REPORT on the request for waiver of the immunity of Béla Kovács

on the request for waiver of the immunity of Béla Kovács

(2016/2266(IMM))

The European Parliament,

–  having regard to the request for waiver of the immunity of Béla Kovács, forwarded on 19 September 2016 by Dr Péter Polt, the Prosecutor General of Hungary, in connection with criminal proceedings initiated by the Central Investigating Chief Prosecution Office against him and announced in plenary on 3 October 2016,

–  having invited Mr Kovács to be heard on 12 January, 30 January and 22 March 2017, 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 4(2) of the Fundamental Law of Hungary, Sections 10(2) and 12(1) of Act LVII of 2004 on the Status of the Hungarian Members of the European Parliament and Section 74(1) and (3) of Act XXXVI of 2012 on the National Assembly of Hungary,

–  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 (A8-0203/2017),

A.  whereas the Prosecutor General of Hungary has requested the waiver of the immunity of a Member of the European Parliament, Béla Kovács, in order that investigations can be carried out to verify whether a charge will lie against him with regard to the crimes of budget fraud resulting in substantial financial loss in accordance with Section 396(1)(a) of the Hungarian Criminal Code and of the multiple use of forged private documents in accordance with Section 345 of the Criminal Code; whereas, according to that Section, any person who uses a falsified or forged private document or a private document with untrue contents for providing evidence for the existence, the changing or termination of a right or obligation, is guilty of a misdemeanour punishable by imprisonment not exceeding one year;

B.  whereas, according to Article 9 of the Protocol on the Privileges and Immunities of the European Union, Members of the European Parliament shall enjoy, in the territory of their own State, the immunities accorded to members of their parliament;

C.  whereas, according to Article 4(2) of the Basic Law of Hungary, Members of Parliament shall be entitled to immunity; whereas, according to Section 10(2) of Act LVII of 2004 on the Legal Status of the Hungarian Members of the European Parliament, Members of the European Parliament are entitled to immunity equal to the immunity of Members of the Hungarian parliament, and according to Article 12(1), the decision to suspend the immunity of a Member of the European Parliament shall fall within the competence of the European Parliament; whereas, under Article 74(1) of Act XXXVI of 2012 on the National Assembly, criminal proceedings or, in the absence of a voluntary waiver of immunity in the case concerned, misdemeanour proceedings can only be applied against the Member with the prior consent of the National Assembly; whereas, according to Article 74(3) of the same law, until the submission of the indictment, the motion for the suspension of immunity shall be submitted by the Prosecutor General;

D.  whereas, according to Article 21(1) and (2) of Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament[2], Members shall be entitled to assistance from personal staff whom they may freely choose and Parliament shall meet the expenses actually incurred by Members in employing such personal staff;

E.  whereas, according to Article 34(4) of the Decisions of the Bureau of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament, expenses incurred in connection with traineeship agreements, on the basis of the conditions laid down by the Bureau, may also be defrayed ;

F.  whereas, according to Article I(1) of the Decision of the Bureau of 19 April 2010 on the Rules concerning Members’ Trainees, Members of the European Parliament may, with a view to contributing to European education and vocational training and to promoting a better understanding of the way in which the institution functions, offer traineeships in Brussels and Strasbourg during plenary sittings or in the course of their activities as Members in the country in which the Member concerned was elected in each case;

G.  whereas, according to Article 5(1) and (2) of the Rules on Trainees, specific arrangements in relation to the traineeship shall be included in a written traineeship agreement signed by both the Member and the trainee; whereas the agreement shall include a clause stating explicitly that the European Parliament may not be deemed to be a party to the agreement; whereas, pursuant to Article 5(4), expenses relating to traineeships, including scholarships and the cost of the insurance cover if paid by the Member, are defrayable from the Parliamentary Assistance Allowance, in accordance with Article 33(4) of the Implementing Measures, within the limits of that allowance;

H.  whereas, according to the last sentence of Article 1(1) of the Rules on Trainees, the scholarship granted to a trainee must not be such as to constitute in reality a disguised form of remuneration; whereas, according to Article 7(1), throughout the traineeship, trainees shall be under the sole responsibility of the Member to whom they are attached;

I.  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 for waiver was made in connection with proceedings brought with the intention of causing political damage to the Member concerned;

J.  whereas the decision of the former President of Parliament to impose the penalty of a reprimand for Mr Kovács’ violation of Article 1(a) of the Code of Conduct[3] cannot be regarded as being tantamount to a judicial judgment constituting res judicata on the matters to which the criminal proceedings initiated by the Central Chief Prosecution Office relate; whereas, consequently, there is no violation of the principle ne bis in idem; whereas consequently, the sanction imposed by the former President of Parliament under the Code of Conduct does not prevent criminal proceedings being instituted or conducted in Hungary to see whether a charge will lie against him;

1.  Decides to waive the immunity of Béla Kovács;

2.  Instructs its President to forward this decision and the report of its committee responsible immediately to the competent authority of Hungary and to Béla Kovács.

