RAPPORT dwar it-talba għall-ħarsien ta' l-immunità u l-privileġġi ta' Witold Tomczak
23.3.2006 - (2005/2129(IMM))
Kumitat għall-Affarijiet Legali
Rapporteur: Diana Wallis
PROPOSTA GĦAL DEĊIŻJONI TAL-PARLAMENT EWROPEW
dwar it-talba għall-ħarsien ta' l-immunità u l-privileġġi ta' Witold Tomczak
Il-Parlament Ewropew,
– wara li kkunsidra t-talba ta' Witold Tomczak għall-ħarsien ta' l-immunità tiegħu fir-rigward tal-proċeduri legali pendenti quddiem il-Qorti tad-Distrett f'Ostrów Wielkopolski, Poland, bid-data 29 ta' April 2005, u kkomunikata waqt is-seduta plenarju li saret fid-data 12 ta' Mejju 2005,
– wara li sema' lil Witold Tomczak (fid-data tat-13 ta' Lulju 2005 u fil-31 ta' Jannar 2006) skond l-Artikolu 7(3) tar-Regoli ta' Proċedura tiegħu,
– wara li kkunsidra l-ittra ta' Witold Tomczak, bid-data 20 ta' Marzu 2006, li fiha esprima x-xewqa tiegħu li jirtira t-talba tiegħu għad-difiża ta' l-immunità tiegħu,
– wara li kkunsidra l-Artikoli 8, 9 u 10 tal-Protokoll dwar il-Privileġġi u l-Immunitajiet tal-Komunitajiet Ewropej, tat-8 t'April 1965, u l-Artikolu 6(2) ta' l-Att dwar l-elezzjoni tal-membri tal-Parlament Ewropew bi dritt tal-vot universali dirett, ta' l-20 ta' Settembru 1976,
– wara li kkunsidra s-sentenzi tal-Qorti tal-Ġustizzja tal-Komunitajiet Ewropej tat-12 ta' Mejju 1964 u ta' l-10 ta' Lulju 19861
– wara li kkunsidra l-Artikoli 6(3) u 7 tar-Regoli ta' Proċedura tiegħu,
– wara li kkunsidra r-rapport tal-Kumitat għall-Affarijiet Legali (A6-0084/2006),
A. billi Witold Tomczak ġie elett fil-Parlament Pollakk (Sejm) fil-21 ta' Settembru 1997 u fit-23 ta' Settembru 2001; billi wara l-iffirmar tat-Trattat ta' Sħubija fis-16 ta' April 2003, hu sar Osservatur; billi kien Membru tal-Parlament Ewropew mill-1 ta' Mejju 2004 sad-19 ta' Lulju 2004; billi ġie elett fil-Parlament Ewropew fit-13 ta' Ġunju 2004 u billi ż-żmien tal-kariga tiegħu fil-Parlament Pollakk skada fis-16 ta' Ġunju 2004,
B. billi Witold Tomczak ġie akkużat li insulta żewġ uffiċjali tal-pulizija waqt il-qadi ta' dmirijiethom, f'Ostrów Wielkopolski fis-26 ta' Ġunju 1999, bi ksur ta' l-Artikolu 226(1) tal-kodiċi penali Pollakka; billi l-Prosekutur Ġenerali għamel applikazzjoni lis-Sejm għat-tneħħija ta' l-immunità parlamentari fit-13 ta' Ġunju 2000; billi fl-4 ta' Ottubru 2000, Witold Tomczak qabel li jiġi miżmum responsabbli ta' din il-kwistjoni, bi qbil ma' l-Artikolu 105(4) tal-Kostituzzjoni Pollakka; billi għal diversi drabi, Witold Tomczak naqas milli jattendi għas-seduti tas-smigħ, il-Qorti tad-Distrett f'Ostrów Wielkopolski ddeċidiet fl-10 ta' Jannar 2005, bi qbil ma' l-Artikolu 377(3) tal-Kodiċi ta' Proċedura Kriminali Pollakka, li tkompli l-ġuri in absentia;
C. billi Witold Tomczak informa lill-Qorti fit-30 ta' April 2005 li hu kien talab lill-Parlament Ewropew biex jiddefendi l-immunità tiegħu; billi l-Qorti ssospendiet il-proċeduri kriminali fit-30 ta' Mejju 2005 u talbet lill-Prosekutur tad-Distrett f'Warszawa Praga-Północ biex jistqarr jekk l-applikazzjoni għat-tneħħija ta' l-immunità ta' Witold Tomczak kinitx se ssir; billi fl-opinjoni ta' l-Uffiċju tal-Prosekutur Ġenerali, din l-applikazzjoni mhix neċessarja; billi l-Qorti Kostituzzjonali Pollakka ddeċidiet, fit-28 ta' Novembru 2001, li t-talba għat-tneħħija ta' l-immunità mhix neċessarja fir-rigward ta' atti mwettqa qabel ma huwa sar Membru tal-Parlament Pollokk,
