REPORT on the request for defence of the immunity and privileges of Witold Tomczak

24.1.2008 - (2007/2130(IMM))

Committee on Legal Affairs
Rapporteur: Aloyzas Sakalas

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for defence of the immunity and privileges of Witold Tomczak

(2007/2130(IMM))

The European Parliament,

–   having regard to the request by Witold Tomczak for defence of his immunity in connection with the criminal case conducted by the District Court in Ostrów Wielkopolski, Poland, made on 21 May 2007, announced in plenary sitting on 24 May 2007,

–   having heard Witold Tomczak on 4 October 2007 in accordance with Rule 7(3) of its Rules of Procedure,

–   having regard to Articles 8, 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 (A6‑0008/2008),

A. whereas Witold Tomczak was elected to the Polish Parliament (Sejm) on 21 September 1997 and on 23 September 2001; whereas after the signature of the Accession Treaty on 16 April 2003 he became an Observer; whereas he was a Member of the European Parliament from 1 May 2004 until 19 July 2004; whereas he was elected to the European Parliament on 13 June 2004 and his term of office in the Polish Parliament expired on 16 June 2004,

B.  whereas Witold Tomczak is charged with insulting two police officers in the performance of their duties in Ostrów Wielkopolski on 26 June 1999 in breach of Article 226(1) of the Polish Penal Code; whereas after a number of failures by Witold Tomczak to appear at the hearings, the District Court in Ostrów Wielkopolski decided on 10 January 2005, in accordance with Article 377(3) of the Polish Code of Criminal Procedure, to proceed with the trial in absentia,

C. whereas, in accordance with Article 9 of the Act of 23 January 2004 on elections to the European Parliament, "A person shall be eligible for elections to the European Parliament held in the Republic of Poland if he or she [...] has not been convicted of a crime committed intentionally and prosecuted by indictment ..."; whereas Article 142, paragraph 1(1) of that Act states that "The forfeiture of a seat of a Member of the European Parliament shall be a result of forfeiture of eligibility"; whereas no such provisions exist in the Act of 12 April 2001 on elections to the Sejm and Senat of the Republic of Poland (the Polish parliament),

D. whereas Witold Tomczak had previously (on 29 April 2005) asked Parliament to defend his immunity in these criminal proceedings; whereas Parliament decided in plenary on 4 April 2006 not to defend his immunity, even though Mr Tomczak had sent a letter prior to the plenary sitting by which he purported to withdraw his earlier application for defence of his immunity,

E.  whereas Witold Tomczak claims that the judge presiding in the case is not objective, and that the possibility of holding the trial in absentia infringes the principle of the presumption of innocence,

F.  whereas Witold Tomczak complains that the District Court is not granting him access to the files in the case and that the criminal proceedings against him are biased because he sought to challenge the legality of the actions of local police and the local prosecutor,

G. whereas, on the basis of the information obtained, Witold Tomczak is not protected by parliamentary immunity in respect of any of the claims which have been drawn to the attention of the President of the European Parliament,

1.  Decides not to defend the immunity and privileges of Witold Tomczak.

• [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 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 to 19 July 2004, 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 June 1999, Mr Witold Tomczak was driving his car in Ostrów Wielkopolski with his three sons (Mikołaj, Dominik and Tymoteusz), Ms Krystyna Kubiak and her daughter Maria as passengers. A few minutes after midnight, they were driving the wrong way down a one-way steett, Gimnazjalna Street. A police patrol in an unmarked car blocked their way and one police officer (Sławomir Marek) approached Mr Tomczak's car from the driver's side. After a short while (the substance of the 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 police officers (Sławomir Marek and Radosław Gmur) forced him out of the car, handcuffed him and took to the local police station. There, after being breathalysed (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 about the police officers' 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 Mr Tomszac 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 police officers 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 police officers (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 court having substantive and territorial jurisdiction in the matter is the Ostrów Wielkopolski District Court. As Mr Tomczak failed to appear in Court on twelve consecutive occasions, 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 stay the criminal proceedings. Following the European Parliament's decision in April 2006 not to defend the immunity of Mr Tomczak, the Court has again summoned Mr Tomczak, but no judgment has yet been given.

