The European Parliament’s legal affairs committee (JURI) is expected to issue its recommendation on Tuesday on whether four Polish MEPs accused of inciting hatred against immigrants should ultimately lose their immunity. On the other hand, the defendants claim that the charges are an attack on free speech.

Within the week, the plenary will vote on the recommendation, deciding whether to lift the immunity of Beata Mazurek and Tomasz Poręba – from Poland’s ruling PiS party – and Beata Kempa and Patryk Jaki – a member of PiS’s newest coalition partner ” Suwerenna Polska’.

According to the Polish indictment, they are accused of “inciting hatred based on national, ethnic, racial and religious differences” for spreading a video ahead of the 2018 local elections in Poland.

The video linked “pockets of Muslim refugees” to sexual assaults and violent attacks, while implying that a takeover by the opposition Citizens Coalition party would lead to an influx of migrants, making residents “afraid to go out on the streets after dark”, as is specifically mentioned in the video.

“Will we feel safe if the Citizens Coalition implements this?” – asks the narrator at the end, adding that it would be better to choose a “safe local government”, according to what Euractiv Poland reported in a previous report.

Rafał Gaweł, founder of the Polish NGO “Monitoring Center for Racist and Xenophobic Behaviour”, filed a supplementary indictment in November 2021 after the prosecution dismissed the charges twice.

This subsidiary indictment led the European Parliament to start the process to lift MEPs’ parliamentary immunity in February 2023.

“Thanks to the fact that I am a political refugee, I was recognized by the court as aggrieved by the action of the defendants, which allowed me, after a long legal battle, to file an auxiliary indictment to prosecute the perpetrators in the position of the prosecutor,” he said Gawl at Euractiv.

“Unfortunately, under the rule of the far right in Poland, prosecutors often protected perpetrators of crimes motivated by racial hatred,” he added.

Gaweł, who faces prison terms for fraud and forgery, was granted political immunity by Norway in October 2020, the Guardian reported.

Freedom of speech

For their part, the MEPs argue that the indictment is an attack on freedom of speech, while also recalling that it is a private charge, which has previously been “legally” withdrawn by the prosecution.

“The MEPs did not create the video. The ‘crime’ of the MEPs was to transmit or like [στα μέσα κοινωνικής δικτύωσης] the official spot of the ruling party in Poland in 2018,” MEP Patryk Jaki, on behalf of the four MEPs, told Euractiv.

“The spot showed clips of incidents involving migrants, which were shown on TV stations across Europe, so to ban MEPs from something that is not banned in Europe would be a blow to the freedom of public dialogue,” he added. At the same time, he added that “the case therefore concerns freedom of speech, for which immunity was established”.

Parliament makes it clear that MEPs cannot be subject to any form of legal process arising from the views they express in their official capacity. During the 2018 local elections, only Tomasz Poręba held office in the European Parliament.

If immunity is lifted, the MEPs in question can apply to the Court of Justice of the EU (CJEU) under Article 263 TFEU, which will significantly lengthen the process.