EUROPEAN PARLIAMENT

««« « « « « 1999 « « 2004 «««

Session document

FINAL

17 April 2001 A5-0123/2001

REPORT

on the request for waiver of the immunity of Mr Peter Sichrovsky (2000/2237(IMM))

Committee on Legal Affairs and the Internal Market

Rapporteur: François Zimeray

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CONTENTS

Page

PROCEDURAL PAGE ...... 4

PROPOSAL FOR A DECISION ...... 5

EXPLANATORY STATEMENT...... 6

ANNEX……… ...... 14

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PROCEDURAL PAGE

At the sitting of 5 October 2000, the President of Parliament announced that she had received, by letter of 12 September 2000, a request by Mr Bruno Weis, Judge at the Vienna Criminal Court, for waiver of the immunity of Mr Peter Sichrovsky, and that she had referred it to the Committee on Legal Affairs and the Internal Market, pursuant to Rule 6(1) of the Rules of Procedure (2000/2237(IMM)).

The Committee on Legal Affairs and the Internal Market appointed François Zimeray rapporteur at its meeting of 22 November 2000.

At its meeting of 30 January 2001 it heard Mr Sichrovsky, pursuant to Rule 6(3) and held an exchange of views on the reasons for and against the waiver of immunity.

It considered the draft report at its meetings of 6 March and 20 March 2001.

It considered the draft report at its meeting of 11 April 2001 and adopted the proposal for a decision unanimously.

The following were present for the vote: Willi Rothley, acting chairman; François Zimeray, rapporteur; Luis Berenguer Fuster, Evelyne Gebhardt, Malcolm Harbour, Gerhard Hager, The Lord Inglewood, Kurt Lechner, Klaus-Heiner Lehne, Neil MacCormick, Feleknas Uca, Diana Wallis and Stefano Zappalà.

The report was tabled on 17 April 2001.

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PROPOSAL FOR A DECISION

Decision on the request for waiver of the immunity of Mr Peter Sichrovsky (2000/2237(IMM))

The European Parliament,

- having received a request for waiver of the immunity of Mr Peter Sichrovsky, forwarded by Mr Weis, Judge at the Vienna Criminal Court, on 12 September 2000 and announced in plenary sitting on 5 October 2000,

- having heard Mr Sichrovsky, in accordance with Rule 6(3) of the Rules of Procedure of the European Parliament,

- having regard to Articles 9 and 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965, and to Article 4(2) of the Act concerning the Election of Representatives to the European Parliament by direct universal suffrage of 20 September 1976,

- having regard to the judgments of the Court of Justice of the European Communities of 12 May 1964 and 10 July 19861,

- having regard to Article 57 of the Austrian Constitution (Bundesverfassuugsgesetz),

- having regard to Rule 6 of its Rules of Procedure,

- having regard to the report of the Committee on Legal Affairs and the Internal Market (A5-0123/2001),

1. Decides not to waive the parliamentary immunity of Mr Sichrovsky;

2. Instructs its President immediately to forward this decision and the report of its committee to the appropriate authority of the Republic of Austria.

1 See Case 101/63: Wagner v Fohrmann and Krier [1964] ECR 399 and Case 149/85: Wybot v Faure [1986] ECR 2403.

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EXPLANATORY STATEMENT

I. THE FACTS

1. At the sitting of 5 October 2000, the President of the European Parliament announced in plenary sitting that she had received a request from the Austrian authorities to waive the parliamentary immunity of Mr Peter Sichrovsky.

This request seeks authorisation to initiate criminal proceedings against Mr Peter Sichrovsky.

He is accused of slander and using abusive and insulting language under Articles 111 and 115 of the Austrian Penal Code.

This charge is based on an interview given by Mr Sichrovsky to the Slovenian newspaper 'DELO' which appeared on 14 March 2000 under the title 'The Jew at Haider's Court'. In this interview Mr Sichrovsky is alleged to have made disparaging and insulting remarks about Mr Ariel Muzicant, President of the Jewish community in Vienna.

