REPORT on the request for waiver of the immunity of Viktor Uspaskich

3.9.2010 - (2009/2147(IMM))

Committee on Legal Affairs
Rapporteur: Bernhard Rapkay

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for the waiver of the immunity of Viktor Uspaskich

The European Parliament,

–   having regard to the request for waiver of the immunity of Viktor Uspaskich, forwarded by the Lithuanian judicial authorities on 14 July 2009 and announced in plenary sitting on 7 October 2009,

–   having heard Viktor Uspaskich, in accordance with Rule 7(3) of its Rules of Procedure,

–   having regard to Article 8 and 9 of Protocol (No 7) on the Privileges and Immunities of the European Union annexed to the Treaties,

–   having regard to the judgments of 12 May 1964 and 10 July 1986[1] of the Court of Justice of the European Union,

–   having regard to Article 62 of the Constitution of the Republic of Lithuania,

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

–   having regard to the report of the Committee on Legal Affairs (A7-0244/2010),

A. whereas criminal proceedings have been brought against Viktor Uspaskich, Member of the European Parliament, who is accused in the proceedings pending in the Vilnius Regional Court of criminal offences under Article 24(4) in conjunction with Article 222(1), Article 220(1), Article 24(4) in conjunction with Article 220(1), Article 205(1) and Article 24(4) in conjunction with Article 205(1) of the Lithuanian Criminal Code,

B.  whereas, according to Article 9 of the Protocol on the Privileges and Immunities of the European Union, during the sessions of the European Parliament, its Members enjoy in the territory of their own State the immunities accorded to members of their parliament, whereas immunity cannot be claimed when a Member is found in the act of committing an offence and whereas this does not prevent the European Parliament from exercising its right to waive the immunity of one of its Members,

C. whereas the charges brought against Mr Uspaskich do not relate to opinions expressed or votes cast in the performance of his duties as a Member of the European Parliament,

D. whereas, according to Article 62 of the Constitution of the Republic of Lithuania, a Member of the national Parliament (the Seimas) may not be held criminally liable, arrested, nor may his freedom be otherwise restricted without the consent of the Parliament,

E.  whereas Article 62 goes on to provide that a Member of the Seimas may not be persecuted for his voting or his speeches at the Seimas, although he may be held liable according to the general procedure for personal insult or slander,

F.  whereas Mr Uspaskich is essentially charged with offences of false accounting in relation to the financing of a political party during a period prior to his election to the European Parliament,

G. whereas no cogent evidence has been adduced as to the existence of any fumus persecutionis and the offences with which Mr Uspaskich is charged have nothing to do with his activities as a Member of the European Parliament,

H. whereas it is therefore appropriate to waive his immunity,

1.  Decides to waive the immunity of Viktor Uspaskich;

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

• [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

At the sitting of 7 October 2009 the President announced, under Rule 6(2) of the Rules of Procedure, that he had received a letter sent by the Lithuanian judicial authorities on 14 July 2009 requesting the waiver of the parliamentary immunity of Mr Uspaskich.

The President referred the request to the Committee on Legal Affairs under Rule 6(2).

The Chief Public Prosecutor of the Republic of Lithuania was instructed, by decision of the Regional Court of Vilnius of 29 June 2009, to ask the European Parliament to waive the immunity of its Member Viktor Uspaskich, against whom criminal proceedings have been brought in Case No 1-38/2009, in order that the criminal proceedings initiated against him may go ahead and the bail order made against him by the court as a precautionary measure may be enforced.

Viktor Uspaskich is accused in proceedings pending in the Vilnius Regional Court of criminal offences under Article 24(4) in conjunction with Article 222(1), Article 220(1), Article 24(4) in conjunction with Article 220(1), Article 205(1) and Article 24(4) in conjunction with Article 205(1) of the Lithuanian Criminal Code.

