natgillin/translations-raw huggingface dataset:
Along with this criterion, there are further considerations that militate for or against waiver of immunity such as fumus persecutionis , i.e. the presumption that criminal proceedings have been brought with the intention of causing the Member political damage (for instance, proceedings based on anonymous accusations, requests made a long time after the alleged facts, etc.), and charges of a particularly serious nature.
Along with this criterion, there are further considerations that militate for or against waiver of immunity such as fumus persecutionis , i.e. the presumption that criminal proceedings have been brought with the intention of causing the Member political damage (for instance, proceedings based on anonymous accusations, requests made a long time after the alleged facts, etc.), and charges of a particularly serious nature.
III GROUNDS FOR THE PROPOSAL FOR A DECISION
III GROUNDS FOR THE PROPOSAL FOR A DECISION
Article 9 of the PPI obviously does not apply in this case.
Article 9 of the PPI obviously does not apply in this case.
Absolute immunity, or inviolability provisions, apply only " to opinions or votes cast by (Members) in the performance of their duties".
Absolute immunity, or inviolability provisions, apply only " to opinions or votes cast by (Members) in the performance of their duties".
Although it is possible to conceive of circumstances in which Article 9 might apply to a Member in his own country ( delegation or meeting of one of EP's committees, group meeting, etc), the facts and alleged criminal offences put forward by the Czech authorities cannot be considered as falling under the scope of this article.
Although it is possible to conceive of circumstances in which Article 9 might apply to a Member in his own country ( delegation or meeting of one of EP's committees, group meeting, etc), the facts and alleged criminal offences put forward by the Czech authorities cannot be considered as falling under the scope of this article.
Consequently, Article 10(a), of the Protocol must apply to the facts set in part I of this explanatory statement.
Consequently, Article 10(a), of the Protocol must apply to the facts set in part I of this explanatory statement.
It provides that 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 parliamen.
It provides that 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 parliamen .
Under Article 27 (2) of the Czech Constitution:
Under Article 27 (2) of the Czech Constitution:
(2) No Deputy or Senator may be criminally prosecuted for statements made in the Chamber of Deputies or in the Senate, or in their bodies.
(2) No Deputy or Senator may be criminally prosecuted for statements made in the Chamber of Deputies or in the Senate, or in their bodies.
A Deputy or a Senator shall be subject only to the disciplinary jurisdiction of the chamber of which he or she is member.
A Deputy or a Senator shall be subject only to the disciplinary jurisdiction of the chamber of which he or she is member.
This article is very clear in saying that it is up to the appropriate chamber to waive the immunity of a deputy or a senator before he or she may be criminally prosecuted.
This article is very clear in saying that it is up to the appropriate chamber to waive the immunity of a deputy or a senator before he or she may be criminally prosecuted.
The criminal prosecution seems to include police investigations and the Chamber is not bound by any limitation with a view to granting or granting not immunity.
The criminal prosecution seems to include police investigations and the Chamber is not bound by any limitation with a view to granting or granting not immunity.
In the case of Dr Železný it is clear from the information provided by the Czech Senate that that Chamber gave its consent to the criminal prosecution of Senator Železný for acts which are the same that now are described in the application of the Prague Court.
In the case of Dr Zelezný it is clear from the information provided by the Czech Senate that that Chamber gave its consent to the criminal prosecution of Senator Zelezný for acts which are the same that now are described in the application of the Prague Court.
The fact of that the Senate has already waived Dr Železný immunity is, in accordance with Article 10 ( a) of the IPP, a patent indication that he does not enjoy parliamentary immunity in the territory of his own state.
The fact of that the Senate has already waived Dr Zelezný immunity is, in accordance with Article 10 ( a) of the IPP, a patent indication that he does not enjoy parliamentary immunity in the territory of his own state.
This could be enough for the European Parliament to waive the immunity of one of its Members (provided that he or she is not protected by Article 9 of the IPP).
This could be enough for the European Parliament to waive the immunity of one of its Members (provided that he or she is not protected by Article 9 of the IPP).
Nevertheless and as pointed out in Part II.
Nevertheless and as pointed out in Part II.
