REPORT on the request for waiver of the immunity of Hans-Peter Martin
10.3.2008 - (2007/2215(IMM))
Committee on Legal Affairs
Rapporteur: Diana Wallis
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for waiver of the immunity of Hans-Peter Martin
The European Parliament,
– having regard to the request for waiver of the immunity of Hans-Peter Martin, forwarded by the Permanent Representative of the Republic of Austria on 24 September 2007, and announced in plenary sitting on 27 September 2007,
– having heard Hans-Peter Martin in accordance with Rule 7(3) of its Rules of Procedure,
– having regard to Article 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 57 of the Austrian Bundes-Verfassungsgesetz,
– having regard to Rules 6(2) and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A6‑0071/2008),
1. Decides to waive the immunity of Hans-Peter Martin;
2. Instructs its President to forward this decision, and the report of its committee responsible, immediately to the appropriate authority of the Republic of Austria.
- [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
On 12 October 2007, the President of Parliament forwarded to the Chairman of the Legal Affairs Committee a letter from the Austrian Permanent Representative enclosing a request from the Vienna Regional Criminal Court for the waiver of the parliamentary immunity of Mr Hans-Peter Martin.
The letter from the Permanent Representative encloses a letter from the Austrian Federal Ministry for Justice and a letter from the Vienna Regional Criminal Court. Whereas the letter from the Ministry for Justice refers to waiver of Mr Hans-Peter Martin’s immunity under Article 10 of the Protocol on privileges and immunities, the letter from the Regional Criminal Court refers to waiving the immunity conferred on Members of the European Parliament by Article 9 of the Protocol.
Since the immunity conferred by Article 9 of the Protocol cannot be waived, it must be assumed that the request for waiver relates to Article 10.
The facts
A private prosecution has been brought against Mr Hans-Peter Martin in the Vienna Regional Criminal Court on 6 June 2007 by Merkur Treuhand Wirtschaftstreuhand- und Steuerberatungs Gesellschaft mit beschränkter Haftung for commercial defamation pursuant to Section 152 of the Austrian Criminal Code on the ground that, both on his website www.hpmartin.net and in APA-OTS press release OTS0189 5 11 0473 NEF0006 in connection with the accusations against him (by the EU anti-fraud authority OLAF) of improper use of the secretarial assistance allowance for staff, he had claimed that it had been established after a comprehensive, detailed investigation that he had in no way improperly used EU monies and that fault had been found only with a formal error on the part of his accounts manager at the time, Mr Christoph Matznetter, a tax adviser now State Secretary for Finance in the Austrian Government, who, according to Mr Martin, had incorrectly charged three staff computers and two telephone bills to the secretarial assistance allowance instead of to the office expenses allowance.
The private plaintiff, Merkur Treuhand Wirtschaftstreuhand- und Steuerberatungs Gesellschaft mit beschränkter Haftung, regards those claims as constituting commercial defamation, since the name Christoph Matznetter, who for years was a partner in, and managing director of, the plaintiff’s predecessor in law, is inextricably linked with the plaintiff and both Mr Matznetter and the plaintiff are held up to be professionally incompetent in Mr Martin’s remarks, which, according to the plaintiff, suggests to its clients that it provides poor support and consultancy services. The private plaintiff states that a client of many years’ standing had already terminated its contract for that reason. Since, according to the plaintiff, Mr Martin is aware that, in reality, the plaintiff is not responsible for any errors in accounting for the secretarial assistance allowance, but, rather, that costs were charged as expressly instructed by Mr Martin himself, he has committed commercial defamation and should be punished accordingly.
At the same time, the private plaintiff has applied for Mr Martin as the owner of the website www.hpmartin.net and the APA-OTS press release OTS0189 5 II 0473 NEF0006 to be required to publish the judgment, pursuant to Section 34(1) (alternatively Section 34(3)) of the Austrian Media Act, and to withdraw (delete) the text constituting a criminal offence, pursuant to Section 33(1) (alternatively Section 33(2)) of the Austrian Media Act.
According to Parliament’s Legal Service[1], whereas the remedies sought by the complainant are publication of the judgment, taking down material from websites and the costs, the Criminal Court could still impose the penalties provided for in § 152 of the Austrian Criminal Code, namely a term of imprisonment of up to six months or fine. Such a sentence would, however, not affect Mr Martin’s mandate, since under the relevant Austrian legislation an MEP loses his seat only if he is sentenced to a term of imprisonment of one year or more.
