Procedure : 2014/2026(IMM)
Document stages in plenary
Document selected : A7-0273/2014

Texts tabled :

A7-0273/2014

Debates :

Votes :

PV 15/04/2014 - 8.8

Texts adopted :

P7_TA(2014)0348

REPORT     
PDF 195kWORD 81k
9 April 2014
PE 532.369v02-00 A7-0273/2014

on the request for defence of the immunity and privileges of Alexander Mirsky

(2014/2026(IMM))

Committee on Legal Affairs

Rapporteur: Marielle Gallo

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
 EXPLANATORY STATEMENT
 RESULT OF FINAL VOTE IN COMMITTEE

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for defence of the immunity and privileges of Alexander Mirsky

(2014/2026(IMM))

The European Parliament,

–       having regard to the request by Alexander Mirsky of 14 February 2014, announced in plenary on 24 February 2014, for the defence of his immunity and privileges in connection with civil proceedings pending before the Civil Division of the Senate of the Supreme Court of the Republic of Latvia (hereinafter referred to as ‘the Supreme Court’) (ref. C17129611),

–       having regard to Article 8 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 and 6 September 2011(1),

–       having regard to the verbatim report of the proceedings of the plenary sitting of 4 April 2011,

–       having regard to Rule 5(2) and to Rules 6a and 7 of its Rules of Procedure,

–       having regard to the report of the Committee on Legal Affairs (A7-0273/2014),

A.     whereas a Member of the European Parliament, Alexander Mirsky, has requested the defence of his parliamentary immunity in connection with civil proceedings pending before the Supreme Court of the Republic of Latvia; whereas the proceedings in question relate to the decision of the Civil Division of the Riga District Court (hereinafter referred to as ‘the Riga District Court’) to require Alexander Mirsky to retract a statement made in a speech at the European Parliament on 4 April 2011 and to pay LVL 1000 in non-material compensation to the benefit of the allegedly prejudiced applicants;

B.     whereas, according to Article 8 of Protocol No 7 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 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;

D.     whereas the Court of Justice has clarified that Article 8 of the Protocol, in the light of its objective of protecting the freedom of speech and independence of Members of the European Parliament and in the light of its wording, which expressly refers to votes cast as well as to opinions expressed by the Members, is in essence intended to apply to statements made by those Members within the very precincts of the European Parliament(2);

E.     whereas immunity under Article 8 of the Protocol must, to the extent that it seeks to protect the freedom of expression and independence of Members of the European Parliament, be considered as an absolute immunity barring any judicial proceedings in respect of an opinion expressed or a vote cast in the exercise of parliamentary duties(3);

F.     whereas the immunity from legal proceedings enjoyed by Members of the European Parliament includes immunity from civil proceedings;

G.     whereas the request by Alexander Mirsky relates to legal proceedings instituted against him in connection with statements made during a one-minute speech at the plenary sitting of 4 April 2011; whereas it is uncontested that Alexander Mirsky was a Member of the European Parliament at the time of the statements in question;

H.     whereas the Jūrmala Town Court has correctly acknowledged that Alexander Mirsky enjoyed the immunity accorded to the Members of the European Parliament by Article 8 of the Protocol and thus rejected the applicants’ claim; whereas, conversely, the Riga District Court has completely ignored the applicability of that provision; whereas a national court has a duty to apply EU primary law;

I.      whereas the legal proceedings brought against Alexander Mirsky are still pending before the Supreme Court of the Republic of Latvia and the final judgment may be in his favour; whereas, however, should the judgment of the Riga District Court be confirmed by the Supreme Court, this would amount to an infringement of EU primary law by the Latvian authorities;

J.      whereas, further to the judgment of the Riga District Court, there has, in fact, been a breach of the privileges and immunities of Alexander Mirsky; whereas, in particular, the circumstances of the case in point constitute a restriction on an opinion expressed in the performance of his parliamentary duties;

1.      Decides to defend the immunity and privileges of Alexander Mirsky;

2.      Calls on the Commission to intervene with the Latvian authorities in order to enforce EU primary law – notably, Article 8 of Protocol No 7 on the privileges and immunities of the European Union – and, if necessary, to initiate a Union law infringement procedure under Article 258 of the Treaty on the Functioning of the European Union;

3.      Instructs its President to forward this decision and the report of its competent committee immediately to the Commission, the relevant authorities of the Republic of Latvia and Alexander Mirsky.

