REPORT on the request for waiver of the immunity of Witold Tomczak

27.6.2008 - (2008/2078(IMM))

Committee on Legal Affairs
Rapporteur: Diana Wallis

Procedure : 2008/2078(IMM)
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on the request for waiver of the immunity of Witold Tomczak


The European Parliament,

–   having regard to the request by the Deputy Public Prosecutor of Warsaw for waiver of the immunity of Witold Tomczak in connection with the criminal proceedings conducted by the District Prosecutor’s Office in Warsaw (Warszawa Śródmieście Północ), Poland, which was made on 14 December 2007, forwarded by the Polish Prosecutor General on 31 January 2008 and announced in plenary sitting on 10 March 2008,

–   having heard Witold Tomczak on 28 May 2008 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 105 of the Polish Constitution,

–   having regard to Rules 6(2) and 7 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A6‑0277/2008),

A. whereas Witold Tomczak was elected to the Sejm (the lower house of the Polish Parliament) 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 causing damage valued at up to 39 669 PLN (approximately 11 500 EUR) to a sculpture titled “The Ninth Hour” – depicting Pope John Paul II crushed by a stone – in the Zachęta Gallery in Warsaw on 21 December 2000 in breach of Article 288(1) of the Polish Penal Code[2],

C. whereas the District Prosecutor’s Office in Warsaw has collected evidence against Witold Tomczak, but the latter has refused to answer questions regarding the event at the Zachęta Gallery,

D. whereas Witold Tomczak claims that by his action towards the sculpture he sought to defend his and other people’s religious feelings, as well as to protect the dignity of the Pope; whereas he contests the amount of the damage he allegedly caused and in any case considers that his behaviour was aimed at protecting a higher value – that of the Pope’s honour in the eyes of Polish Catholics,

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

1.  Decides to waive the immunity of Witold Tomczak;

2.  Instructs its President to forward this decision, and the report of the committee responsible, immediately to the appropriate authority of the Republic of Poland.

  • [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]  The provisions of that Article being: "Whosoever destroys, damages or makes useless another person’s property shall be sentenced to a term of prison ranging from 3 months to 5 years." (Polish original: "Kto cudzą rzecz niszczy, uszkadza lub czyni niezdatną do użytku, podlega karze pozbawienia wolności od 3 miesięcy do lat 5)."


I. Facts of the case

1.        Witold Tomczak was elected a 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 in 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 an MEP and his term of office in the Sejm ended with effect on the 16 June 2004, when the election results were announced.

2.1.     In December 2000, Maurizio Cattelan's sculpture titled “The Ninth Hour”, depicting Pope John Paul II crushed by a stone, which is owned by the Emanuel Perrotion Gallery in Paris, was on display in the Zachęta Gallery in Warsaw. This sculpture was the subject of protests by Mr Tomczak and others on the ground that it offended against their religious beliefs and the dignity of the Pope.

2.2.     On 21 December 2000, the newspaper “Super Express” received information that a protest action was to take place in the Zachęta Gallery against that sculpture. Two journalists came to the Gallery, where they witnessed the arrival of Mr Tomczak and another Member of Sejm, Halina Nowina-Konopka. While Ms Nowina-Konopka took a seat reserved for the Gallery’s personnel close to the sculpture, Mr Tomczak crossed the line limiting access to the sculpture and by pushing against part of it (depicting the stone) caused it to fall. This resulted a number of component parts of the sculpture being damaged.

2.3.     Owing to the damage it sustained, the sculpture had to be repaired in Paris at an estimated cost of 70 000 French francs, which worked out at 39 669 Polish złoty on 20 March 2001, that is to say on the day when the insurance company that insured the sculpture (Gerling Polska) paid out on the claim. Subsequently, Gerling Polska filed a request with the District Prosecutor’s Office in Warsaw for criminal proceedings to be brought against Mr Tomczak in accordance with Article 288(4) of the Polish Penal Code[1].

In conclusion, the District Prosecutor in Warsaw asks that the parliamentary immunity of Mr Tomczak be waived in order that he may present him with the charges in the above-mentioned proceedings and question him as a suspect.

II. Procedure

1.      The relevant provisions of the Rules of Procedure are Rules 6 and 7, in particular Rule 6(1) and (2):

'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.

2. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived shall be announced in Parliament and referred to the committee responsible. '

2.      As the President of Parliament considered that the District Prosecutor in Warsaw had opened the procedure for waiving the immunity of Witold Tomczak, 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 9 and 10 of the Protocol on the privileges and immunities of the European Communities (PPI)[2]

Those articles 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.

2.        In order to assess whether the PPI has been breached, 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 material time.

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 in his home 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 9 to10 a) of the PPI:

1) 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 its scope is 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 December 2000 and Article 9 is therefore not applicable.

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, the Warsaw District Prosecutor’s request should be treated as a request for a decision of the European Parliament to waive the immunity of Mr Tomczak so that he can be subjected to criminal liability, as is possible under Art. 105(2) of the Polish Constitution. The European Parliament has thus the right to waive or not to waive the immunity of Mr Tomczak.

Following its established practice, the European Parliament could decide not to waive 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 to that effect in this case.

The basic fact that Mr Tomczak caused damage to the sculpture titled “The Ninth Hour”, depicting Pope John Paul II crushed by a stone, is not contested. Notwithstanding Mr Tomczak's motives, damage caused to another person’s property is a crime prosecuted by indictment and the party injured in this case, the insurance company Gerling Polska, has requested the prosecution in accordance with Polish law. The value of the damage caused by Mr Tomczak, as well as the other procedural and substantive questions raised in this case, should be resolved objectively by the Polish judiciary authorities, taking into account all the relevant circumstances.

IV. Conclusion

On the basis of the above considerations and pursuant to Article 6(2) of the Rules of Procedure, after considering the reasons for and against waiving the Member's immunity, the Committee on Legal Affairs recommends that the European Parliament should waive the parliamentary immunity of Witold Tomczak.

  • [1]  This article reads: Prosecution of the crimes described in paragraphs 1 and 2 starts on the basis of the injured party’s request (Polish original: Ściganie przestępstwa określonego w § 1 lub 2 następuje na wniosek pokrzywdzonego).
  • [2]  The protocols annexed to the original Treaties form part of primary Community law and have the same legal status as the Treaties themselves. A judgment in a case concerning liability of Community officials to property tax makes it clear that a breach of the provisions of the PPI constitutes 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).


Date adopted





Result of final vote







Members present for the final vote

Carlo Casini, Titus Corlăţean, Marek Aleksander Czarnecki, Giuseppe Gargani, Klaus-Heiner Lehne, Manuel Medina Ortega, Hartmut Nassauer, Aloyzas Sakalas, Francesco Enrico Speroni, Diana Wallis, Jaroslav Zvěřina

Substitute(s) present for the final vote

Mario Borghezio