3.1.     Mr Tomczak does not contest driving the wrong way down a one-way street. He claims that he was 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 police officers as well as the District Prosecutor.

3.2.     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 (see point 2.2. above) was without effect, as the Act of 9 May 1996 on carrying out the parliamentary mandate did not provide for such a possibility. Mr Tomczak has provided the Parliament with a legal opinion that analyses the matter of this apparent contradiction between the Polish Constitution and that Act at the time and concludes that a public court would need to deliver a ruling whether the actions of the Sejm and the Public Prosecutor were fault.

3.3.     Furthermore, Mr Tomczak considers that, as a number of judges from the District Court in Ostrów Wielkopolski (including the Vice-President of the Court, Wojciech Baszczyński) recused themselves from the case brought by Mr Tomczak against the District Prosecutor on grounds that they had personal contacts with the accused, none of the judges working in Ostrów Wielkopolski can be objective in the present case. He also points to an instruction issued by Wojciech Baszczyński to the judge presiding in the case to proceed with the trial even in the absence of the accused as an evidence of bias in the conduct of the proceedings.

3.4.     Mr Tomczak complains that the Court in Ostrów does not grant him access to the files of the case. According to the documents provided, his request for copies of the complete file was rejected by the Court on formal grounds, after Mr Tomczak had failed to specify precisely what documents he requested. Mr Tomczak then visited the Court personally and was granted access to the files 'on the spot'. Nevertheless, Mr Tomczak states that those irregularities in the proceedings are such that he cannot be guaranteed a fair trial.

In conclusion, Mr Tomczak asks for his parliamentary immunity to be defended.

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:

Article 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.

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.

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 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 the event constituting the basis for the legal proceedings against him took place in Poland, that is his own State.

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 language of the Article. What is protected is 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 the 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 that of the immunity provided for in 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.

In view of the above, Mr Tomczak's request should be treated as a request for a decision of the European Parliament to ask for suspension of the proceedings against him, as is 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 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 was based on an intention to prejudice the Member's political activities (fumus persecutionis). There is no clear evidence of such kind in the case of Mr Tomczak.

The basic fact that Mr Tomczak drove 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. Both procedural decisions contested by Mr Tomczak (regarding trial in absentia and access to files of the case) were made in accordance with Polish law. The question whether his immunity was not properly waived at the beginning of the proceedings is a question that can be verified by only the Polish judicial authority (if at all). The fact that the judge presiding in the case lives in the same town as the prosecutor against which Mr Tomczak had previously filed charges does not in itself prevent that judge from acting objectively. Last, but not least, the possible consequence of losing the mandate of Member of the European Parliament (under the Polish law on elections to the European Parliament, if Mr Tomczak is convicted of committing the alleged offence, he will lose his seat) could not have been envisaged at the time when the charges were brought against Mr Tomczak (as he was a Member of Sejm at that time and the relevant Act relating to members of the national parliament does not contain provisions providing for disqualification in such circumstances). Consequently, this cannot constitute the underlying motive for bringing the proceedings.

All the procedural and substantive questions raised in connection with Mr Tomczak's case, and especially the question of the alleged insulting language used against the police officers, should be resolved objectively by the District Court in Ostrów Wielkopolski (there always being the possibility of appeal).

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 in Case 260/86 Commission v. Belgium [1988] ECR 966).

RESULT OF FINAL VOTE IN COMMITTEE

Date adopted	22.1.2008
Result of final vote	+: –: 0:	13 0 0
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
Substitute(s) present for the final vote	Jean-Paul Gauzès, Kurt Lechner
Substitute(s) under Rule 178(2) present for the final vote