(1)

Case 101/63 Wagner v. Fohrmann and Krier [1964] ECR 195, Case 149/85 Wybot v. Faure and Others [1986] ECR 2391, Case T-345/05 Mote v. Parliament [2008] ECR II-2849, Joined Cases C-200/07 and C-201/07 Marra v. De Gregorio and Clemente [2008] ECR I-7929, Case T-42/06 Gollnisch v. Parliament [2010] ECR II-1135 and Case C-163/10 Patriciello [2011] ECR I-07565.

(2)

Case C-163/10 Patriciello, cited above, paragraph 29.

(3)

Joined Cases C-200/07 and C-201/07 Marra v De Gregorio and Clemente, cited above, paragraph 27.


EXPLANATORY STATEMENT

1.        Background

During a one-minute speech at the plenary sitting of 4 April 2011, Alexander Mirsky made the following statements:

‘Madam President, I should like to pose you a question. Do you think it is possible to close French schools in Belgium? Or, let us say, German schools in France? You are right: it is not possible. Yet in Latvia, where more than 40% of the population is Russian-speaking, it is possible. Today, in the Latvian Parliament, nationalist and Nazi members wish to hold a referendum on the closure of Russian schools in Latvia. At the same time, OSCE High Commissioner on National Minorities, Knut Vollebaek, arrives in Latvia and announces that he can be proud of integration in Latvia. Do you think that I am joking? You are mistaken. What, moreover, do you think will happen if Russian schools are closed in Latvia? I shall tell you – a civil war will break out in Latvia. If the European Parliament does not react today to this overt radical initiative, by tomorrow, it will already be too late. Thank you’ (1).

On 14 July 2011, the Jūrmala Town Court received a statement of claim by Gaidis Bērziņš and Raivis Dzintars (hereinafter referred to as ‘the applicants’), Members of the Latvian Parliament, in which an application was made for Mr Mirsky to be ordered, during the debates at a sitting of the European Parliament, to publicly apologise to the applicants and retract the conclusion that the Latvian Parliament includes members who are Nazis – which, in the applicants’ view, may be derived from the above speech –, to insert a corresponding apology and retraction on the European Parliament’s website, and to require Mr Mirsky to pay LVL 1000 in compensation for non-material damage as well as for all the costs of the case (ref. C17129611).

By judgment of 3 October 2012, the Jūrmala Town Court rejected the application, inter alia, on the grounds that the immunity applicable to opinions expressed by Members of the European Parliament in the performance of their duties, as provided for by Article 8 of Protocol (No 7) on the Privileges and Immunities of the European Union should be interpreted to mean that, in the performance of his duties, Mr Mirsky was expressing his opinion in order to draw attention to the issue of ‘a referendum on the closure of Russian schools in Latvia’.

The applicants lodged a statement of appeal against this judgment before the Civil Division of the Riga District Court (hereinafter referred to as ‘the Riga District Court’), which, contrary to the court of first instance, considered the applicants’ claim to be well-founded. In particular, the Riga District Court completely ignored the applicability of Article 8 of the Protocol and by judgment of 3 April 2013, as basically requested by the applicants, decided to require Mr Mirsky to retract the above statements, publish the retraction on the website of the European Parliament, and pay LVL 1000 (i.e., LVL 500 to the benefit of each applicant) by way of compensation for non-material damage.

On 16 May 2013, Mr Mirsky lodged an appeal in cassation before the Civil Division of the Senate of the Supreme Court of the Republic of Latvia (hereinafter referred to as ‘the Supreme Court’) requesting to quash the judgment given by the Riga District Court.

At the plenary sitting of 24 February 2014, the President announced, under Rule 7(1) of the Rules of Procedure, that he had received a request from Mr Alexander Mirsky concerning the defence of his parliamentary immunity in connection with the abovementioned legal proceedings. The President referred the request to the Committee on Legal Affairs under Rule 7(1) of the Rules of Procedure.

