REPORT on the request for waiver of the immunity of Rolandas Paksas

on the request for waiver of the immunity of Rolandas Paksas

(2016/2070(IMM))

The European Parliament,

–  having regard to the request for waiver of the immunity of Rolandas Paksas, forwarded on 31 March 2016 by the Prosecutor General of the Republic of Lithuania and announced in plenary on 13 April 2016,

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

–  having held an exchange of views with the Prosecutor General of Lithuania and the Chief Prosecutor at the Organised Crime and Corruption Investigation Department of the Prosecutor General’s Office,

–  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 Article 62 of the Constitution of Lithuania,

–  having regard to Article 4 of the Law on the status and working conditions of the Members of the European Parliament elected in the Republic of Lithuania,

–  having regard to Article 22 of the Statute of the Seimas,

–  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 (A8-0219/2017),

A.  whereas the Prosecutor General of the Republic of Lithuania has requested the waiver of the parliamentary immunity of a Member of the European Parliament, Rolandas Paksas, in connection with criminal investigations;

B.  whereas the request by the Prosecutor General relates to suspicions against Rolandas Paksas of having agreed to accept a bribe on 31 August 2015 in exchange for influencing public authorities and state officials to exercise their powers, which would constitute an offence under the Lithuanian Criminal Code;

C.  whereas pursuant to Article 9 of Protocol No 7, during the sessions of the European Parliament, its Members shall enjoy, in the territory of their own state, the immunities accorded to members of their parliament;

D.  whereas pursuant to Article 62 of the Constitution of the Republic of Lithuania, the Members of the Seimas may not be held criminally liable or be detained, or have their liberty restricted otherwise, without the consent of the Seimas;

E.  whereas pursuant to Article 4 of the Law on the status and working conditions of the Members of the European Parliament elected in the Republic of Lithuania, Members of the European Parliament shall enjoy the same personal immunity in the territory of the Republic of Lithuania as a Member of the Seimas of the Republic of Lithuania, unless otherwise provided for in the EU legislation;

F.  whereas pursuant to Article 22 of the Statute of the Seimas, criminal proceedings may not be instituted against a Member of the Seimas, and that Member may not be arrested, and may not be subjected to any other restrictions of personal freedom without the consent of the Seimas, except in cases when that Member is caught in the act of committing a crime, in which case the Prosecutor General must immediately notify the Seimas thereof;

G.  whereas in accordance with Rule 5(2), parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole and of its Members;

H.  whereas the purpose of parliamentary immunity is to protect Parliament and its Members from legal proceedings in relation to activities carried out in the performance of parliamentary duties and which cannot be separated from those duties;

I.  whereas where such proceedings do not concern the performance of a Member’s duties, immunity should be waived unless it appears that the intention underlying the legal proceedings may be to damage a Member’s political activity and thus Parliament’s independence (fumus persecutionis);

J.  whereas based on the extensive and detailed information provided in this case there is no reason to suspect that the proceedings relating to Rolandas Paksas are motivated by an intent to damage his political activity as a Member of the European Parliament;

K.  whereas it is not for the European Parliament to take a stance on the guilt or otherwise of the Member or whether the acts attributed to the Member warrant the opening of criminal proceedings, nor to pronounce itself on the relative merits of national legal and judicial systems;

1.  Decides to waive the immunity of Rolandas Paksas;

2.  Instructs its President to forward this decision and the report of its committee responsible immediately to the competent authority in Lithuania and to Rolandas Paksas.

• [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.

I.  FACTS

At the sitting of 13 April 2016, the President announced, pursuant to Rule 9(1) of the Rules of Procedure, that he had received a letter from the Prosecutor General of Lithuania requesting the waiving of Rolandas Paksas MEP’s immunity in order to allow the Lithuanian authorities to bring criminal proceedings against him which could potentially lead to the imposition of restrictions on his freedom.

Under the direction of the Office of the Prosecutor General, the Special Investigation Service of the Republic of Lithuania launched a preliminary investigation on 17 February 2016 concerning the constituent elements of trading in influence and abuse of office, which are offences under Article 226(3) and (4) and Article 228(1) of the Lithuanian Criminal Code. The minutes of interviews with Rolandas Paksas and witnesses, written submissions in the case and sound recordings have according to the Prosecutor General furnished enough data to suggest that Rolandas Paksas agreed to receive a bribe of EUR 15 000 by promising to take advantage of his social status, his connections and his likely influence with the public authorities and state officials in order to exert an influence on authorities and state officials.

Given that Rolandas Paksas, in his capacity as a Member of the European Parliament, enjoys immunity in accordance with Lithuanian law, he was interviewed as a witness in this case on the basis of a decision of the Prosecutor General of 22 February 2016 without the possibility of criminal liability being incurred should he have made any false statements. Rolandas Paksas was informed of his rights before the interview, he was accompanied by a lawyer and he was allowed to present evidence.

