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European Parliament elections 2024. Immunity “does not apply to acts committed before receiving a mandate”? It depends

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Can Mariusz Kamiński, Maciej Wąsik and Daniel Obajtek feel safe now, because the immunity of an MEP “does not apply to acts committed before the election”? A discussion on this topic began online immediately after the announcement of the preliminary voting results. We explain how the situations of the three future MEPs differ.

The National Electoral Commission announced that the Civic Coalition won in Sunday's elections to the European Parliament, gaining 37.06 percent. votes, which will translate into 21 seats. Law and Justice won 20 seats, with 36.16 percent. support. The Confederation won six seats (12.08%), Third Droga – three seats (6.91%), and the Left (6.3%).

READ MORE: Who will become an MEP? National Electoral Commission results

Among the 20 new PiS MEPs there are three politicians about whom there was a lot of talk before the elections: former Minister of Interior and Administration Mariusz Kamiński, his former deputy Maciej Wąsik and former president of Orlen Daniel Obajtek. The first one opened the PiS list in the Lublin Voivodeship (received 110,000 votes), the second one was PiS's first in the Warmian-Masurian and Podlaskie Voivodeships (he got 85,000 votes), and Obajtek was the leader of the list in the Podkarpackie Voivodeship (172,000 voters voted for him). ). After the announcement of their participation in the elections, political opponents claimed that they wanted to go to the European Parliament only for immunity, in order to avoid responsibility for actions during the rule of the United Right. For example, PSL leader Władysław Kosiniak-Kamysz said: “The European Parliament elections have become a lifeboat for many who want to hide somewhere”, and Miłosz Motyka from PSL commented: “As for Mr. Kamiński and Wąsik, they already have a ready slogan election: 'From the cell to Brussels'. In turn, Marcin Bosacki, an MP from the Civic Coalition, said: “The European Parliament is not, and I want to say this clearly to my PiS colleagues, a shelter for criminals.”

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When the exit poll results were published on June 9, they showedthat all three would definitely get into the European Parliament, the issue of their future immunity was commented on on social media. The authors of some entries claimed that immunity would not work in the case of Kamiński, Wąsik and Obajtek.

“Immunity in the European Parliament does not apply to acts committed before getting a mandate as an MEP. So, in reality, Obajtek, Wąsik, Kamiński and the rest are p***y. And that's a good thing,” wrote the author of the post on X, which was viewed by over 110,000 people. Internet users. “The good news: Kamiński, Wąsik, Obajtek, etc. do not have to have the immunity of MEPs waived, as it does not apply to acts committed before their election, so it does not work,” said another user of website X, asking to share his message. This message was also repeated by Civic Coalition MP Artur Łącki. “I would like to remind you that immunity in the European Parliament does not apply to acts committed before receiving the mandate of an MEP. This is in the context of #PiSWanted Lists and who was selected from them…” – he wrote June 10 on website X.

Comments on the immunities of some future MEPsx.com

We explain why the statement that immunity in the European Parliament “does not apply to acts committed before the elections” is not entirely true – it depends on the situation of a given person.

Kamiński and Wąsik with allegations, proceedings “in the case” of Orlen

Let us recall why these three politicians arouse so much emotion in the context of the immunity of MEPs. Mariusz Kamiński and Maciej Wąsik were acquitted by President Andrzej Duda in connection with the so-called land scandal. However, their parliamentary mandates were revoked, and they still took part in votes in the Sejm. In mid-April 2024, the prosecutor's office so she brought charges against them regarding failure to comply with the ban on holding public positions. When they ran for the European Parliament and were elected MEPs, they had the status of suspects in this case.

In turn, Orlen, whose president was Daniel Obajtek, will be subject to prosecution from April 2024 conducts three large proceedings regarding, among others, merger of Orlen and Lotos. As part of these proceedings, Daniel Obajtek's properties were searched, but he is not a suspect. The proceedings are not conducted against a specific person, but “in a case”.