The law
Mr Martin has been charged under the following provisions:
Austrian Criminal Code:
Commercial defamation
Section 152. (1) Any person making false assertions injurious to or endangering the reputation, livelihood or professional advancement of another person shall be liable to a term of imprisonment of up to six months or a fine of up to 360 days’ pay. A term of imprisonment and a fine may be imposed concurrently.
(2) An offender shall be prosecuted only at the request of the aggrieved party.
Austrian Media Act:
Withdrawal
Section 33. (1) Upon application by the plaintiff, in a judgment on a media offence a ruling shall be made for withdrawal of the material intended to be circulated or for deletion of the website item or items which constitute the offence. Without prejudice to Section 446 of the Code of Criminal Procedure, the same shall apply to acquittals under Section 29(3).
(2) Upon application by the plaintiff or the person entitled to bring an action, a withdrawal ruling shall be made, in proceedings not seeking conviction of an individual if it has been established that, within a medium, an offence has been committed and prosecution of a specific person is not feasible, or has not been applied for or has not been maintained or a conviction is not possible because circumstances preclude punishment. If the offender would not be punishable if the defence of justification were established, such evidence shall be made available to the media outlet owner, pursuant to Section 29, as an interested party (Section 41(6)). (2a) Withdrawal shall be inadmissible where, within the meaning of Section 6(2)(4), a comment by a third party has been reproduced.
(3) The right of the party entitled to bring a private prosecution to apply for withdrawal in proceedings not seeking conviction of an individual shall lapse after a period of six weeks from the day on which the party has become aware of the offence and of the fact that no specific individual can be prosecuted or convicted.
(4) Instead of withdrawal, the media outlet owner shall be directed, at his request, to ensure within an appropriate period – either through abridgement or by masking text or in any other appropriate manner – that, should the material continue to be circulated, the item or items constituting the offence are no longer communicated.
(5) If a ruling is made for withdrawal in proceedings not seeking conviction or an individual, the costs of those proceedings shall be borne by the media outlet owner.
Publication of judgments
Section 34. (1) Upon application by the plaintiff, in a judgment on a media offence, a ruling shall be made for publication of those parts of the judgment which have to be notified in order to inform the public about the offence and conviction. The parts of the judgment to be published shall be cited in the judgment itself. In this connection, the court may abridge parts of the judgment in so far as this appears necessary for easier comprehension of the substance of the judgment or for limiting the volume of text to be published.
(2) In the case of defamation or a similar offence injuring a person’s reputation, or where another punishable offence relates to circumstances or facts in connection with a person’s private or family life, a ruling to publish a judgment may be made only with the consent of the aggrieved party, even where, in order to prosecute the offence concerned, authorisation is not required or has already been given.
(3) Upon application by the plaintiff or the party entitled to bring a prosecution, a ruling shall be made to publish the judgment in proceedings not seeking conviction of an individual, if it has been established that, within a medium, an offence has been committed and prosecution of a specific person is not feasible or has not been applied for or has not been maintained or a conviction is not possible because circumstances preclude punishment. Section 33(2), second sentence, and (3) shall apply.
(3a) Publication of a judgment shall be inadmissible where within the meaning of Section 6(2)(4), a comment by a third party has been reproduced.
(4) If a media offence has been committed within a periodical medium or media publication, the judgment shall be published pursuant to Section 13, mutatis mutandis, in that medium; the publication period shall commence as soon as the judgment has become unappealable and has been notified. As regards enforcement, Section 20 shall apply mutatis mutandis.
(5) A ruling shall be made for publication within another periodical medium or media publication if the periodical medium or media publication in which the media offence was committed no longer exists or if the offence was committed in a non-periodical or foreign medium or media publication. The cost of publishing judgments shall be included in the costs of the proceedings. As regards enforcement, Section 46 shall apply.
(6) If a ruling is made for publication of a judgment in proceedings not seeking conviction of an individual, the cost of those proceedings shall be borne by the media outlet owner (publisher).
The following provisions relating to parliamentary immunity are relevant:
Protocol on privileges and immunities of the European Communities
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.
Given that the offences of which Mr Martin stands accused took place in Austria, the proceedings are taking place in Austria and Mr Martin himself is an Austrian MEP, he enjoys ‘the immunities accorded to members of [the Austrian] parliament’.
Parliamentary immunity in Austria is governed by Article 57 of the Bundes-Verfassungsgesetz:
Article 57.
(1) Members of the National Council may never be called to account for votes cast in
the exercise of their office; where they have made verbal or written statements when discharging that duty, they may be called to account for them only by the National Council.
(2) Except where they are caught in the act of committing a crime, members of the National Council may not be arrested on account of a criminal offence unless the National Council has given its consent. Searches of the houses of members of the National Council shall likewise require the consent of the National Council.
