What are the limits of the protection offered by parliamentary immunity? This is the question asked after the summons of Martine Wonner before the disciplinary chamber of the regional council of the Order of physicians of the Grand Est on November 4. The former MP, opposed to health measures during the Covid-19 crisis, defends freedom of expression for her positions as a parliamentarian. She underlined it at the end of her hearing in front of some 200 people who came in support: “Everything that I have been accused of has been reproached as a deputy. When we are elected, we are elected 24 hours a day. There is no separation possible. »
“It was constantly as a parliamentarian, as a deputy of the Nation that I tried to make the voice of citizens heard who did not understand why there were these confinements, these restrictions, why they suddenly could no longer go to see their attending physician “, she also declared on Sud Radio Monday, November 7, 2022.
On the air, she explains that she “is accused of having said in the hemicycle that the masks were useless, of having questioned the usefulness of the PCR tests, their reliability”. And indicates having been threatened “very directly” by Olivier Véran “within the precincts of the National Assembly”, who would have told him “you will see what you are going to take when you are no longer a parliamentarian precisely because you will no longer be covered by parliamentary immunity”.
[Ce qui est inexact, Olivier Véran lui a dit le 24 février 2022 dans l’hémicycle, après que la députée a déclaré que le vaccin pouvait causer des « fausses couches », des « cancers multiples », « la maladie de Creutzfeld Jacob » ou « le sida », que : « Chacun ici est couvert par l’immunité parlementaire. […] Sometimes, the mandates stop one day and sometimes, those who continue to make these comments will then be likely to be accountable in court. I say this for Mrs Wonner. »]
It was in the name of this “total” parliamentary immunity that Jean Lassalle also gave him his support in a letter, outraged that he was being reproached for facts that took place “in the hemicycle or directly in connection with the activity parliamentarian”.
How does this parliamentary immunity work? Article 26 of the Constitution guarantees “total freedom of expression for parliamentarians in the exercise of their functions”, underlines first Jean-Eric Gicquel, professor of constitutional and parliamentary law at the University of Rennes-1.
“Immunity covers two things, explains Sophie de Cacqueray, lecturer in public law at the University of Aix-Marseille, what is called irresponsibility, which is intended to protect the independence of the mandate and which concerns us here, and inviolability, which is intended to protect the exercise of the mandate against abusive legal proceedings. »
Irresponsibility “limited in its field”
Non-responsibility is defended by the provision of article 26, indicating that “no member of Parliament may be prosecuted, searched, arrested, detained or judged on the occasion of the opinions or votes cast by him in the exercise of his duties”.
If this non-responsibility is “total”, that is to say that it covers “all the axes relating to the parliamentary function”, and “perpetual” – it remains even after the end of the mandate -, it is “limited in its domain” emphasizes Sophie de Cacqueray. “Opinions and votes must relate to the parliamentary function,” she continues. Not covered are comments that are made in the halls of the Assembly or outside the Assembly or the forums that may be published. »
These details are provided by article 41 of the law on freedom of the press of 1881, modified by the ordinance of November 17, 1958: “Speeches held in the National Assembly or of the Senate”, “the reports or any other document printed by order of one of these two assemblies”, as well as “the remarks made or the writings produced before a commission of inquiry”.
“Precise and defined” parliamentary functions
The extended interpretation of the exercise of the functions of deputy “24 hours a day” is erroneous, tell us the two law professors. “On this account, there would be protection which would be absolute, points out Jean-Eric Gicquel. You still need a limit, and the limit is in the performance of your duties. ” ” That would imply that the deputy is untouchable, but that’s not it, abounds Sophie de Cacqueray. He is protected in the exercise of his functions in the National Assembly. Out of there, he is a citizen like the others and his freedom of expression exists, but is limited by a set of laws or rules, such as incitement to hatred. “And adds:” A disciplinary chamber of the Order of Physicians has the possibility of sanctioning for a violation of the code of medical ethics. »
What is meant by the exercise of functions? “The functions are precise and defined by article 24 of the Constitution: it is to legislate and control the action of the government, details the professor of parliamentary law. We deduce that comments made during a legislative debate, during audit examinations, during an evaluation of public policy are covered, but comments made outside, during a meeting or on Twitter, do not are not. The parliamentarian no longer acts within the framework of his functions, he is no longer a legislator, he no longer controls the action of the government and, therefore, he cannot benefit from the irresponsibility of article 26 of the Constitution. . »
“Mrs. Wonner has never been criticized for her remarks made in the hemicycle”
This is what the plaintiffs, a group of doctors, the NoFakeMed association, and the National Council of the Order of Physicians (Cnom) argued, when Martine Wonner was summoned. The remarks broadcast on her Twitter account, where she presents herself as a psychiatrist, or held during public demonstrations are at the heart of the complaints, confirms to us master Jean-François Segard, counsel for the NoFakeMed collective, and not those held within the hemicycle.
“Ms. Wonner has never been criticized for her remarks made in the hemicycle, explains Jean-François Segard. The grievances only refer to remarks made on social networks, in public, on media antennas and which were recorded in a bailiff’s report. »
Comments made on Twitter or during demonstrations
During the hearing, “a very precise parallel was drawn between the provisions of article 26 of the Constitution and the case law in its application concerning parliamentary immunity,” he specified. I said it in pleading: Mrs Wonner declared in the hemicycle that the masks were useless. We do not blame him, it is indeed covered by parliamentary immunity. »
He was accused during the hearing of “erroneous or scientifically unproven facts” such as the statement, during a demonstration against the wearing of masks that “the virus does not kill more than another flu-like pandemic”) , of having broadcast on Twitter “care protocols” against the Covid “without scientific basis” (in particular ivermectin or hydroxychloroquine) or of having said that the PCR tests gave false results.
The argument of parliamentary immunity has already been rejected in a previous case. For comments shared on Twitter and in the conspiratorial documentary Hold-Up about the Covid-19 pandemic, Stéphane Houpert, senator LR of the Côtes d’Or and radiologist, was sanctioned. On November 4, 2022, the disciplinary chamber of the Order of Physicians of Burgundy Franche-Comté pronounced a ban on practicing medicine for a total of 18 months, nine of which were suspended for “ethical faults”. In the Grand-Est, the disciplinary chamber of the Order of Physicians must rule on November 25 in relation to the complaints filed against Martine Wonner.