REPORT on the request for waiver of the immunity of Krisztina Morvai
7.3.2012 - (2010/2285(IMM))
Committee on Legal Affairs
Rapporteur: Eva Lichtenberger
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for waiver of the immunity of Krisztina Morvai
The European Parliament,
– having regard to the request for waiver of the immunity of Krisztina Morvai, forwarded on 13 October 2010 by the Pest Central District Court in Budapest (Hungary) in connection with proceedings pending before that court and announced in plenary on 24 November 2010,
– having heard Krisztina Morvai, in accordance with Rule 7(3) of its Rules of Procedure,
– having regard to the written submissions from the Pest Central District Court of 19 December 2011 in reply to the request of the Committee on Legal Affairs under Rule 7(3) for further information and explanations,
– having regard to Articles 8 and 9 of the Protocol (No 7) on the Privileges and Immunities of the European Union, annexed to the Treaty on the Functioning of the European Union, 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, 19 March 2010 and 6 September 2011[1],
– having regard to Rules 6(2) and 7 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A7-0050/2012),
A. whereas the Pest Central District Court has requested the waiver of the parliamentary immunity of a Member of the European Parliament, Krisztina Morvai, in connection with proceedings before it;
B. whereas the request by the Court relates to criminal proceedings relating to the criminal offence of public defamation in connection with statements made by Krisztina Morvai concerning a private individual in Hungary;
C. whereas, according to Article 8 of the Protocol on the Privileges and Immunities of the European Union, 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;
D. whereas the facts of the case, as manifested in the submissions from the Court to the Committee on Legal Affairs, indicate that the statements were made at a time when Krisztina Morvai was not a Member of the European Parliament;
1. Decides to waive the immunity of Krisztina Morvai;
2. Instructs its President to forward this decision and the report of its competent committee immediately to the competent authority of Hungary and to Krisztina Morvai.
- [1] Case 101/63 Wagner v Fohrmann and Krier [1964] ECR 195, Case 149/85 Wybot v Faure and Others [1986] ECR 2391, Case T-345/05 Mote v Parliament [2008] ECR II-2849, Joined Cases C-200/07 and C-201/07 Marra v De Gregorio and Clemente [2008] ECR I-7929, Case T-42/06 Gollnisch v Parliament (not yet published in the ECR) and Case C-163/10 Patriciello (not yet published in the ECR).
EXPLANATORY STATEMENT
1. Background
At the sitting of 24 November 2010 the President announced, under Rule 6(2) of the Rules of Procedure, that on 13 October 2010 he had received a request from the Pest Central District Court concerning the waiver of the parliamentary immunity of Krisztina Morvai with reference to Articles 8 and 9 of the Protocol on privileges and immunities of the European Union.
The President referred this request to the Committee on Legal Affairs under Rule 6(2). Krisztina Morvai was heard by the Committee on 25 April 2011, in accordance with Rule 7(3), following which the Committee decided to request further information and explanations, also under Rule 7(3), from the Pest Central District Court. The Court provided the requested information and explanations in a letter of 19 December 2011.
The background to the request for waiver is as follows: On 14 April 2005, Mr János Zombori, a resident of Germany, filed a complaint with the National Police Department in Budapest, Hungary, against “unknown perpetrators” for the offence of public defamation under Article 179(1) of the Hungarian Criminal Code, which referred to a large number of media reports in printed articles, on the Internet and on television dating from March and April 2005 in which Mr Zombori was alleged to have physically and mentally abused his son. On 8 May and 15 July 2005 the complainant presented lists of additional media reports containing similar allegations, and requested that the writers of the articles, the compilers and editors of the reports and the persons making the statements be identified and held to account.
After hearing the complainant on 6 December 2006, the Court directed that an investigation be initiated. As a result of this investigation, a list of names of alleged perpetrators, which included Krisztina Morvai, was presented and registered with the Court on 12 February 2007, and the complainant stated on 14 March 2007 that he wished the proceedings against all the alleged perpetrators to go ahead.
The Court held a hearing on 28 May 2008, to which both the complainant and Krisztina Morvai had been duly summoned but had justified their absence, at which it decided to separate the proceedings into two cases, one concerning the identified alleged perpetrators and one concerning still unidentified persons.
