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.