The case against Viktor Uspaskich is that, in Vilnius between 13 July 2004 and 17 May 2006, as chair of the Labour Party, acting in concert with others for the purposes of (a) attempting to finance a political party – namely the Labour Party – illegally and (b) evading proper supervision of the financing of the party and its political campaigns, he directed an organised group created by them in order to perpetrate a number of criminal offences. To that end, from 2004 to 2006, in Vilnius, he directed staff to keep unlawful bogus accounts for the Labour Party, with the result that it is not possible to establish in full the extent of the party’s assets and liabilities or the party structure during the years 2004, 2005 and 2006.

Viktor Uspaskich - who was responsible, under Article 21 of the Accounting Act of the Republic of Lithuania, for organising the keeping of the party’s accounts and was acting for the benefit and in the interests of the Labour Party as a legal person - is accused by the Lithuanian authorities of having instructed a person to undertake "double" bookkeeping for the Labour Party in Spring 2004. In addition, it is alleged that transactions and business activities which it was compulsory to record in the accounts, as well as the unofficial receipt and disbursement of monies and assets in connection with Labour Party activities, should be recorded in unofficial ledgers. He is also accused of having issued specific instructions that certain commercial and financial operations should be carried out without their being recorded in the party’s accounts,

On 9 December 2008, the Lithuanian Parliament (Seimas) agreed to waive the immunity of Mr Uspaskich in respect of the same proceedings. It should be noted in addition that Mr Uspaskich was not Member of the European Parliament at the time when the accused offences were allegedly committed.

II. THE LAW

(a) Union law

Article 8:

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 9:

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 other Member States, immunity from any measure or 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.

The procedure in the European Parliament is governed by Articles 6 and 7 of the Rules of Procedure. The relevant provisions read as follows:

‘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.

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.

(...)

Rule 7 - Procedure 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 reasoned decision which 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 in order 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 present any documents or other written evidence deemed by that Member to be relevant and may be represented by another Member.

(...)

7. The committee may offer a reasoned opinion as to the competence of the authority in question and 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.

(...)’

(b) National law

The Constitution of the Republic of Lithuania

(Adopted by citizens of the Republic of Lithuania in the Referendum of 25 October 1992, came into force on 2 November 1992)

‘Article 62

The person of a Member of the Seimas shall be inviolable.

A Member of the Seimas may not be held criminally liable, arrested, nor may his freedom be otherwise restricted without the consent of the Seimas.

A Member of the Seimas may not be persecuted for his voting or his speeches at the Seimas. However, he may be held liable according to the general procedure for personal insult or slander.’

Statute Seimas of the Republic of Lithuania

(17 February 1994 No I-399)

(As last amended on 23 April 2009 - No XI-228) (English Version of Updated Legal Document of 04.23.2009)

‘Article 22. Immunity of a Seimas Member

1. The person of a Seimas Member shall be inviolable.

2. A Seimas Member may not be persecuted for his voting or speeches in the Seimas, i.e. at the sittings of the Seimas, Seimas committees, commissions and parliamentary groups, however, he may, for personal insult or slander, be held liable in accordance with the general procedure.

3. Criminal proceedings may not be instituted against a Seimas Member, he may not be arrested, and may not be subjected to any other restrictions of personal freedom without the consent of the Seimas, except in cases when he is caught in the act of committing a crime (in flagrante delicto). In such cases the Prosecutor General must immediately notify the Seimas thereof.’

Lithuanian Criminal Code:

Article 24. Complicity and Types of Accomplices

1. Complicity shall be the intentional joint participation in the commission of a criminal act of two or more conspiring legally capable persons who have attained the age specified in Article 13 of this Code.

2. Accomplices in a criminal act shall include a perpetrator, an organiser, an abettor and an accessory.

3. A perpetrator shall be a person who has committed a criminal act either by himself or by involving legally incapacitated person or the persons who have not yet attained the age specified in Article 13 of this Code or other persons who are not guilty of that act. If the criminal act has been committed by several persons acting together, each of them shall be considered a perpetrator/co-perpetrator.

4. An organiser shall be a person who has formed an organised group or a criminal association, has been in charge thereof or has co-ordinated the activities of its members or has prepared a criminal act or has been in charge of the commission thereof.

