– having regard to the request by Tobias Pflüger for defence of his immunity announced in plenary sitting on 5 May 2009,
– 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 Article 46 of the Basic Law for the Federal Republic of Germany,
– having regard to its decision of 16 May 2006 on the request for waiver of the immunity of Tobias Pflüger(2),
– having regard to Rules 6(3) and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A7-0054/2009),
A. whereas Parliament has already waived Tobias Pflüger's immunity by its decision of 16 May 2006 concerning the same set of facts,
B. whereas it appears after examination that Parliament's prerogatives are threatened neither by the judgment against Tobias Pflüger of 2 March 2009 nor by the request of the public prosecutor on 15 April 2009 to increase the penalty imposed on him,
1. Decides not to defend the immunity of Tobias Pflüger;
2. Instructs its President to forward this decision, and the report of the committee responsible, immediately to the appropriate authority of the Federal Republic of Germany.
The facts as laid down in the judgment at first instance date back to 12 February 2005 and relate to a counter-demonstration staged against the annual "Munich Security Conference".
·Following clashes with the police, a number of people were taken in for questioning. Some of the police officers formed a barrier between the officers making the arrests and the demonstrators, some of which were spoiling for a fight.
·Tobias Pflüger participated in the counter-demonstration and in this context interacted with two police officers forming part of the barrier protecting further police officers who were in the process of questioning certain demonstrators. He specifically made use of his Member's badge and repeatedly asked to be let through the protective barrier by virtue of his position as an MEP. Although this was denied by Tobias Pflüger, he was also found to have resorted to name-calling, thus insulting the dignity of the two police officers.
On 20 October 2005, the Chief Public Prosecutor (München I area) requested the Parliament to waive Tobias Pflüger's immunity, so that he could commence criminal proceedings against him for the suspected offences of:
·insulting behaviour (Beleidigung) towards the two police officers, and
·if the pending evaluation of the harm caused to one police officer demonstrated that that harm was not insignificant, assault and battery (Körperverletzung)
On 28 April 2006, the Committee on Legal Affairs (rapporteur: Francesco Enrico Speroni) adopted a report recommending the waiver of Tobias Pflüger's immunity, considering that the case fell under Article 10(1)(a) of the Protocol on Privileges and Immunities of 1965, that Tobias Pflüger's political activity was not negatively affected, and that there was no evidence of fumus persecutionis.
On 16 May 2006, Parliament adopted a resolution waiving Tobias Pflüger's immunity. As from 14 July 2009, Tobias Pflüger is no longer a Member of the European Parliament.
On 2 March 2009, the German court (Amtsgericht München) found Tobias Pflüger guilty of two cases of insulting behaviour (Beleidigung) and condemned him to a financial penalty(1).
·The charge relating to attempted assault and battery of one of the police officers (versuchte Körperverletzung) was dropped.
·In determining the penalty, the judge expressly took into account as a mitigating factor the fact that the defendant had no previous conviction, and as an aggravating factor the fact that Tobias Pflüger, as a member of Parliament and therefore a representative of the people, committed the offence against both officials, and what is more, in public view (see extract below).
On 15 April 2009, the public prosecutor appealed against the penalty imposed on Tobias Pflüger, requesting that it be increased "because the defendant was a Member of the European Parliament and sought to claim privileges in this capacity". The prosecutor therefore asks for the original judgment to be repealed and for the penalty to be correspondingly increased (see extract below).
On 5 May 2009, Parliament's plenary announced a request by Tobias Pflüger for the defence of his immunity and privileges "in connection with a procedure currently underway at the Munich public prosecutor's office" and forwarded the request to the Committee on Legal Affairs under rule 6(3) of Parliament's rules of procedure.
·Parliament's Rules of Procedure state that the committee "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"(2).
2. Relevant extracts
-Extract from the judgment of 2 March 2009:
The severity of the sentence must be determined on the basis of the penalties set out in Section 185 of the Penal Code, ranging from a fine to a one-year prison term. In this context, the fact that the defendant has no previous convictions was to be regarded as a mitigating factor.
The fact that the defendant, as a Member of Parliament and therefore a representative of the people, committed the offence against both officers in public view is a severely aggravating circumstance. (...)"
-Extract from the appeal by the public prosecutor of 15 April 2009:
" (...) 2. The grounds for the appeal are as follows:
The Munich District Court ordered the petitioner to pay a fine of 60 daily penalty payments on two coinciding charges of insulting behaviour. This sentence is not fully commensurate with the gravity of the offence committed by the defendant.
The fact that the defendant was a Member of the European Parliament and sought to claim privileges in this capacity should have weighed even more heavily against him.
On the reopening of proceedings a motion will accordingly be submitted to overturn the sentence imposed by the Munich District Court in its judgement of 2 March 2009 and for the penalty to be correspondingly increased. (...)"
-Extract from German Penal Code (Strafgesetzbuch), section on sentencing:
Section 46:Principles for Determining Punishment:
"(2) In its determination the court shall counterbalance the circumstances which speak for and against the perpetrator. In doing so consideration shall be given in particular to:
·the motives and aims of the perpetrator;
·the state of mind reflected in the act and the wilfulness involved in its commission;
·the extent of breach of any duties;
·the manner of execution and the culpable consequences of the act;
·the perpetrator's prior history, his personal and financial circumstances; as well as
·his conduct after the act, particularly his efforts to make restitution for the harm caused as well as the perpetrator’s efforts to achieve mediation with the aggrieved party."
Parliament already waived Tobias Pflüger's immunity back in 2006 concerning this situation (i.e. the same two instances of insulting behaviour).
·There is therefore no reason for Parliament to take a position on the same set of facts and indeed it would not seem possible for it to do so.
Nevertheless, the Committee on Legal Affairs examined whether Parliament's prerogatives could be threatened by the judgment at first instance of 2 March 2009 and the public prosecutor's subsequent appeal.
·It concluded that both acts constitute objective applications of a principle of national law on sentencing, whereby the fact that a person holds public office is one factor among others which is taken into account in determining the sentence.
·Indeed, the judge at first instance, whilst referring to Tobias Pflüger's quality as MEP expressly made the link to the generic quality of public representative and the fact that the offences were committed in public.
·In addition, the appeal by the public prosecutor is merely a first stage in an ongoing judicial procedure during which it would not be appropriate to intervene.
Bearing this in mind, the Committee has decided not to defend the immunity and privileges of Tobias Pflüger.
Raffaele Baldassarre, Luigi Berlinguer, Françoise Castex, Lidia Joanna Geringer de Oedenberg, Klaus-Heiner Lehne, Antonio López-Istúriz White, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Diana Wallis, Cecilia Wikström, Tadeusz Zwiefka
Substitute(s) present for the final vote
Piotr Borys, Vytautas Landsbergis, Eva Lichtenberger
Substitute(s) under Rule 187(2) present for the final vote