P9_TA(2022)0016

Request for the waiver of the immunity of Elena Yoncheva

European Parliament decision of 15 February 2022 on the request for waiver of the immunity of Elena Yoncheva (2019/2155(IMM))

(2022/C 342/24)

The European Parliament,

— having regard to the request for waiver of the immunity of Elena Yoncheva, dated 18 October 2019 and forwarded by the Prosecutor General of the Republic of Bulgaria for the purpose of pursuing criminal proceedings against Ms Yoncheva in the Republic of Bulgaria for an offence under the Criminal Code, and announced in plenary on 25 November 2019,

— having heard Elena Yoncheva 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 to 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 (CJEU) of 21 October 2008, 19 March 2010, 6 September 2011, 17 January 2013, 19 December 2019 and 17 September 2020 (1),

— having regard to Articles 69 and 70 of the Constitution of the Republic of Bulgaria and to Article 138 of the Rules of Organisation and Procedure of the National Assembly of the Republic of Bulgaria,

— having regard to its resolution of 8 October 2020 on the rule of law and fundamental rights in Bulgaria (2),

— 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 (A9-0014/2022),

A. whereas Parliament cannot assume the role of a court, and whereas, in a waiver of immunity procedure, a Member cannot be regarded as a defendant (3);

B. whereas the Prosecutor General of the Republic of Bulgaria has requested the waiver of the immunity of Elena Yoncheva in connection with an investigation into an offence under Article 253(5) in conjunction with Article 253(1) of the Criminal Code (money laundering);

C. whereas, on 31 August 2018, pre-trial proceedings were initiated in this matter and entered in the register of the Investigating Department of the Specialised Prosecutor’s Office, on the basis of Article 212(1) of the Code of Criminal Procedure; whereas an investigation has been launched; whereas, by decision of 11 January 2019, Elena Yoncheva was charged with an offence under Article 253(5) of the Criminal Code;

D. whereas the acts of which she is accused were allegedly committed between 2010 and 2018, in the form of financial transactions carried out using funds allegedly misappropriated from a corporate bank; whereas, at the time, Elena Yoncheva was working as a journalist and then as a Member of Bulgaria’s national parliament;

E. whereas Elena Yoncheva was elected to the European Parliament at the elections of 26 May 2019; whereas, on 30 September 2019, by decision of the supervising prosecutor at the Specialised Prosecutor’s Office, the criminal proceedings against Elena Yoncheva were suspended pending a decision by the European Parliament on the waiver of her immunity;

F. whereas the Prosecutor General of the Republic of Bulgaria forwarded a request for waiver of immunity on 18 October 2019;

G. whereas the alleged offence does not concern opinions expressed or votes cast by Elena Yoncheva in the performance of her duties within the meaning of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union;

H. whereas Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union provides that Members of the European Parliament enjoy, in the territory of their own State, the immunities accorded to members of their parliament;

I. 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;

J. whereas, in this case, Elena Yoncheva claims to be the victim of fumus persecutionis, i.e. there is concrete evidence (4) that the intention underlying the legal proceedings in question is to undermine her political activity, including her activity as a Member of the European Parliament;

K. whereas it follows from CJEU case-law that Parliament has a ‘broad discretion when deciding whether to grant or to refuse a request for waiver of immunity (…), owing to the political nature of such a decision’ (5);

L. whereas Elena Yoncheva is a member of the LIBE Committee, where she regularly speaks out against the political authorities in her country; whereas she was also a member of the parliamentary delegation which went to Bulgaria on 23-24 September 2021 to monitor the situation regarding the rule of law in that country;

M. whereas the pre-trial proceedings against her were only initiated on 31 August 2018, i.e. at a time when her political commitment was well known, yet the alleged infringement began in 2010, and whereas no convincing justification has been given for such a delay in taking action;

N. whereas the judicial proceedings in question were initiated after the case was brought to public attention by two members of parliament who are political opponents of Elena Yoncheva;

O. whereas, as an investigative journalist and then as a member of the national parliament, Elena Yoncheva denounced the failure to investigate high-level corruption in her country, and whereas she continues to denounce that failure as a Member of the European Parliament;

P. whereas the Union of Bulgarian Journalists stated publicly in January 2019 that the prosecution of Elena Yoncheva was connected with her investigations and was an attempt to attack the freedom of expression of a political opponent;

Q. whereas on 28 September 2021, the European Court of Human Rights declared admissible the case brought by Elena Yoncheva against Bulgaria in relation to this prosecution on the basis of Article 6(2) (presumption of innocence) and Articles 13 (right to an effective remedy) and 18 (no justification for the application of restrictions on rights) of the European Convention on the Protection of Human Rights;

R. whereas the case file submitted to the European Court of Human Rights shows that a telephone conversation about the opening of criminal proceedings against Elena Yoncheva was published by several Bulgarian online media outlets on 12 June 2020 and, according to an expert’s report annexed to that file, one of the voices heard is that of the Bulgarian Prime Minister;

S. whereas the concordance and exceptional gravity of this concrete evidence raises a serious doubt that the intention may have been to undermine Elena Yoncheva’s political activity, including her activity as a Member of the European Parliament, while the fact that the prosecution took place prior to the election is insufficient in this case to dispel such doubt;

T. whereas it appears, therefore, that this case can be presumed to be one of fumus persecutionis;

1. Decides not to waive the immunity of Elena Yoncheva;

2. Instructs its President to forward this decision and the report of its committee responsible immediately to the Bulgarian authorities and to Elena Yoncheva.

(1) 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; judgment of the Court of Justice of 19 December 2019, Junqueras Vies, C-502/19, ECLI:EU:C:2019:1115; Judgment of the Court of Justice of 17 September 2020, Troszczynski, C-12/19.

(2) Texts adopted, P9_TA(2020)0264.

(3) Judgment of the General Court of 30 April 2019, Briois v Parliament, T-214/18, ECLI:EU:T:2019:266.

(4) Judgment of the Court of Justice of 17 September 2020, Troszczynski, C-12/19, point 26.

(5) Judgment of the General Court of 17 January 2013, Gollnisch, T-346/11 and T-347/11, ECLI:EU:T:2013:23, paragraph 59, and the case-law cited.