Procedure : 2015/2102(IMM)
Document stages in plenary
Document selected : A8-0229/2015

Texts tabled :

A8-0229/2015

Debates :

Votes :

PV 08/09/2015 - 5.2
Explanations of votes

Texts adopted :

P8_TA(2015)0282

REPORT     
PDF 202kWORD 80k
16.7.2015
PE 560.886v02-00 A8-0229/2015

on the request for waiver of the immunity of Janusz Korwin-Mikke

(2015/2102(IMM))

Committee on Legal Affairs

Rapporteur: Evelyn Regner

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for waiver of the immunity of Janusz Korwin-Mikke

(2015/2102(IMM))

The European Parliament,

–       having regard to the request for waiver of the immunity of Janusz Korwin-Mikke, forwarded on 13 March 2015 by the Prosecutor-General of the Republic of Poland in connection with legal proceedings brought by the Municipal Police Chief of Piotrków Trybunalski, dated 9 March 2015 (Case No. SM.O.4151-F.2454/16769/2014) and announced in plenary on 15 April 2015,

–       having heard Mr Korwin-Mikke in accordance with Rule 9(5) of its Rules of Procedure,

–       having regard to Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union, and Article 6(2) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage,

–       having regard to the judgments of the Court of Justice of the European Union of 12 May 1964, 10 July 1986, 15 and 21 October 2008, 19 March 2010, 6 September 2011 and 17 January 2013(1),

–       having regard to Article 105(2) of the Constitution of the Republic of Poland and Articles 7b(1) and 7c(1) in connection with Article 10b of the Polish Act of 9 May 1996 on the exercise of the mandate of Deputy and Senator,

–       having regard to Rule 5(2), Rule 6(1) and Rule 9 of its Rules of Procedure,

–       having regard to the report of the Committee on Legal Affairs (A8-0229/2015),

A.     whereas the Prosecutor-General of the Republic of Poland has forwarded a request from the Municipal Police Chief of Piotrków Trybunalski for authorisation to take action against a Member of the European Parliament, Janusz Korwin-Mikke, with regard to an offence under Article 92a of the Act of 20 May 1971 establishing a Code of Offences in connection with Article 20(1) of the Road Traffic Act of 20 June 1997; whereas, in particular, the alleged offence amounts to exceeding the permitted speed limit in a built-up area;

B.     whereas, according to Article 8 of the Protocol on the Privileges and Immunities of the European Union, Members of the European Parliament may not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties;

C.     whereas, according to Article 9 of the Protocol on the Privileges and Immunities of the European Union, Members of the European Parliament must enjoy, in the territory of their own state, the immunities accorded to members of their parliament;

D.     whereas, under Article 105(2) of the Constitution of the Republic of Poland, a Deputy shall not be subjected to criminal accountability without the consent of the Sejm;

E.     whereas it is for Parliament alone to decide whether immunity is or is not to be waived in a given case; whereas Parliament may reasonably take account of the Member’s position in reaching its decision on whether or not to waive his or her immunity(2);

F.     whereas the alleged offence does not have a direct or obvious connection with Mr Korwin-Mikke’s performance of his duties as a Member of the European Parliament, and nor does it constitute an opinion expressed or a vote cast in the performance of his duties as a Member of the European Parliament within the meaning of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union;

G.     whereas in this case Parliament has found no evidence of fumus persecutionis, that is to say, a sufficiently serious and precise suspicion that the case has been brought with the intention of causing political damage to the Member concerned;

1.      Decides to waive the immunity of Janusz Korwin-Mikke;

2.      Instructs its President to forward this decision and the report of its committee responsible immediately to the competent authority of the Republic of Poland and to Janusz Korwin-Mikke.

EXPLANATORY STATEMENT

1. Background

On 13 March 2015, the Prosecutor-General of the Republic of Poland forwarded to the President of Parliament a request made by the Municipal Police Chief in Piotrków Trybunalski on 9 March 2015 that authorisation be granted to take action against a Member of the European Parliament, Mr Janusz Korwin-Mikke, in connection with the offence described hereinafter.

