Dr. Machińska: The Romanowski Case Will Set International Boundaries for the Abuse of Immunity

Share

journalist at OKO.press

More

The Parliamentary Assembly of the Council of Europe has never dealt with such serious and well-documented allegations against one of its members. The regulations did not account for this. But now, due to the abuses that occurred during the PiS government's tenure in the Polish Ministry of Justice, these regulations will be clarified," says Dr. Hanna Machińska.



The Prosecutor’s Office sought to charge Marcin Romanowski with corruption and involvement in an organized criminal group related to the activities of the Justice Fund.

 

However, his defense attorney notified the Parliamentary Assembly of the Council of Europe that Romanowski, a substitute member of the Assembly, was being unlawfully deprived of his liberty. In accordance with procedure, the Assembly’s President promptly informed the Polish authorities that, in principle, Romanowski was entitled to immunity. Whether this immunity applies in this specific case remains to be determined.

 

Romanowski was released despite the Polish Sejm lifting his immunity on July 12. The first instance court rejected the request for arrest due to ambiguities regarding Romanowski’s international protection. The prosecutor has appealed this finding.

 

This move may slow down the Prosecutor’s Office’s work, but it may also clarify when a politician can invoke the Assembly’s immunity.

 

The Assembly is an organ of the Council of Europe, an organization founded in 1949, which today includes 46 member states from not only our continent (Russia was also a member but was expelled after launching a full-scale invasion of Ukraine). The Council of Europe’s achievements include the European Convention on Human Rights, ratified by its members (Poland ratified it on January 19, 1993).

 

OKO.press discusses the immunity dispute involving Marcin Romanowski with human rights expert Dr. Hanna Machińska, who served as the Director of the Council of Europe’s Office in Warsaw from 1991 to 2017 and as Poland’s  the Deputy Commissioner for Human Rights from 2017 to 2022.

 

The Prosecutor’s Office Has Strong Evidence – An Interview with Hanna Machińska

 

Agnieszka Jędrzejczyk: Did the Prosecutor’s Office fail to verify whether Marcin Romanowski was covered by the Parliamentary Assembly of the Council of Europe’s immunity? Or did it check the regulations and conclude that the immunity did not apply?

 

Hanna Machińska: The Prosecutor’s Office had very strong arguments indicating that the immunity did not apply in this situation.

 

However, they did not anticipate that Romanowski’s lawyer would initiate a review procedure within the Parliamentary Assembly of the Council of Europe to prevent his client’s arrest.

 

MP Romanowski and his attorney had the right to approach the President of the Assembly. They did not have to provide detailed legal information about the MP’s situation. However, since they made this move, the Minister of Justice will now present the Assembly with details of the charges against Romanowski.

 

Let’s remember that we are dealing with a very well-documented case of corruption. But the Assembly will not convene until the end of September.

 

Nevertheless, the session is ongoing. The Committee on Rules of Procedure, Immunities, and Institutional Affairs, which will have to present an opinion on this matter, can work in the meantime. Its findings will be extremely important for the functioning of the Assembly and the Council of Europe itself.

 

So, there were no previous cases like this?

 

This situation is different from the European Parliament, where cases of lifting immunity are more common. In fact, the two most often cited are those of Silvio Berlusconi and Swiss MP Dick Marty.

 

In 2001, Berlusconi’s case involved tax offenses. The Spanish Supreme Court requested the lifting of his immunity. However, Berlusconi resigned from the Parliamentary Assembly of the Council of Europe, so the Assembly did not resolve the matter.

 

Dick Marty, known in Poland for investigating CIA prisons, prepared a report on organ trafficking in Kosovo. He was to be called as a witness in this case, but as absolute immunity applied in his case, the Assembly had not possess the authority to  lifting his  immunity.

 

What Determines Whether Immunity Applies and Can It Be Lifted?

 

Let’s start with Article 25(b) of the Council of Europe’s Statute from 1949. It states that “No Representative shall be deprived of of his position as such  during a Session of the Assembly without the agreement of the Assembly”. Article 40 of the Statute states that representatives of member states and the Secretariat enjoy the immunities and privileges necessary for performing their functions. Representatives of the Assembly  cannot be arrested or prosecuted in the territories of member states due to opinions expressed or votes cast during Assembly sessions and its bodies.