Because of the lack of identified persons in the latter case, the Court decided on 15 December 2008 to terminate those proceedings. This decision was appealed by the complainant, and the Municipal Court of Budapest quashed the decision on 26 February 2009 and the proceedings therefore recommenced.
A hearing was set by the Court for 30 September 2009, but since the complainant did not appear it was postponed until 4 May 2010, following which the complainant was invited to clarify the accusations. On 23 June 2010, the complainant indicated that he wished criminal proceedings to go ahead against two identified alleged perpetrators who had made specified statements on television, one of whom was Krisztina Morvai.
The Court suspended the proceedings on 8 October 2010 in order to make a request to the European Parliament to waive the parliamentary immunity of Krisztina Morvai.
The Court has informed the Committee that the limitation period under the Hungarian Criminal Code for an offence is a period corresponding to the upper limit of the prescribed punishment but no shorter that three years. Since the prescribed punishment for public defamation is two years under the Criminal Code, the limitation period for this offence is therefore the minimum of three years. This limitation period is however interrupted by the initiation of criminal proceedings against alleged offenders.
For her part, Krisztina Morvai submits that Parliament should uphold her parliamentary immunity. Although she does acknowledge that she did make the statements in question, she made them in her capacity as a women's right activist, and she had in any event not been informed of any investigations or proceedings against her between 14 April 2005, when the original complaint was made, and 14 April 2008, when the limitation period for the offence would have run out. The limitation period had therefore expired on 8 October 2010, when the request for waiver of the parliamentary immunity was made. She considers that the complainant and the Court pursued the proceedings against her only after she had been elected Member of the European Parliament in 2009.
2. Law and procedure on the immunity of Members of the European Parliament
Articles 8 and 9 of the Protocol (No 7) to the TFEU on the Privileges and Immunities of the European Union read as follows (emphasis added):
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 Rules 6 and 7 of the Rules of Procedure. The relevant provisions read as follows (emphasis added):
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 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.
(...)
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 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 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 about 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.
(...)
3. Justification for the proposed decision
Since the statements in question were made in 2005, they were made before Krisztina Morvai became a Member of the European Parliament following her election during the 2009 European Parliament elections.
As the Court of Justice has held, the scope of the absolute immunity provided for in Article 8 “must be established on the basis of Community law alone”[1]. The Court has also recently held that “a statement made by a Member of the European Parliament beyond the precincts of that institution and giving rise to prosecution in his Member State of origin for the offence of making false accusations does not constitute an opinion expressed in the performance of his parliamentary duties covered by the immunity afforded by that provision unless that statement amounts to a subjective appraisal having a direct, obvious connection with the performance of those duties” [2] (emphasis added).
On the basis of the documents received from the Pest Central District Court and the additional information and explanations provided following the Committee's request, it appears that the criminal proceedings against Krisztina Morvai were interrupted several times between 14 April 2005, when the proceedings were initiated, and 8 October 2010, when the request for waiver of the parliamentary immunity was made, and that the limitation period had only been running for very limited periods of times when the complainant had been instructed to give notices or provide further information to the Court. The limitation period for the alleged offence had therefore not run out on 8 October 2010.
Against this background, the Committee considers that the facts of the case, as manifested in the request for waiver, in the written submissions to the Committee and at the hearing of Krisztina Morvai, indicate that the statements were made at a time when she was not a Member of the European Parliament and that the limitation period of the alleged offence had not run out following the initiation of criminal procedures.
The Committee therefore considers that, when making the statements in question, Krisztina Morvai was not acting in the performance of her duties as Member of the European Parliament.
4. Conclusion
On the basis of the above considerations and pursuant to Rule 6(2) of the Rules of Procedure, after considering the reasons for and against defending the Member’s immunity, the Committee on Legal Affairs recommends that the European Parliament should waive the parliamentary immunity of Krisztina Morvai.
RESULT OF FINAL VOTE IN COMMITTEE
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Date adopted |
1.3.2012 |
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Result of final vote |
+: –: 0: |
13 0 0 |
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Members present for the final vote |
Luigi Berlinguer, Françoise Castex, Sajjad Karim, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Bernhard Rapkay, Evelyn Regner, Dimitar Stoyanov, Cecilia Wikström, Tadeusz Zwiefka |
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Substitute(s) present for the final vote |
Piotr Borys, Eva Lichtenberger, Dagmar Roth-Behrendt |
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