The situations of Kamiński, Wąsik and Obajtek are therefore not the same – they have in common the fact that the voting issues in the Sejm and those related to Orlen concern the period before the election of these three MEPs.

The key moment is when the charges are brought, not when the act is committed

MEPs enjoy two types of immunity: substantive and formal. The substantive law is intended to protect MEPs' freedom of speech because it makes it impossible to investigate or detain them “because of an opinion or position they took in a vote while performing their duties as an MEP.” Formal immunity, however, applies to crimes unrelated to the performance of the mandate. In the European Parliament, it operates on almost identical principles as the immunity of Polish MPs and senators. MEPs cannot be held criminally liable without the consent of the European Parliament, except in cases of being caught in the act.

As Polish MEPs will enjoy immunity on the same terms as Polish parliamentarians, the fact and the moment of bringing charges against them are crucial. Article 7 Act on the exercise of the mandate of a deputy and senator states that parliamentarians cannot be held criminally liable, unless criminal proceedings were initiated against the person who was elected before the announcement of the election results. Therefore, the moment of bringing charges is crucial, from which the proceedings “against the person” begin. Mariusz Kamiński and Maciej Wąsik heard prosecutor's charges already in April 2024, therefore, MEP immunity will not apply in the matter of voting in the Sejm. Therefore, the proceedings in this case may be continued. It is important, however, that in any other case in which Polish law enforcement authorities would like to bring other charges against these politicians, they will have to apply to the European Parliament to waive their immunities. Because the repeal concerns specific cases – it is not of a general nature.

Ph.D. Piotr Uiębło from the Department of Constitutional Law and Political Institutions, Faculty of Law and Administration, University of Gdańsk in an interview with Konkret24 in May this year he noted that “as a rule, criminal proceedings against MEPs that started before their election continue after taking up their mandate”, but at the same time “an MEP may submit an application to the President of the European Parliament in which he proves that the given proceedings hinders the implementation of his mandate and should therefore be suspended. MEPs vote on such a proposal during a parliamentary session.

READ MORE IN KONKRET24: Escape into immunities? Why “the European Parliament won't protect”

Daniel Obajtek's situation is different: proceedings regarding Orlen are being conducted “in the case” and no one has been charged so far. The proceedings can therefore continue despite the election of the company's former president as an MEP. Now possible charges against Obajtek or other steps, e.g. starting a court trial, will require the waiver of immunity by the European Parliament. Contrary to Internet users' suggestions, it does not matter that the acts under investigation were committed before being elected as an MEP – the fact and date of bringing the charges are crucial in such situations.

Lifting immunity in the European Parliament

The procedure for revoking a mandate in the European Parliament is as follows: if charges are brought against a person who is already an MEP, then the “competent national authority” – in the case of Poland, it is the Prosecutor General – sends a request to the President of the European Parliament to waive the immunity. He forwards it to the legal committee. The Commission is to consider the request “immediately”, although “taking into account the complexity of the case”. The MEP may give explanations before the committee.

After analyzing the evidence, documents and possible explanations of the MEP, the committee votes on a recommendation to the entire parliament whether it recommends revoking the immunity of a given MEP or not. The European Parliament must vote on such a proposal at its first meeting following the committee's recommendation. The decision is made by a simple majority of votes.

The lifting of immunity by the EP does not result in the loss of the mandate, does not mean that the Member is found guilty, but only enables the operation of the national justice system.

It was loud during the last term of the European Parliament the matter of lifting immunities four PiS MEPs: Patryk Jaki, Tomasz Poręba, Beata Mazurek and Beata Kemp. President Roberta Metsola announced that the application had been submitted to the EP in February 2023. In April, the application was submitted to the legal committee, which issued its recommendation after several meetings on November 7. Just two days later – on November 9, 2023 – at the first meeting after issuing the recommendation, the European Parliament lifted the immunities of the Members of Parliament in a vote.

Main photo source: Wojtek Jargiło, Tytus Żmijewski, Piotr Polak/PAP

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