A Note to Members of Knesset: Immunity Does Not Apply to Police Investigations

Though Members of Knesset are granted immunity from prosecution under the law, legal precedent makes clear that this immunity does not apply to the stage of criminal investigations.

May Golan, Minister for Social Equality and Minister for Women's Empowerment seen outside a court hearing at the Rishon Lezion Magistrate's Court | Photo by Avshalom Sassoni/Flash90

A few months ago, a criminal investigation was opened against the Minister for Social Equality, MK May Golan, on suspicion of accepting bribes under aggravated circumstances and receiving improper benefits. Last week, after a police raid on her office, several of her associates were arrested or detained. Minister Golan herself was summoned for questioning but threatened not to appear, declaring she would consider attending only if her associates were released.

A minister or MK summoned for questioning who refuses to appear is not exactly unprecedented in Israel. Indeed, it is becoming a phenomenon. Increasingly, members of Knesset believe they can choose whether or not to appear for questioning, with some claiming that parliamentary immunity allows them to stay away. The first was MK Tali Gottlieb, suspected of disclosing classified information. She refused to appear for questioning, citing substantive immunity. Later came Deputy Knesset Speaker MK Nissim Vaturi, Heritage Minister MK Amichai Eliyahu, and MK Hanoch Milwidsky.

Israeli Members of Knesset are granted immunity from prosecution under the law, however, without addressing the details of the criminal cases themselves, it is important to clarify: parliamentary immunity does not apply to the stage of a police investigation. Deputy State Attorney Adv. Alon Altman made this very clear in a letter he once sent to MK Gottlieb:

“Your refusal to appear for questioning based on a claim of substantive immunity has no basis. The Immunity Law does not grant an MK immunity from being questioned in a criminal investigation.”

To understand Altman’s point, it is worth recalling that MKs enjoy two types of immunity:

• Substantive immunity – protects statements and acts carried out in the course of parliamentary duties. This immunity is absolute and permanent, continuing even after the MK leaves office.
• Procedural immunity – protects MKs from being put on trial for actions not connected to their parliamentary work. This immunity applies only during their term in office and can be lifted. In fact, the default today is that MKs do not enjoy procedural immunity unless they explicitly request it from the Knesset. Alongside this temporary immunity, there is a cluster of other procedural protections: immunity from wiretapping, from searches, and from arrest. These too apply only during their term and can be lifted by the Knesset.

According to accepted legal interpretation, immunity does not cover the stage of criminal investigation. For example, in 2007 the High Court of Justice ruled that the president’s procedural immunity did not extend to investigation, basing its conclusion in part on the law governing MKs. The court held that:

“Alongside the provisions of procedural immunity applying to MKs, the general rule is that MKs are subject to criminal investigation.”

And further:

“Procedural immunity granted to an MK, like that granted to the president, does not preclude criminal investigation and hearing.”

This view was also expressed in the 1997 report of the Public Committee on Parliamentary Immunity, which proposed requiring the Attorney General’s consent before opening an investigation against an MK—while stressing that:

“There is no statutory provision conditioning the opening of a criminal investigation against MKs on the Attorney General’s approval.”

In practice, what MKs are doing when they refuse to appear is misusing their immunity from arrest. Why? Because an ordinary citizen who is summoned to questioning and fails to appear is arrested. But MKs are much harder to arrest: under the Immunity Law, an MK cannot be arrested unless “caught in the act of committing a crime involving violence, disturbing the peace, or treason.” In all other cases, the Knesset must first lift immunity.

Nevertheless, even if MK Golan’s immunity (or that of other MKs who have refused to appear for questioning) is not lifted, there is no barrier to continuing the police investigation against them. Their refusal to appear may even work against them evidentially, as it's akin to remaining silent under interrogation, which can strengthen the case against them. Moreover, under a past ruling of the Knesset Ethics Committee, refusal to appear for questioning constitutes a violation of ethical rules.

This erroneous view of immunity is part of a broader, troubling mindset adopted by some members of the current coalition that the rule of law does not truly apply to them—that it is merely a suggestion It is a dangerous approach that should alarm anyone who cares about the rule of law.