C, even though the members of the national parliament (here the Czech parliament) and Members of the European Parliament from the Member State in question enjoy the same immunities (or none, as it is the case for MEPs from UK), whether to waive the immunity at a particular case depends on the European Parliament.
C, even though the members of the national parliament (here the Czech parliament) and Members of the European Parliament from the Member State in question enjoy the same immunities (or none, as it is the case for MEPs from UK), whether to waive the immunity at a particular case depends on the European Parliament.
In Dr Železný's declares that his prosecution in this case (and in the two other cases) is politically motivated.
In Dr Zelezný's declares that his prosecution in this case (and in the two other cases) is politically motivated.
The European Parliament has to look into these allegations and decide whether there is or there is not evidence of fumus persecutionis on this case.
The European Parliament has to look into these allegations and decide whether there is or there is not evidence of fumus persecutionis on this case.
This is the key issue here.
This is the key issue here.
As has been declared many times by Parliament, immunity is not waived where the suspicion exists that the prosecution is based on the intention to prejudice the Member's political activities.
As has been declared many times by Parliament, immunity is not waived where the suspicion exists that the prosecution is based on the intention to prejudice the Member's political activities.
The non existence of any fumus is conditio sine qua non for waiving immunity. as mentioned in Part II C.
The non existence of any fumus is conditio sine qua non for waiving immunity. as mentioned in Part II C.
Who is supposed to assert the suspicion of fumus?
Who is supposed to assert the suspicion of fumus ?
The obvious answer is Parliament, and before Parliament, its competent committee.
The obvious answer is Parliament, and before Parliament, its competent committee.
How can such a conviction be arrived at with a certain degree of assurance?
How can such a conviction be arrived at with a certain degree of assurance?
The persuasion of the Members of the committee, in doubtful, unclear cases, is always an intimate belief that, nevertheless, has to be founded on the soundest possible facts.
The persuasion of the Members of the committee, in doubtful, unclear cases, is always an intimate belief that, nevertheless, has to be founded on the soundest possible facts.
By the way of examples, in past legislatures, the competent committee has taken into consideration the following factors:
By the way of examples, in past legislatures, the competent committee has taken into consideration the following factors:
· the anonymous character of the denunciation, complaint or accusation
· the anonymous character of the denunciation, complaint or accusation
· the deferred submission of the accusation in relation to the date of the alleged acts
· the deferred submission of the accusation in relation to the date of the alleged acts
· an apparent link between the date of the accusation or denunciation and the Member's election to Parliament
· an apparent link between the date of the accusation or denunciation and the Member's election to Parliament
· the fact that legal proceedings were brought against the Member alone when more than one person could be considered liable or responsible
· the fact that legal proceedings were brought against the Member alone when more than one person could be considered liable or responsible
· cases where the accusation was evidently unfounded (for instance, where it concerned decisions for which the Member was not responsible or where no evidence existed of his involvement in the reputed action) or there was an obvious aim to penalise the Member for his political activities
· cases where the accusation was evidently unfounded (for instance, where it concerned decisions for which the Member was not responsible or where no evidence existed of his involvement in the reputed action) or there was an obvious aim to penalise the Member for his political activities
Throught the fifth legislature, the practice in the Committee on Legal Affairs and the Internal Market followed these guidelines, enriching them when necessary.
Throught the fifth legislature, the practice in the Committee on Legal Affairs and the Internal Market followed these guidelines, enriching them when necessary.
Parliament decided not to waive the immunity in eight cases where the suspicion of fumus persecutionis was fully considered or was an important element of the decision.
Parliament decided not to waive the immunity in eight cases where the suspicion of fumus persecutionis was fully considered or was an important element of the decision.
Sometimes it was not strongly evidenced.
Sometimes it was not strongly evidenced.
These cases were the following: BRIE ( A5-0151/00 ), PASCUA ( A5-0032/02 ) and MARCHIANI ( A5-0033/02 ), KORAKAS ( A5-0245/02 et A5-0420/03 ), COHN-BENDIT ( A5-246/03 ) and MARCHIANI ( A5-0422/03 et A5-0423/03 ).