The Municipal Police claim that on 6 September 2014, when driving his car in a built-up area in Piotrków Trybunalski, Mr Korwin-Mikke exceeded the permitted speed limit of 50 km/h by 32 km/h according to a speed camera located in that area. This conduct constitutes an offence under Article 92a of the Polish Act of 20 May 1971 establishing a Code of Offences in connection with Article 20(1) of the Polish Road Traffic Act of 20 June 1997.

After identifying the owner of the car as Mr Korwin-Mikke on basis of the Polish Central Register of Vehicles and Drivers, the Police also claim that the facial image of the driver visible in the picture taken by the speed camera matches the facial image of Mr Korwin-Mikke as provided by the competent municipal authorities.

At the plenary sitting on 15 April 2015, the President announced, under Rule 9(1) of the Rules of Procedure, that he had received a letter from the Prosecutor-General of the Republic of Poland requesting the waiver of the parliamentary immunity of Mr Janusz Korwin-Mikke.

The President referred this request to the Committee on Legal Affairs under Rule 9(1). Mr Korwin-Mikke was heard by the Committee on 14 July 2015 in accordance with Rule 9(5).

2. Law and procedure on the immunity of Members of the European Parliament

Articles 8 and 9 of the Protocol (No 7) on the Privileges and Immunities of the European Union read as follows:

Article 8

Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.

Article 9

During the sessions of the European Parliament, its Members shall enjoy:

a. in the territory of their own State, the immunities accorded to members of their parliament;

b. in the territory of other Member States, immunity from any measures or detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.

Rules 6(1) and 9 of the Rules of Procedure of the European Parliament read as follows:

Rule 6

Waiver of immunity

1. In the exercise of its powers in respect of privileges and immunities, Parliament acts to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in the performance of their duties. Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol on the Privileges and Immunities of the European Union and with the principles referred to in this Rule.

(...)

Rule 9

Procedures on immunity

1. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived, or by a Member or a former Member that privileges and immunities be defended, shall be announced in Parliament and referred to the committee responsible.

The Member or former Member may be represented by another Member. The request may not be made by another Member without the agreement of the Member concerned.

2. The committee shall consider without delay, but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities.

3. The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of privileges and immunities.

4. The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended.

5. The Member concerned shall be given an opportunity to be heard, may present any

documents or other written evidence deemed by that Member to be relevant and may be represented by another Member.

The Member shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself.

The chair of the committee shall invite the Member to be heard, indicating a date and time. The Member may renounce the right to be heard.

If the Member fails to attend the hearing pursuant to that invitation, he or she shall be deemed to have renounced the right to be heard, unless he or she has asked to be excused from being heard on the date and at the time proposed, giving reasons. The chair of the committee shall rule on whether such a request to be excused is to be accepted in view of the reasons given, and no appeals shall be permitted on this point.

If the chair of the committee grants the request to be excused, he or she shall invite the Member to be heard at a new date and time. If the Member fails to comply with the second invitation to be heard, the procedure shall continue without the Member having been heard. No further requests to be excused, or to be heard, may then be accepted.

(...)

7. The committee may offer a reasoned opinion as to the competence of the authority in question and the admissibility of the request, but shall not, under any circumstances, pronounce on the guilt or otherwise of the Member nor on whether or not the opinions or acts attributed to him or her justify prosecution, even if, in considering the request, it acquires detailed knowledge of the facts of the case.

(...)

Article 105(2) of the Constitution of the Republic of Poland reads as follows:

From the day of announcement of the results of the elections until the day of the expiry of his mandate, a Deputy shall not be subjected to criminal accountability without the consent of the Sejm.

Articles 7b(1), 7c(1) and 10b of the Act of 9 May 1996 on the exercise of the mandate of Deputy and Senator read as follows:

Article 7b

1. A motion for expression of consent for bringing a deputy or senator to penal accountability in a case concerning a crime prosecuted by public accusation shall be submitted through the Minister of Justice – Public Prosecutor General.