 

The General Agreement on Privileges and Immunities emphasizes that these privileges serve the performance of duties.

 

Article 15 of the Agreement excludes their application when representatives and their substitutes are caught in the act of committing a crime, attempting to commit a crime, or committing a crime (there is no mistake here, this is the Agreement’s wording), or when the Assembly waives immunity.

 

The Key to Understanding Immunity is Article 5 of the Additional Protocol.

 

Article 5 of the Protocol clearly states that “Privileges, immunities, and facilities are accorded  to the  representatives of Members  not for the personal benefit of the individuals concerned, but in order to safeguard the  independent excise of their functions  in connection  with the Council of Europe.”

 

Furthermore, “a Member  has not only  the right but  the duty to waive immunity of  its representative in any case where, in the opinion of the Member, the  immunity would  impede the course of justice and it can be waived without prejudice to the purpose for which the immunity  is accorded.”

 

Is this the case for Marcin Romanowski?

 

The problem is that everyone refers to the General Agreement, especially its Article 15, without considering the Additional Protocol.

 

Article 15 of the General Agreement states, to reiterate:

 

“During the Sessions of the Consultative Assembly [as it was called in 1949, now the Parliamentary Assembly], the Representatives to  the Assembly and their Substitutes, whether they be  members of Parliament or not, shall enjoy:

 

(a) on their national  territory , the immunities accorded in those countries to members of Parliament;

 

(b)on the territory of all other Member States, exemption  from arrest and prosecution. 

 

This immunity also applies when they are  travelling  to and from the place of the meeting  of the Consultative (Parliamentary) Assembly. It  does not, however, apply when Representatives or their Substitutes are found committing,  attempting to commit, , or just having committed an offence, nor in cases where  the  Assembly has waived the immunity.”

 

 

Based on these provisions, the Prosecutor’s Office could conclude that the Parliamentary Assembly of the Council of Europe’s immunity does not protect Marcin Romanowski.

 

The Assembly’s Rules of Procedure and its Rule 73 supplement but do not fully clarify the matter. It states that immunities are guaranteed to ensure the integrity of the Parliamentary Assembly’s operations and to safeguard  the independence of its member in exercising – and this is crucial –  their “European office” (i.e., their official duties at the European level).

 

This can raise doubts – an Assembly member detained in any matter will not perform “European office” independently.

 

This was further clarified in Resolution 2392 (2021), which, referring to Article 15 of the General Agreement, states that immunity applies year-round and that any detention must be based on very strong legal grounds.

 

The rules, created and supplemented over 75 years, are not clear. But there has not been a case like this before. If the defense had not initiated the procedure, the scope of immunity would still be unclear.

 

This is not a merit of the defense attorney. It is simply a procedure they used. Therefore, it must be followed now, and it should not be portrayed as something disastrous.

 

The situation in which the President of the Parliamentary Assembly of the Council of Europe sent a letter to the Marshal of the Sejm regarding MP Romanowski is strictly related to the Assembly’s Rules of Procedure.

 

The Minister of Justice should now explain the matter to the President of the Assembly. In fact, Minister Bodnar announced such an action. Currently, the President of the Assembly has very one-sided information that Mr. Romanowski is purported to be a victim of a political attack, that he is a victim of the system.

 

When the Prosecutor’s Office’s version reaches the Assembly, it will become a subject of debate. First, the Committee on Rules of Procedure, Immunities, and Institutional Affairs will address it. This committee will present its opinion to the Assembly.

 

So, the matter of Marcin Romanowski and the activities of the Polish Ministry of Justice with public funds designated for helping crime victims will become a topic of debate among representatives of the Council of Europe’s 46 member states.

 

I think so. Decisions cannot be made without knowing the well-founded grounds that accompanied them domestically.

 

Because this matter is extremely important for the Parliamentary Assembly.

