REPORT on the request for waiver of the immunity of Massimo D'Alema
6.11.2008 - (2008/2298(IMM))
Committee on Legal Affairs
Rapporteur: Klaus-Heiner Lehne
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for waiver of the immunity of Massimo D'Alema
The European Parliament,
– having regard to the request for waiver of the immunity of Massimo D'Alema, forwarded by the Public Prosecution Service at the Court of Milan on 30 May 2008, and announced in plenary sitting on 16 June 2008,
– 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 Rules 6 and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A6‑0422/2008),
1. Decides not to authorise the use of the telephone intercepts in question and not to waive the immunity of Massimo D'Alema;
2. Instructs its President to forward this decision, and the report of the committee responsible, immediately to the competent Italian authorities.
- [1] Case 101/63, Wagner v Fohrmann and Krier [1964], ECR 383, and Case 149/85 Wybot v Faure and others [1986] ECR 2391.
EXPLANATORY STATEMENT
I. THE FACTS
By letter of 28 May 2008 to Hans-Gert Pöttering, President of the European Parliament, the Public Prosecution Service at the Court of Milan applied for authorisation to use in criminal proceedings 'indirect' telephone conversations between an individual under investigation and the former Member of the European Parliament, Massimo D'Alema. The criminal proceedings in question (19195/2005) concern the attempted takeover of the Banca Nazionale del Lavoro, in connection with which a group of persons suspected of having violated Italian legal provisions laying down penalties for the offences of market manipulation and insider trading, as established in Articles 185 and 184 of Decree Law No 58, 1998 (Consolidated Law on Finance), have been placed under investigation and brought to trial.
During the preliminary investigations, telephone intercepts were carried out in accordance with the provisions of the Italian Code of Criminal Procedure. The calls intercepted included conversations between the persons under investigation and a number of Italian members of parliament, including Massimo D'Alema, who was a Member of the European Parliament at the time. They thus constituted 'indirect' intercepts of conversations between members of parliament and individuals whose calls were being lawfully intercepted.
Article 4 of Italian Law 140/2003 provides that direct intercepts of conversations involving members of the Italian Parliament require prior authorisation by that parliament. As regards indirect intercepts, Article 6(1) of Law 140/2003 provides that the examining magistrate shall, including on application by the parties or the member of parliament concerned, order their destruction where he or she considers them not to be relevant to the criminal proceedings. Where, however, on application by a party to the proceedings, the magistrate deems their use to be relevant and necessary, he or she must seek authorisation from the House in which the member of parliament sits or sat, as established in Article 6(2) of the above law.
On 20 July 2007 the examining magistrate, Clementina Forleo, applied to the Chamber of Deputies (in respect of the members D'Alema, Fassino and Cicu) and to the Senate (in respect of senators La Torre and Comincioli) for authorisation to use the aforementioned intercepts.
In October 2007, the Chamber of Deputies stated that it was not competent to deal with the matter relating to Massimo D'Alema in that, when the conversations were intercepted, Mr D'Alema was a Member of the European Parliament.
Further to that decision of the Chamber of Deputies, the Milan Public Prosecution Service has applied to the European Parliament for authorisation to use the indirect intercepts involving Massimo D'Alema.
II. LEGAL FRAMEWORK AND GENERAL OBSERVATIONS ON THE IMMUNITY OF MEMBERS OF THE EUROPEAN PARLIAMENT
Articles 9 and 10 of the Protocol on the Privileges and Immunities of the European Communities (PPI)[1] read:
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. The procedural arrangements within the European Parliament are governed by Rules 6 and 7 of the Rules of Procedure. The relevant provisions are:
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 – Procedures 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, may bring any documents or other written evidence deemed by that Member to be relevant and 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 that Member from performing the duties proper to the 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.
(...)
Article 68, first and second paragraph of the Italian Constitution reads:
Article 68
Members of parliament may not be called to answer for opinions expressed or votes cast in the performance of their duties.
Members of parliament may not be subjected to searches of their person or premises without prior authorisation from their House, nor arrested or otherwise deprived of their personal freedom, nor held in detention, except pursuant to a non-appealable judgment or where found in the act of committing an offence in respect of which arrest is mandatory.
The same authorisation is required in order to subject members of parliament to any form of interception of their conversations or communications, and in order to seize their correspondence.
Law No 140 of 20 June 2003 (published in Official Journal No 142 of 21 June 2003)
RULES IMPLEMENTING ARTICLE 68 OF THE CONSTITUTION AND GOVERNING CRIMINAL PROCEEDINGS AGAINST HOLDERS OF HIGH PUBLIC OFFICE
Article 4
1. Where it is necessary to subject a member of parliament to searches of their person or premises, inspections, any form of interception of conversations or communications or seizure of correspondence, or to obtain call logs, or where it is necessary to subject the member to arrest or to implementation of preventive coercive measures or injunctions or the enforcement of summonses, security or prevention measures or any other measure involving the deprivation of personal freedom, the competent authority shall apply directly to the House in which the member sits for authorisation to take such action.