Having informed the Committee that he was unfortunately unable to participate – at any of the dates proposed – in the hearing referred to in Rule 7(5) of the Rules of Procedure, Mr Mirsky has effectually waived his right to be heard, in accordance with Rule 7(5)(3) of the Rules of Procedure. On 18 March 2014 Mr Mirsky submitted a written declaration to the Committee on Legal Affairs, in which he presented the facts and reiterated his request for the defence of his parliamentary immunity.

2.        Law and procedure relating to the immunity of Members of the European Parliament

Article 8 of the Protocol (No 7) on the Privileges and Immunities of the European Union reads 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.

The procedure within the European Parliament is governed by Rules 6a and 7 of its Rules of Procedure. The relevant provisions are as follows:

Rule 6a – Defence of privileges and immunity

1. In cases where the privileges and immunities of a Member or former Member are alleged to have been breached by the authorities of a Member State, a request for a Parliament decision as to whether there has, in fact, been a breach of those privileges and immunities may be made in accordance with Rule 7(1).

2. In particular, such a request for the defence of privileges and immunities may be made if it is considered that the circumstances constitute an administrative or other restriction on the free movement of Members travelling to or from the place of meeting of Parliament or on an opinion expressed or a vote cast in the performance of their duties, or that they fall within the scope of Article 9 of the Protocol on the Privileges and Immunities of the European Union.

3. A request for the defence of the privileges and immunities of a Member shall not be admissible if a request for the waiver or defence of that Member’s immunity has already been received in respect of the same legal proceedings, whether or not a decision was taken at that time.

4. No further consideration shall be given to a request for the defence of the privileges and immunities of a Member if a request for the waiver of that Member’s immunity is received in respect of the same legal proceedings.

5. In cases where a decision has been taken not to defend the privileges and immunities of a Member, the Member may make a request for reconsideration of the decision, submitting new evidence. The request for reconsideration shall be inadmissible if proceedings have been instituted against the decision under Article 263 of the Treaty on the Functioning of the European Union, or if the President considers that the new evidence submitted is not sufficiently substantiated to warrant reconsideration.

Rule 7 – 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.

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. (…)

3.        Justification for the proposed decision

The statements referred to in Mr Mirsky’s request for the defence of his parliamentary immunity are undoubtedly to be included in the cases covered by Article 8 of the Protocol. By their nature, their context and their purpose, statements made by Members of the European Parliament at a plenary sitting cannot but constitute opinions expressed ‘in the performance of their duties’. They are, therefore, fully covered by parliamentary immunity, in accordance with Article 8 of the Protocol, as the most typical case of parliamentary activity referred to in that provision.

The Court of Justice, too, has held that Article 8 of the Protocol, in the light of its objective of protecting the freedom of speech and independence of Members of the European Parliament and in the light of its wording, which expressly refers to votes cast as well as to opinions expressed by the Members, is in essence intended to apply to statements made by those members within the very precincts of the European Parliament(2).

The Court of Justice has also taken the view that immunity under Article 8 of the Protocol must, to the extent that it seeks to protect the freedom of expression and independence of Members of the European Parliament, be considered as an absolute immunity barring any judicial proceedings in respect of an opinion expressed or a vote cast in the exercise of parliamentary duties(3).

If this conclusion objectively applies to the case in point, it is worth highlighting two further elements relating to the proceedings pending before the Latvian authorities.

Firstly, in accordance with Parliament’s established practice, the fact that the legal proceedings are of a civil or administrative law nature, or contain certain aspects falling under civil or administrative law, does not per se prevent the immunity afforded by Article 8 from applying. In particular, Parliament has defended its Members’ immunity in civil proceedings where a damages claim was punitive or the action was regarded as quasi-penal in its nature.

In the present case, the decision of the Riga District Court to grant the form of order sought by the applicants is punitive in its nature for it clearly goes beyond the purpose of redressing the damage allegedly caused by Mr Mirsky’s statements. Indeed, the Latvian court has considered that ‘a compensation payment of LVL 500 [to the benefit of each of the two applicants] is a sum which would deter the defendant from the further communication of false information and would also encourage him to perform his duties professionally, in good faith and in accordance with the requirements of the law’. This statement is all the more intolerable since it intends to establish a framework for the future behaviour of a Member notwithstanding Article 2 of the Statute for Members provides that ‘Members shall be free and independent’ and Article 3(1) thereof (along with Article 6(1) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage) provides that ‘Members (…) shall not be bound by any instructions and shall not receive a binding mandate’.