 

The rules were so far aimed at protecting parliamentarians because some Council of Europe members are not democratic states. But immunities cannot be a shield that allows evasion of responsibility, especially in cases of corruption. The Council of Europe has previously faced problems with some Parliamentary Assembly members benefiting from their functions. Of course, the European Court of Human Rights (ECHR) has dealt with cases concerning parliamentarians in the context of corruption charges. But the problem of immunity has not been resolved.

 

Now, in Romanowski’s case, this will need to be clarified and specified.

 

Moreover, the Council of Europe’s Group of States against Corruption (GRECO) has already requested the Assembly to clarify the rules on immunities. As a result, guidelines were created. These guidelines state that the procedure related to immunity must be swift, especially concerning the detention or arrest of a representative. The President of the Assembly must react “immediately.”

 

And he did.

 

It’s high time to look at this with a cool head. Then it becomes clear that there is no reason for political agitation and turmoil.

 

Firstly, the issue of Romanowski’s immunity is before the Polish courts (an appeal against the first instance finding is pending).

 

Secondly, the procedure in the Parliamentary Assembly of the Council of Europe has begun.

 

Remember, experts, not just those who provided written opinions for the prosecutor but also those who spoke publicly, concluded that, despite the letter from the Assembly’s President, this does not change Romanowski’s status in Poland. As a person for whom the Sejm lifted immunity, Romanowski is subject to domestic legal procedures. The court’s decision to release him, despite the Sejm’s decision, remains in effect (pending a determination on appeal).

 

Does this mean that the Assembly will not defend Romanowski?

 

We do not know. However, we can expect an unprecedented clarification of the scope and purpose of the immunity granted to representatives.

 

Poland will need to convince the Assembly that the charges against Romanowski are credible and substantiated. If the Assembly waives immunity, it will set a precedent for all its representatives.

 

For now, we do not know what actions Romanowski will take. He must answer questions, for instance, about why the Justice Fund, a public institution meant to aid crime victims, is funding private interests. These questions go beyond procedural matters and directly concern the rule of law.

 

The Justice Fund’s activities are also under scrutiny from the European Commission. Can the Council of Europe also address this?

 

Yes, absolutely. The misuse of the Justice Fund could significantly harm Poland’s image in Europe.

 

The Council of Europe is a separate entity from the European Union, but its values and the rule of law are fundamental to both organizations. Poland’s compliance with the European Convention on Human Rights, a creation of the Council of Europe, is essential for Poland’s credibility.

 

If Poland is found tohave  misused public funds under the previous government, it could face consequences not only from the Council of Europe but also from the EU.

 

Corruption within the Council of Europe itself has been a problem. The Parliamentary Assembly of the Council of Europe had to address this internally. Do you think this affects the way the Assembly will handle Romanowski’s case?

 

The Assembly is very sensitive to accusations of corruption within its ranks. In the past, it has taken strong actions against representatives involved in corruption. This includes expelling members and demanding accountability.

 

Therefore, the Assembly will approach Romanowski’s case with caution and seriousness. They will ensure that the rules are followed and that the case is thoroughly examined.

 

In conclusion, the situation with Marcin Romanowski presents an opportunity for the Council of Europe to clarify its stance on immunity, especially in the context of corruption. It will also test Poland’s adherence to the rule of law and its commitment to European values.

 

The Council of Europe will undoubtedly scrutinize this case closely, and Poland must be prepared to justify its actions and demonstrate its respect for legal and ethical standards.

 

The interview was published in OKO.press, 18 July 2024, https://oko.press/machinska-sprawa-romanowskiego-postawi-miedzynarodowe-granice-dla-naduzywania-immunitetu.



