REPORT on the request for waiver of the immunity of Czesław Adam Siekierski
13.1.2016 - (2015/2268(IMM))
Committee on Legal Affairs
Rapporteur: Heidi Hautala
PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
on the request for waiver of the immunity of Czesław Adam Siekierski
The European Parliament,
– having regard to the request for waiver of the immunity of Czesław Adam Siekierski, forwarded on 7 September 2015 by the Prosecutor-General of the Republic of Poland in connection with criminal proceedings to be brought by the Polish General Inspectorate of Road Traffic (Ref. No CAN-PST-SCW.7421.573278.2015.3.A.0475), and announced in plenary on 5 October 2015,
– having regard to the fact that Czesław Adam Siekierski waived his right to a hearing, in accordance with Rule 9(5) of its Rules of Procedure,
– having regard to Article 9 of Protocol No 7 on the Privileges and Immunities 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, 6 September 2011 and 17 January 2013[1],
– having regard to Articles 105(2) and 108 of the Constitution of the Republic of Poland and Articles 7b(1) and 7c(1) of the Polish Act of 9 May 1996 on the performance of the duties of a Member of the Polish Parliament or of the Senate,
– having regard to Rule 5(2), Rule 6(1) and Rule 9 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A8-0005/2016),
A. whereas the Prosecutor-General of the Republic of Poland has forwarded a request from the Polish General Inspectorate of Road Traffic for waiver of the immunity of a Member of the European Parliament elected with respect to Poland, Czesław Adam Siekierski, in connection with an offence under Article 92a of the Code of Administrative Offences of 20 May 1971 in conjunction with Article 20(1) of the Road Traffic Act of 20 June 1997; whereas, in particular, the alleged offence amounts to exceeding the permitted speed limit in a built-up area;
B. whereas Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union states that Members of the European Parliament must enjoy, on the territory of their own Member State, the immunities accorded to members of the Member State’s parliament;
C. whereas Articles 105(2) and 108 of the Constitution of the Republic of Poland state that a deputy or a senator shall not be subject to criminal accountability without the consent of the Sejm or of the Senate respectively;
D. whereas it is thus incumbent upon the European Parliament to decide whether the immunity of Czesław Adam Siekierski is or is not to be waived;
E. whereas, pursuant to Rule 9(7) of the Rules of Procedure, the Committee on Legal Affairs may not, under any circumstances, pronounce on the guilt or otherwise of the Member;
F. whereas, in this case, Parliament has found no evidence of fumus persecutionis, that is to say, a sufficiently serious and precise suspicion that the request has been made with the intention of causing political damage to the Member concerned;
1. Decides to waive the immunity of Czesław Adam Siekierski;
2. Instructs its President to forward this decision and the report of its committee responsible immediately to the competent authority of the Republic of Poland and to Czesław Adam Siekierski.
EXPLANATORY STATEMENT
1. Background
On 7 September 2015 the Prosecutor-General of the Republic of Poland forwarded to the President of Parliament a request made by the Polish General Inspectorate of Road Traffic to grant authorisation to take legal action against a Member of the European Parliament, Mr Czesław Adam Siekierski, in connection with a speeding offence.
The Polish General Inspectorate of Road Traffic claims that on 19 April 2015 at 11.19 am, in the town of Stopnica, Mr Siekierski was recorded by a speed camera driving a car at 79 km/h in an area with a 50 km/h speed limit. The General Inspectorate further states that in response to a summons sent to Mr Siekierski on 29 April 2015, Mr Siekierski sent photocopies of his Member’s identity card, his certificate of election to the European Parliament and a statement in which he admitted that he had been driving the vehicle at the relevant time. The facts of which Mr Siekierski is accused amount to an offence under Article 92a of the Polish Code of the Administrative Offences in conjunction with Article 20(1) of the Polish Road Traffic Act of 20 June 1997.
At the plenary sitting on 5 October 2015 the President of Parliament announced, under Rule 9(1) of the Rules of Procedure, that he had received a letter from the Prosecutor-General of the Republic of Poland requesting the waiver of the parliamentary immunity of Mr Czesław Adam Siekierski.
On 27 October 2015 the President of Parliament referred this request to the Committee on Legal Affairs under Rule 9(1) of the Rules of Procedure. On 26 November 2015 Mr Siekierski waived his right to a hearing in accordance with Rule 9(5) of the Rules of Procedure.
2. Law and procedure on the immunity of Members of the European Parliament
Article 9 of the Protocol (No 7) on the Privileges and Immunities of the European Union reads as follows:
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 measures 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.
Given that the waiver of immunity is being sought for Poland, the Polish law on parliamentary immunity applies pursuant to Article 9, first paragraph; point a. Articles 105(2) and 108 of the Constitution of the Republic of Poland provide that Deputies and Senators must not be subject to criminal accountability without the consent of their respective chamber. According to Article 7b(1) of the Act of 9 May 1996 on the performance of the duties of a Member of the Polish Parliament or of the Senate a motion for expression of consent for bringing a deputy or a senator to criminal accountability in a case concerning a crime prosecuted by public accusation shall be submitted through the Minister of Justice by the Public Prosecutor-General. Article 7c(1) of the same act states, in turn, that the motion for expression of consent for bringing a deputy or a senator to criminal accountability shall be submitted to the Speaker of the Sejm or to the Speaker of the Senate, who shall forward the motion to the body competent for its examination pursuant to the rules of procedure of the Sejm or the Senate and at the same time inform the deputy or senator concerned of the content of the motion.
