REPORT on the request for waiver of the immunity of Adrian Severin
21.6.2011 - (2011/2070(IMM))
Committee on Legal Affairs
Rapporteur: Francesco Enrico Speroni
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for waiver of the immunity of Adrian Severin
The European Parliament,
– having regard to the request for waiver of the immunity of Adrian Severin, forwarded by the National Anti-Corruption Department (Prosecutor's Office of the High Court of Cassation and Justice of Romania) on 5 April 2011 and announced in plenary sitting on 6 April 2011,
– having heard Adrian Severin on 23 May 2011 in accordance with Rule 7(3) of its Rules of Procedure,
– having regard to Article 9 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 the Court of Justice of the European Union of 12 May 1964, 10 July 1986, 15 and 21 October 2008 and 19 March 2010[1],
– having regard to the provisions of Article 72(2) of the Romanian Constitution,
– having regard to the provisions of Article 11 of the Romanian Criminal Code, according to which Romanian criminal law is applied to criminal offences committed outside Romanian borders where the act in question is an offence also under the criminal code of the country in which the act was committed,
– having regard to Rules 6(2) and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A7-0242/2011),
A. whereas Romania's National Anti-Corruption Department has requested the waiver of immunity of Adrian Severin, Member of the European Parliament, in order to enable the Romanian Prosecutor's Office to conduct the necessary investigations and to take legal action against Adrian Severin, to call for a search of his house or offices and to carry out computer checks or any other electronic searches which might be necessary, to initiate criminal proceedings against Mr Severin on the grounds of passive corruption and/or influence peddling or any other legal description that might be given to the alleged offence(s) before the criminal courts having jurisdiction,
B. whereas the waiver of the immunity of Adrian Severin concerns alleged corruption offences covered by Article 6 of Romanian Law No 78/2000 in conjunction with Article 254 (corruption) and Article 257 (influence peddling) of the Criminal Code and with Article 81(b) of Law No 78/2000,
C. whereas it is not the European Parliament's responsibility to express an opinion on the guilt or otherwise of the Member nor on whether or not the acts attributed to him warrant prosecution,
D. whereas it is therefore advisable to recommend that parliamentary immunity be waived in the case in question,
1. Decides to waive the immunity of Adrian Severin, excluding any restrictions on his personal freedom;
2. Instructs its President to forward this decision, and the report of the committee responsible, immediately to the appropriate authorities of the Republic of Romania and to Adrian Severin.
- [1] Case 101/63, Wagner/Fohrmann and Krier, ECR 1964, p. 195; Case 149/85, Wybot/Faure and others, ECR 1986, p. 2391; Case T-345/05, Mote/Parliament [2008], ECR II-2849; Joined Cases C-200/07 and C-201/07, Marra/De Gregorio and Clemente [2008], ECR I-7929; Case T-42/06, Gollnisch/Parliament.
EXPLANATORY STATEMENT
1. Introduction
In the plenary sitting of 6 April 2011, the President announced, in accordance with Rule 6(2) of the European Parliament's Rules of Procedure, that he had received a letter from the National Anti-Corruption Department (Prosecutor's Office of the High Court of Cassation and Justice of Romania) on 5 April 2011 requesting the waiver of the parliamentary immunity of Adrian Severin.
The President referred the request to the committee responsible, pursuant to Rule 6(2).
2. Facts
On 21 March 2011 the Romanian National Anti-Corruption Department instituted proceedings against Adrian Severin, Member of the European Parliament, on the basis of information according to which between December 2010 and March 2011 Mr Severin, exploiting his position as Member of the European Parliament, allegedly accepted an offer of payment of €100 000 from representatives of a self-styled lobbying company which presented itself under the name of 'Taylor Jones Public Affairs', in exchange for his support in the European Parliament for a draft amendment to Directive 94/19/EC on deposit-guarantee schemes concerning the time limit for the reimbursement of depositors in the case of a bank failure.
According to the Romanian authorities, the preliminary checks carried out (relating, in particular, to a statement by another Member of the European Parliament, a copy of the invoice and the audio recordings supplied by the media) have resulted in the serious suspicion that, after making a deal with the representatives of the self-styled lobbying company, Mr Severin contacted – both personally and through his secretariat – at least one other Member of the European Parliament with the aim of discovering whether an amendment had been tabled for discussion in the Committee on Legal Affairs concerning the time limit for the reimbursement of depositors in the case of a bank failure. After having assured the 'representatives of the lobbying company' that their amendment had been tabled for discussion in the Committee on Legal Affairs by another Romanian Member of the European Parliament, Sebastian Bodu, Mr Severin promised them he would support the amendment and requested payment of an initial instalment of €12 000 for services rendered – a sum for which an invoice was issued.
According to Mr Severin, Taylor Jones Public Affairs, a fake society created by the British newspaper 'Sunday Times', promised him a paid role as a member of its International Advisory Board. According to this role, as described also in the preliminary contract, Mr Severin would not be involved in the drafting of amendments or in promoting or changing legislation.
According to Mr Severin, he was assured that this contract was legally above board and did not create any conflict of interest with his parliamentary duties. Moreover, the invoice he submitted had been for consultancy services. A similar amendment to that requested by the alleged company had been tabled by Mr Bodu and had nothing to do with him.
Mr Severin maintains that he had had relations with a fake company and had been deceived. He also maintains that this does not have any legal consequences and that, in any case, he has never carried out his parliamentary duties in exchange for money. In short, according to Mr Severin, the company and contract were fake. He never did any lobbying, no damage was done and no money exchanged, and no amendments to legislation were made.
