REPORT on the request for waiver of the immunity of Mylène Troszczynski

12.6.2017 - (2017/2019(IMM))

Committee on Legal Affairs
Rapporteur: Tadeusz Zwiefka

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for waiver of the immunity of Mylène Troszczynski

(2017/2019(IMM))

The European Parliament,

–  having regard to the request for waiver of the immunity of Mylène Troszczynski, forwarded on 1 December 2016 by the Minister of Justice of the French Republic in connection with a judicial investigation being conducted by the Bobigny Public Prosecutor on the grounds of public defamation and incitement to hatred or violence in respect of a person or group of persons on account of their origin or membership or non-membership of a particular ethnic group, nation, race or religion, and announced in plenary on 16 January 2017,

–  having heard Mylène Troszczynski in accordance with Rule 9(6) of its Rules of Procedure,

–  having regard to Articles 8 and 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 Article 26 of the Constitution of the French Republic, as amended by Constitutional Law No 95-880 of 4 August 1995,

–  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 (A8-0218/2017),

A.  whereas the Bobigny Public Prosecutor has requested that the immunity of Mylène Troszczynski, Member of the European Parliament and Member of the Picardy Regional Council, should be waived in connection with proceedings relating to the posting on her Twitter account on 23 September 2015 of a picture of women wearing the full veil who seem to be queuing outside the offices of a CAF (Caisse d’allocation familiale – Family Allowances Fund), accompanied by the comment ‘Rosny-Sous-Bois CAF on 9.12.14. Wearing of the full veil is supposed to be prohibited by law...’;

B.  whereas the offending image was in fact a photomontage based on a picture taken in London and already used by another Twitter account holder, and whereas the investigation revealed that it was not Ms Troszczynski who published the message online, but her assistant, who confessed to having done so;

C.  whereas the Public Prosecutor pointed out that as the editor of her own Twitter account, Ms Troszczynski could be held responsible for the tweet;

D.  whereas when Ms Troszczynski realised that the picture was forged, she promptly removed it from her Twitter account;

E.  whereas the waiver of the immunity of Mylène Troszczynski relates to an alleged offence of public defamation in respect of a person or group of persons on account of their origin or membership or non-membership of a particular ethnic group, nation, race or religion as defined, and for which penalties are laid down by Articles 23, 29(I), 32(2) and (3), 42, 43 and 48-6 of the Law of 29 July 1881, and to the commission of the offence of incitement to discrimination, hatred or racial violence, the subjects of the investigation which is under way, as defined, and for which penalties are laid down by Articles 24(8), (10), (11) and (12), 23(1) and 42 of the Law of 29 July 1881 and by Article 131-26(2) and (3) of the Criminal Code;

F.  whereas Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union states that Members shall enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that State;

G.  whereas Article 26 of the French Constitution provides that no Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the performance of his or her official duties and that no Member of Parliament may be arrested for a crime or be the subject of any other custodial or semi-custodial measure without the authorisation of the Parliament;

H.  whereas the scope of immunity accorded to Members of the French Parliament corresponds in fact to the scope of immunity accorded to Members of the European Parliament under Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union; whereas the Court of Justice of the European Union has held that for a Member of the European Parliament to enjoy immunity an opinion must be expressed by the Member in the performance of his or her duties, thus entailing the requirement of a link between the opinion expressed and the parliamentary duties; whereas such link must be direct and obvious;

I.  whereas the charges are unrelated to the position of Mylène Troszczynski as a Member of the European Parliament and concern instead activities of a regional nature, given that the forged picture and the comments referred to what was allegedly happening in Rosny-Sous-Bois, in violation of the French law;

J.  whereas the alleged actions do not relate to opinions expressed or votes cast by Mylène Troszczynski in the performance of her duties as a Member of the European Parliament within the meaning of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union;

K.  whereas there is no suspicion of fumus persecutionis, which is any evident attempt to obstruct the parliamentary work of Mylène Troszczynski, behind the judicial inquiry which was opened following a complaint alleging defamation of a public administration, lodged by the Seine-Saint-Denis Family Allowances Fund represented by its general manager;

1.  Decides to waive the immunity of Mylène Troszczynski;

2.  Instructs its President to forward this decision and the report of its committee responsible immediately to the Minister of Justice of the French Republic and to Mylène Troszczynski.

• [1]  Judgment of the Court of Justice of 12 May 1964, Wagner v Fohrmann and Krier, 101/63, ECLI:EU:C:1964:28; judgment of the Court of Justice of 10 July 1986, Wybot v Faure and others, 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.

EXPLANATORY STATEMENT

I.  FACTS

At the plenary sitting of 16 January 2017, the President announced that on 1 December 2016 he had received a letter by the French Minister of Justice requesting the waiver of immunity of Mylène Troszczynski.