Author


journalist at OKO.press


More

Published

July 23, 2024

Tags

Supreme CourtPolandConstitutional TribunalDisciplinary Chamberjudgesrule of lawdisciplinary proceedingsZbigniew ZiobroNational Council of the Judiciaryjudicial independenceCourt of Justice of the EUEuropean CommissionEuropean UnionAndrzej DudaMałgorzata ManowskaCourt of JusticeMinister of JusticeEuropean Court of Human RightsAdam BodnarIgor Tuleyadisciplinary systemneo-judgesmuzzle lawCJEUJarosław KaczyńskiNational Recovery PlanMateusz MorawieckiCommissioner for Human RightsWaldemar ŻurekCourt of Justice of the European UnionNational Council for JudiciaryPrzemysław RadzikdemocracyPiotr Schabjudiciarypresidential electionselectionscriminal lawKamil Zaradkiewiczelections 2023disciplinary commissionermedia freedomJulia PrzyłębskaK 3/21First President of the Supreme Courtelections 2020harassmentSupreme Administrative Courtpreliminary rulingsDagmara Pawełczyk-WoickaprosecutionHungaryMichał LasotaprosecutorsBeata MorawiecRecovery FundPresidentProsecutor GeneralPaweł JuszczyszynNational ProsecutorŁukasz PiebiakConstitutionEuropean Arrest WarrantPrime Ministerfreedom of expressionMaciej NawackiCOVID-19Marek SafjanVenice CommissionSejmimmunityCriminal ChamberRegional Court in KrakówIustitiaMaciej FerekMałgorzata GersdorfreformMinistry of JusticeNCJExtraordinary Control and Public Affairs ChamberOSCEcourtsWojciech Hermelińskidisciplinary liability for judgesEU budgetcorruptionStanisław PiotrowiczNational Public Prosecutorcriminal proceedingsCouncil of EuropeAnna DalkowskaLGBTJustice FundPresident of the Republic of PolandWłodzimierz Wróbelconditionality mechanismTHEMISKrystian MarkiewiczAleksander StepkowskiStanisław BiernatPiSreformsLaw and Justicecommission on Russian influenceLabour and Social Security ChamberJarosław Dudziczconditionalityfreedom of assemblyPresident of PolandChamber of Professional LiabilityOrdo Iurismedia independenceDidier ReyndersReczkowicz and Others v. PolandSLAPPStrategic Lawsuits Against Public ParticipationBroda and Bojara v PolandXero Flor w Polsce Sp. z o.o. v. PolandChamber of Extraordinary Control and Public AffairsSupreme Court PresidentMarcin Romanowskielectoral codeAndrzej StępkaArticle 7Piotr PrusinowskiSenateSylwia Gregorczyk-AbramParliamentary Assembly of the Council of EuropeTVPmediaLech GarlickiLex Super OmniapoliceabortionNext Generation EUUrsula von der LeyenEAWJustice Defence Committee – KOSAmsterdam District CourtdefamationKrzysztof ParchimowiczFreedom HouseMichał WawrykiewiczEwa ŁętowskaArticle 6 ECHRMay 10 2020 elections2017Piotr GąciarekPegasussuspensionP 7/20acting first president of the Supreme CourtNational Electoral CommissionK 7/21PM Mateusz MorawieckiAndrzej ZollJarosław WyrembakLex DudaProfessional Liability ChamberCivil Chamberparliamentcivil societyNational Reconstruction PlanConstitutional Tribunal PresidentAdam JamrózStefan JaworskiJoanna Hetnarowicz-SikoraKrakówBiruta Lewaszkiewicz-PetrykowskaStanisław RymarMałgorzata Pyziak- SzafnickaJanusz NiemcewiczAndrzej MączyńskiMarek MazurkiewiczAdam Synakiewiczstate of emergencyWojciech ŁączkowskiEdyta BarańskaMirosław GranatKazimierz DziałochaJoanna Misztal-Koneckajudcial independenceMaciej MiteraDariusz KornelukViktor OrbanOLAFrestoration of the rule of lawvetoMariusz KamińskisurveillanceK 6/21Józef