It should be noted that the Romanian authorities have based their request on the statements given and the audio recordings supplied by the company created by the Sunday Times. This documentation is the result of manipulation by Sunday Times reporters, who entered Parliament under a false identity and with the intention of committing fraud.
However much such action may be regarded as reprehensible from an ethical point of view and raise doubts as to the propriety of relations between the press and MEPs, to the extent that it could appear to be an act typical of agents provocateurs, who, as matters stand, – and this is strange –, have not been the subject of any judicial proceedings, there are no indications that it might be, on the part of the Romanian judicial authority, a case of fumus persecutionis. That is to say, there are no sufficiently serious and specific grounds for suspecting that the proceedings have been initiated with the precise intention of damaging the Member politically.
3. In law
Romanian criminal law
Under Romanian law, provision is made for the above-mentioned acts in Article 6 of Law No 78/2000 on preventing, detecting and punishing offences of corruption, in conjunction with Article 254 (corruption) and Article 257 (influence peddling) of the Criminal Code, and with Article 81(b) of Law No 78/2000 on preventing, detecting and punishing offences of corruption.
The above-mentioned provisions stipulate the following:
Article 6 of Law No 78/2000 on preventing, detecting and punishing offences of corruption states that the criminal offences of passive corruption (bribe-taking), under Article 254 of the Criminal Code, active corruption (bribe giving), under Article 255 of the Criminal Code, the receiving of undue benefits, under Article 256 of the Criminal Code, and influence peddling, under Article 257 of the Criminal Code, are to be punished according to the relevant legal texts.
Article 254 of the Criminal Code states that:
(1) An act of a public official who, directly or indirectly, requests or receives money or other benefits that are not due to him, or does not reject them, in order to perform, fail to perform or delay the completion of an act relating to his duties, or in order to act against those duties, shall be punished by 3-12 years of imprisonment and the loss of certain rights. (2) The act referred to in paragraph 1, if committed by a public official having a supervisory role, shall be punished by 3-15 years of imprisonment and the loss of certain rights.
Article 257 of the Criminal Code states that:
(1) Acceptance of, or a request for, goods or other benefits, i.e. acceptance of promises or gifts, either directly or indirectly, for himself or for a third party, on the part of a person who has, or leads people to believe he has, sufficient influence over a public official to make him perform or fail to perform an act that is part of his official duties, shall be punished by 2-10 years of imprisonment.
Article 81(b) of Law No 78/2000 on preventing, detecting and punishing offences of corruption stipulates that the provisions of Articles 254-257 of the Criminal Code and Articles 61 and 82 of Law No 78/2000 also apply to the following categories:
'b) members of the parliamentary assemblies of the international organisations of which Romania is a member.'
In the case at issue the jurisdiction of the National Anti-Corruption Department is confirmed by the provisions of Article 13 of the government's Emergency Order No 43/2002 concerning the National Anti-Corruption Department, which stipulates that offences under Law No 78/2000 on preventing, detecting and punishing offences of corruption, together with subsequent amendments and additions, fall within the jurisdiction of the National Anti-Corruption Department where they take place in one of the following situations:
a) 'where, regardless of the quality of the persons who committed them, the offences in question caused material damage greater than the equivalent in Romanian Lei of EUR 200 000, or where they caused particularly serious disturbance to the activity of a public authority, public institution or any other legal person, or where the value of the sum or asset which is the subject of the corruption offence is greater than the equivalent in Romanian Lei of EUR 10 000;
b) where, regardless of the value of the material damage or the seriousness of the disturbance caused to a public authority, public institution or any other legal person, or of the value of the sum or asset which is the subject of the corruption offence, such offences are committed [...] by the persons referred to in Article 81 of Law No 78/2000, together with subsequent amendments and additions [...].'
Article 11 of the Criminal Code stipulates that criminal law is applied to criminal offences committed outside Romanian borders by Romanian citizens or stateless persons where the act in question is regarded as an offence also under the criminal law of the country in which the offence was committed.
EU law
Protocol No 7 on the Privileges and Immunities of the European Union annexed to the Treaties:
'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'.
Provisions of the Romanian Constitution concerning the immunity of Members of the Romanian Parliament – Article 72(2):
'Deputies and Senators may be subject to criminal investigation, or criminally prosecuted for acts that are not connected with their votes or their political opinions expressed in the exercise of their office, but shall not be searched, detained or arrested without the consent of the Chamber they belong to, after being heard. The investigation and prosecution shall only be carried out by the Public Prosecutor's Office attached to the High Court of Cassation and Justice. The High Court of Cassation and Justice shall have jurisdiction over this case.'
4. Conclusion
On the basis of the above considerations and pursuant to Rule 6(2) of the Rules of Procedure, the Committee on Legal Affairs, having examined the reasons for and against waiving the Member's immunity, recommends that the European Parliament should waive
the parliamentary immunity of Adrian Severin, while considering 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.
RESULT OF FINAL VOTE IN COMMITTEE
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Date adopted |
20.6.2011 |
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Result of final vote |
+: –: 0: |
12 0 0 |
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Members present for the final vote |
Sebastian Valentin Bodu, Christian Engström, Marielle Gallo, Klaus-Heiner Lehne, Bernhard Rapkay, Francesco Enrico Speroni, Alexandra Thein, Diana Wallis, Cecilia Wikström, Tadeusz Zwiefka |
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Substitute(s) present for the final vote |
Eva Lichtenberger, József Szájer |
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