D. Billi Witold Tomczak qed jgħid li l-Prosekutur Pubbliku kellu jagħmel applikazzjoni lill-Parlament Pollakk għat-tneħħija ta' l-immunità tiegħu qabel ma' jagħmel l-akkużi, u li minħabba li hu ġie elett Membru tal-Parlament Ewropew, huwa talab lil din l-entità, u mhux lis-Sejm, biex tqis l-immunità tiegħu,
E. billi Witold Tomczak qed jilmenta li l-proċeduri kriminali kontrih huma preġudikati, li qed issir pressjoni politika fuq l-awtoritajiet ġuridiċi, li qed tiġi sottomessa evidenza falza u li fil-ġuri qed jipparteċipaw xhieda li mhux ta' min jorbot fuqhom,
F. billi, fuq il-bażi ta' l-informazzjoni miksuba, Witold Tomczak mhuwiex imħares bl-immunità parlamentari rigward l-ebda waħda mid-dikjarazzjonijiet li għalihom inġibdet l-attenzjoni tal-President tal-Parlament Ewropew,
G. billi l-immunità parlamentari tikkostitwixxi parti mill-prerogattivi tal-Parlament, u għalhekk ma tistax tiġi eżerċitata jew irtirata minn Membru tal-Parlament individwali iżda mill-istituzzjoni sħiħa biss,
H. billi, minkejja l-ittra ta' Witold Tomczak li fiha wera x-xewqa li jirtira t-talba ta' difiża ta' l-immunità parlamentari tiegħu, huwa enfasizzat li l-każ xorta waħda għandu jiġi kkunsidrat b'mod eżawrjenti sabiex jiġi assigurat li l-prerogattivi tal-Parlament ġew irrispettati kif xieraq,
1. Jiddeċiedi li ma jħarisx l-immunità u l-privileġġi ta' Witold Tomczak.
NOTA SPJEGATTIVA
I. Facts of the case
1. Witold Tomczak was elected Member of the Polish Parliament (Sejm) on 21 September 1997 from the list of Akcja Wyborcza Solidarność (Solidarity Action for Elections - AWS) and on 23 September 2001 from the list of Liga Polskich Rodzin (League of Polish Families - LPR). Having been delegated by the Sejm as an Observer to the European Parliament after the signature of the Accession Treaty on 16 April 2003, Mr Tomczak became a Member of the EP for the period from 1 May 2004 to 19 July, when the first sitting of the Parliament elected in June 2004 took place. As he was elected to the European Parliament in elections taking place in Poland on 13 June 2004, he became a Member of the EP and his term of office in Sejm ended with effect on the 16 June 2004, when the election results were announced.
2.1. On late evening on 25 April 1999, Mr Witold Tomczak was driving his car in Ostrów Wielkopolski, with the passengers being his three sons (Mikołaj, Dominik and Tymoteusz), Ms Krystyna Kubiak and her daughter Maria. A few minutes after midnight, they were driving the wrong way down a one-way Gimnazjalna Street. A police patrol in an un-marked car blocked their way and one policeman (Sławomir Marek) approached Mr Tomczak's car from the driver's side. After a short while (the content of exchange between the two men is disputed, especially with regard to the charge that the driver was using 'what is generally deemed to be insulting language') Mr Tomczak drove away and was later (when only his sons were the passengers) stopped again by three police cars on Kościuszki Street. As Mr Tomczak refused to present his documents, two policemen (Sławomir Marek and Radosław Gmur) forced him out of the car, handcuffed him and took to the local police station. There, after he was given a breathalyser test (which established that he was sober), Mr Tomczak presented his Sejm Member's card and was allowed to call the regional police headquarters in Poznań with a complaint on the local policemen behaviour. After being taken back to his car, he drove to the police station in Ostrów himself and had a telephone conversation with the district public prosecutor's office.