(3) The above cases apart, no official action on account of a punishable offence may be taken against members of the National Council without the National Council’s consent unless that offence is manifestly not connected with the political activity of the member in question. The authority concerned must, however, seek a decision from the National Council as to whether such a connection exists, where this is so requested by the member in question or one third of the members of the appropriate standing committee. If a request has been made to that effect, all procedural steps must cease or be discontinued immediately.
(4) In all of the above cases the National Council shall be deemed to have given its consent if it has not acted within eight weeks on the necessary request from the authority competent to institute legal proceedings; to enable the National Council to take a decision in time, the President shall put the request to the vote at the latest on the last day but one of that period. Periods in which the National Council is not in session shall not be included in the eight-week period.
(5) If a member has been caught in the act of committing a crime, the authority concerned must notify the President of the National Council without delay that the member has been arrested. Where the National Council or, when it is not in session, the appropriate standing committee so requests, the member must be released from custody, or the legal proceedings as a whole must cease.
(6) The immunity of members ends on the day on which the newly elected National Council is convened; the immunity of persons holding office in the National Council beyond that date shall end on expiry of their term of office.
(7) Detailed provisions shall be laid down in the Federal Act on the Standing Orders of the National Council.
The relevant paragraph for present purposes of this article is paragraph 3, according to which, without the consent of the national parliament, a member may only be prosecuted for an offence if the offence is not manifestly linked with the political activity of the member concerned.
Further considerations
In a letter dated 7 February 2008 to the rapporteur, which has been circulated to the members of the Legal Affairs Committee, and at the hearing held before the committee on 25 February 2008, Mr Martin stated that the private prosecution to which the request for waiver of immunity relates was preceded by a civil suit (still pending) ‘on the same matter and with the same purpose’ brought by the same company, which regards itself as the successor to Merkur Treuhand’, which acted as Mr Martin’s paying agent at the time of the facts at issue and was headed by a person who is ‘now a Social Democrat politician’.
Mr Martin stresses that he is not seeking immunity in the civil proceedings: ‘If I should be found guilty of damaging the reputation of [the claimant] I will have to pay – and again, I am not protected by immunity’.
He does assert, however, that ‘it is unusual – and to my knowledge in other countries not even possible – to file an additional private claim in the same matter before a criminal court’. He goes on in his letter of 7 February 2008 to argue that ‘The request to lift my immunity now based on a private claim ... is simply political. It is based directly on my work as a Parliamentarian carrying out my parliamentary work, and it is aimed to harm my reputation.’
It is noted that Mr Martin further informed the committee that negotiations were under way with a view to reaching an out-of-court settlement.
Analysis
The question to be answered is whether the alleged facts constituting the criminal offence with which Mr Martin is charged are ‘manifestly linked with Mr Martin's political activity’ within the meaning of Article 57(3) of the Bundes-Verfassungsgesetz.
It is considered that the matter in dispute, namely who was responsible for an accounting error – the member or his paying agent – is not linked with Mr Martin’s political activity. It is simply a dispute between a member and a service provider.
As to whether there is sufficient evidence of fumus persecutionis to warrant Parliament’s refusing to waive Mr Martin’s immunity, even though it may be unusual for parallel criminal and civil proceedings to be brought on the same facts, this in itself does not constitute a fumus. Moreover, the proceedings have been brought by a service provider which is the legal successor to the firm linked with the ‘Social Democrat politician’ who Mr Martin suggests is behind the litigation and not by that firm or the politician himself. Lastly, Mr Martin has informed the Legal Affairs Committee that negotiations are under way to reach an out-of-court settlement, which strongly suggests that the dispute is a genuine one.
Consequently, it is considered that the parliamentary immunity of Mr Hans-Peter Martin should be waived.
- [1] Legal Opinion of 25.02.08, SJ-0066/08.
RESULT OF FINAL VOTE IN COMMITTEE
|
Date adopted |
10.3.2008 |
|
|
|
||
|
Result of final vote |
+: –: 0: |
17 1 0 |
||||
|
Members present for the final vote |
Titus Corlăţean, Othmar Karas, Piia-Noora Kauppi, Klaus-Heiner Lehne, Katalin Lévai, Antonio Masip Hidalgo, Manuel Medina Ortega, Hartmut Nassauer, Aloyzas Sakalas, Francesco Enrico Speroni, Diana Wallis, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka |
|||||
|
Substitute(s) present for the final vote |
Mogens Camre, Vicente Miguel Garcés Ramón, Georgios Papastamkos, Dagmar Roth-Behrendt |
|||||