2. Authorisation shall be applied for by the authority which has issued the measure to be implemented. The measure may not be implemented until such time as authorisation is granted.
3. Authorisation shall not be required where the member of parliament is found in the act of committing an offence in respect of which arrest is mandatory, or where a non-appealable judgment is being executed.
4. Where the House in which the member sits is dissolved, the application for authorisation shall lapse at the start of the next parliamentary term, and a new application may be made to the House at the start of the new parliamentary term.
Article 6
1. Outside the circumstances referred to in Article 4, where the examining magistrates, including on application by the parties or the member of parliament concerned, deems irrelevant to the proceedings all or some of transcripts and recordings of conversations or communications intercepted in any form during proceedings concerning third parties in which members of parliament took part, or call logs obtained during the course of those proceedings, he shall, having heard the parties and in accordance with the principle of confidentiality, decide in camera to have the items deemed irrelevant destroyed in accordance with Article 269(2) and (3) of the Code of Criminal Procedure.
2. Where, on application by a party to the proceedings, and having heard the other parties within the time limits and in accordance with the procedures provided for in Article 268(6) of the Code of Criminal Procedure, he deems it necessary to use the intercepts or logs referred to in paragraph 1, the examining magistrates shall issue an order thereon and shall, within a period of ten days, apply for authorisation therefor to the House in which the member of parliament sits or sat when the conversations or communications were intercepted.
3. The application for authorisation shall be forwarded directly to the relevant House. In that application, the examining magistrates shall set out the facts giving rise to the proceedings in progress, state which legal provisions are deemed to have been breached, and set out the grounds for the application, enclosing full copies of the transcripts, recordings and call logs.
4. Where the House in which the member sits is dissolved, the application for authorisation shall lapse at the start of the next parliamentary term, and a new application may be made to the House at the start of the new parliamentary term.
5. Where authorisation is denied, the documentation relating to the intercepts shall be destroyed immediately or no more than ten days after the date of notification of the denial of authorisation.
6. All transcripts, recordings and call logs obtained in breach of the provisions of this article shall be declared unusable at all stages and levels in the proceedings.
III. GROUNDS FOR THE PROPOSED DECISION
1. It must first be determined whether the European Parliament is competent to deal with the application made by the Public Prosecution Service at the Court of Milan.
With reference to indirect telephone intercepts concerning a member of parliament, Article 6(2) of Italian Law No 140/2003 stipulates that on application by a party to the proceedings, and having heard the other parties within the time limits and in accordance with the procedures provided for in Article 268(6) of the Code of Criminal Procedure, he deems it necessary to use the intercepts or logs referred to in paragraph 1, the examining magistrates shall issue an order thereon and shall, within a period of ten days, apply for authorisation therefor to the House in which the member of parliament sits or sat when the conversations or communications were intercepted'.
Article 10 of the Protocol on the Privileges and Immunities of the European Communities (PPI) stipulates, inter alia, that '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 (...)'.
On the basis of the above provisions and of the fact that Massimo D'Alema was a Member of the European Parliament when the above events took place, the European Parliament is competent to deal with the matter.
2. On the basis of our understanding of the aforementioned Article 6 of Italian Law No 140/2003, the application should cover authorisation to use what is presumed to be evidence. However, according to the order issued by the examining magistrate, the underlying evidence used is already 'sufficient to support the charge against certain individuals already under investigation', namely the third parties covered by a telephone interception order, and, furthermore, those parties have already been brought to trial and the court proceedings are already at an advanced stage.
Accordingly, in this respect the application made by the Milan Public Prosecution Service is groundless.
3. Were the application by the Public Prosecution Service at the Court of Milan to be considered to carry with it the power to proceed vis-à-vis Massimo D'Alema, it should be noted that Italian law has made no provision for this since 1993, and the application would accordingly be groundless under such circumstances.
IV. CONCLUSIONS
On the above basis, the Committee on Legal Affairs considers that use of the telephone intercepts in question should not be authorised and that Massimo D'Alema's immunity should not be waived.
- [1] The protocols annexed to the Treaties form part of Community primary law and have the same legal status as the Treaties proper. A Court of Justice judgment in a case concerning the liability of Community officials in respect of property tax clearly provides that any violation of the PPI is equivalent to a violation of the obligations deriving from the Treaties (judgment of 24 February 1988, Commission v Belgium, Case 280/86 [1988], ECR 955).
RESULT OF FINAL VOTE IN COMMITTEE
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Date adopted |
3.11.2008 |
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Result of final vote |
+: –: 0: |
11 0 0 |
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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 |
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Substitute(s) present for the final vote |
Renate Weber |
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