These cases were the following: BRIE ( A5-0151/00 ), PASCUA ( A5-0032/02 ) and MARCHIANI ( A5-0033/02 ), KORAKAS ( A5-0245/02 et A5-0420/03 ), COHN-BENDIT ( A5-246/03 ) and MARCHIANI ( A5-0422/03 et A5-0423/03 ).
In a total of eight cases the committee considered that animus persecutionis was present to different degrees.
In a total of eight cases the committee considered that animus persecutionis was present to different degrees.
In most cases Parliament found perturbation of a political activity (BRIE), abusive elements in the prosecution process and the conduct of the prosecutor ( MARCHIANI cases), or the consideration that the Member was judicially attacked because he was a MEP ( KORACAS case).
In most cases Parliament found perturbation of a political activity (BRIE), abusive elements in the prosecution process and the conduct of the prosecutor ( MARCHIANI cases), or the consideration that the Member was judicially attacked because he was a MEP ( KORACAS case).
Dr Železný's case is of a certain intricacy because of the complex nature of the crimes of which stands accused, mostly related to supposed evasion of taxes and other duties.
Dr Zelezný's case is of a certain intricacy because of the complex nature of the crimes of which stands accused, mostly related to supposed evasion of taxes and other duties.
The committee has to weigh, on one hand, the suspicion cast by the Member on the accusations brought against him by the Czech authorities, and, on the other hand, the fact that the Senate has already waived his immunity in the same case and all the satisfactory responses and assurances furnished by the Minister of Justice, which has fully collaborated with the Committee on Legal Affairs.
The committee has to weigh, on one hand, the suspicion cast by the Member on the accusations brought against him by the Czech authorities, and, on the other hand, the fact that the Senate has already waived his immunity in the same case and all the satisfactory responses and assurances furnished by the Minister of Justice, which has fully collaborated with the Committee on Legal Affairs.
Nevertheless, there are certain aspects to the case, as pointed out by Dr Železný ( some disproportionate reaction from the police on his arrest, the rather obscure situation of other main accused, Mr Novotný, certain police harassment and the length of the proceedings), that have demanded a thorough exam by the committee, but, as said above, the response from the Senate and the explanations from the Minister of Justice make the rapporteur inclined to advise Parliament to waive the immunity of Dr Železný.
Nevertheless, there are certain aspects to the case, as pointed out by Dr Zelezný ( some disproportionate reaction from the police on his arrest, the rather obscure situation of other main accused, Mr Novotný, certain police harassment and the length of the proceedings), that have demanded a thorough exam by the committee, but, as said above, the response from the Senate and the explanations from the Minister of Justice make the rapporteur inclined to advise Parliament to waive the immunity of Dr Zelezný.
Moreover, none of the criteria set out in point 6 and 7 of this explanatory statement has been clearly established in the present case, which makes it very difficult to appreciate whether there is a fumus persecutionis .
Moreover, none of the criteria set out in point 6 and 7 of this explanatory statement has been clearly established in the present case, which makes it very difficult to appreciate whether there is a fumus persecutionis .
It is in the interest of Parliament to use the fumus principle very carefully so it is not seen as a privilege of the parliamentarian but a guarantee of Parliament's independence.
It is in the interest of Parliament to use the fumus principle very carefully so it is not seen as a privilege of the parliamentarian but a guarantee of Parliament's independence.
In this complex case it might be in Parliament interest to allow Dr Železný to defend himself in the cases brought against him.
In this complex case it might be in Parliament interest to allow Dr Zelezný to defend himself in the cases brought against him.
But, also, and given the convoluted nature of the case, it might be necessary for Parliament to secure the situation of Dr Železný so that the proceedings against him do not perturb his work as an MEP.
But, also, and given the convoluted nature of the case, it might be necessary for Parliament to secure the situation of Dr Zelezný so that the proceedings against him do not perturb his work as an MEP.
11 The Judge has stated that "Dr Železný remains at liberty and there is no ground for his imprisonment, and nothing prevents him from continuing to perform his duties".
11 The Judge has stated that "Dr Zelezný remains at liberty and there is no ground for his imprisonment, and nothing prevents him from continuing to perform his duties".