Article 7c

1. A motion for expression of consent for bringing a deputy or senator to penal accountability shall be submitted to the Speaker of the Sejm or Speaker of the Senate, who shall forward this motion to the body competent for examining the motion pursuant to the rules of procedure of the Sejm or Senate, at the same time notifying the deputy or senator that the motion concerns, of the contents of this motion.

Art. 10b.

Regulations concerning expression of consent for bringing a deputy or senator to penal accountability shall apply as appropriate to accountability for petty offenses.

3. Justification for the proposed decision

On the basis of the aforementioned facts, the present case qualifies for the application of Article 9 of the Protocol No 7 on the Privileges and Immunities of the European Union.

Pursuant to that provision, Members enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that State. In turn, Article 105(2) of the Polish Constitution stipulates that criminal prosecution of members of the Sejm are subject to prior authorisation from the latter. A decision of the European Parliament is, therefore, required, whether the action against Mr Korwin-Mikke is to go ahead(3).

In order to decide whether or not to waive a Member’s parliamentary immunity, the European Parliament applies its own consistent principles. One of these principles is that immunity is usually waived when the offence falls within Article 9 of the Protocol No 7, provided that there is no fumus persecutionis, i.e. a sufficiently serious and precise suspicion that the matter is being brought before a court with the intention of causing political damage to the Member concerned.

First and foremost, the request for waiver of Mr Korwin-Mikke’s immunity has been submitted as a result of an alleged offence consisting of exceeding the maximum permitted speed limit in a built-up area. Second, the present case is in connection with a road offence which, according to the request, is subject to the payment of a relatively low fine of PLN 300 to 400. Finally, the facial match operated by the police seems to amount to an objective investigative technique which would, by nature, rule out any intention to cause political damage to Mr Korwin-Mikke. It, therefore, appears from the circumstances of the case that, although the above-mentioned facts occurred when Mr Korwin-Mikke was already a Member of the European Parliament, the alleged offence and the ensuing prosecution clearly have nothing to do with the position of Mr Korwin-Mikke as a Member of the European Parliament nor is there evidence of fumus persecutionis.

4. Conclusion

On the basis of the above considerations and pursuant to Rule 9(3) of the Rules of Procedure, the Committee on Legal Affairs recommends that the European Parliament should waive the parliamentary immunity of Mr Janusz Korwin-Mikke.

RESULT OF FINAL VOTE IN COMMITTEE

Date adopted

14.7.2015

 

 

 

Result of final vote

+:

–:

0:

11

0

1

Members present for the final vote

Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Mady Delvaux, Dietmar Köster, Gilles Lebreton, António Marinho e Pinto, József Szájer, Tadeusz Zwiefka

Substitutes present for the final vote

Daniel Buda, Sylvia-Yvonne Kaufmann

(1)

Judgment of the Court of Justice of 12 May 1964, Wagner v Fohrmann and Krier, 101/63, ECLI:EU:C:1964:28; judgment of the Court of Justice of 10 July 1986, Wybot v Faure and others, 149/85, ECLI:EU:C:1986:310; judgment of the General Court of 15 October 2008, Mote v Parliament, T-345/05, ECLI:EU:T:2008:440; judgment of the Court of Justice of 21 October 2008, Marra v De Gregorio and Clemente, C‑200/07 and C-201/07, ECLI:EU:C:2008:579; judgment of the General Court of 19 March 2010, Gollnisch v Parliament, T-42/06, ECLI:EU:T:2010:102; judgment of the Court of Justice of 6 September 2011, Patriciello, C‑163/10, ECLI: EU:C:2011:543; judgment of the General Court of 17 January 2013, Gollnisch v Parliament, T-346/11 and T-347/11, ECLI:EU:T:2013:23.

(2)

Case T-345/05 Mote v Parliament (cited above), paragraph 28.

(3)

Pursuant to Article 10b of the Polish Act of 9 May 1996 on the exercise of the mandate of Deputy and Senator the waiver of the immunity is required also in relation to minor offences, such as road offences.

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