REPORT on the request for defence of the immunity and privileges of Gérard Onesta
7.11.2006 - (2006/2121(IMM))
Committee on Legal Affairs
Rapporteur: Klaus-Heiner Lehne
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for defence of the immunity and privileges of Gérard Onesta
The European Parliament,
– having regard to the request by Monica Frassoni for defence of the immunity of Gérard Onesta in connection with the criminal proceedings brought against the latter before the Third Chamber of the Court of Criminal Appeals of Toulouse, France, made on 17 May 2006, announced in plenary sitting on 31 May 2006,
– having heard Gérard Onesta 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 26 of the Constitution of the French 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 (A6‑0386/2006),
A. whereas Gérard Onesta 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 26, second subparagraph, of the French Constitution, pursuant to which no Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorization of the Bureau of the assembly of which he is a member; whereas such authorization shall not be required in the case of a serious crime or other major offence committed flagrante delicto or a final sentence,
D. whereas the Court of Criminal Appeals of Toulouse sentenced Gérard Onesta to three months' imprisonment, thus applying a stricter sanction than the one reserved to the other accused and whereas the self same court justified this different decision by stating that, in his capacity as Member of a Parliament, Gérard Onesta had, more so than any other citizen, the means available to make his voice heard in political fora, in particular with the support of other elected members of his party, his group in the Assembly and, if necessary, the media, as he is, according to the French court, an expert in the art of communication,
E. whereas punishing Gérard Onesta more severely only in view of his status as Member of a Parliament constitutes a clear discrimination against elected politicians, in so far as it seems that, since they have other and more effective means of expression, they are not permitted to engage in public demonstrations in the same way as other citizens and whereas this would therefore entail the unacceptable conclusion that Members of a Parliament are only allowed to act in political assemblies and that, outside those fora, they enjoy fewer rights and means of expression than any other citizen,
F. whereas the French authorities' discriminatory use of "fraglante delicto" against Members of Parliament alone - selected from more that 400 persons involved - constitutes an abuse of procedure with the sole purpose of circumventing the Protocol on Privileges and Immunities,
G. whereas Mr Onesta maintains that his intention was to draw attention to the fact that the European Court of Justice found against France for failing to transpose the directive 2001/18/CE adopted by European Parliament,
H. whereas the issue at stake is extremely delicate and its consequences for the prerogatives of the European Parliament are unacceptable, as the discriminatory attitude of the French court and the resulting political prejudice to Gérard Onesta's civil rights are to be strongly deplored,
I. whereas, after exhausting his domestic remedies, Mr Onesta is in any case entitled to bring his case before the European Court of Human Rights in Strasbourg, and the European Parliament is already considering supportive measures,
J. 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 and whereas, as a democratic institution, the European Parliament is bound to defend its prerogatives using all the means at its disposal,
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 the means of taking binding action in order to protect Gérard Onesta and therefore decides not to defend his immunity.
- [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.
EXPLANATORY STATEMENT
I. FACTS
On 25 July 2005, about 400 people gathered in Menville (a village near the French city of Toulouse), where they intended to demonstrate against genetically modified food and destroyed a field of maize measuring about 13.000 sq.m.
Notwithstanding the participation of such a large number of people, the prosecutors of Toulouse decided to incriminate nine demonstrators only, two of whom, Gérard Onesta, MEP and Noël Mamère, MP, were submitted to the special procedure applicable to offenders found in the act of committing a crime.
By decision of 15 November 2005, the third chamber of the Court of Criminal Appeals of Toulouse (in French, troisième Chambre des appels correctionnels), within whose competence this issue lay, sentenced Mr Onesta to a period of imprisonment of three months and ordered him to pay the costs of the proceedings, to pay compensation to the aggrieved parties and to refund to the aggrieved parties the costs of joining the proceedings and of legal representation therein.
While one accused was acquitted, the others were sentenced to periods of imprisonment ranging from two to four months, in addition to the obligation of compensating and refunding the aggrieved parties.
On 22 March 2006, Ms Monica Frassoni, MEP, wrote a letter to President Borrell in order to denounce the contradictory and apparently discriminatory attitude held by the above-mentioned court against Mr Onesta (and, as far as he was concerned, against Mr Mamère). President Borrell then transmitted this letter to the committee on legal affairs to ensure an in-depth analysis of this issue.