According to the complaint initiating criminal proceedings, Mr Sichrovsky allegedly described Mr Ariel Muzicant as an ‘idiot’, ‘an aggressive, irascible, incredibly mean' and 'spiteful person’, a ‘professional Jew’ who ‘would take advantage of his dead parents to appear on television’.

For more information concerning the accusations made against Mr Sichrovsky, we refer you to the detailed circumstances set out in document PE 298.367.

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EN II. TEXTS AND GENERAL CONSIDERATIONS CONCERNING THE IMMUNITY OF MEMBERS OF THE EUROPEAN PARLIAMENT

2. Article 10 of the Protocol on the Privileges and Immunities of the European Communities of 8 April 19651 states that:

'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 measures 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.'

As far as the expression of opinion as an offence is concerned, we should note that Article 9 of the Protocol provides that:

'Members of the European Parliament shall not be subject to any form of enquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.'

3. The offence of which Mr Sichrovsky, a Member of the European Parliament of Austrian nationality, is accused was undoubtedly committed abroad, since the interview appeared in a Slovenian newspaper. However, it was committed by an Austrian against another Austrian. Both are resident on Austrian territory, so that the act in question falls under Austrian jurisdiction. As a result, Mr Sichrovsky enjoys the immunity granted to members of the Austrian Parliament under Article 57 of the Austrian Constitution2.

1 See Article 4(2) of the Act of 20 September 1976 on the election of the representatives of the European Parliament by direct universal suffrage. 2 The text of Article 57 of the Austrian Constitution is attached.

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EN 4. In the European Parliament, the procedure in question is governed by the provisions of Article 6 of the Rules of Procedure1.

1 Article 6 - Waiver of Immunity 1. Any request addressed to the President by the appropriate authority of a Member State that the immunity of a Member be waived shall be announced in Parliament and referred to the committee responsible. 2. The committee shall consider such requests without delay and in the order in which they have been submitted. 3. The committee may ask the authority which has submitted the request to provide any information or explanation which the committee deems necessary for it to form an opinion on whether immunity should be waived. The Member concerned shall be heard at his request; he may bring any documents or other written evidence he deems relevant. He may be represented by another Member. 4. The committee's report shall contain a proposal for a decision which simply recommends the adoption or rejection of the request for the waiver of immunity. However, where the request seeks the waiver of immunity on several counts, each of these may be the subject of a separate proposal for a decision. The committee's report may, exceptionally, propose that the waiver of immunity shall apply solely to prosecution proceedings and 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 him from performing the duties proper to his mandate. Where the request for the waiver of immunity entails the possibility of obliging the Member to appear as a witness or expert witness thereby depriving him of his freedom, the committee shall: - ascertain, before proposing that immunity be waived, that the Member will not be obliged to appear on a date or at a time which prevents him from performing, or makes it difficult for him to perform, his parliamentary duties, or that he will be able to provide a statement in writing or in any other form which does not make it difficult for him to fulfil his parliamentary obligations; - seek clarification regarding the subject of the statement, in order to ensure that the Member is not obliged to testify concerning information obtained confidentially in the exercise of his mandate which he does not see fit to disclose. 5. The committee 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 justify prosecution, even if, in considering the request, it acquires detailed knowledge of the facts of the case. 6. The report of the committee shall be placed at the head of the agenda of the first sitting following the day on which it was tabled. No amendment may be tabled to the proposal(s) for a decision. Discussion shall be confined to the reasons for or against each proposal to waive or uphold immunity. Without prejudice to Rule 122, the Member whose immunity is subject to the request for a waiver shall not speak in the debate. The proposal(s) for a decision contained in the report shall be put to the vote at the first voting time following the debate. After Parliament has considered the matter, an individual vote shall be taken on each of the proposals contained in the report. If any of the proposals are rejected, the contrary decision shall be deemed adopted. 7. The President shall immediately communicate Parliament's decision to the appropriate authority of the Member State concerned, with a request, if immunity is waived, that he should be informed of any judicial rulings made as a consequence. When the President receives this information, he shall transmit it to Parliament in the way he considers most appropriate. 8. Should a Member be arrested or prosecuted after having been found in the act of committing an offence, any other Member may request that the proceedings be suspended or that he be released. The President shall ensure that recourse is had to this right where the aim of the arrest or prosecution is to make the Member appear as a witness or expert witness against his will, without his immunity having been waived beforehand.

