GALUTINIS
A6-0376/2005
29.11.2005
PRANEŠIMAS
dėl prašymo ginti Bruno Gollnisch imunitetą ir privilegijas
(2005/2072(IMM))
Teisės reikalų komitetas
Pranešėja:
Diana Wallis
PE 362.417v05-00
TURINYS
PASIŪLYMAS DĖL EUROPOS PARLAMENTO SPRENDIMO.............................................3
EXPLANATORY STATEMENT................................................................................................4
PROCEDŪRA...........................................................................................................................10
PASIŪLYMAS DĖL EUROPOS PARLAMENTO SPRENDIMO
dėl prašymo ginti Bruno Gollnisch imunitetą ir privilegijas
( 2005/2072(IMM) )
Europos Parlamentas ,
– atsižvelgdamas į L. Romagnoli prašymą ginti B. Gollnisch imunitetą, išdėstytą 2005 m. balandžio 7 d. laiške, kuris buvo paskelbtas per 2005 m. balandžio 14 d. plenarinį posėdį,
– išklausęs B. Gollnisch pagal Darbo tvarkos taisyklių 7 straipsnio 3 dalį,
– atsižvelgdamas į 1965 m. balandžio 8 d. Protokolo dėl Europos Bendrijų privilegijų ir imunitetų 9 ir 10 straipsnius bei į 1976 m. rugsėjo 20 d. Akto dėl atstovų į Europos Parlamentą rinkimų remiantis tiesiogine visuotine rinkimų teise 6 straipsnio 2 dalį,
– atsižvelgdamas į Europos Bendrijų Teisingumo Teismo 1964 m. gegužės 12 d. ir 1986 m. liepos 10 d.
Byla 101/63: Wagner v Fohrmann and Krier [1964], ECR 195, ir byla 149/85 Wybot v Faure and others [1986] ECR 2391. sprendimus,
– atsižvelgdamas į Prancūzijos Respublikos Konstitucijos 26 straipsnį,
– atsižvelgdamas į Darbo tvarkos taisyklių 6 straipsnio 3 dalį ir 7 straipsnį,
– atsižvelgdamas į Teisės reikalų komiteto pranešimą ( A6‑0376/2005 ),
1. nusprendžia neginti B. Gollnisch imuniteto ir privilegijų;
2. paveda Pirmininkui šį sprendimą ir atsakingo komiteto pranešimą perduoti atitinkamoms Prancūzijos Respublikos valdžios institucijoms.
EXPLANATORY STATEMENT
I. facts
At the sitting of 14 April 2005, the President of the European Parliament announced that he had received a request for the defence of the parliamentary immunity of Mr Bruno Gollnisch, MEP. The request had been presented by letter from Mr Luca Romagnoli of 7 April 2005, which was duly forwarded to the Committee on Legal Affairs. By letter of 25 April, Mr Romagnoli reiterated this request and asked for measures of urgency to assert the immunity of the Member concerned. Mr Gollnisch signified his agreement in accordance with Rule 6 (3) of the Rules of Procedure by e-mail of 13 April 2005.
Referring to Article 26 paragraph 2 of the French Constitution, the French authorities did not request the waiver of Mr. Gollnisch's immunity so far.
The request relates to criminal proceedings brought against Mr Gollnisch for remarks he made at a press conference in Lyon on 11 October 2004. At this press conference Mr Gollnisch discussed - according to his own statement of 20 June 2005 - topics including the so-called "Rousso report", a report commissioned by the French Minister of Education concerning the political views of the academics of Lyon III University, where Mr Gollnisch is Professor of Japanese language and civilisation. Mr Gollnisch, according to information which he provided, expressed his views on this report and made some highly critical remarks about political interference in the report and was thus questioned on the matter. In response to these questions, Mr Gollnisch - again according to information which he provided - "called for freedom of research, while explaining that certain aspects of the official history of the Second World War had evolved and that today we have a better understanding of the Stalinist crimes which had not been mentioned at the Nuremberg trials". In this context he expressed his judgement of the Katyn massacre.
