REPORT on the request for defence of the immunity and privileges of Claudio Fava
24.1.2008 - (2007/2155(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 Claudio Fava
The European Parliament,
– having regard to the request by Claudio Fava for defence of his immunity in connection with civil proceedings brought against him before the Marsala Civil Court, of 29 May 2007, announced in plenary sitting on 6 June 2007,
– having heard Claudio Fava 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 Rules 6(3) and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A6‑0007/2008),
1. Decides to defend the immunity and privileges of Claudio Fava;
2. Instructs its President to forward this decision, and the report of its committee responsible, immediately to the appropriate authorities of the Italian Republic.
- [1] Case 101/63 Wagner v Fohrmann and Krier [1964] ECR 195 and Case 149/85 Wybot v Faure and others [1986] ECR 2391.
EXPLANATORY STATEMENT
I. FACTS
At the sitting of 6 June 2007, the President of Parliament announced that he had received a request for the defence of the parliamentary immunity of Claudio Fava by letter of 29 May 2007, which was forwarded to the Committee on Legal Affairs, pursuant to Rule 6(3) of the Rules of Procedure.
The request relates to civil proceedings brought by Mr David Salvatore Costa against Mr Fava, along with other defendants, which are currently pending before the Civil Court of Marsala.
By writ of summons of 22 February 2007, Mr Costa summoned Claudio Fava and the other defendants to appear before the Court in order to answer to a claim for them to be ordered to pay, jointly and severally or individually, such amount as the Court should consider just as compensation for statements they made on 16 November 2006 during the TV programme ‘Annozero’ broadcast by the State television channel RAI 2 , which, that evening, was devoted to Sicily. Among the guests on the programme were the President of the Region, Mr Salvatore Cuffaro, and Mr Fava.
According to Mr Costa's writ of summons, in the final part of the programme, Mr Fava, after violently hurling abuse at Mr Cuffaro, in a theatrical tone, wildly launched slanderous and defamatory accusations against Mr Costa, who was, moreover, not present during the debate.
In particular, Mr Fava stated as follows: ‘A while ago we were talking about a number of councillors who have been arrested. We are talking about a councillor who was arrested because he was accompanied in his official car, during his electoral campaign, by a Mafia fugitive from justice whom he took to meetings to ask for votes. Do we think this was a misunderstanding? That he had not known who was sitting next to him? This is what the government’s policy in Sicily is like. And it was one of your councillors (said while directly pointing at Mr Cuffaro)! And I would expect to be hearing these things from the President of the Region, because it should be you (Mr Cuffaro) who says that it is inconceivable that a councillor should take a fugitive around with him on his electoral campaign....’
After Mr Cuffaro observed that he did not know who Mr Fava was talking about and that, as far as he knew, there were no councillors on the electoral campaign in question, Mr Fava promptly countered: ‘Councillor Costa. David Costa’.
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.
4. Where the request seeks the waiver of immunity on several counts, each of these may be the subject of a separate decision. The committee's report may, exceptionally, propose that the waiver of immunity shall apply solely to prosecution proceedings and that, until a final sentence is passed, the Member should be immune from any form of detention or remand or any other measure which prevents him from performing the duties proper to his mandate.
(...)
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
Background
The expression 'legal proceedings' used in Articles 9 and 10 of the Protocol on the Privileges and Immunities has traditionally been interpreted as covering only criminal proceedings.
Indeed, since none of the six founding Member States of the European Communities which considered the wording of those articles grant immunity to their national parliamentarians in connection with civil proceedings, it has been difficult to give credence to the notion that the representatives of those six Member States intended to grant Members of the European Parliament privileges which were broader in scope than those accorded to their own national parliamentarians.
Until September 2003, the restrictive interpretation limiting the scope of the provisions in question to criminal proceedings also had its proponents in Parliament.
In March 1987, Parliament went so far as to propose an amendment to the Commission draft text revising the Protocol on Privileges and Immunities with a view to clarifying the provision in question by expressly restricting the immunity of MEPs to criminal proceedings and measures involving the withdrawal or restriction of individual freedom[1].
Furthermore, paragraphs 4 and 7 of the current version of Rule 7 of Parliament's Rules of Procedure seem to lend further weight to that interpretation by making explicit reference to 'prosecution proceedings' and to the 'prosecution' of the Member concerned.
However, on 23 September 2003 Parliament decided, for the first time, to uphold the immunity of a Member in civil proceedings[2]. Subsequently, many other similar decisions were taken in other cases involving civil proceedings[3].
Accordingly, the reference to 'legal proceedings' in the above provisions of the Protocol must today be interpreted as covering any attempt to secure punitive damages by means of civil proceedings.
Application to the case in point
As seen above, 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".
As a matter of fact, in his statements reported by the writ of summons filed by the claimant, Mr Fava merely commented on facts in the public domain.
In describing and criticising what in his views were deviations of the electoral campaign in Sicily, he was carrying out his duty as a Member of Parliament in expressing his opinion on a matter of public interest to his constituents.
In short, Mr Fava was simply doing his job as a Member of Parliament. 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.
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 Claudio Fava should be defended.
- [1] See the Donnez report, A2-0121/86.
- [2] See A5-0309/03, Sakellariou.
- [3] See A5-0421/03, Gargani; A5-0184/04, Schulz; A5-0185/04, Lehne; A5-0281/04, Bossi; A6-0449/07, Brunetta.
RESULT OF FINAL VOTE IN COMMITTEE
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Date adopted |
22.1.2008 |
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Result of final vote
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+: –: 0: |
13 0 0
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Members present for the final vote |
Titus Corlăţean, Bert Doorn, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Klaus-Heiner Lehne, Manuel Medina Ortega, Aloyzas Sakalas, Francesco Enrico Speroni, Diana Wallis, Jaroslav Zvěřina, Tadeusz Zwiefka |
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Substitute(s) present for the final vote |
Jean-Paul Gauzès, Kurt Lechner |
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Substitute(s) under Rule 178(2) present for the final vote
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