• [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.
• [2]  OJ L 262, 7.10.2005, p. 1.
• [3]  See Annex I to the Rules of Procedure, Code of Conduct for Members of the European Parliament with respect to financial interests and conflicts of interest.

1. Background

At the sitting of 3 October 2016, the President announced, under Rule 9(1) of the Rules of Procedure, that he had received a letter sent to him on 15 September 2016 by the Prosecutor General of Hungary, Dr Polt, requesting the waiver of the immunity of Béla Kovács.

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

The request for the waiver of the immunity of Béla Kovács is made on the basis that Mr Kovács may be reasonably suspected of having committed the crime of budget fraud resulting in substantial financial loss according to Section 396(1)(a) and (3)(a) of the Hungarian Criminal Code and the crime of multiple use of a forged private document according to Section 345 of the Criminal Code.

According to Section, 396(1)(a) and (3)(a), for “ Any person who: a) induces a person to hold or continue to hold a false belief, or suppresses known facts in connection with any budget payment obligation or with any funds paid or payable from the budget, or makes a false statement to this extent; (…) (3) The penalty shall be imprisonment between one to five years if: a) the budget fraud results in substantial financial loss.”

According to Section 345 of the Hungarian Criminal Code, “Any person who uses a falsified or forged private document or a private document with untrue contents for providing evidence for the existence, the changing or termination of a right or obligation, is guilty of a misdemeanour punishable by imprisonment not exceeding one year.”

According to the information provided by the Prosecutor General, Mr Kovács signed traineeship agreements with three trainees in which it was falsely stated that the parties entered into a legal relationship to complete a traineeship; that the traineeship would be carried out as a full-time position in Brussels; that in the course of their traineeship the trainees would stay at an address in Brussels specified by the agreement, which address was the same as Béla Kovács’s address in Brussels.

It is further noted that, by signing the traineeship agreements, submitting them with the necessary documents to the relevant department of the European Parliament and concealing the fictitious nature of the traineeship from the European Parliament, Mr Kovács violated Article 1(1) of the Rules on Trainees, which states that the scholarship granted to a trainee must not be such as to constitute in reality a disguised form of remuneration.

Mr Kovács sent a reply to the President, stating that at that time he had not been officially informed yet about the OLAF report, nor given access to his file by OLAF. In this letter, Mr Kovács also pointed out that all his trainees were performing their duties under his request and authority in multiple locations, such as Brussels and Budapest among others.

Mr Kovács also stressed that he was aiming to conduct the traineeships according to all relevant regulations and rules and had no intention to cause any undue payment of any kind.

2. Law and procedure on the immunity of Members of the European Parliament

Article 9 of the Protocol (No7) 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:

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 if immunity is being sought for Hungary, the Hungarian law on parliamentary immunity applies pursuant to Article 9, first paragraph, point a. Under Article 4(2) of the Fundamental Law of Hungary, Members of the European Parliament are entitled to immunity. According to Section 10(2) of Act LVII of 2004 on the Status of the Hungarian Members of the European Parliament, Members of the European Parliament are entitled to immunity equal to the immunity of Members of the Hungarian Parliament and Section 74(1) of Act XXXVI of 2012 on the National Assembly provides that a criminal procedure can only be instituted or conducted and a coercive measure under criminal procedure can only be instituted or conducted and a coercive measure under criminal procedure can only be applied against a Member with the prior consent of the National Assembly. Lastly, according to Section 74(3), the request for waiver of immunity is to be made by the Prosecutor-General.

Rules 5(1) (2) and 9 of the Rules of Procedure of the European Parliament read as follows:

Rule 5

Privileges and immunities

1.   Members enjoy the privileges and immunities laid down in the Protocol on the Privileges and Immunities of the European Union.