It is worth noting in passing that virtually none of the contemporaneous press reports of Mr Gollnisch's press conference refer to his being a Member of the European Parliament.
His comments made in the context of the above-mentioned press conference were interpreted as calling in question the crimes against humanity committed by the National Socialist regime. The president of Licra (Ligue international contre le racisme et l'antisemitisme), MEP Patrick Gaubert, requested the French Minster of Justice to see to the matter in application of the "loi Gayssot" (press release of Licra of 13 October 2004). On 14 October 2004 the President of the European Parliament condemned the statements made by Mr. Gollnisch. On 15 October 2004 the French Minister of Justice, Mr Perben, who, in common with Mr Gollnisch, was standing as a candidate in the Lyon municipal elections, gave the order for a police inquiry to be held into Mr Gollnisch. By letter of 29 November 2004 the chief prosecutor of the Court of Appeal of Lyon instructed the Public Prosecutor of Lyon to prosecute Mr Gollnisch for calling in question crimes against humanity.
The Lyon prosecutor initiated criminal proceedings against Mr Gollnisch under Article 24a of the so-called "Loi Gayssot", which had been added in 1990 to the Law of 29 July 1881 on the freedom of the press, and prohibits the expression in public of an opinion denying crimes against humanity on pain of criminal sanctions.
By letter of 9 June 2005 the Committee on Legal Affairs asked the competent national authorities to provide the committee with additional information about the case. By letter of 18 July, which was transmitted to the rapporteur on 22 July, the French Minister of Justice, Pascal Clement, confirmed that inquiries had been started by the Prosecutor of the Republic at the Tribunal de Grande Instance de Lyon under Article 24a of the Law of 29 July 1881 for having stated the following in public:
"No serious historian completely endorses the findings of the Nuremberg trials. I think that the tragedy of the concentration camps should continue to be discussed freely. Historians are entitled to discuss the number of people killed and how they died."
"There is no longer a single serious historian who completely endorses the findings of the Nuremberg trials. That does not make me an apologist for the undoubted crimes committed by National Socialism during the Second World War; neither I nor my friends have ever had the least sympathy for the Nazi regime. Historians can discuss how many actually died."
"I am not disputing the existence of concentration camps. People were deported on racial grounds and there is no doubt that hundreds of thousands, if not millions, of people were exterminated. Fifty years on from these events, historians could discuss the actual number of people killed. I am not denying the gas chambers, but discussion must continue to be free".
"It is up to historians to discuss whether the gas chambers existed".
Mr Gollnisch declared that he did not call into question the crimes against humanity committed by the National Socialist regime as he only stated that it was up to historians to debate such matters and that it was a malicious interpretation of his remarks, taken out of context.
According to the letter of 18 July, a hearing of Mr Gollnisch had been scheduled for 26 April 2005, but subsequently adjourned. Mr Gollnisch could be represented by a counsel at the hearing or apply for it to be adjourned. In the framework of the judicial inquiry, Mr Gollnisch is not under observation or surveillance and no measures of security have been taken against him.
It subsequently appeared that Mr Gollnisch's case was scheduled to come up for hearing on 6 September 2005. The President of Parliament, acting at the request of the Chairman of the Legal Affairs Committee, wrote to the French Ministry of Justice on 13 July to ask whether the proceedings could be stayed in order to allow Parliament time to take its decision on the question of Mr Gollnisch's immunity. The Minister of Justice replied by letter of 29 July. In that letter, he stated that, in view of the independence of the judiciary, he could not call in question the decision of the Lyon criminal court fixing the date of hearing. Nevertheless, in a spirit of cooperation with the European institutions, he would ask the public prosecutor's office in Lyon to inform the court of Parliament's difficulties with the timing of hearing and to ask it to apply for an adjournment of the case at the hearing on 6 September. The judge adjourned the hearing of 6 September to 29 November 2005.
II. TEXTS AND GENERAL CONSIDERATIONS ON THE IMMUNITY OF THE MEMBERS OF THE EUROPEAN PARLIAMENT
1. Articles 9 and 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 read as follows:
"9. 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.
10. 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."
