Request for defence of the parliamentary immunity of Mr Witold Tomczak (debate) 
President
The next item is the report by Mr Sakalas, on behalf of the Committee on Legal Affairs, on the request for defence of the immunity and privileges of Witold Tomczak.
Aloyzas Sakalas
rapporteur. - Mr President, in April 2005 Mr Tomczak requested that the European Parliament defend his immunity in criminal proceedings, but Parliament decided, a year later, not to defend his immunity.
On 21 May 2007, Mr Tomczak again requested that the European Parliament defend his immunity. In the new request, Mr Tomczak presented three new arguments concerning the same case. The first argument: Mr Tomczak complains that the Court of Ostrów did not grant him access to the files of the case. However, after examination of his complaint, it was found that Mr Tomczak was granted access to the files when he visited the court himself. He even photographed at least one of the documents.
The second argument: Mr Tomczak claims that the proceedings are not objective, as the supervisory judge made a request to the judge presiding in the case to deliver the judgment as soon as possible, even without the presence of the accused. However, this request was issued after Mr Tomczak had failed to appear at the court hearings on as many as 12 occasions.
The third argument: Mr Tomczak alleges that the Court of Ostrów is prejudiced against his person. However, the fact, declared by Mr Tomczak, that the judge presiding in the case lives in the same town as the prosecutor against whom Mr Tomczak had previously filed charges does not in itself prevent that judge from acting objectively.
In addition, Mr Tomczak has the opportunity to appeal to a higher court and to make a cassation complaint to the Polish Supreme Court. The argument put forward by Mr Tomczak, who was a member of the Polish Parliament in 1999, that his national parliamentary immunity remained a formal obstacle to the criminal proceedings should be duly considered by the Polish judicial authorities.
The problematic legal consequence that, according to Polish law, Mr Tomczak might lose his seat in this Parliament has been noted by the Committee on Legal Affairs, and its chairman put an oral question to the Commission. It was answered on 14 January 2008 by Commissioner Frattini, who promised to address the Polish authorities, with the aim of ensuring that Polish law does not discriminate between Members of the European Parliament and national parliamentarians.
After the debate with the Commission, the Committee on Legal Affairs took a decision not to recommend the defence of Mr Tomczak's parliamentary immunity on the above grounds.
It is clear that Articles 8 and 9 of the Protocol on the privileges and immunities of the European Communities are not applicable in the case of Mr Tomczak. His request should be treated as a request for a decision of the European Parliament to ask for suspension of the proceedings against him, as, for example, is possible under Article 105 of the Polish constitution.
Following its established practice, Parliament could decide to defend the immunity of one of its Members if a suspicion existed that the prosecution was based on an intention to prejudice a member's political activities (fumus persecutionis). There is no clear evidence of this kind in the case of Mr Tomczak.
In the light of the above considerations, I recommend that the immunity of Mr Tomczak should not be defended.
Lidia Joanna Geringer de Oedenberg
on behalf of the PSE Group. - (PL) Mr President, the main purpose of parliamentary immunity is to protect Parliament itself as a democratically elected representative body. It ensures the collective independence of this institution against external pressure and guarantees Members freedom of speech and action whilst undertaking their parliamentary duties. The legal basis of the immunity of Members of the European Parliament is laid down in the 1965 Protocol on the Privileges and Immunities of the European Communities. Article 8 of the Protocol 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. Similarly, Article 9 states that during sessions of the European Parliament, its Members shall enjoy in the territory of their own State, the immunities accorded to members of their parliament, and in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. This immunity also applies to Members while they are travelling to and from the place of meeting of the European Parliament.
Pursuant to the above, it should be noted that the charge against Mr Tomczak does not relate to opinions expressed or votes cast by him in the course of his official duties, because he was not a Member of the European Parliament at the time of the events in question. In view of the circumstances, therefore, there is no legal basis for granting Mr Tomczak parliamentary immunity. Mr Tomczak's case has, however, highlighted the lack of consistency between arrangements for election to the Polish Sejm and the European Parliament in Poland regarding conditions to be met by candidates for election, and the circumstances in which after being elected individuals may be deprived of their seat.
This matter was debated at a special sitting and when Poland joined the Union it undertook to comply with the EU legislation in force, notably regarding its direct implications for the internal legislation of a Member State. I would like to take this opportunity to call for legislation relating to the status of Members of the Polish Sejm and European Parliament to be harmonised at the earliest opportunity. As things stand at present, a Member of the European Parliament may automatically lose his or her seat as a result of certain actions, whilst a Member of the Polish Sejm may not be penalised in any way for the same actions.
Marek Aleksander Czarnecki
on behalf of the UEN Group. - (PL) Mr President, Mr Tomczak's case is an example of the Polish judicial system's failure to recognise that when Poland became a Member of the European Union it undertook to comply with the legal system in force in the latter. The European Parliament has not yet taken a decision on Mr Tomczak's immunity, but the competent court nonetheless set 15 February, last week, as the date for a sitting.
Not only does such action by the court amount to contempt of the European Parliament, but it also fails to comply with the European Parliament's Rules of Procedure and with the Polish Penal Code, pursuant to which no penal proceedings may be brought against a Member until the European Parliament has ruled on the issue of immunity. The situation I have outlined leads to the conclusion that in Mr Tomczak's case we are dealing either with an exceptionally incompetent court or, alternatively, with a court intent on convicting Mr Tomczak for a minor incident, which in his case would result in him losing his seat in the European Parliament.
Jens-Peter Bonde
Mr President, I urge all Members to vote against the lifting of immunity in the Tomczak case. We have had a very good debate in the Chamber. Everyone has agreed that we cannot allow Poland to set double standards: one for MPs at home and another, much stricter one, for MEPs here. The responsible Commissioner, Mr Frattini, promised to send a letter to the Polish Minister for Justice to insist on identical rules for waiving immunity.
I talked with Commissioner Frattini after the meeting on 14 January, and met with him again two weeks ago, when he said that he had instructed the services to send the letter. Last week I was in contact with his office. It confirmed that the letter had been sent, and that I would receive a copy of the letter the same day. Then somebody suddenly called from Commissioner Frattini's office telling me a different story, saying that the letter was still pending. So here we are, with no letter and no answer from the Polish Government.
Our rules are very clear: we have to have a vote. I would therefore ask you to vote against the waiving of immunity, and request that the case be referred back to the committee for a possible new decision once we have received the letter from Commissioner Frattini and the answer from Poland.
Aloyzas Sakalas
rapporteur. - Mr President, I think that the consequences of the issue of waiving immunity are not the same as waiving immunity. Mr Tomczak was expected and summoned to appear before a court 12 times, but he did not appear at court.
All the procedural and substantive questions raised in connection with Mr Tomczak's case, and especially the question of the alleged insulting language used against the police officers, should be resolved objectively by the Polish judicial authorities. Therefore, I would like to stress two points. The question of whether the immunity of Mr Tomczak was properly waived at the beginning of the proceedings, when he was a member of the Polish Parliament, is a question that can be verified only by the appropriate judicial authority in Poland, in this case the District Court in Ostrów Wielkopolski. There is always the possibility of appeal.
Secondly, the possibility of Mr Tomczak's losing his seat in this Parliament cannot be considered as a motive for the prosecution, as, at the time of the incident of 19 June 2004, Mr Tomczak was not a Member of the European Parliament, and the law applicable to national parliamentarians does not contain provisions for such consequences.
On the basis of the above considerations, the Committee on Legal Affairs recommends that the European Parliament should not defend the parliamentary immunity of Mr Tomczak.
President
The debate is closed.
The vote will take place tomorrow.