In her letter, Ms Frassoni highlighted that:
· only 9 demonstrators out of 400 were prosecuted and only two of them (Mr Onesta, MEP, and Mr Mamère, MP) were submitted to the “caught-in-the-act” procedure, under the pretext that only these two had been immediately identified, notwithstanding the presence of the better-known José Bové;
· only Mr Onesta, MEP, and Mr Mamère, MP, were sentenced to a period of imprisonment longer than the one applied to all the other accused, except for Mr Bové, who was considered as an habitual offender by the court;
· in order to justify the conviction of Mr Onesta and Mr Mamère, the French court stated that “in their capacity as Members of Parliament, more so than any other citizens, they had the means available to make their voices heard in political fora, in particular with the support of other elected members of their party, their group in the Assembly and, if necessary, the media, being experts in the art of communication”;
· the Court of Criminal Appeals of Toulouse contradicted the traditional approach of French courts as regards similar demonstrations, where the accused had always been acquitted because they were deemed to have acted in the need to avoid danger (in French, état de nécessité).
According to Ms Frassoni, all these elements are sufficiently clear to admit that the above-mentioned court decided to punish Mr Onesta and Mr Mamère more seriously just in the view of their capacity of parliamentarians, thus revealing a biased and discriminatory attitude.
Finally, on 16 May 2006, pursuant to Rule 6 (3) of the Rules of Procedure, Mrs Frassoni wrote a new letter to President Borrell, officially asking for the defence of privileges and immunities of Mr Onesta. The latter eventually agreed with Mrs Frassoni's initiative and the formal announce of such a procedure was given during the plenary sitting of 31 May 2006.
II. LAW AND GENERAL CONSIDERATIONS ON THE IMMUNITY OF
MEMBERS OF THE EUROPEAN PARLIAMENT
As known, 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 Onesta do not refer to the opinions expressed or votes cast in the performance of his duties as a member of the European Parliament: according to the doctrine developed in this respect and to the practice followed by the Committee on Legal Affairs, the non-liability provided by Article 9 of the PPI only covers 'opinions' and 'votes' and not physical acts, even if the latter intend to express an opinion.
As for Article 10, given that the charges brought against Mr Onesta refer to facts committed in France, 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 France is very similar to the one that serves the functioning of the EP, based on the PPI.
Article 26 of the French Constitution reads as follows:
Article 26
No Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the exercise of his duties.
No Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorization of the Bureau of the assembly of which he is a member. Such authorization shall not be required in the case of a serious crime or other major offence committed flagrante delicto or a final sentence.
The detention, subjection to custodial or semi-custodial measures, or prosecution of a Member of Parliament shall be suspended for the duration of the session if the assembly of which he is a member so requires.
The assembly concerned shall convene as of right for additional sittings in order to permit the preceding paragraph to be applied should circumstances so require.
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 Onesta’s case cannot be regarded as a case of immunity to be defended by the European Parliament. Ultimately, Mr Onesta's case entirely falls under French legislation.
Concretely, the abovementioned Article 26 of French Constitution cannot endanger Mr Onesta's prerogatives as a parliamentarian: firstly, he will not be subjected to any custodial measure, as his conviction has been suspended under the conditions laid down by Articles 132-29 to 132-38 of the French criminal code; secondly, although he has also been sentenced to pay a sum to the civil parties, this case is not covered by Article 26 of French Constitution.
However, it must be stressed that the above-mentioned passage of the sentence of the Court of Criminal Appeals of Toulouse, where Mr Onesta is more severely punished only in the view of his capacity of parliamentarian, constitutes a clear discrimination against elected politicians, in so far as it seems that, since they can have other and more effective means of expression, they are not permitted to engage in public demonstrations in the same way as other citizens, which would entail the unacceptable conclusion that parliamentarians can only act in political assemblies and that, out of those fora, they enjoy fewer rights and means of expression than any other citizen.
IV. CONCLUSIONS
On the basis of the above considerations, the Committee on Legal Affairs, having heard Mr Onesta and having examined the reasons for and against defending his immunity, considers that the request for defence of the immunity and privileges of Mr Gérard Onesta does not fall within the scope of the Protocol on the privileges and immunities of the European Communities of 8 April 1965.
- [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 Gérard Onesta |
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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) |
Klaus-Heiner Lehne |
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Previous rapporteur(s) |
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Discussed in committee |
21.6.2006 |
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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