2. In this context, Article 26
Article amended by Constitutional Law No 95-880 of 4 August 1995. of the French Constitution provides as follows:
"No Member of Parliament shall be subject to legal proceedings, investigations, arrest, detention or judgment for opinions expressed or votes cast by him while carrying out his duties.
No Member of Parliament may be arrested or subject to any other measure depriving the Member of freedom or restricting that freedom for criminal or minor offences without the authorisation of the Assembly to which he belongs, except in the case of a crime or flagrante delicto or of final sentence.
Detention, measures depriving the Member of his freedom or restricting that freedom or the prosecution of the Member of Parliament shall be suspended during the session if the Assembly of which he is a Member so demands.
The Assembly concerned shall meet automatically for additional sittings to enable, where appropriate, the provisions of the preceding paragraph to be applied."
3. 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.
(..)
3. Any request addressed to the President by a Member or a former Member to defend privileges and immunities 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 decision which simply 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; he may bring any documents or other written evidence he deems relevant. He may be represented by another Member.
(...)
6. In cases concerning the defence of immunity or privileges, the committee shall state whether the circumstances constitute an administrative or other restriction imposed on the free movement of Members travelling to or from the place of meeting of Parliament or an opinion expressed or a vote cast in the performance of the mandate or fall within aspects of Article 10 of the Protocol on Privileges and Immunities which are not a matter of national law, and shall make a proposal to invite the authority concerned to draw the necessary conclusions.
7. The committee may offer a reasoned opinion about the competence of the authority in question and about 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.
(...)"
4. Since its first five-year legislative period, the European Parliament has ruled on a number of requests for waiver of immunity. From Parliament's debates on these requests some general principles have emerged which were given definitive recognition in the resolution adopted by Parliament at its sitting of 10 March 1987
OJ C 99, 13.4.1987, p.44 . These were based on the report by Mr Donnez on the draft protocol revising the Protocol on the Privileges and Immunities of the European Communities in respect of Members of the European Parliament ( A2-121/86 ). It is worth briefly recapitulating some of these principles which are relevant in the present case:
(a) Parliamentary immunity is not a privilege granted for the benefit of an individual member of Parliament, but a guarantee of Parliament's independence and that of its members vis-à-vis other institutions.
(b) The fact that Article 10, first paragraph, subparagraph (a), of the Protocol on Privileges and Immunities refers to the immunities granted to members of national parliaments does not mean that the European Parliament has no power to create its own rules in the matter of the waiver of parliamentary immunity. Parliament's decisions have gradually forged a coherent notion of European parliamentary immunity which is, in principle, independent of the various practices of the national parliaments. This avoids differences in treatment between Members resulting from their nationality. Consequently, whereas immunity existing under national law is considered, the European Parliament applies its own consistent principles in deciding whether to waive the immunity of a Member or not.
Parliamentary immunity exists to protect Members' freedom of expression and freedom of political debate. Parliament's competent committee has therefore consistently held that it is a fundamental principle that in all cases where the acts of the Member standing accused form part of his or her political activity or are directly related to such activity, immunity will not be waived.
This includes, for example, expressions of opinion deemed to be covered by a Member's political activity made at demonstrations, at public meetings, in political publications, in the press, in a book, on television, by signing a political tract and even in a court of law.
(c) This principle is taken together with other arguments for or against the waiver of immunity, particularly "fumus persecutionis", i.e. the presumption that the prosecution originates in an intention to cause prejudice to the Member's political activities. As it is defined in the explanatory statement of the Donnez report the concept of " fumus persecutionis " means, in essence, that immunity is not waived where the suspicion exists that the prosecution is based on an intention to prejudice the Member's political activities.
For instance, where proceedings are brought by a political adversary, in the absence of evidence to the contrary immunity will not be waived in so far as the proceedings have to be regarded as intended to harm the Member concerned and not to obtain reparation for damage. Likewise, where proceedings are brought in circumstances such as to suggest that they have been initiated solely in order to harm the Member concerned, immunity will not be waived.