Rules 6(1) and 9 of the Rules of Procedure of the European Parliament read as follows:
Rule 6
Waiver of immunity
1. In the exercise of its powers in respect of privileges and immunities, Parliament acts to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in the performance of their duties. Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol on the Privileges and Immunities of the European Union and with the principles referred to in this Rule.
(...)
Rule 9
Procedures on immunity
1. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived, or by a Member or a former Member that privileges and immunities be defended, shall be announced in Parliament and referred to the committee responsible.
The Member or former Member may be represented by another Member. The request may not be made by another Member without the agreement of the Member concerned.
2. The committee shall consider without delay, but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities.
3. 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 privileges and immunities.
4. 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.
5. 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.
The Member shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself.
The chair of the committee shall invite the Member to be heard, indicating a date and time. The Member may renounce the right to be heard.
If the Member fails to attend the hearing pursuant to that invitation, he or she shall be deemed to have renounced the right to be heard, unless he or she has asked to be excused from being heard on the date and at the time proposed, giving reasons. The chair of the committee shall rule on whether such a request to be excused is to be accepted in view of the reasons given, and no appeals shall be permitted on this point.
If the chair of the committee grants the request to be excused, he or she shall invite the Member to be heard at a new date and time. If the Member fails to comply with the second invitation to be heard, the procedure shall continue without the Member having been heard. No further requests to be excused, or to be heard, may then be accepted.
(...)
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.
(...)
3. Justification for the proposed decision
On the basis of the above facts, this case qualifies for the application of Article 9 of Protocol (No 7) on the Privileges and Immunities of the European Union. Pursuant to that provision, Members enjoy, in the territory of their own State, the immunities accorded to Members of the Parliament of that State. In this connection, Articles 105(2) and 108 of the Polish Constitution state that criminal proceedings against a Member of the Sejm or of the Senate cannot be brought without the prior authorisation of the chamber of which he or she is a Member. Accordingly, the decision from the European Parliament as to whether criminal proceedings against Mr Siekierski can be brought is required.
In order to decide whether to waive a Member’s parliamentary immunity, the European Parliament applies its own well-settled principles. One of these principles is that immunity is usually waived when the offence falls within Article 9 of Protocol No 7, provided that there is no fumus persecutionis, i.e. a sufficiently serious and precise suspicion that the matter is being brought before a court with the intention of causing political damage to the Member concerned.
In this case, the request for waiver of the immunity of Mr Siekierski has been submitted as a result of an alleged offence consisting of exceeding the speed limit in a built-up area. It appears from the file that Mr Siekierski seems to have admitted that he was driving the vehicle at the relevant time, although he failed to indicate in the relevant form whether he accepted or refused the fine. From the circumstances of the case it appears that the alleged offence and the ensuing prosecution clearly have nothing to do with the position of Mr Siekierski as a Member of the European Parliament and that there is no evidence of fumus persecutionis.
4. Conclusion
On the basis of the above considerations and pursuant to Rule 9(3) of the Rules of Procedure, the Committee on Legal Affairs recommends that the European Parliament should waive the parliamentary immunity of Mr Czesław Adam Siekierski.
RESULT OF FINAL VOTE IN COMMITTEE RESPONSIBLE
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Date adopted |
11.1.2016 |
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Result of final vote |
+: –: 0: |
14 0 0 |
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Members present for the final vote |
Joëlle Bergeron, Marie-Christine Boutonnet, Laura Ferrara, Mary Honeyball, Dietmar Köster, Gilles Lebreton, António Marinho e Pinto, Julia Reda, Evelyn Regner, Pavel Svoboda |
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Substitutes present for the final vote |
Pascal Durand, Heidi Hautala, Sylvia-Yvonne Kaufmann, Constance Le Grip, Virginie Rozière |
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- [1] (Judgment of the Court of Justice of 12 May 1964, Wagner v Fohrmann and Krier, C-101/63, ECLI:EU:C:1964:28; judgment of the Court of Justice of 10 July 1986, Wybot v Faure and others, C-149/85, ECLI:EU:C:1986:310; judgment of the General Court of 15 October 2008, Mote v Parliament, T-345/05, ECLI:EU:T:2008:440; judgment of the Court of Justice of 21 October 2008, Marra v De Gregorio and Clemente, C‑200/07 and C-201/07, ECLI:EU:C:2008:579; judgment of the General Court of 19 March 2010, Gollnisch v Parliament, T-42/06, ECLI:EU:T:2010:102; judgment of the Court of Justice of 6 September 2011, Patriciello, C‑163/10, ECLI: EU:C:2011:543; judgment of the General Court of 17 January 2013, Gollnisch v Parliament, T-346/11 and T-347/11, ECLI:EU:T:2013:23.)