REPORT on the request for defence of the immunity and privileges of Gabriele Albertini
27.10.2006 - (2006/2122(IMM))
Committee on Legal Affairs
Rapporteur: Diana Wallis
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for defence of the immunity and privileges of Gabriele Albertini
The European Parliament,
– having regard to the request by Gabriele Albertini for defence of his immunity in connection with the criminal proceedings brought against him before the District Court of Milan, made on 28 April 2006, announced in plenary sitting on 15 May 2006,
– having heard Gabriele Albertini in accordance with Rule 7(3) of its Rules of Procedure,
– having regard to Articles 9 and 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 68 of the Constitution of the Italian Republic,
– having regard to Rules 6(3) and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A6‑0383/2006),
A. whereas Gabriele Albertini is a Member of the European Parliament who was elected in the sixth direct elections of 10 to 13 June 2004 and whereas his credentials were verified by Parliament on 14 December 2004[2],
B. whereas during the sessions of the European Parliament its Members enjoy in the territory of their own State the immunities accorded to members of their parliament and whereas immunity cannot be claimed when a Member is caught in the act of committing an offence; whereas this does not prevent the European Parliament from exercising its right to waive the immunity of one of its Members[3],
C. whereas the provision applicable to the case in question is Article 68, second subparagraph, of the Italian Constitution, which allows criminal proceedings to be brought against Members of Parliament without any special formalities, given that it provides that, without the leave of the Chamber to which the Member belongs, a search may not be carried out on either the person or the domicile of a Member of Parliament and a Member may not be arrested or otherwise deprived of his or her personal freedom or kept in detention, except to enforce a final conviction or where the Member is caught in the act of committing a crime for which arrest is mandatory in case of flagrante delicto,
D. whereas the charges brought against Gabriele Albertini by the Public Prosecutor's Office of the District Court of Milan relate to the tabling of blank amendments under the budgetary procedure of the Milan City Council with a view to filling them in later in the light of the amendments tabled by the opposition, so as to avoid tabling amendments after the deadline, which would be inadmissible,
E. whereas tabling blank amendments may be regarded as being an aspect of politics and political life and whereas, so long as the final act to which they refer has not been adopted, such amendments are simply acts of internal procedure with no external effect, in particular and above all from the point of view of criminal law, since the tabling of such amendments amounts to an impossible crime and in any case to a nonexistent crime,
F. whereas, in other proceedings (Case No 9384/03 R.G.N.R.), the same District Court of Milan, called upon to consider allegations similar to those made against Gabriele Albertini but then made by Gabriele Albertini himself against his political opponents, held that there was no case to answer and dismissed the case,
G. whereas the fact that the self-same court has adopted a diametrically opposed attitude in two substantially similar cases amounts to unreasonable unequal treatment which leads to the suggestion that Mr Albertini is being unfairly prosecuted,
H. whereas the issue at stake is extremely delicate and its consequences for the prerogatives of the European Parliament are unacceptable, as there is no justification for unequal treatment of Gabriele Albertini, which raises the question of a "fumus persecutionis",
I. whereas any case of political persecution of one of its Members is an attack on the integrity of the European Parliament as a political institution democratically elected by the peoples of Europe, and amounts to a contempt of Parliament,
J. whereas the discriminatory attitude of the Italian court is damaging to Gabriele Albertini;
K. whereas, if the Statute for Members of the European Parliament had already entered into force, which it has not yet, although the European Parliament has endorsed it twice, in its resolutions of 5 December 2002[4] and 17 December 2003[5], the proceedings against Gabriele Albertini could have been suspended;
1. Regrets that, as it stands, the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 does not afford the European Parliament with the means of taking binding action in order to protect Gabriele Albertini and therefore decides not to defend his immunity;
2. Instructs its President to forward this decision, and the report of the committee responsible, immediately to the Public Prosecutor's Office at the District Court of Milan in connection with criminal case No 8629/05 R.G.
- [1] Case 101/63 Wagner v Fohrmann and Krier [1964] ECR 195, and Case 149/85 Wybot v Faure and others [1986] ECR 2391.