III. JUSTIFICATION OF THE PROPOSED DECISION
1. The Committee on Legal Affairs has discussed in detail the articles of the Protocol on Privileges and Immunities which may apply. The Committee decided that the present case has to be examined under Article 9 of the Protocol on the privileges and immunities of the European Communities of 8 April 1965 in connection with the above mentioned principles.
Article 9 states that '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'. That absolute immunity only applies to 'opinions expressed or votes cast by [Members] in the performance of their duties'.
Parliament has consistently taken it as a fundamental principle that immunity may on no account be waived in cases in which the acts of which a Member stands accused were carried out in the performance of his or her political duties as a Member of the European Parliament or were directly related to such duties
see the case concerning the immunity of N.J.Camre, decision of 1 July 2003, 2002/2249(IMM) . . The same principles must apply in the case of a request for the defence of the parliamentary immunity
see the case concerning the request for defence of the immunity of J. Sakellariou, decision of 23 September 2003, 2003/2023(IMM) . .
(a) Applying these principles the committee notes that, when Mr Gollnich expressed his opinion during the press conference of 11 October 2004, he was not exercising his freedom of speech in connection with "the performance of his duties" as a Member of the European Parliament.
According to the explanations given by Mr Gollnisch, he expressed his opinion about the massacre of Katyn in response to questions from journalists about his highly critical remarks relating to political interference in the Rousso report on the political views of Lyon III University academics. The statements were directly related with the professional activities of Mr Gollnisch as professor at the Lyon III University and had nothing to do with his duties as a Member of the European Parliament.
It cannot therefore be maintained that he was acting 'in the performance of his duties' as a Member of the European Parliament.
(b) Rule 7(6) of the Rules of Procedure is satisfied. According to the information given by the French Ministry of Justice, the criminal inquiry carried out against Mr Gollnisch does not hinder him in the performance of his duties, for example by preventing him from participating in Parliament's sessions, committee meetings, etc. It appears from this information that Mr Gollnisch is not obliged to be present at the hearing and can be represented by his counsel. Furthermore, the hearing can be postponed if Mr Gollnisch so requests.
2. According to Rule 7(2) of the Rules of Procedure the Committee's proposal for a decision should simply recommend the adoption or rejection of the request for the defence of immunity and privileges.
IV. CONCLUSIONS
On the basis of the above considerations, the Committee on Legal Affairs, having examined the reasons for and against defending immunity, recommends that the request for the defence of Mr Gollnisch's immunity be rejected.
PROCEDŪRA
Pavadinimas
Prašymas ginti Bruno Gollnisch imunitetą ir privilegijas
Procedūros numeris
2005/2072(IMM)
Prašymas ginti imunitetą Pateikė Pateikimo data Paskelbimo per plenarinį posėdį data
Luca Romagnoli 7.4.2005 14.4.2005
Atsakingas komitetas Paskelbimo per plenarinį posėdį data
JURI 14.4.2005
Pagrindas Darbo tvarkos taisyklėse
6 straipsnio 3 dalis ir 7 straipsnis
Pranešėja(-s) Paskyrimo data
Diana Wallis 21.4.2005
Ankstesnis pranešėjas
Svarstymas komitete
23.5.2005
20.6.2005
13.7.2005
Priėmimo data
22.11.2005
Galutinio balsavimo rezultatai
Už: 13
Prieš: 3
Susilaikė: 1
Posėdyje per galutinį balsavimą dalyvavę nariai
Maria Berger, Bert Doorn, Giuseppe Gargani, Piia-Noora Kauppi, Kurt Lechner, Klaus-Heiner Lehne, Antonio López-Istúriz White, Aloyzas Sakalas, Diana Wallis, Rainer Wieland, Tadeusz Zwiefka
Posėdyje per galutinį balsavimą dalyvavę pavaduojantys nariai
Nicole Fontaine, Jean-Paul Gauzès, Arlene McCarthy, Manuel Medina Ortega, Marie Panayotopoulos-Cassiotou, Michel Rocard
Posėdyje per galutinį balsavimą dalyvavę pavaduojantys nariai (178 straipsnio 2 dalis)
Pateikimo data – A6
29.11.2005
A6-0376/2005
