then requires the authority to notify the President of the National Council immediately of the arrest.
The National Council may require the detention to be lifted or the prosecution to be abandoned altogether. During the parliamentary recess, this power belongs to the standing committee responsible for these matters. This is a specific parliamentary response following the immediate notification of the arrest.
The relevant record should therefore show the exact time of the arrest, the circumstances of being caught in the act, the notification to the President and any decision by the National Council or the responsible committee. A later review should preserve these steps in their sequence.
Article 57(3) concerns other forms of prosecution of a member of the National Council. Prosecution without consent is permitted only when the criminal offence is obviously unrelated to the member’s political activity. If the member or one third of the members of the responsible standing committee requests a decision on that connection, the prosecution measure must immediately stop or be discontinued.
This political connection assessment answers a different question from Article 57(2). For a planned arrest, the authority cannot replace the required consent decision by assuming that the allegation is obviously outside the member’s political activity. The measure must first be classified according to its legal type.
The consequences also differ. Paragraph 3 concerns stopping or discontinuing a prosecution measure after a corresponding request. Paragraph 5 concerns lifting detention or abandoning the prosecution after an in flagrante arrest. Applications and decisions should state these differences clearly.
For an initial assessment, collect the authority’s request for consent, the planned or completed arrest measure, the underlying decision and the available information on the parliamentary status. After an in flagrante arrest, add the record of the time and circumstances and the notification to the President of the National Council.
For an ongoing eight-week period, arrange the request and its arrival, the parliamentary recess, the treatment by the National Council and the submission for a vote in chronological order. This shows which periods count for the statutory calculation and what procedural stage has actually been reached.
The constitutional immunity review is only one part of the overall assessment. If it does not prevent the arrest, the competent authorities and courts must still assess the criminal-procedure requirements independently. Parliamentary consent must therefore not be treated as a decision on pre-trial detention.
Practice point: Keep the request for consent, its arrival, the parliamentary recess and the parliamentary handling in one chronology. This makes it easier to distinguish Article 57(2), (4) and (5).
Article 57(2) generally requires the consent of the National Council. The exception is being caught in the act while committing a felony. Article 57(5) contains separate notification and response rules for that situation.
Article 57(4) provides that consent is deemed to have been given in the cases covered by the provision if the National Council has not decided on a corresponding request from the competent authority within eight weeks. The parliamentary recess is not included in the period.
The assessment under Article 57(3) concerns other forms of prosecution. It does not replace the consent required for a planned arrest under Article 57(2). The two procedures must be classified separately.
The authority must immediately notify the President of the National Council. The National Council or, during the parliamentary recess, the responsible standing committee may require the detention to be lifted or the prosecution to be abandoned altogether.
No. Consent concerns parliamentary immunity. The criminal-procedure requirements for deprivation of liberty, including a ground for detention, proportionality and less intrusive measures, must be assessed separately.
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