The President referred the request to the Committee on Legal Affairs under Rule 9(1).

On 23 September 2015 on Ms Troszczynski’s twitter account, a picture of women wearing the full veil who seem to be queuing outside a CAF(Caisse d’allocation familiale ), accompanied by the comment ‘Rosny-Sous-Bois CAF on 9 12 14. Wearing of the full veil is supposed to be prohibited by law...’ was posted; the offending image was in fact a photomontage based on a picture taken in London and already used by another Twitter account holder. When Ms Troszczynski realized that the pictured was forged, she promptly removed it from her Tweet account.

The investigation then revealed that it was not Ms Troszczynski who published the message online, but her assistant, who confessed to having done so; the Public Prosecutor pointed out that as the editor of her own Twitter account Ms Troszczynski could be held responsible for the tweet.

A judicial investigation into Ms Troszczynski was then opened by the Bobigny Public Prosecutor on the grounds of public defamation and incitement to hatred or violence in respect of a person or group of persons on account of their origin or membership or non-membership of a particular ethnic group, nation, race or religion.

II.  THE LAW

a) European law

Protocol No 7 on the Privileges and Immunities of the European Union, annexed to the

Treaty on the Functioning of the European Union

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 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.’

Act of 20 September 1976 concerning the election of the Members of the European

Parliament by direct universal suffrage

Article 6(2)

Members of the European Parliament shall enjoy the privileges and immunities applicable to them by virtue of the Protocol of 8 April 1965 on the privileges and immunities of the

European Communities.’

Judgment of the Court of Justice of 6 September 2011, Patriciello, Case C-163/10

‘Article 8 of the Protocol on the Privileges and Immunities of the European Union, annexed

to the EU, FEU and EAEC Treaties, must be interpreted to the effect 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. It is for

the court making the reference to determine whether those conditions have been satisfied in the case in the main proceedings.’

b) French law

French Constitution

Article 26

No Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the performance of his official duties.

No Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorisation of the Bureau of the House of which he is a member. Such authorisation shall not be required in the case of a serious crime or other major offence committed flagrante delicto or when a conviction has become final.

The detention, subjection to custodial or semi-custodial measures or prosecution of a Member of Parliament shall be suspended for the duration of the session if the House of which he is a member so requires.

The Assembly concerned shall meet automatically for additional sittings to enable, where

appropriate, the provisions of the preceding paragraph to be applied.’

French Criminal Code

Article 131-26

Forfeiture of civic, civil and family rights covers:

(…)

2° the right to be elected;

3° the right to hold a judicial office, or to give an expert opinion before a court, or to represent or assist a party before a court of law;

(…)

Law on the Freedom of the Press of 29 July 1881

Article 23

The following shall be punished as accomplices of an action described as a crime or an offence: those who, through speeches, cries or threats made in public places or meetings, or by written words, printed matter, drawings, engravings, paintings, emblems, pictures or any other written, spoken or pictorial aid, sold or distributed, offered for sale or displayed in public places or meetings, either by posters or notices displayed for public view, or by any means of electronic communication to the public, have directly caused the perpetrator or perpetrators to commit the said action if the provocation has been acted upon.

This provision shall also apply if the provocation has resulted merely in an attempted crime, as set out in Article 2 of the Criminal Code.

Article 29

Any allegation or imputation of an act which infringes the honour or the consideration of the person or body to which the act is attributed is defamation. The publication or reproduction of this allegation or imputation shall be punishable, even if this is done in a form which is doubtful or if it concerns a person or a body which is not expressly named but can be identified by the language of the written or spoken speeches, cries, threats, posters or notices in question.

Any offensive expression, term of abuse or invective which does not include the imputation of a fact is an insult.

Article 32

(…)

Defamation committed in the same way against a person or group of persons on account of their origin or their membership or non-membership of a particular ethnic group, nation, race or religion shall be punished by imprisonment for one year and a fine of EUR 45 000 or one of these two sanctions only.

(…)

Article 42

The main authors of the punishments which constitute the repression of crimes and offences committed by the press shall be liable in the following order:

1° The directors of publications or editors, whatever their professions or their names and, in the cases set out in Article 6(2), the codirectors of the publication;

2° The authors, in the absence of the above;

3° The printers, in the absence of the authors;

4° The retailers, distributors and billposters, in the absence of the printers.

In the cases set out in Article 6(2), the subsidiary liability of persons referred to in paragraphs 2, 3 and 4 of this article shall apply as if there were no director of the publication if, contrary to the provisions of this act, no codirector of the publication has been appointed.