IwulskiAstradsson v IcelandCentral Anti-Corruption BureauPATFoxSLAPPsTeresa Dębowska-RomanowskaaccountabilityUkraineKrystyna PawłowiczRafał PuchalskitransparencyDariusz ZawistowskiOKO.pressright to fair trialDariusz DrajewiczPaweł FilipekMaciej Taborowskismear campaigninsulting religious feelingsNational Prosecutor’s OfficeMariusz MuszyńskiBelaruselectoral processcourt presidentsMarzanna Piekarska-DrążekmilestonesWojciech MaczugaMichał LaskowskiMarian BanaśJakub IwaniecSławomira Wronkowska-JaśkiewiczPiotr TulejaJerzy Stępieńelections fairnessAndrzej RzeplińskiSzymon Szynkowski vel SękFerdynand RymarzInternational Criminal CourtMarek PietruszyńskiMirosław WyrzykowskiBohdan ZdziennickiXero Flor v. Polandpublic mediaSupreme Audit OfficelexTuskcourt changeselections integrityMarek ZubikKonrad Wytrykowskiabuse of state resourcesGeneral Assembly of the Supreme Court JudgesEuropean ParliamentZuzanna Rudzińska-BluszczMarcin Warchoł11 January March in WarsawEuropean Association of JudgesZiobroFree CourtsdecommunizationEwa WrzosekEU law primacyhuman rightsPiebiak gaterecommendationreportLaw on the NCJlex NGORussiaCCBEpublic opinion pollHuman Rights CommissionerJarosław GowinPiotr PszczółkowskiLGBT ideology free zonesC-791/19coronaviruscriminal coderetirement ageNetherlandsAdam Tomczyńskidemocratic backslidingintimidation of dissentersThe Council of Bars and Law Societies of EuropeBogdan ŚwięczkowskitransferBelgiumJoanna Scheuring-WielgusNations in TransitCouncil of the EUElżbieta Jabłońska-MalikKatarzyna ChmuraSebastian MazurekJędrzej Dessoulavy-ŚliwińskiLIBE Committeedefamatory statementsMałgorzata FroncRafał LisakKarolina MiklaszewskaNGOKrystyna Morawa-FryźlewiczIrena BochniakoppositionEuropean Court of Huelectoral commissionsAct on the Supreme CourtdiscriminationJakub KwiecińskiWorld Justice Project awardTomasz Koszewskitest of independenceDariusz DończykGrzegorz FurmankiewiczAntykastaStanisław ZdunAdam Gendźwiłł2018Wojciech SadurskiFull-Scale Election Observation MissionODIHRMarek Jaskulskirepairing the rule of lawadvocate generalpress release#RecoveryFilesmedia pluralismMichał DworczykDworczyk leaksE-mail scandalAndrzej SkowronRights and Values ProgrammeTomasz SzmydtŁukasz BilińskiIvan MischenkoMonika FrąckowiakEmilia SzmydtSwieczkowskiKasta/AntykastaBohdan BieniekStanisław ZabłockiJoanna Kołodziej-MichałowiczPetros TovmasyanJerzy KwaśniewskiPiotr MazurekGrzegorz PudaNational Recovery Plan Monitoring CommitteeWiesław KozielewiczFrans TimmermansMałgorzata Dobiecka-WoźniakUS Department of StateMarcin KrajewskiEwa ŁąpińskaZbigniew ŁupinaPaweł StyrnaC-619/18Arkadiusz CichockiCT PresidentMarcin Matczakequal treatmentNational School of Judiciary and Public Prosecution (KSSiP)codification commissiondelegationsWatchdog PolskaDariusz BarskiLasotafundamental rightsState Tribunalinsultcivil lawRadosław BaszukAction PlanJustice MinistryVěra JourováDonald Tuskjustice system reformAnti-SLAPP DirectiveHater ScandalpopulismNational Council for the Judiciarycivil partnerships billKRSJudicial Reformsmigration strategyPenal CodeLGBTQ+NIKProfetosame-sex unionsKatarzyna Kotulacivil partnershipsHelsinki Foundation for Human RightsPiotr HofmańskiC‑718/21preliminary referenceEU lawethicsChamber of Professional ResponsibilityThe Codification Committee of Civil LawInvestigationPoznańKrzysztof