REPORT on the request for waiver of the immunity of Frank Vanhecke
5.11.2008 - (2008/2092(IMM))
Committee on Legal Affairs
Rapporteur: Klaus-Heiner Lehne
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for waiver of the immunity of Frank Vanhecke
The European Parliament,
- having regard to the request for waiver of the immunity of Frank Vanhecke, submitted, at the request the Dendermonde Public Prosecutor, by the Minister of Justice of the Kingdom of Belgium, and announced in plenary sitting on 10 April 2008,
- having heard Frank Vanhecke 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 to 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 of the Court of Justice of the European Communities,
- having regard to Articles 58 and 59 of the Belgian 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 (A6-0421/2008),
1. Decides to waive the immunity of Frank Vanhecke;
2. Instructs its President to forward this decision, and the report of its committee responsible, immediately to the appropriate authority of the Kingdom of Belgium.
-  Case 101/63 Wagner v Fohrmann and Krier  ECR 195 and Case 149/85 Wybot v Faure and Others  ECR 2391.
Articles 9 and 10 of the Protocol of 8 April 1965 on the Privileges and Immunities of the European Communities read as follows:
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.
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.
Articles 58 and 59 of the Belgian Constitution provide as follows:
No member of either of the two Chambers can be prosecuted or pursued with regard to opinions and votes given by him in the exercise of his duties.
Except in the case of a flagrant offence, no member of any Chamber may, during a session, be directly remanded or summoned before a court or tribunal regarding repressive matters nor be arrested except with the authorisation of the Chamber of which he is a member.
Except in the case of a flagrant offence, restraining measures requiring the intervention of a judge cannot be instituted against a member of any Chamber for the duration of a session, regarding repressive matters, except by the first President of the Court of Appeal at the demand of the competent judge. This decision is communicated to the President of the concerned Chamber.
All searches or seizures executed by virtue of the paragraph above can be performed only in the presence of the President of the Chamber concerned or a member appointed by him.
During the session, only the officers of the public prosecutor's department and competent officers may institute repressive proceedings against a member of any Chamber.
The member of any Chamber in question may at all stages of the investigations regarding repressive measures, request for the duration of the session that the Chamber of whom he is a member suspend the proceedings. The Chamber in question must grant this request if supported by a majority of two-thirds of the votes given.
Detention of a member of any Chamber or his investigation by a court or Tribunal is suspended for the duration of the session if the Chamber of whom he is a member so requests.
According to the letter from the Belgian authorities, the facts are as follows:
[T]he Dendermonde Public Prosecutor has opened a criminal investigation into Mr Frank Arthur Hyppolite Vanhecke, .... a Belgian Member of the European Parliament, on suspicion of violating Article 1(3)(2) of the Law of 30 July 1981 on the Punishment of Certain Acts Inspired by Racism or Xenophobia (as amended by the Law of 10 May 2007).
The facts on which it is based may be outlined as follows:
On 3 November 2005, the Municipal Executive of the town of Sint-Niklaas lodged a complaint against the writer, the publisher, the printer or the distributor of the article 'What you were not allowed to read in the press' in the Vlaams Belang Newspaper, No 2, Sint-Niklaas edition, of April-May-June 2005.
The legal basis for the complaint was Article 1(3)(2) of the Law of 30 July 1981 on the Punishment of Certain Acts Inspired by Racism or Xenophobia.
The article in question in Vlaams Belang's newspaper concerned the controversy which had arisen over the desecration of gravestones in Tereken churchyard between 29 March and 5 April 2005, in which connection Vlaams Belang highlighted the alleged fact that the culprits were young people of foreign origin.
In this article the term 'foreign' is linked to the statement '(…) a culture which no longer has any respect for the dead and for the symbols of a different faith is a culture which has become derailed (…)', and the article said that 'it would not be right to draw a discreet veil' over these actions.
In reality the culprits were apparently not of foreign origin but were identified as four minors of indigenous origin from two Flemish families.
On 30 June 2005, the Municipal Executive of the town of Sint-Niklaas lodged a formal complaint with the Centre for Equal Opportunities and Opposition to Racism.
On 30 September 2005 the Centre for Equal Opportunities and Opposition to Racism apparently delivered an opinion to the Municipal Executive of Sint-Niklaas on the basis of which it was decided to lodge a complaint with the Dendermonde Public Prosecutor.
The Dendermonde Public Prosecutor launched an investigation, with particular reference to the principle of successive (alternative rather than joint) responsibility provided for by Article 25 of the Coordinated Constitution.