2.   In exercising its powers on privileges and immunities, Parliament shall act to uphold its integrity as a democratic legislative assembly and to ensure the independence of its Members in the performance of their duties. Parliamentary immunity is not a Member’s personal privilege but a guarantee of the independence of Parliament as a whole and of its Members.

(...)

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.

2.   With the agreement of the Member or the former Member concerned, the request may be made by another Member, who shall be permitted to represent the Member or former Member concerned at all stages of the procedure.

The Member who represents the Member or the former Member concerned shall not be involved in the decisions taken by the committee.

3.   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.

4.   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. Amendments shall be inadmissible. If a proposal is rejected, the contrary decision shall be deemed to have been adopted.

5.   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.

6.   The Member concerned shall be given an opportunity to be heard and may present any documents or other written evidence deemed by that Member to be relevant.

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.

(…)

8.   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.

9.   The committee’s proposal for a decision shall be placed on the agenda of the first sitting following the day on which it was tabled. No amendments may be tabled to such a proposal.

Discussion shall be confined to the reasons for and against each proposal to waive or uphold immunity, or to defend a privilege or immunity.

Without prejudice to Rule 164, the Member whose privileges or immunities are under consideration 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, a separate vote shall be taken on each of the proposals contained in the report. If a proposal is rejected, the contrary decision shall be deemed adopted.

(…)

11.   The committee shall treat these matters and handle any documents received with the utmost confidentiality. The committee shall always consider requests relating to procedures on immunity in camera.

12.   Parliament shall only examine requests for the waiver of a Member’s immunity that have been transmitted to it by the judicial authorities or by the Permanent Representations of the Member States.

13.   The committee shall lay down principles for the application of this Rule.

14.   Any inquiry as to the scope of Members’ privileges or immunities made by a competent authority shall be dealt with in accordance with the above rules.

3. Justification for the proposed decision

On the basis of the aforementioned facts, this case qualifies for the application of Article 9 of the 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 Member State.

In order to decide whether or not to waive a Member’s parliamentary immunity, the European Parliament applies its own consistent principles. One of these principles is that immunity is usually waived when the offence falls within Article 9 of the Protocol No 7, provided that there is no fumus persecutionis, i.e. a sufficiently serious and precise suspicion that the matter is being raised with the intention of causing political damage to the Member concerned.

After an exhaustive debate in the competent committee, and the submission of written observations by the Member concerned, who accepted on three consecutive occasions the invitation to be heard but, nonetheless, has never been present to the hearings, it is considered that there is no fumus persecutionis in this case. Likewise, Mr Kovács’ other arguments alleging fumus persecutionis seem unfounded or to go beyond the compass of a procedure for the waiver of parliamentary immunity. Additionally, whilst Mr Kovács has not brought the above-mentioned facts into contention, he has however argued that being submitted to a criminal proceeding is not proportional inasmuch he considers that such deliberate misappropriation can lead nothing other than to a misdemeanour proceeding.

More specifically as regards the argument based on the principle ne bis in idem, it appears clearly that the penalty of a reprimand imposed to Mr Kovács for his violation of Article 1(a) of the Code of Conduct cannot be considered as a judicial judgment in the strict sense.

Indeed, the penalty of a reprimand issued to Mr Kovács is a mere disciplinary action which lays down a reasoned decision of the former President as he concluded that the misappropriation of public funds granted by the European Parliament by Mr Kovács can be considered as established and that it results from a deliberate disregards of the European Parliament’s rules on the scholarships granted to trainees. Such deliberate misappropriation of funds of the European Parliament by a Member of Parliament implies per se a disrespect of the principles enshrined in Article 1(a) of the Code of Conduct, notably of the principles of integrity, diligence, honesty, accountability and respect for Parliament’s reputation.

For that reason, the violation of the principle ne bis in idem cannot be claimed in this context as the penalty of a reprimand should not be considered as a proper judgement issued by a constitutional, independent and impartial judicial body since it is not for Parliament to adjudge on the matter of the criminal proceeding initiated by the Central Chief Prosecution Office for the crime of budget fraud in substantial financial loss and the crime of multiple use of a forged private document according to the Hungarian Criminal Code.

Lastly, it can be stated that Mr Kovács has not been judged twice for the same circumstances: the imposition of the penalty of a reprimand does not represent a judicial judgement based on the same criminal charge and therefore there is no violation of ne bis in idem principle on the basis that this sanction does not prevent Hungary from prosecuting Mr Kovács for a criminal proceeding.

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 Béla Kovács.