The Prosecutor General underlined at the exchange of views in the Committee on Legal Affairs that all approvals relating to the sound recordings in connection with surveillance were given by the courts, which took into account the sufficiency of the information. These actions were furthermore taken in accordance with the jurisprudence of the European Court of Human Rights (ECHR), and no violations of rights had been identified in this case by the Prosecutor General’s office and the courts.

The purpose of the Prosecutor-General’s request to the European Parliament to waive the parliamentary immunity of Rolandas Paksas is to make it possible to notify him of the allegations made against him, to interview him as a suspect, to take other measures restricting his freedom under Lithuanian law, and to continue the criminal proceedings brought against him with a view to obtaining a final judgment in this case in accordance with national law.

Rolandas Paksas takes the position that his parliamentary immunity should not be waived. He considers that the pre-trial investigation proceedings in relation to the alleged bribe and the request of the Prosecutor General constitute measures justifying and prolonging the political persecution which he has been subjected to since 2004. An ECHR ruling, a United Nations Human Rights Committee Act and three appeals of the Council of Ministers concerning such persecution are being ignored by Lithuania.

Rolandas Paksas furthermore considers that the Lithuanian Criminal Code, as well as other legal provisions, were substantially violated in relation to the decision to question him as a witness, for the following reasons; his place of residence and his car movements were being surveilled; he and his lawyer were being followed in Vilnius; the authorities included the media in this surveillance, and the operational steps involved were carried out by unauthorised persons; law enforcement agencies and secret services are used as a tool in Lithuania to achieve certain objectives in the political processes of the State, exemplified in this case by the fact that one of the main other suspects in the bribery case is a major shareholder and chief editor of a Lithuanian media group that reported extensively on the impeachment of the Lithuanian President.

Rolandas Paksas believes that the authorities of the European Union have no real measures and mechanisms to ensure human rights, civil and political freedoms, the rule of law and the principles of democracy in a country such as Lithuania where these values are ignored. He considers that an attempt is now being made to formally involve the European Parliament in a process of political persecution which has been going on for over ten years.

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 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.’

b)  Lithuanian law

Constitution of the Republic of Lithuania

‘Article 62

The person of a Member of the Seimas shall be inviolable.

A Member of the Seimas may not be held criminally liable, arrested, nor may his freedom be otherwise restricted without the consent of the Seimas.

A Member of the Seimas may not be prosecuted for his voting or his speeches at the Seimas. However, he may be held liable according to the general procedure for personal insult or slander.’

Law on the status and working conditions of the Members of the European Parliament elected in the Republic of Lithuania

‘Article 4 - Immunity of a Member of the European Parliament

A Member of the European Parliament shall enjoy the same personal immunity in the territory of the Republic of Lithuania as a Member of the Seimas of the Republic of Lithuania, unless otherwise provided for in the European Union legislation.’

Statute of the Seimas of the Republic of Lithuania

‘Article 22 - Immunity of a Member of the Seimas

1. The person of a Seimas Member shall be inviolable.

2. A Seimas Member may not be prosecuted for his voting or speeches in the Seimas, i.e. at the sittings of the Seimas, Seimas committees, commissions and parliamentary groups; however, he may, for personal insult or slander, be held liable in accordance with the general procedure.

3. Criminal proceedings may not be instituted against a Seimas Member, he may not be arrested, and may not be subjected to any other restrictions of personal freedom, without the consent of the Seimas, except in cases when he is caught in the act of committing a crime (in flagrante delicto). In such cases the Prosecutor-General must immediately notify the Seimas thereof.’

III.  GENERAL CONSIDERATIONS AND JUSTIFICATION FOR THE PROPOSED DECISION

It is for the authorities of a Member States to decide on the guilt or otherwise of a Member of the European Parliament whose immunity is under discussion, and on the appropriateness of the proceedings at national level. The European Parliament does not consider such questions but merely decides whether there is an obstacle to such proceedings which derives from the need to preserve the independence of the European Parliament.

Furthermore, in the context of immunity cases, the European Parliament does not discuss the relative merits of national legal and judicial systems. Alleged deficiencies in national judicial systems cannot serve to justify a decision not to waive, or to defend, the immunity of a Member.

Where the proceedings in question do not concern opinions expressed or votes cast in the performance of a Member’s duties, immunity should be waived unless it appears that the intention underlying the legal proceedings may be to damage a Member’s political activity and thus Parliament’s independence (fumus persecutionis).

In this case, the Prosecutor General is requesting the waiver of the immunity of Rolandas Paksas in order to allow for further procedural measures to go ahead in the context of criminal proceedings in accordance with national law.

The Committee on Legal Affairs is therefore unable to conclude on the basis of the information presented to it by Mr Paksas and the Prosecutor General of Lithuania that these actions were taken in order to effect political persecution against him.

IV.  CONCLUSION

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 the European Parliament should waive the immunity of Rolandas Paksas.