Initially, it was impossible to identify the writer, the printer or the distributor.
It was possible to identify Mr Frank Vanhecke as the editor or publisher responsible; at first, however, he was not willing to make any statement in connection with the investigation.
It was for these reasons that the Dendermonde Public Prosecutor initially proposed to prosecute only Frank Vanhecke, and the investigation was thus concluded on 21 November 2006.
However, on 27 November 2006 the Dendermonde Public Prosecutor received a letter from Mr Frank Vanhecke's counsel with a request for a supplementary investigation and a statement of intention to cooperate.
Virtually simultaneously, the Dendermonde Public Prosecutor also received a message from the Federal CID saying that they had been contacted with the information that the writer of the article in question was willing to report for questioning.
By instruction of 27 November 2006, the Dendermonde Public Prosecutor ordered a further investigation, taking account of these facts.
The subsequent investigation revealed that a person called Marc Van De Velde reported as the author. His questioning and an examination of his PC seemed partially to confirm that he was the writer of part of the article. The fourth and fifth paragraphs of the article and the title, however, were not written by him.
In the course of the subsequent investigation it was not possible to ascertain who was the author of the incriminating fourth and fifth paragraphs of the article and its title, including the passage, which should be noted: '(…) what people were not allowed to know, however, is that the offenders, all of whom were young teenagers, were of foreign origin (…)'.
It seems to the Dendermonde Public Prosecutor that so far Mr Frank Vanhecke remains responsible under the criminal law for those sections, as the editor or publisher responsible.
In view of the above considerations, the Dendermonde Public Prosecutor proposes to order that Mr Frank Vanhecke be summoned to appear before the Magistrate's Court pursuant to the article cited at the beginning of this report (see also the attached draft of the summons).
In view of Mr Vanhecke's status, such a prosecution would only be possible after his parliamentary immunity had been waived.
Submissions made by Mr Vanhecke
At the hearing, Mr Vanhecke submitted that there was fumus persecutionis. First, the Mayor of the town was a socialist and the prosecution was motivated by antagonism to persons who advocated a break-up of the Belgian State. Secondly, the prosecution had been conducted extremely fast by Belgian standards. Thirdly, a French-language newspaper stated, in reporting on the case, that if the European Parliament refused to waive Mr Vanhecke's immunity, the case would be dropped (even though the author of the article was known).
Mr Vanhecke also stated that, under Article 25 of the Belgian Constitution, he, as responsible editor, could not be prosecuted where the author was known and resident in Belgium. He had not written or altered the article or commissioned anyone to do so. He was the responsible editor of some 200 local newspapers. In the case of the article in question, both the author and the person responsible for amending it were known and resident in Belgium. Mr Vanhecke further pointed out that he had issued and distributed a retraction of the article.
It is considered in the first place that this case is not covered by Article 9 of the Protocol in that an MEP's duties do not include acting as responsible editor for a national party newspaper. Consequently, the case falls to be considered under Article 10, namely in the light of Belgian law and the consolidated practice of the Committee on Legal Affairs.
Article 58 of the Belgian Constitution is excluded on the same grounds as Article 9 of the Protocol. It is therefore necessary to consider whether immunity could be waived on any of the grounds raised by Mr Vanhecke.
In the first place, it must be stated that sufficient evidence of fumus persecutionis has not been adduced. It is not unusual to attribute responsibility for the content of newspapers to the editor-in-chief and the fact that the local mayor is a socialist is not enough to make out an allegation that the charge was politically motivated.
Secondly, it is observed that if the persons who wrote and amended the article in question are indeed known and resident in Belgium, it is possible that Mr Vanhecke has a complete defence under Belgian law. Moreover, it appears that Mr Vanhecke issued and distributed a retraction of the article in question. It is stressed, however, that it is not within the competence of the Committee on Legal Affairs to make findings of facts or assess the merits of the charge. Rule 7(7) of the Rules of Procedure makes it plain that the Legal Affairs Committee 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.
In the light of the foregoing considerations, and pursuant to Rule 7(1) and (2) of the Rules of Procedure, after having considered the arguments for and against waiving immunity, the Committee on Legal Affairs recommends that the European Parliament waive Mr Frank Vanhecke's parliamentary immunity.
-  Article 25 of the Belgian Constitution:
The press is free; censorship can never be established; security from authors, publishers or printers cannot be demanded.
When the author is known and resident in Belgium, neither the publisher, nor the printer, nor the distributor can be prosecuted.
RESULT OF FINAL VOTE IN COMMITTEE
Result of final vote
Members present for the final vote
Monica Frassoni, 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