Article 43

If the directors or codirectors of the publication or the editors are involved, the authors shall be prosecuted as accomplices.

In the same way and without exception, persons to whom Article 121-7 of the Criminal Code might apply shall also be liable to prosecution. This article shall not apply to printers for the act of printing, except in the case and under the conditions set out in Article 431-6 of the Criminal Code on assemblies or, in the absence of the codirector of the publication, in the case set out in Article 6(2).

However, printers may be prosecuted as accomplices if the director or the codirector of the publication has been found guilty of criminal irresponsibility by the courts. If this is the case, proceedings shall be launched within three months of the offence being committed or within three months, at the latest, of the judicial determination of irresponsibility on the part of the director or the codirector of the publication.

Article 48

(…)

6° In the event of defamation against individuals as set out in Article 32 and of insult as set out in Article 33(2), prosecution shall take place only if a complaint is filed by the defamed or insulted person. However, prosecution may be carried out ex officio by the public prosecutor if the defamation or insult was committed against a person or group of persons on account of their origin or membership or non-membership of a particular ethnic group, nation, race or religion. It may also be carried out ex officio by the public prosecutor if the defamation or insult was committed against a group of persons on account of their gender, sexual orientation or handicap; this shall also apply if the defamation or insult was committed against persons on an individual basis, on condition that they give their consent;

(…)

Article 24

(…)

Persons who, in one of the ways set out in Article 23, have caused discrimination, hatred or violence against a person or group of persons on account of their origin or their membership or non-membership of a particular ethnic group, nation, race or religion shall be punished by imprisonment for one year and a fine of EUR 45 000 or one of these two sanctions only.

(…)

In the event of a conviction for any of the acts set out in the two preceding paragraphs, the court may also order:

1° Except where the liability of the perpetrator of the offence is withheld under Article 42 and Article 43(1) of this act, or paragraphs 1-3 of Article 93-3 of Act No 82-652 of 29 July 1982 on audiovisual communication, the deprivation of the rights listed in points 2 and 3 of Article 131-26 of the Criminal Code for a period of up to five years;

2° The display or dissemination of the decision pronounced in accordance with the conditions set out in Article 131-35 of the Criminal Code;

3° The penalty of community service as set out in Article 131-5-1 of the Criminal Code.

Article 23

The following shall be punished as accomplices of an action described as a crime or an offence: those who, through speeches, cries or threats made in public places or meetings, or by written words, printed matter, drawings, engravings, paintings, emblems, pictures or any other written, spoken or pictorial aid, sold or distributed, offered for sale or displayed in public places or meetings, either by posters or notices displayed for public view, or by any means of electronic communication to the public, have directly caused the perpetrator or perpetrators to commit the said action if the provocation has been acted upon.

(…)

III.  OBSERVATIONS/GROUNDS

The scope of immunity accorded to Members of the French Parliament corresponds in fact to the scope of immunity accorded to Members of the European Parliament under Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union.

Also the Court of Justice stated that for a Member of the European Parliament to enjoy immunity an opinion must be expressed by the Member in the performance of his duties; the requirement of a direct and obvious link between the opinion expressed and the parliamentary duties is required.

In this case, it seems that the charges are unrelated to Ms Troszczynski’s activities as a Member of the European Parliament and concern instead activities of a regional nature, given that the forged picture and the comments referred to what was allegedly happening in Rosny-Sous-Bois, in violation of the French law, and do not relate to opinions expressed or votes cast by Mylène Troszczynski, as the Member of the European Parliament, in the performance of her duties within the meaning of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union.

Finally, no suspicion of fumus persecutionis, which is any evident attempt to obstruct the parliamentary work of Mylène Troszczynski, was found behind the judicial inquiry which was opened following a complaint alleging defamation of a public administration, lodged by the Seine-Saint-Denis family allowance fund.

IV.  CONCLUSIONS

On the above basis and in accordance with Rule 9 of the Rules of Procedure, after having considered the arguments for and against doing so, the Committee on Legal Affairs recommends that Parliament should waive the immunity of Mylène Troszczynski.

INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE

Date adopted	12.6.2017
Result of final vote	+: –: 0:	13 2 2
Members present for the final vote	Joëlle Bergeron, Jean-Marie Cavada, Laura Ferrara, Lidia Joanna Geringer de Oedenberg, Mary Honeyball, Sajjad Karim, Sylvia-Yvonne Kaufmann, Gilles Lebreton, António Marinho e Pinto, Emil Radev, Julia Reda, Evelyn Regner, Pavel Svoboda, Axel Voss
Substitutes present for the final vote	Antanas Guoga, Heidi Hautala, Virginie Rozière, Kosma Złotowski