It does not seem that the nature of the counts brought against him would need such a precautionary measures.
It does not seem that the nature of the counts brought against him would need such a precautionary measures.
With a view to ensure that his work as a parliamentarian is not perturbed during the proceedings brought against him, Parliament may use the right exceptionally granted by Rule 7 (4) of the Rules of Procedure.
With a view to ensure that his work as a parliamentarian is not perturbed during the proceedings brought against him, Parliament may use the right exceptionally granted by Rule 7 (4) of the Rules of Procedure.
It has to be absolutely clear that this precludes any form of detention or any other measure which prevents the Member from performing his duties as a parliamentarian but only until final judgment is given by the Court.
It has to be absolutely clear that this precludes any form of detention or any other measure which prevents the Member from performing his duties as a parliamentarian but only until final judgment is given by the Court.
It means that once final judgment is passed in this case, Dr Železný will have to face it in the same way as any other citizen without there be any need to request again the waive of his immunity.
It means that once final judgment is passed in this case, Dr Zelesný will have to face it in the same way as any other citizen without there be any need to request again the waive of his immunity.
The effect of Rule 7 (4) is that immunity is waived and so the proceedings may go on, but no measure hampering the Member from performing his duties is allowed until the final sentence is passed.
The effect of Rule 7 (4) is that immunity is waived and so the proceedings may go on, but no measure hampering the Member from performing his duties is allowed until the final sentence is passed.
Final sentence also covers any appeal until all avenues of appeal are exhausted.
Final sentence also covers any appeal until all avenues of appeal are exhausted.
IV CONCLUSION
IV CONCLUSION
In the light of the above considerations, pursuant Rule 7(1) and (2) of the Rules of Procedure, after having considered the arguments for and against waiving immunity, the JURI recommends that the EP waive Mr Vladimir Železný's parliamentary immunity, subject to the condition that the waiver of immunity shall apply solely to the prosecution proceedings and that, until such time as final sentence is given, Dr Železný must be immune from any form of detention or remand or any other measure which prevents him from performing the duties attaching to his mandate as a Member of the European Parliament.
In the light of the above considerations, pursuant Rule 7(1) and (2) of the Rules of Procedure, after having considered the arguments for and against waiving immunity, the JURI recommends that the EP waive Mr Vladimir Zelezný's parliamentary immunity, subject to the condition that the waiver of immunity shall apply solely to the prosecution proceedings and that, until such time as final sentence is given, Dr Zelesný must be immune from any form of detention or remand or any other measure which prevents him from performing the duties attaching to his mandate as a Member of the European Parliament.
Žádost, aby byl poslanec Vladimír Železný zbaven imunity
Request for waiver of the immunity of Vladimír Železný
Městský soud v Praze 30.8.2004 13.9.2004
Prague Metropolitan Court 30.8.2004 13.9.2004
Příslušný výbor Datum oznámená na zasedání
Committee responsible Date announced in plenary
2 a článek 7
Rules 6(2) and 7
Maria Berger 7.10.2004
Maria Berger 7.10.2004
17 1 0
17 1 0
Maria Berger, Bert Doorn, Monica Frassoni, Giuseppe Gargani, Kurt Lechner, Klaus-Heiner Lehne, Hans-Peter Mayer, Aloyzas Sakalas, Francesco Enrico Speroni, Daniel Strož, Andrzej Jan Szejna, Diana Wallis, Rainer Wieland, Nicola Zingaretti, Jaroslav Zvěřina
Maria Berger, Bert Doorn, Monica Frassoni, Giuseppe Gargani, Kurt Lechner, Klaus-Heiner Lehne, Hans-Peter Mayer, Aloyzas Sakalas, Francesco Enrico Speroni, Daniel Strož, Andrzej Jan Szejna, Diana Wallis, Rainer Wieland, Nicola Zingaretti, Jaroslav Zvěřina
Nicole Fontaine, Toine Manders, Manuel Medina Ortega
Nicole Fontaine, Toine Manders, Manuel Medina Ortega
PE 362.635v02-00
PE 362.635v02-00
– s ohledem na žádost, aby byl poslanec Vladimír Železný zbaven imunity, kterou pod číslem jednacím KZv 2153/2001-2728 předložilo dne 27. srpna 2004 Městské státní zastupitelství v Praze a která byla oznámena na plenárním zasedání dne 16. prosince 2004,
– having regard to the request for waiver of the immunity of Vladimír Železný in file number KZv 2153/2001-2728, forwarded by Prague Public Prosecutor on 27 August 2004, and announced in plenary sitting on 16 December 2004,
– s ohledem na článek 27 Ústavy České republiky,
– having regard to Article 27 of the constitution of the Czech Republic,
– s ohledem na čl.