Rączkaextraordinary commissionZbigniew KapińskiAnna GłowackaCourt of Appeal in WarsawOsiatyński'a Archivetransitional justiceUS State DepartmentAssessment ActCrimes of espionageJoanna KnobelAgnieszka Brygidyr-DoroszKoan LenaertsKarol WeitzKaspryszyn v PolandNCR&DNCBiRThe National Centre for Research and DevelopmentEuropean Anti-Fraud Office OLAFJustyna Wydrzyńskaenvironmentinvestmentstrategic investmentRafał WojciechowskiAleksandra RutkowskaGeneral Court of the EUArkadiusz RadwanLech WałęsaWałęsa v. Polandright to an independent and impartial tribunal established by lawpilot-judgmentDobrochna Bach-Goleckaelection fairnessNational Broadcasting Councilgag lawsuitslex RaczkowskiPiotr Raczkowskithe Spy ActdisinformationlustrationWhite PaperEUDonald Tusk governmentjudgePrzemysław CzarnekJózsef SzájerRafał TrzaskowskiKlubrádióSobczyńska and Others v PolandŻurek v PolandGazeta WyborczaGrzęda v PolandPollitykaJelenmedia lawIndex.huJacek CzaputowiczElżbieta KarskaPrzemysła Radzikmedia taxadvertising taxmediabezwyboruJacek KurskiKESMABrussels IRome IILGBT free zonesFirst President of the Suprme CourtBogdan ŚwiączkowskiDisicplinary ChamberTribunal of StateOrganization of Security and Co-operation in EuropeOlsztyn courtPrzemysła CzarnekequalityMarek PiertuszyńskiChamber of Extraordinary VerificationArticle 2Forum shoppinghate speechEuropean Economic and Social CommitteeSebastian Kaletahate crimesC-156/21C-157/21Education Ministerthe Regional Court in Warsawproteststhe NetherlandsDenmarkSwedenFinlandMariusz KrasońGermanyCelmermutual trustabortion rulingLMUnited NationsLeszek MazurAmsterdamIrena Majcherinterim measuresIrelandautocratizationMultiannual Financial FrameworkC354/20 PPUC412/20 PPUC-487/19Norwegian Ministry of Foreign AffairsNorwegian fundsNorwayKraśnikOmbudsmanZbigniew BoniekENAArticle 10 ECHRRegional Court in AmsterdamOpenbaar MinisterieAusl 301 AR 104/19Karlsruheact on misdemeanoursCivil Service Actpublic broadcasterForum Współpracy SędziówSimpson judgmentAK judgmentlegislative practiceforeign agents lawrepressive actMaciej CzajkaMariusz JałoszewskiŁukasz RadkepolexitLSOtrans-Atlantic valuesDolińska-Ficek and Ozimek v PolandAmnesty InternationalThe First President of the Supreme CourtErnest BejdaJacek Sasinright to protestSławomir JęksaWiktor JoachimkowskiRoman GiertychAct of 20 December 2019Michał WośMinistry of FinancelawyersFrackowiakPaulina Kieszkowska-KnapikKochenovPaulina AslanowiczJarosław MatrasMałgorzata Wąsek-Wiaderekct on the Protection of the PopulatioPechlegislationlex WośKaczyńskiPutinismCourt of Appeal in KrakówMaria Ejchart-DuboisAgreement for the Rule of LawPorozumienie dla PraworządnościAct sanitising the judiciaryECJMarek AstFreedom in the WorldEvgeni TanchevRome StatuteIsraelEuropean Public Prosecutor's OfficeEU valuesPolish National FoundationLux Veritatisinfringment actionMałgorzata BednarekPiotr WawrzykPKWENCJoligarchic systemclientelismIpsosOlimpia Barańska-MałuszeHudocKonrad SzymańskiPiotr BogdanowiczPiotr Burasauthoritarian equilibriumArticle 258Leon Kieresresolution of 23 January 2020Telex.huEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtAlina CzubieniakMaciej RutkiewiczharrassmentMirosław WróblewskiprimacyborderGerard BirgfellerTVNjournalistslexTVNpostal vote billPolish mediapostal voteEwa MaciejewskaRzeszówKoen Lenaerts