2.2. The investigation was opened on 30 June 1999 by the Ostrów Wielkopolski District Public Prosecutor's Office. In view of the fact that the latter was at the time a Member of the Sejm, on 13 June 2000, in accordance with Article 17(1), point 10 of the Criminal Procedure Code, the General Public Prosecutor applied to the Sejm for authorisation to hold Mr Tomczak criminally liable in the matter. However, this application was not considered by the Sejm as a result of Mr Tomczak submitting to the President of the Sejm on 4 October 2000 a statement pursuant to Article 105(4) of the Polish Constitution to the effect that he agreed to be held liable for the offences forming the subject of the proceedings. Following that statement and having considered Mr Tomczak's application of 9 November 2000 to the Ministry of Justice, in which Mr Tomczak alluded to the heavy workload within the Sejm at the time, the National Public Prosecutor decided to refer the matter to the Warsaw Regional Public Prosecutor's Office. By decision of the Warsaw regional public prosecutor, responsibility for prosecuting the proceedings was assigned to the Warsaw-Praga Północ District Public Prosecutor.
2.3. On 1 February the District Public Prosecutor Adam Woźny decided to discontinue the proceedings against Mr Tomczak, on the grounds of irresolvable doubts with regard to the testimonies of policemen involved. After a formal complaint was made by one of the latter, this decision was overruled by the Regional Prosecutor on 30 March 2001. On 15 October 2001 the District Public Prosecutor Adam Woźny brought charges against Mr Tomczak of insulting two policemen (Sławomir Marek and Jacek Bałamącek) in the performance of their official duties (constituting an offence under Art. 226(1) of the Polish Penal Code). The material and territorial jurisdiction in the matter is held by the Ostrów Wielkopolski District Court. As Mr Tomczak has not appeared in Court for twelve consecutive times, the Court decided to proceed with the trial in absentia. After Mr Tomczak informed the Court on 30 April 2005 that he submitted a request for defence of his immunity to the European Parliament, the Court decided on 30 May 2005 to suspend the criminal proceedings.
3.1. Mr Tomczak does not contest driving the wrong way down a one-way street. He complains that the first police car that blocked his way was unmarked and that the man who approached him did not present his identity documents; neither stated his name and rank, as is the obligation according to the relevant decree regulating the road-traffic checks. Moreover, Mr Tomczak insists that his car was clearly marked as belonging to a Member of Parliament and that the passengers of his car bear witness to the suspicious behaviour of the supposed policeman, for the reason of which he drove off. Mr Tomczak also claims that the policemen that stopped him for the second time, were acting under the influence of alcohol and that they have assaulted him and mal-treated, in evidence of which he provided a summary of medical examination done on 26 June 1999. This document describes minor damage to the body of Mr Tomczak, which was the result of the force used by the policemen.
3.2. Mr Tomczak claims not being guilty of offending the police officers on duty and states that evidence proving otherwise was forged in an attempt to respond to his allegations against the policemen as well as the duty prosecutor, whose idleness led to the loss of breathalyser tests' results of the policemen. Mr Tomczak considers that two different decisions of the same District Public Prosecutor Adam Woźny (decision of 01.02.2001 to discontinue proceedings and indictment of 15.10.2001), as well as the information received from him directly, point to political pressure in the proceedings. He also provided the Parliament with news-releases about the retirement of the national prosecutor Karol Napierski (who signed the letter from the Polish authorities to the Committee on Legal Affairs), at the time of establishment of the new centre-right government, created after the elections in September 2005. In effect, Mr Tomczak states that the irregularities in the proceedings cannot guarantee a fair trial.