- [2] European Parliament Decision on the verification of credentials (OJ C 226 E, 15.9.2005, p. 51)
- [3] Article 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965.
- [4] OJ C 27 E, 30.1.2004, p. 139.
- [5] OJ C 91 E, 15.4.2004, p. 230.
EXPLANATORY STATEMENT
I. FACTS
Criminal proceedings have been brought against Mr Albertini in his capacity as Mayor of Milan before the Court of Milan (procedure No 8629/05: falsity in public deeds and abuse of office) on charges of assisting in the offence of ideological falsity, the offence of attempted abuse of office and the offence of attempted material falsity.
The events in question all took place in Milan on 13 March 2003, in connection with the adoption of the draft budget of the municipality of Milan for the year 2003. In short, Mr Albertini was accused of assisting in tabling false amendments for consideration by the municipal council, signed by members of the political majority and unlawfully intended to prevent discussion of as many as possible of the amendments tabled by the opposition.
To achieve this end it was necessary to know the content of the amendments tabled by the opposition. Only once the minority's amendments had been examined would it have been possible for the majority to introduce targeted changes to the budget proposals in their own amendments.
A variation was therefore devised to sidestep the mechanism provided for by Rule 59 of the Council's Rules of Procedure: blank amendments were tabled (on time) to be filled in subsequently by representatives of the majority once the contents of the opposition's amendments were known, and thus after the expiry of the deadline for tabling amendments. All this was discussed to ensure that the amendments tabled by the minority would fall en masse.
The same events in respect of which the criminal charges have been brought against Mr Albertini were the subject of a different crime notification relating to the political opposition and forwarded to the Public Prosecutor of the Court of Milan by Mr Albertini himself in his capacity of Mayor of that city.
However, this case was dismissed on the grounds that "the proposed amendment to the draft budget of a regional public authority, from a legal point of view, relates to -and certainly forms part of - the administrative procedure which regulates the determination of the will of the advisory body of that authority, in this case the taking of the decision to approve the 2003 budget. The draft amendment is therefore an act of internal procedure of relevance in terms of information, but without external effect. However, it is clearly an act unrelated to the decision-making role of the body which is a body required by law to express the will of the authority with external effect".
The fact that the proposed amendments were acts of internal procedure, and therefore not public acts, was drawn to the attention of the Public Prosecutors investigating the case in which Mr Albertini was the accused, but, without ever addressing that point, they proceeded with the investigations, which resulted in an indictment of Mr Albertini.
It is clear that the Milanese judges treated Mr Albertini in a diametrically opposed way depending on whether he was considered as the accused or the injured party. It therefore seems quite legitimate to take the view that this fact can be regarded as a case of 'fumus persecutionis': a decision not to proceed was taken where Mr Albertini was the injured party, while the request for dismissal was rejected and the matter referred for trial when he was the subject of an investigation.
Mr Albertini informed the Committee on Legal Affairs that the way his name was associated to the above-mentioned events was quite suspicious, as it was the first accused (deemed responsible of having personally prepared the blank amendments) who revealed it to Prosecutors, but only after undergoing prolonged psychological pressure during a very harsh police interrogation. This fact may be regarded as a further evidence of 'fumus persecutionis' towards Mr Albertini.
On 9 December 2004, the Public Prosecutor's Office made a request for proceedings to be brought in respect of the offences referred to in the charges, following which the office of the examining judge set the date for the preliminary hearing at 9 February 2005. Further to the preliminary hearing, the examining judge issued a decree on 4 May 2005 fixing the date for the opening of proceedings before the Court of Milan at 12 January 2006. The proceedings then continued at a hearing on 16 March when preliminary questions were dealt with relating to the procedure for bringing suit as a civil party and the case was adjourned until 2 May 2006.
II. LAW AND GENERAL CONSIDERATIONS ON THE IMMUNITY OF
MEMBERS OF THE EUROPEAN PARLIAMENT
A. 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 Mr Gabriele Albertini 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.
B. Applicable provisions
Articles 9 and 10 of the Protocol on the privileges and immunities of the European
Communities (PPI)[1] read as follows:
Article 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.
Article 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.
