on the request for waiver of the immunity of Bogdan Golik

(2006/2218(IMM))

The European Parliament,

–   having regard to the request for waiver of the immunity of Bogdan Golik, forwarded by the Belgian Ministry of Foreign Affairs at the request of the Prosecutor's Office at the Court of Appeal, Brussels on 7 July 2006, and announced in plenary sitting on 4 September 2006,

–   having heard Bogdan Golik in accordance with Rule 7(3) of its Rules of Procedure, who requested that his immunity be waived,

–   having regard to Article 10 of the Protocol of 8 April 1965 on the Privileges and Immunities of the European Communities 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 12 May 1964 and 10 July 1986(1) of the Court of Justice of the European Communities,

–   having regard to Rules 6(2) and 7 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A6-0317/2006),

A.  whereas Bogdan Golik was elected to the European Parliament in the sixth elections held on 10 to 13 June 2004, and whereas his credentials were verified by Parliament on 14 December 2004,

B.  whereas Bogdan Golik enjoys, in the territory of Member States other than his own, immunity from any measure of detention and from legal proceedings under Article 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965,

C. whereas Bogdan Golik enjoyed that immunity at the material time since Parliament was in session, in accordance with the case-law of the Court of Justice cited above,

1.  Decides to waive the immunity of Bogdan Golik, subject to the proviso that, until such time as final sentence, if any, is passed, Bogdan Golik should be immune from any form of detention or remand or any other measure which prevents him from performing the duties proper to his mandate;

2.  Instructs its President to forward this decision, and the report of the committee responsible, immediately to the appropriate authority of the Kingdom of Belgium.

(1) Case 101/63 Wagner v Fohrmann and Krier [1964] ECR 195 and Case 149/85 Wybot v Faure and others [1986] ECR 2391.

I.         BACKGROUND

At the sitting of 4 September 2006, the President of Parliament informed the House that he had received a letter from the Belgian Ministry of Foreign Affairs enclosing a request from the Prosecutor's Office at the Court of Appeal, Brussels, for the waiver of the parliamentary immunity of Bogdan Golik. In accordance with Rule 6(2) of the Rules of Procedure, the President referred the request to the Committee on Legal Affairs.

The request for waiver of immunity was made by the Public Prosecutor at the Court of Appeal, Brussels. The request was submitted to Parliament by the Ministry of Foreign Affairs of the Kingdom of Belgium, which constitutes a competent authority within the meaning of Rule 7 (7) of the Rules of Procedure.

The Public Prosecutor has requested the waiver of Mr Golik's parliamentary immunity in order to enable an investigation to be carried out of a complaint and, if appropriate, to bring proceedings in the competent criminal courts on a charge of rape or such other charge, if any, to which the allegations made against Mr Golik may give rise.

Details of the complaint made against Mr Golik are set out in Notice 22/2006, which has been circulated amongst the members of the competent committee.

II.        PARLIAMENTARY IMMUNITY OF MEMBERS OF THE EUROPEAN PARLIAMENT: TEXTS AND PRINCIPLES

1.        Article 10 of the Protocol on the Privileges and Immunities of the European Communities((1)), annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities((2)), which incorporates the provisions of Article 9 of each of the protocols annexed to the Treaties establishing the ECSC, the EEC and the EAEC, reads as follows:

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 any other Member States, immunity from any measure of 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.

2.        The complaint laid against Mr Bogdan Golik, a Polish MEP, relates to events that allegedly took place within the territory of the Kingdom of Belgium. In accordance with point (b) of the first paragraph of Article 10 of the Protocol, during the sessions of the European Parliament, Mr Golik enjoys immunity from any measure of detention and from legal proceedings in the territory of Member States other than his own.

3.        The events to which the complaint relates allegedly took place during the night of 6 to 7 December 2005. According to the case-law of the Court of Justice, for the purposes of the Protocol on Privileges and Immunities, "the European Parliament must be considered to be in session, even if is not actually sitting, until the decision is taken closing its annual or extraordinary sessions"(3). Consequently, Mr Golik enjoyed immunity under Article 10 of the Protocol at the material time.

4.        Parliamentary immunity is not a Member's personal privilege, but a guarantee of the independence of Parliament and its Members in relation to other authorities. On the basis of this principle, the date on which the alleged acts took place is of no importance and may be either prior to or subsequent to the election of the Member, since protection of Parliament through its Members is the sole consideration. Furthermore, it stems from the very purpose of parliamentary immunity that the latter should remain effective throughout a Member's term of office and cover the commencement of the proceedings, preparatory inquiries, measures for the execution of pre-existing judgments, appeals and applications for judgments to be set aside.

5.        The procedure to be followed by the European Parliament is laid down in Rules 6 and 7 of the Rules of Procedure.

6.        It is noted that waiver of immunity does not detract in any way from the presumption of innocence.

III       GROUNDS FOR THE PROPOSAL FOR A DECISION

1.        Article 9 of the PPI obviously does not apply in this case. Absolute immunity applies only "to opinions or votes cast by (Members) in the performance of their duties".

2.        As has already been made clear in section II, Article 10, first paragraph, point (b), of the Protocol applies and the questions raised by the State Prosecutor in her request for waiver may be answered as follows:

           (a) Mr Golik enjoyed immunity under Article 10(b) of the Protocol in Belgium on 6-7 December 2005;

           (b) Mr Golik continues to enjoy immunity under the Protocol as a Member of the European Parliament.

3.        There is no suggestion that a fumus persecutionis exists in this case.

4.        Mr Golik has asked that his immunity be waived and it is in the interest of Parliament that the complaint be investigated and, if appropriate, tested in court.

5.        Rule 7(4) of the Rules of Procedure provides that the report of the committee responsible may, exceptionally, propose that, until a final sentence is passed, the Member should be immune from any form of detention or remand or any other measure which prevents him from performing the duties proper to his mandate.

IV       CONCLUSION

In the light of the above considerations and pursuant to Rule 7(1) and (2) of the Rules of Procedure, the Committee on Legal Affairs, having considered the arguments for and against waiving immunity, recommends that Parliament should waive Mr Bogdan Golik's parliamentary immunity, subject to the provisions of Rule 7(4).

(1) () See also Article 9 of this Protocol: '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.' (2) ()Referred to in Article 4(2) of the Act concerning the election of representatives of the European Parliament by direct universal suffrage of 20 September 1976. (3) Case 149/85 Wybot v Faure and Others [1986] ECR 2391, operative part.