5. An abettor shall be a person who has incited another person to commit a criminal act.

6. The accessory shall be a person who has aided in the commission of a criminal act through counselling, issuing instructions, providing means or removing obstacles, protecting or shielding other accomplices, who has promised in advance to conceal the offender, hide the instruments or means of commission of the criminal act, the traces of the act or the items acquired by criminal means, also a person who has promised in advance to handle the items acquired or produced in the course of the criminal act.

Article 222. Fraudulent Management of Accounts

1. A person who fraudulently manages the accounts required by legal acts or conceals, destroys or damages accounting documents, where this disables, fully or in part, determination of the person’s activities, the amount or structure of the assets, equity or liabilities thereof, shall be punished by a fine or by arrest or by imprisonment for a term of up to four years.

2. A legal entity shall also be held liable for the acts provided for in this Article.

Article 220. Provision of Inaccurate Data on Income, Profit or Assets

1. A person who, seeking to evade payment of taxes, provides data on the person’s income, profit, assets or the use thereof that are known to be inaccurate in a tax return or in a report approved in accordance with the approved procedure or another document and submits such information to an institution authorised by the State shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by imprisonment for a term of up to three years.

2. A person who commits the act indicated in paragraph 1 of this Article having the aim of evading payment of taxes in the amount not exceeding 10 MSLs shall be considered to have committed a misdemeanour and shall be punished by community service or by a fine or by restriction of liberty.

3. A legal entity shall also be held liable for the acts provided for in this Article.

Article 205. Misleading Declaration about the Activities of a Legal Entity

1. A person who, on behalf of a legal entity, presents in an official report or in an application misleading data concerning the activities or assets of the legal entity and thereby misleads a government institution, international public organisation, creditor, member of the legal entity or another person who suffers major property damage as a result thereof shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by restriction of liberty or by arrest or by imprisonment for a term of up to two years.

2. A legal entity shall also be held liable for an act provided for in this Article.

III. GENERAL CONSIDERATIONS AND JUSTIFICATION FOR THE PROPOSED DECISION

As far as the applicability of Article 8 of the Protocol on the Privileges and Immunities of the European Union is concerned, it should be noted that the charges brought against Mr Uspaskich do not relate to opinions expressed or votes cast in the performance of his duties as a Member of the European Parliament.

As for Article 9 of the Protocol on the Privileges and Immunities of the European Union, given that the charges brought against Mr Uspaskich refer to facts committed in Lithuania, whose citizenship he had at the material time, the only applicable part is the provision 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".

The scope of parliamentary immunity in Lithuania is very similar to the immunity which Members of the European Parliament enjoy in the territory of a Member State other than their own by virtue of Article 9 of the Protocol, as can been seen from Article 62 (1) of the Lithuanian Constitution (reproduced above).

Following its established practice, the European Parliament may decide not to waive the immunity of one of its Members if a suspicion exists that the prosecution was based on an intention to prejudice the Member’s political activities. However, in this case no evidence of fumus persecutionis has been adduced such as to warrant Parliament’s refusing to waive Mr Uspaskich’s immunity.

It is noted that the Lithuanian authorities have fully cooperated in the procedure before the Committee on Legal Affairs, giving satisfactory responses and assurances.

On the basis of the foregoing and the available documents, it has to be concluded that there is no reason for not waving the parliamentary immunity of Mr Uspaskich.

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 Viktor Uspaskich.

RESULT OF FINAL VOTE IN COMMITTEE

Date adopted	2.9.2010
Result of final vote	+: –: 0:	10 3 2
Members present for the final vote	Luigi Berlinguer, Françoise Castex, Lidia Joanna Geringer de Oedenberg, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Bernhard Rapkay, Evelyn Regner, Alexandra Thein, Diana Wallis, Zbigniew Ziobro, Tadeusz Zwiefka
Substitute(s) present for the final vote	Piotr Borys, Vytautas Landsbergis, Eva Lichtenberger, Toine Manders, Derek Vaughan