ДОКЛАД по искане за запазване на имунитета и привилегиите на Giuseppe Gargani

21.3.2007 - ((2006/2300(IMM))

Комисия по правни въпроси
Докладчик: Diana Wallis

ПРЕДЛОЖЕНИЕ ЗА РЕШЕНИЕ НА ЕВРОПЕЙСКИЯ ПАРЛАМЕНТ

относно искането за запазване на имунитета и привилегиите на Giuseppe Gargani

(2006/2300(IMM))

Европейският парламент,

–   като взе предвид искането на Giuseppe Gargani от 30 ноември 2006 г. в защита на неговия имунитет във връзка с висящо пред италиански съд гражданско производство, оповестено на пленарно заседание на 11 декември 2006 г.,

–   като изслуша Giuseppe Gargani в съответствие с член 7, параграф 3 от своя правилник,

–   като взе предвид членове 9 и 10 от Протокола за привилегиите и имунитетите на Европейските общности от 8 април 1965 г. и член 6, параграф 2 от Акта относно избора на членове на Европейския парламент чрез всеобщи преки избори от 20 септември 1976 г.,

–   като взе предвид решенията на Съда на Европейските общности от 12 май 1964 г. и от 10 юли 1986 г.[1],

–   като взе предвид член 6, параграф 3 и член 7 от своя правилник,

–   като взе предвид доклада на комисията по правни въпроси (A6‑0071/2007),

1.  реши да запази имунитета и привилегиите на Giuseppe Gargani;

2.  възлага на своя председател незабавно да предаде настоящото решение и доклада на водещата комисия на компетентните органи на Република Италия.

• [1]  Дело 101/63, Wagner срещу Fohrmann и Krier [1964] ECR 195 и дело 149/85, Wybot срещу Faure и други [1986] ECR 2391.

EXPLANATORY STATEMENT

I.         FACTS

At the sitting of 11 December 2006, the President of Parliament announced that he had received a request for the defence of the Parliamentary immunity of Giuseppe Gargani MEP by letter of 30 November 2006, which was duly forwarded to the Committee for Legal Affairs.

The request relates to civil proceedings brought by Ms Di Giovanni, the President of the Tribunale di Sorveglianza, Naples, against Mr Gargani, the publishers and the managers of the weekly Il Roma in which she seeks to have them held jointly and severally liable to pay her EUR 500,000 damages for the damage allegedly done to her reputation by Mr Gargani's article.

Mr Gargani's article was entitled "Illogical justice (....) Treating freedom of speech as a crime. Another means of turning the justice system into a travesty of justice? The question inevitably arises after yet another court case causes doubt and dismay".

The article discussed the case of Lino Jannuzzi, an Italian senator and journalist, who was sentenced to a term of over 2 years' imprisonment "because the Tribunale di Sorveglianza of Naples, on the basis of an extraordinary interpretation of the law, has rejected applications to suspend the sentence passed on Jannuzzi for defamation in the course of his activities as a journalist in previous years".

The article went on to criticise the state of justice in Italy in the light of the Jannuzzi case, in which he is due to be "imprisoned immediately for three articles written a decade ago in accordance with the right of free expression enshrined in the Constitution among the fundamental freedoms of the individual which apply to him and every other Italian citizen".

The article further claimed that the fact that the Court in Naples did not have recourse to penalties other than imprisonment generates an instinctive suspicion of fumus persecutionis.

In the remainder of the article, Mr Gargani discussed alternative penalties to imprisonment and the question of the lack of rules on parliamentary immunity as a means of achieving a balance between the arms of the State and of avoiding the judiciary's being able to put pressure on the Parliament. He also aired the question of the politicisation of the judiciary and the role of judicial officers who may investigate cases and then judge them, together with the role which proper vocational training for the judiciary might play in the reform of the judicial system in Italy. Mr Gargani concluded by saying that the reform of the judicial system would avoid further applications to the President of the Republic for a pardon, which "will not be available for every citizen who has the misfortune to come up against a judge who operates in accordance with preconceived ideas and shows no sense of responsibility or balance". It is noted that the claimant is not mentioned by name in the article, merely the court of which she is the President.

The claimant argues that the alleged defamatory remarks are rendered all the more "singular" in view of Mr Gargani's curriculum vitae, which mentions his law degree, his membership of the Bar, his post as head of the Justice Department of the Christian Democrat Party in Campania and his position as Chairman of the Legal Affairs Committee of the European Parliament.

It should be noted that the complainant had previously brought criminal proceedings in respect of same facts in the Tribunale di Roma. That case was closed on the ground that Mr Gargani had made the statements in question "in the course of exercising his parliamentary duties, as provided for in Article 68 of the Constitution". Nevertheless, it is clear that the complainant is persisting in her assertion that Mr Gargani is guilty of criminal defamation in so far as it is stated in the writ of summons that persons such as the accused "are equally liable where a publication is the means of committing a crime and consequently gives rise to the damage, even in cases in which (in contrast with the present case) no criminal court has ascertained whether the offence was committed because the necessary requirements were not fulfilled for the matter to be prosecuted, with the result that the judge in the civil court may recognise incidenter tantum, and solely for the purpose of awarding compensation, that the crime was committed."

