P8_TA(2018)0386

Request for the waiver of the immunity of Manolis Kefalogiannis

European Parliament decision of 23 October 2018 on the request for waiver of the immunity of Manolis Kefalogiannis (2017/2133(IMM))

(2020/C 345/18)

The European Parliament,

— having regard to the request for waiver of the immunity of Manolis Kefalogiannis forwarded on 31 May 2017 by the Public Prosecutor of the Supreme Court of the Hellenic Republic, in connection with procedure No ABM:EOE 20/2017 and announced in plenary on 3 July 2017,

— having heard Manolis Kefalogiannis in accordance with Rule 9(6) of its Rules of Procedure,

— having also heard Kristian Knudsen, acting Director-General of the Directorate-General for Personnel of the European Parliament,

— having held an exchange of views with the Deputy Public Prosecutor against Economic Crime of the Hellenic Republic,

— 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 62 of the Constitution of the Hellenic Republic,

— 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 (A8-0333/2018),

A. whereas the Deputy Public Prosecutor of the Supreme Court of the Hellenic Republic has requested that the parliamentary immunity of a Member of the European Parliament, Manolis Kefalogiannis, be waived in order to initiate criminal proceedings against him for two alleged offences;

B. whereas Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union stipulates that Members of the European Parliament may 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;

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

D. whereas, in accordance with Article 62 of the Constitution of the Hellenic Republic, no Member of Parliament may be prosecuted, arrested, imprisoned or subjected to other measures involving deprivation of liberty during their term of office without the authorisation of the Chamber of Deputies;

E. whereas the request of the Deputy Public Prosecutor of the Supreme Court of the Hellenic Republic relates to proceedings concerning alleged offences under Article 385(1)(b) of the Greek Criminal Code and Article 4 of Law No 2803/2000, which concern extortion with threat and fraud respectively;

F. whereas Manolis Kefalogiannis is alleged to have attempted to commit fraud affecting the financial interests of the European Union, resulting in a loss of more than EUR 73 000, for attempting to illegally misappropriate part of his assistant’s salary by an amount of EUR 4 240 per month between July 2014 and the end of 2016;

G. whereas, pursuant to Rule 9(8) of the Rules of Procedure, the Committee on Legal Affairs 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, the Committee acquires detailed knowledge of the facts of the case;

H. whereas it is also 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;

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

J. 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;

K. whereas, where the procedure in question does not concern opinions or votes delivered by a Member within the meaning of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union, immunity should be waived, unless it appears that the underlying intention of the judicial procedure may be to harm the Member's political activity or reputation and thus the independence of Parliament (fumus persecutionis);

L. whereas any conclusion needs to be drawn on the basis of the information and explanations provided in this case, including the replies given by the Deputy Public Prosecutor against Economic Crime of the Hellenic Republic during the exchange of views conducted with him, and given the circumstances in which the case against Manolis Kefalogiannis was dealt with by the authorities involved, the uncertainties as to the elements on which the request for waiver of immunity is based and the serious doubts surrounding the proceedings, including the reasons underlying the request for waiver of immunity;

M. whereas this therefore appears to be a case in which fumus persecutionis can be assumed to be present;

N. whereas the immunity of Manolis Kefalogiannis should therefore not be waived;

1. Decides not to waive the immunity of Manolis Kefalogiannis;

2. Instructs its President to forward this decision and the report of its committee responsible immediately to the Public Prosecutor of the Supreme Court of the Hellenic Republic and to Manolis Kefalogiannis.

(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, T346/11 and T-347/11, ECLI:EU:T:2013:23.