3.3. According to Mr Tomczak, the Polish Public Prosecutor should have obtained the Sejm's decision to waive his immunity and his own statement of consent to be held liable (vide 2.2. above) was without effect. Mr Tomczak has provided the Parliament with a legal opinion that it is not possible for a Member of Polish Parliament to agree to be held liable in a criminal trial, if the charges are made with regard to his/her activity 'in the Parliament' (esp. because of the opinions expressed).
In conclusion, Mr Tomczak asks for the defense of his parliamentary immunity. He subsequently withdrew that request a day before the vote in Committee on Legal Affairs.
II. Procedure
1. The relevant provisions of the Rules of Procedure are Rules 6 and 6a, in particular Rule 6(1) and (3):
'1. In the exercise of its powers in respect of privileges and immunities, Parliament shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in the performance of their duties.
3. Any request addressed to the President by a Member or a former Member to defend privileges and immunities shall be announced in Parliament and referred to the committee responsible.'
2. As the President of Parliament considered that Witold Tomczak had opened the procedure for defending his immunity, as laid down in the above-mentioned Rules, the request was announced in Parliament.
3. The formal requirements have therefore been met for the matter to be referred to the Committee on Legal Affairs.
III. Applicable provisions
1. Articles 8, 9 and 10 of the Protocol on the privileges and immunities of the European Communities (PPI)[1]
Those articles read as follows:
ARTIKOLU 8
No administrative or other restriction shall be imposed on the free movement of Members of the European Parliament travelling to or from the place of meeting of the European Parliament.
Members of the European Parliament shall, in respect of customs and exchange control, be accorded:
a) by their own government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions;
b) by the government of other Member States, the same facilities as those accorded to representatives of foreign governments on temporary official missions.
ARTIKOLU 9
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.
ARTIKOLU 10
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 State, 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. In order to assess the possible infringement of the PPI, it is useful to call to mind the following pertinent facts:
a) The charges brought against Mr Tomczak do not refer to the opinions expressed or votes cast in the performance of his duties as a MEP, as he was not a Member of Parliament at the moment of the event.
b) Mr Tomczak is at present a Member of European Parliament and taking that under consideration, the District Court dealing with the case has suspended the proceedings and asked the prosecutor whether he will ask the Parliament for the waiver of Mr Tomczak's immunity.
3. It is appropriate to consider how the above-mentioned facts and allegations square with the privileges and immunities granted by Chapter III, Articles 8 to10 b) of the PPI:
1) Article 8, first paragraph grants MEPs the privilege of free movement (in respect of customs and exchange control) when travelling to or from the place of meeting of the European Parliament. This protection is granted only to Members during the period of their mandate. The letters of Mr Tomczak do not claim this privilege and it is clearly not applicable.
2) Article 9 grants inviolability to Members in respect of opinions expressed or votes cast by them in the performance of their duties. This protection extends beyond the duration of the mandate but always in a scope restricted by the clear-cut language of the Article. Protected are Member's opinions or votes in Parliament, or even when they are not physically within the premises of the House, but always when they are acting entirely as parliamentarians. Mr Tomczak was not a Member of European Parliament in June 1999, and Article 9 is therefore not applicable to this case.
3) Article 10 declares that [d]uring 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....
The scope of the parliamentary immunity in Poland is very similar to the one that serves the functioning of the EP, based on the PPI. Art. 105 of the Polish Constitution reads as follows:
Art. 105.
1. A Deputy shall not be held liable for activities performed within the scope of a Deputy's mandate during the term thereof nor following expiry thereof. Regarding such activities, a Deputy can only be held liable before the Sejm and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the consent of the Sejm.
2. 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 liability without the consent of the Sejm.
3. Criminal proceedings instituted against a person before the day of his election as Deputy, shall be suspended at the request of the Sejm until the time of expiry of the mandate. In such instance, the statute of limitation with respect to criminal proceedings shall be extended for the equivalent time.
4. A Deputy may consent to be brought to criminal liability. In such instance, the provisions of paras. 2 and 3 shall not apply.
5. A Deputy shall be neither detained nor arrested without the consent of the Sejm, except for cases in flagrante delicto and in which his detention is necessary for securing the proper course of proceedings. Any such detention shall be immediately communicated to the Marshal of the Sejm, who may order an immediate release of the Deputy.