As for the applicability of Article 9, it must be remarked that the charges brought against Mr Albertini do not refer to the opinions expressed or votes cast in the performance of his duties as a member of the European Parliament for the simple reason that a blank amendment - as it ultimately contains no expressions - cannot be equated with an "opinion".
As for Article 10, given that the charges brought against Mr Albertini refer to facts committed in Italy, whose citizenship he enjoyed at that moment, the only applicable part is the one pursuant to which "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".
The scope of the parliamentary immunity in Italy is very similar to the one that serves the functioning of the EP, based on the PPI.
Article 68, second subparagraph, of the Italian Constitution reads as follows:
Article 68, second subparagraph
Without authorization from the House to which they belong, no member of Parliament may be subjected to a personal search or have their domicile searched, neither may they be arrested or otherwise deprived of personal freedom, or kept in detention, except to enforce a final conviction, or if caught in the act of committing a crime for which arrest is mandatory.
III. JUSTIFICATION OF THE PROPOSED DECISION
On the grounds of the above-mentioned elements and of the available documents, it has to be concluded that, from a legal point of view, Mr Albertini's case cannot be regarded as a case of immunity to be defended by the European Parliament. Ultimately, Mr Albertini's case entirely falls under Italian legislation.
At the current stage of the criminal procedure brought against Mr Albertini, the above-mentioned Article 68, second subparagraph, of Italian Constitution cannot endanger his prerogatives as a parliamentarian: likewise members of the Italian Parliament, he does not enjoy immunity from criminal prosecution.
However, a question of discrimination against Mr Albertini as an elected politician might be raised in so far as tabling blank amendments may be regarded as being an aspect of politics and political life and as, so long as the final act to which they refer has not been adopted, such amendments are simply acts of internal procedure with no external effect, in particular and above all from the point of view of criminal law, since the tabling of such amendments amounts to an impossible crime and in any case to an nonexistent crime.
The discrimination would consist of the fact that, according to the evidence submitted to the Committee on Legal Affairs by Mr Albertini, in other proceedings (Case No 9384/03 R.G.N.R.), the same District Court of Milan, called upon to consider allegations similar to those made against Mr Albertini but then made by Mr Albertini himself against his political opponents, held that there was no case to answer and dismissed the case.
The fact that the self-same court has consequently adopted a diametrically opposed attitude in two similar cases amounts to unreasonable unequal treatment. Given that it is hard to find an objective justification for its action, this raises the question of a "fumus persecutionis".
On the other hand, it must be recalled that, as it stands, Article 10, letter a), of the Protocol on the privileges and immunities, by letting members' protection depend on their own national legislation, does not afford the European Parliament with the means of taking binding action in order to protect Mr Albertini in the above case.
IV. CONCLUSIONS
On the basis of the above considerations, the Committee on Legal Affairs, having heard Mr Albertini and having examined the reasons for and against defending his immunity, considers regretfully that, as it stands, the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 does not afford the European Parliament with the means of taking binding action in order to protect Gabriele Albertini.
- [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).
PROCEDURE
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Title |
Request for defence of the immunity and privileges of Gabriele Albertini |
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Procedure number |
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Request for defence of immunity |
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Committee responsible |
JURI |
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Rapporteur(s) |
Diana Wallis |
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Previous rapporteur(s) |
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Discussed in committee |
11.7.2006 |
11.9.2006 |
2.10.2006 |
24.10.2006 |
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Date adopted |
24.10.2006 |
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Result of final vote
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+ - 0 |
17 |
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Members present for the final vote |
Maria Berger, Carlo Casini, Giuseppe Gargani, Klaus-Heiner Lehne, Alain Lipietz, Hans-Peter Mayer, Aloyzas Sakalas, Gabriele Stauner, Diana Wallis, Tadeusz Zwiefka |
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Substitute(s) present for the final vote |
Jean-Paul Gauzès, Kurt Lechner, Eva Lichtenberger, Manuel Medina Ortega, Marie Panayotopoulos-Cassiotou |
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Substitute(s) under Rule 178(2) |
Guido Podestà, Riccardo Ventre, Stefano Zappalà |
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Comments |
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