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EN 5. Since its first five-year parliamentary term, the European Parliament has decided on a number of requests for the waiver of parliamentary immunity. The decisions of the European Parliament have led to the formulation of certain general principles which were definitively recognised in the resolution adopted at the sitting of 10 March 19871 on the basis of the report by Mr Donnez on the draft Protocol revising the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 in respect of Members of the European Parliament (Doc. A2-0121/86).

6. It might be useful to outline those principles which apply in this particular case and to emphasise that decisions taken on the waiver of immunity of Members must have a firm legal basis so that they are not influenced by other considerations, notably political affiliation or even the nationality of the Member in question.

Purpose of parliamentary immunity

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 the other institutions. Under that principle it makes no difference when the alleged offence was committed - whether before or after the member's election to the European Parliament - and the only criterion must be the protection of Parliament as an institution through the protection of its members.

Renunciation of parliamentary immunity null and void

The Committee on Legal Affairs and the Internal Market considers it important not to depart from the principle followed so far by the European Parliament whereby a member's renunciation of parliamentary immunity is null and void.

Time limit on immunity

The Court of Justice has been called upon twice to interpret the words 'during the sessions of the European Parliament' in Article 10 of the Protocol on the Privileges and Immunities of the European Communities.

It can be seen from two of the Court's judgements (Wagner v. Fohrmann and Krier, 12 May 1964, Case 101/63, 1964 [ECR] 397, and Wybot v. Faure, 10 July 1986, Case 149/86, 1986 [ECR] 2403) that the European Parliament holds an annual session lasting one year during which its Members enjoy the immunity provided by the Protocol, even in the periods between part-sessions.

It follows in any case from the purpose of parliamentary immunity that it is effective throughout a Member's term of office, and applies to the opening of proceedings, investigations, enforcement measures or judgements already passed or procedures awaiting judgement on appeal or cassation.

Independence of European parliamentary immunity from national parliamentary immunity

1 OJ C 99, 13.4.1987, p. 44.

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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 or 'case law'; on the matter of waiving parliamentary immunity, it is important not to confuse the immunity itself, which takes the same form for members of national parliaments and for MEPs, with the waiver of that immunity, for which each parliament is responsible on its own account; the rules governing this procedure, which arise from decisions in specific cases of requests for the waiver of immunity, have gradually forged a coherent notion of European parliamentary immunity which is in principle independent of the various practices of the national parliaments; if it were otherwise the disparities between members of the same parliament on the grounds of their nationality would be accentuated. The Committee on Legal Affairs and the Internal Market therefore takes the view that we should pave the way for a genuine European immunity which is in principle autonomous, while maintaining the references to the legislation of the Member States provided for in the Protocol on Privileges and Immunities, notably as far as procedural matters are concerned.

7. In the application of these principles a constant feature has emerged in Parliament's decisions, which has become a fundamental criterion in considering the action to be taken on each request for the waiver of immunity: in cases where the offence which a Member of the European Parliament is alleged to have committed forms part of his or her political activity, immunity is not waived. This criterion is taken together with other arguments for or against the waiver of immunity, particularly the principle of 'fumus persecutionis', i.e. the presumption that the prosecution originates in an intention to cause prejudice to the Member's political activities (for example, the investigation may be based on anonymous accusations, or the request for waiver of immunity may have been submitted a long time after the alleged offence took place) and the particularly serious nature of the offence of which the Member is accused.