In granting the applicants’ request, the Riga District Court has also considered that ‘[a]s the defendant is a Member of the European Parliament (…) the defendant has the material means to materially compensate the applicants for the non-material damage which has been caused to them’. The amount of the compensation payment has thus been set precisely in view of Mr Mirsky’s capacity of parliamentarian. However, this decision is tantamount to saying that parliamentarians do not have the right to a fair assessment of the actual damage they might have caused and may be required to pay a certain amount of money, by way of compensation, on the sole ground of their status.

Secondly, it is clear from the facts that, whilst the Jūrmala Town Court has correctly acknowledged that Mr Mirsky enjoys the immunity accorded to the Members of the European Parliament by Article 8 of the Protocol, the Riga District Court has completely ignored the applicability of that provision on the undemonstrated ground that ‘there is no justification for the conclusion reached by the court of first instance that the defendant was expressing his subjective opinion at the European Parliament in the performance of his duties’. The Riga District Court has thus failed to apply the Protocol and, in spite of Mr Mirsky’s parliamentary immunity, ordered him to retract his statements and to redress the applicants.

Further to Mr Mirsky’s application to quash the judgment of the Riga District Court, the legal proceedings in question are still pending before the Supreme Court of the Republic of Latvia and the final judgment may, of course, be in Mr Mirsky’s favour. However, should the Supreme Court confirm the judgment delivered by the Riga District Court, this would amount to a breach of EU primary law by the Latvian authorities. The Court of Justice has repeatedly held that the liability of a Member State for breaches of EU law arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution(4), and irrespective of the State’s internal distribution of competences(5). This principle also applies to non-contractual liability insofar as Member States are obliged to make good any damage caused to individuals by breaches of EU law for which they can be held responsible, including breaches committed by national courts (6).

4.        Conclusion

On the basis of the above considerations and pursuant to Article 6a of the Rules of Procedure, after considering the reasons for and against defending the Member’s immunity, the Committee on Legal Affairs recommends that the European Parliament should defend the parliamentary immunity of Alexander Mirsky.

The Committee on Legal Affairs also recommends that the Commission, as guardian of the Treaties and sole body competent to initiate infringement proceedings, should intervene with the Latvian authorities in order to enforce EU primary law – notably, Article 8 of the Protocol on the privileges and immunities of the European Union – and, if necessary, to initiate a Union law infringement procedure under Article 258 of the Treaty on the Functioning of the European Union.

(1)

Source: http://www.europarl.europa.eu.

(2)

Case C-163/10 Patriciello, cited above, paragraph 29.

(3)

Joined Cases C-200/07 and C-201/07 Marra v De Gregorio and Clemente, cited above, paragraph 27.

(4)

Case 69/77, Commission v Belgium [1970] ECR 00237, paragraph 15; Case C-129/00, Commission v Italy, ECR [2003] I-14637, paragraph 29.

(5)

Case C-33/90, Commission v Italy ECR [1991] I-05987, paragraph 24; Case C-274/98, Commission v Spain, ECR [2000] I-02823, paragraph 20.

(6)

Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur/Factortame ECR [1996] I-01029, paragraph 32; Case C-224/01, Köbler v Austria ECR [2003] I-10239, paragraphs 32 and 36; Case C-173/03, Traghetti del Mediterraneo v Italy ECR [2006] I-05177, paragraph 36.


RESULT OF FINAL VOTE IN COMMITTEE

Date adopted

7.4.2014

 

 

 

Result of final vote

+:

–:

0:

11

0

0

Members present for the final vote

Luigi Berlinguer, Marielle Gallo, Annette Koewius, Antonio Masip Hidalgo, Bernhard Rapkay, Evelyn Regner

Substitute(s) present for the final vote

Eva Lichtenberger, Angelika Niebler, Dagmar Roth-Behrendt

Substitute(s) under Rule 187(2) present for the final vote

Jean-Pierre Audy, Constance Le Grip

Last updated: 10 April 2014Legal notice