6. Detailed principles of and procedures for bringing Deputies to criminal liability shall be specified by statute.
The National Public Prosecutor's Office takes the view that the request for the waiver of Mr Tomczak's immunity is not necessary and that the Court decision of 30 May 2005 to suspend the proceedings is unfounded. The letter of 04.10.2005 makes reference to the Polish Constitutional Court ruling from 28 November 2001 (reference No. K 36/2001), in which it found the requirement that authorisation be obtained from the Sejm or Senate to continue criminal proceedings initiated against an individual prior to his election as a Member of the Sejm or the Senate to be in breach of Article 105(3) of the Polish Constitution. The National Prosecutor considered that given that the criminal proceedings against Mr Tomczak were initiated prior to his election as a Member of the European Parliament, and on the basis of the provisions of Article 10(a) of the PPI, authorisation from the European Parliament to continue the proceedings against Mr Tomczak is unnecessary.
Taking the above under consideration, Mr Tomczak's first letter can be treated as a request for a decision of the European Parliament to ask for suspension of the proceedings against him, as possible under Art. 105(3) of the Polish Constitution. The European Parliament has thus the right to defend or not to defend the formal immunity of Mr Tomczak.. Moreover, considering that the parliamentary immunity constitutes part of the prerogatives of the Parliament, this right should be expressed in a final decision, even if the Member concerned asked the Parliament to cancel the procedure at a later date.
Following its established practice, the European Parliament could decide to defend the immunity of one of its Members if a suspicion existed that the prosecution is based on and intention to prejudice the Members's political activities (fumus persecutionis). There is no clear evidence of such kind in the case of Mr Tomczak. The basic fact of Mr Tomczak driving his car the wrong way down a one-way street is not contested, and overruling a decision to discontinue proceedings is a legal competence of the Regional Prosecutor. Moreover, this competence was executed in Mr Tomczak's case in March 2001, half a year before the elections, after which the government was formed by parties to which Mr Tomczak remained in opposition. Doubts about the testimony of policemen involved, especially as far as Mr Tomczak's alleged insulting language is concerned, should be resolved objectively by the District Court in Ostrów Wielkopolski (with possible legal course to higher instances of Polish judiciary).
IV. Conclusion
On the basis of the above considerations and pursuant to Article 6(3) 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 not defend the parliamentary immunity of Witold Tomczak.
- [1] The protocols annexed to the original Treaties form part of primary Community law and have the same legal status as the Treaties themselves. The judgment in a case concerning the liability of Community officials for property tax made clear that a breach of the provisions of the PPI represented a breach of the obligations arising out of the Treaties (judgment of 24 February 1988, Commission v Belgium, Case 260/86, ECR. 966).
PROĊEDURA
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Titolu |
Talba għall-ħarsien ta' l-immunità u l-privileġġi ta' Witold Tomczak | |||||
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Numru tal-proċedura |
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Talba għall-ħarsien ta' l-immunità minn* Data tat-talba Data tat-thabbir fis-seduta plenarja*F'lingwa waħda biss |
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Kumitat responsabbli Data tat-tħabbir fis-seduta plenarja |
JURI12.5.2005 | |||||
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'Rapporteur(s)' |
Diana Wallis | |||||
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Rapporteur(s) preċedenti |
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Diskussjoni fil-kumitat |
13.7.2005 |
5.10.2005 |
22.11.2005 |
31.1.2006 |
23.2.2006 | |
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Data ta' l-adozzjoni |
21.3.2006 | |||||
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Riżultat tal-votazzjoni finali
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+ - 0 |
12 | ||||
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Membri preżenti għall-votazzjoni finali |
Maria Berger, Rosa Díez González, Monica Frassoni, Giuseppe Gargani, Piia-Noora Kauppi, Klaus-Heiner Lehne, Alain Lipietz, Aloyzas Sakalas, Francesco Enrico Speroni, Daniel Strož, Diana Wallis, Rainer Wieland, Jaroslav Zvěřina | |||||
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Sostitut(i) preżenti għall-votazzjoni finali |
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Sostituti(i) skond l-Artikolu 178(2) |
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Kummenti(disponibbli b'lingwa waħda biss) |
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