– having regard to the report of the Committee on Legal Affairs ( A6‑0290/2005 ),
At the sitting of 16 December 2004, the President of the Parliament informed the House that he had received a letter from the Prague Public Prosecutor requesting the waiver of the parliamentary immunity of Dr Vladimir Železný, in respect of file number KZv 2153/2001-2728 in the Register of the Prosecuting Attorney's Office.
At the sitting of 16 December 2004, the President of the Parliament informed the House that he had received a letter from the Prague Public Prosecutor requesting the waiver of the parliamentary immunity of Dr Vladimir Zelezný, in respect of file number KZv 2153/2001-2728 in the Register of the Prosecuting Attorney's Office.
The application (suplicatoire) was submitted by the Prague Public Prosecutor to the President of Parliament.
The application (suplicatoire) was submitted by the Prague Public Prosecutor to the President of Parliament.
Pursuant to Rule 7(7) the Committee on Legal Affairs considered that the Prague Public Prosecutor was the appropriate authority to submit the application.
Pursuant to Rule 7(7) the Committee on Legal Affairs considered that the Prague Public Prosecutor was the appropriate authority to submit the application.
The Metropolitan Prosecuting Attorney's Office is requesting the waiver of parliamentary immunity in respect of the above-mentioned file on the ground that Dr Železný is believed to have committed acts constituting fraud on a creditor in 1999 and 2000.
The Metropolitan Prosecuting Attorney's Office is requesting the waiver of parliamentary immunity in respect of the above-mentioned file on the ground that Dr Zelezný is believed to have committed acts constituting fraud on a creditor in 1999 and 2000.
He is believed to "have committed the criminal acts jointly with other persons with the intention of frustrating satisfaction of a claim of CME Media Enterprises B.V."
He is believed to "have committed the criminal acts jointly with other persons with the intention of frustrating satisfaction of a claim of CME Media Enterprises B.V."
The application explains in detail the acts which have given rise to the prosecution in question and relate to Section 256 (1), item c), 256 (4) of the Criminal Code of the Czech Republic or an attempt to commit such crime under Section 8(1) of the Criminal Code.
The application explains in detail the acts which have given rise to the prosecution in question and relate to Section 256 (1), item c), 256 (4) of the Criminal Code of the Czech Republic or an attempt to commit such crime under Section 8(1) of the Criminal Code.
The application explains in detail the circumstances of Dr Železný's prosecution (Notice to Members 1/2005 ).
The application explains in detail the circumstances of Dr Zelezný's prosecution (Notice to Members 1/ 2005 ) .
In the application it is stressed that, in November 2002, during the criminal prosecution, Dr. Vladimir Železný was elected a Senator of the Senate of the Parliament of the Czech Republic.
In the application it is stressed that, in November 2002, during the criminal prosecution, Dr. Vladimir Zelezný was elected a Senator of the Senate of the Parliament of the Czech Republic.
Following the request of the police in charge of the investigation, the Senate granted its consent to the criminal prosecution of Dr Železný in January 2003.
Following the request of the police in charge of the investigation, the Senate granted its consent to the criminal prosecution of Dr Zelezný in January 2003.
Pursuant to Rule 7(3) of the Rules of Procedure, Dr Železný was heard by the Committee on Legal Affairs.
Pursuant to Rule 7(3) of the Rules of Procedure, Dr Zelezný was heard by the Committee on Legal Affairs.
At this hearing Dr Železný informed the committee of his views on the situation in his country with respect to him.
At this hearing Dr Zelezný informed the committee of his views on the situation in his country with respect to him.