8. Furthermore, this committee considers that where the legislations of Member States other than the Member State of origin of the Member in question provide for less severe penalties for the offence which he is alleged to have committed - or even do not consider it as an offence at all, this should be taken into account in reaching a decision on the waiver of immunity of a Member.

III. JUSTIFICATION FOR THE PROPOSAL FOR A DECISION

Article 57 of the Austrian Constitution governs the scope of parliamentary immunity but also lays down the criteria for waiving of immunity and/or deciding not to take into account immunity in the case of certain offences. Article 9 of the Protocol on the Privileges and Immunities of the European Communities and the principles developed by the European Parliament and applied over many years to requests for the waiver of immunity must also be taken into account. According to these principles, the waiver of immunity is ruled out where the acts of which a Member is accused form part of his political activities and/or are directly linked to them. Likewise, the waiver of immunity cannot be envisaged if there is a suspicion that the proceedings are motivated by the intention to prejudice the political activities of the Member in question.

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EN Since they are all concerned with protecting the freedom of expression of Members, Article 9 of the Protocol on the Privileges and Immunities of the European Communities, Article 57 of the Austrian Constitution and the principles developed by the European Parliament are similar. Under no circumstances may Members be prevented from freely expressing their opinions while exercising their mandate. This right is of capital importance for parliamentary democracy. Even verbal exchanges between political opponents inside and outside Parliament must be covered by general safeguards, even if the choice of words may be insulting or damage the reputation of the person to whom they are addressed. It is only when the words used clearly have no relation to the political activities of the Member that the limits of this protection are reached.

What is the context in which these words were spoken?

In the case under review, Mr Sichrovsky is alleged to have made slanderous and insulting remarks about the president of the Jewish community in Vienna in a newspaper interview. In order to understand the background to this dispute, it is important to understand that Mr Sichrovsky is also a member of the Jewish community of Vienna.

A number of press articles clearly show that Mr Sichrovsky was strongly criticised in Jewish circles for standing as a candidate for 'die Freiheitlichen' at the last European elections. In an article in 'Die Gemeinde', the magazine of the Jewish community in Vienna, in April 1999, Mr Muzicant called Mr Sichrovsky 'Haiders Hofjuden' (Haider's Court Jew). This clearly shows that Mr Sichrovsky is the target of criticism owing to the relation between his political position and his religious affiliation. It is against this background that he was induced to criticise Mr Muzicant so sharply.

His possibly slanderous and insulting remarks therefore appear in a different light.

For which remarks and offences are legal proceedings being initiated against the Member of Parliament in question?

As far as the nature of the offending remarks is concerned, a more careful and detailed analysis of the terms used by Mr Sichrovsky and the offences he is alleged to have committed is necessary. The text of the request for the waiver of his parliamentary immunity contains a number of translation errors: - the offence of ‘üble Nachrede' covered by Article 111 of the Austrian Penal Code corresponds in fact to the offence of slander. - the offence of ‘Beleidigung’ covered by Article 115 corresponds in fact to the offence of using insulting or abusive language.

The letter by the Viennese judge in question calling for the waiver of parliamentary immunity fails to distinguish between these two charges: ‘The complainant considers that these remarks constitute both the offence of slander within the meaning of Article 111 of the Austrian Penal Code and defamation within the meaning of Article 115 (…). We hereby request that the accused be punished on the basis of these texts'.

Mr Muzicant’s complaint also fails to distinguish clearly between these two charges:

Paragraph 3:

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EN ... offence within the meaning of Article 111 of the Penal Code, committed in a media intervention and/or Article 115 of the Penal Code. Paragraph 6: The first part of these remarks, ‘idiot …’, is described as constituting the offence of using slanderous insults, covered by Article 111 of the Penal Code. Moreover, these remarks also fall under Article 115 of the Penal Code. The second part of these remarks, ‘professional Jew …’ is only described as slander within the meaning of Article 111 of the penal code. Paragraph 8: The accused has committed an offence under Article 111 and 115 of the Penal Code by making these remarks (…). He must therefore be punished in accordance with these articles.