II.       LAW AND GENERAL CONSIDERATIONS ON THE IMMUNITY OF MEMBERS OF THE EUROPEAN PARLIAMENT

1. Articles 9 and 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965, 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 other Member States, immunity from any measure or 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. The procedure in the European Parliament is governed by Articles 6 and 7 of the Rules of Procedure. The relevant provisions read as follows:

Rule 6 Waiver of immunity:

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 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.

(...)"

Rule 7 Procedure on immunity:

1. The committee responsible shall consider without delay and in the order in which they have been submitted requests for the waiver of immunity or requests for the defence of immunity and privileges.

2. The committee shall make a proposal for a decision which simply recommends the adoption or rejection of the request for the waiver of immunity or for the defence of immunity and privileges.

3. The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary for it to form an opinion on whether immunity should be waived or defended. The Member concerned shall be given an opportunity to be heard; he may bring any documents or other written evidence he deems relevant. He may be represented by another Member.

(...)

6. In cases concerning the defence of immunity or privileges, the committee shall state whether the circumstances constitute an administrative or other restriction imposed on the free movement of Members travelling to or from the place of meeting of Parliament or an opinion expressed or a vote cast in the performance of the mandate or fall within aspects of Article 10 of the Protocol on Privileges and Immunities which are not a matter of national law, and shall make a proposal to invite the authority concerned to draw the necessary conclusions.

7. The committee may offer a reasoned opinion about the competence of the authority in question and about 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.

(...)"

III.     JUSTIFICATION OF THE PROPOSED DECISION

Article 9 of the Protocol on privileges and immunities provides that Members of the European Parliament have absolute immunity from legal proceedings "in respect of opinions expressed .. in the performance of their duties".

In her summons lodged with the Tribunale di Roma, the claimant seeks punitive damages of EUR 500,000 jointly and severally against a number of defendants, including Mr Gargani, for allegedly libelling the claimant and therefore injuring her reputation.

It appears from an analysis of the article in question that Mr Gargani was merely commenting on a matter of public interest and used the case of Mr Januzzi as his starting point for a critique of the Italian judicial system, a defence of Parliamentary immunity and a discussion of proposals for the reform of the judicial system.

In view of Mr Gargani's position, not only as a politician, but as Chairman of Parliament's Committee on Legal Affairs, which is responsible for privileges and immunities of members (by virtue of Annex VI, Section XVI, point 9 of the Rules of Procedure), he has a legitimate interest in expressing his opinion on the situation appertaining to parliamentary immunity in Italy. Indeed, in view of the fact that Parliament's Committee on Legal Affairs is obliged under Article 10 of the Protocol to apply national law on parliamentary immunity, it could be argued that he has not only the right but a duty to initiate public debate on such matters.

In publishing the article in question Mr Gargani was simply doing his job as a Member of Parliament and Chairman of the Legal Affairs Committee. To seek to gag Members of Parliament from expressing their opinions on matters of legitimate public interest and concern by bringing legal proceedings is unacceptable in a democratic society and manifestly in breach of Article 9 of the Protocol, which is intended to protect Members' freedom of expression in the performance of their duties in the interests of Parliament as an institution.

Furthermore, the fact that the civil proceedings in question were brought after criminal proceedings were unsuccessfully initiated at the instance of the claimant in respect of the same facts suggests that there is a fumus persecutionis.

IV. CONCLUSIONS

On the basis of the above considerations, the Committee on Legal Affairs, having examined the reasons for and against defending immunity, recommends that the immunity of Mr Giuseppe Gargani be defended.

ПРОЦЕДУРА

Заглавие	Искане за запазване на имунитета и привилегиите на Giuseppe Gargani
Номер на процедура	2006/2300(IMM)
Искане за запазване на имунитета,  предадено от*                  Дата на искането                               Дата на обявяване в заседание *Данни, на разположение само на един език	Giuseppe Gargani 30.11.2006 г. 11.12.2006 г.
Водеща комисия                               Дата на обявяване в заседание	JURI 13.12.2006 г.
Докладчик(ци)                  Дата на назначаване	Diana Wallis 18.12.2006 г.
Заместен(и) докладчик(ци)
Разглеждане в комисия	30.1.2007 г.	20.3.2007 г.
Дата на приемане	20.3.2007 г.
Резултат от окончателното гласуване	+: –: 0:		12 0 0
Членове, присъствали на окончателното гласуване	Cristian Dumitrescu, Klaus-Heiner Lehne, Hans-Peter Mayer, Manuel Medina Ortega, Aloyzas Sakalas, Francesco Enrico Speroni, Diana Wallis, Jaroslav Zvěřina, Tadeusz Zwiefka
Заместник(ци), присъствал(и) на окончателното гласуване	Sharon Bowles, Mogens N.J. Camre, Kurt Lechner
Заместник(ци) (чл. 178, пар. 2), присъствал(и) на окончателното гласуване
Дата на внасяне	0.0.0000 г.
Забележки (данни, на разположение само на един език)