Can a distinction be made between these remarks and these charges?

Mr Muzicant’s complaint describes the second part of the remarks, ‘professional Jew …’, as slander. Unfortunately, the act of prosecution designates the first part of the remarks, ‘idiot …’, as both slander and using insulting and abusive language, which makes it difficult to distinguish between these two charges.

Despite this confusion, the same definition cannot be applied to each act, by virtue of the fundamental principle that offences and punishments must be strictly defined by law, the corollary of which is the principle speciality of offences.

The remarks ‘idiot …’ cannot be designated as both slander and using insulting or abusive language. Even though the complaint is confused, the Court was apparently asked to define the nature of these remarks and retained only one offence.

Your rapporteur therefore considers that a distinction must be made between these remarks and the charges contained in the request for the waiver of parliamentary immunity.

Can there be a partial waiver of immunity?

Rule 6(4) of Parliament’s Rules of Procedure provides that if the request seeks the waiver of immunity on several counts, each count may be the subject of a separate proposal for a decision.

Are there no limits to the protection of a Member’s freedom of expression?

As regards Mr Sichrovsky’s remarks about a ‘professional Jew’ who ‘would take advantage of his dead parents to appear on television’, they were made during an exchange of insults linked to the religious and political affiliation of the Member in question. We should give Mr Sichrovsky the benefit of the doubt and accept that these proposals, even though uncalled-for, constitute political criticism.

This is why your rapporteur proposes that his immunity should not be waived on the count of slander.

As regards the remarks ‘idiot’, ‘aggressive, irascible, incredibly mean’ and ‘spiteful person’, your rapporteur considers that they should be deemed insulting or abusive language within the

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EN meaning of Article 115 of the Austrian Penal Code. Immunity is not intended to allow Members to make particularly uncalled-for and outrageous remarks, nor to protect them from prosecution in respect of acts which clearly have nothing to do with their political activity. For this reason your rapporteur would favour waiving the immunity of Mr Sichrovsky on the count of using insulting or abusive language.

However, it is difficult to separate these remarks from the others he made, particularly since the act of prosecution designates them as both slander and using insulting or abusive language, which makes it impossible to distinguish clearly between the charges. As your rapporteur has already indicated, this is very much to be regretted. In practice, it is difficult to distinguish between invective of a purely political nature and invective which is not connected to any political activity.

The rapporteur, echoing the consensus of views expressed during the Committee’s debates, repeats that parliamentary immunity cannot under any circumstances be interpreted as an encouragement to engage in invective. On the contrary, the dignity of Parliament requires each Member to respect the laws and customs obtaining in each Member State. From this point of view freedom of expression is not incompatible with the most elementary standards of courtesy.

IV. CONCLUSIONS

During the debates of the Legal Affairs Committee it was clearly emphasised that the mandate of a Member of the European Parliament also includes duties.

On the basis of the above considerations, and pursuant to Rule 6(4) and (6) of the Rules of Procedure, and having examined the reasons for and against the waiver of immunity, the Committee on Legal Affairs and the Internal Market recommends that the European Parliament should not waive the parliamentary immunity of Mr Sichrovsky.

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EN ANNEX

Article 57 of the Austrian Constitution

'1. The members of the House of Representatives may never be made responsible for votes cast in the exercise of their function and only by the House of Representatives on the grounds of oral or written utterances made in the course of their function.

2. The members of the House of Representatives may, on the ground of a criminal offence - except for apprehension in flagrante delicto - be arrested only with the consent of the House of Representatives. Searches of the home of House of Representatives members likewise require the House of Representatives' consent.

3. Other legal action on the ground of a criminal offence may be taken against members of the House of Representatives without the House of Representatives' consent only if it is manifestly not connected to the political activity of the member in question. The authority concerned must seek a ruling by the House of Representatives on the existence of such a connection if the member in question or a third of the members belonging to the Standing Committee entrusted with these matters so demands. Every act of legal process shall in the case of such a demand immediately cease or be discontinued.'

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