This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland
Main theses
On July 15, 2024, opposition MP Marcin Romanowski was detained on the order of a prosecutor acting under the authority of Adam Bodnar, ignoring the fact that he had not only immunity as a parliamentarian (which had previously been waived by the Sejm), but also separate immunity as a member of the Parliamentary Assembly of the Council of Europe (PACE).
Minister Bodnar stated that „immunities cannot ensure impunity,” but it was only on October 2 that the PACE lifted MP Romanowski’s immunity, meaning that all previous actions by the Polish government in his case were unlawful.
The Prosecutor’s Office has also openly announced its intention to disregard the Supreme Court’s resolution, which on September 27, 2024, stated that Dariusz Korneluk, who signed the motion for Romanowski’s prosecution, was not in fact the National Prosecutor, and therefore the entire procedure was conducted in violation of the law.
1. Introduction
Among the numerous cases of the application of „transitional justice” and the principles of „militant democracy” by Donald Tusk’s government in the period after December 13, 2023, special attention should be paid to the case of MP Marcin Romanowski. Article 105(2) of the Polish Constitution of April 2, 1997[1] stipulates that „from the day of announcement of the results of the elections until the day of the expiry of his mandate, a Deputy shall not be subjected to criminal accountability without the consent of the Sejm ” (formal immunity). In turn, Article 105 (5) sentence 1 of the Constitution specifies that „a Deputy shall be neither detained nor arrested without the consent of the Sejm, except for cases when he has been apprehended in the commission of an offense and in which his detention is necessary for securing the proper course of proceedings.” For this reason, on June 19, 2024, the Minister of Justice in Donald Tusk’s government, Adam Bodnar, who is also Poland’s Prosecutor General, forwarded to the Speaker of the Sejm, Szymon Hołownia, a motion for the Sejm to consent to the prosecution of M. Romanowski and his arrest and pre-trial detention[2], and on July 12, 2024, the Sejm of the Republic of Poland, responding to the motion, passed 12 resolutions in succession between 14:28 and 14:37 p.m.[3] – 11 on consenting to the prosecution of MP Romanowski for the acts specified in the individual points of the motion of A. Bodnar[4] and 1 on consenting to his arrest and pre-trial detention[5]. On July 15, M. Romanowski was detained and brought to the National Prosecutor’s Office[6]. On July 16, the prosecutor sent a request to the District Court for Warsaw-Mokotów in Warsaw for the pre-trial detention of Romanowski for three months[7]. The court then had 24 hours to decide on the prosecutor’s request.
2. Ignoring the immunity of a member of the Parliamentary Assembly of the Council of Europe
On December 19, 2023, during its 14th session, the Sejm Bureau unanimously approved parity for all parliamentary groups in the composition of permanent international delegations – including the composition of the delegation to the Parliamentary Assembly of the Council of Europe (Parliamentary Assembly of the Council of Europe, PACE). The Law and Justice group, as the largest, was allocated 3 representative seats and 3 alternate representative seats. On January 18, 2024, M. Romanowski was elected to PACE as one of the alternate members of the delegation[8].
As early as July 12, 2024, at 12:40 a.m., i.e. even before the parliamentary votes on waiving his immunity, an opinion by legal counsel Agata Bzdyń appeared on X (formerly Twitter)[9], in which she reminded that Marcin Romanowski is entitled not only to parliamentary immunity, but also, independently thereof, to the immunity of a PACE member. Article 15 of the General Agreement on Privileges and Immunities of the Council of Europe[10] stipulates, that during the sessions of the Consultative Assembly, representatives to the Assembly and their substitutes – whether they be members of Parliament or not – shall enjoy, on their national territory, the immunities accorded in those countries to members of Parliament. The PACE resolution of September 27, 2021, providing guidelines on the scope of immunity of PACE members[11] specifies in section 9.1 that „the term „during the sessions” covers the whole parliamentary year in view of the continuous activity of the Assembly and its bodies.”
The Polish National Prosecutor’s Office said in a July 16 communiqué that Romanowski himself had „stated during the interrogation that both the detention and the action of presenting charges are unlawful due to the immunity protecting him as a member of the Parliamentary Assembly of the Council of Europe.” On July 15, immediately after M. Romanowski’s detention, his defense attorney Dr. Bartosz Lewandowski had filed a formal complaint with the PACE Chairman, citing precisely the existence of a second immunity[12]. He also quoted a relevant excerpt from an article by Prof. Jerzy Jaskiernia, former Minister of Justice from 1995 to 1996, according to which „immunity cannot be waived except by the Assembly at the request of the ’competent authority’ of the Member State concerned.” The competent authority is usually the judge presiding over the case, but it can also be the prosecutor or the Minister of Justice.”[13] Also, Ireneusz Cezary Kamiński – a professor at the Institute of Legal Sciences of the Polish Academy of Sciences, specializing in public international law and human rights, and a judge at the European Court of Human Rights in Strasbourg from 2014 to 2016 – expressed his opinion on the matter, saying that „Marcin Romanowski is not only a member of the Polish parliament, but also a member of the Polish parliamentary delegation to the Parliamentary Assembly of the Council of Europe (PACE). In this second role, he is also entitled to immunity.”[14]
On July 16, PACE Chairman Theodoros Rousopoulos addressed the Speaker of the Sejm, Szymon Hołownia, demanding that he ask the competent national authorities to suspend all actions taken so far in the case of M. Romanowski[15]. Accordingly, on the same day, the District Court for Warsaw-Mokotów in Warsaw issued a decision to disregard the request to use a preventive measure against M. Romanowski in the form of pre-trial detention[16]. The National Prosecutor’s Office, responding to the order, said that the decision to detain and charge Romanowski was made on the basis of „independent legal opinions. At the request of the Minister, the preparation of the said opinions was commissioned by the Secretary of State – Arkadiusz Myrcha. After reviewing the contents of the opinions, the Minister of Justice decided to forward them to the National Prosecutor’s Office as additional material to support the legal analysis conducted in the Prosecutor’s Office regarding the case in question.”[17] At the same time, Minister Bodnar stated that „immunities cannot ensure impunity.”[18]
Rzeczpospolita journalists revealed on October 23, 2024, that these opinions, when submitted to the case file, did not bear signatures. The author of one of them, Dr. Joanna Juchniewicz, explained that she did not send the signed version of her opinion until a follow-up, „in late August or early September,” while the author of the second one, Dr. Andrzej Jackiewicz, „promised to explain the lack of a signature,” but according to journalists, ultimately failed to do so. Therefore, „in the opinion of the Tribunal, these documents did not have the value of an opinion at the time of adjudication.”[19]
On July 23, 2024, the prosecutor’s office appealed the decision of the District Court to the Regional Court of Warsaw[20]. Subsequently, on September 27, the Regional Court in Warsaw upheld the appealed decision (ref. no. IX Kz 643/24)[21]. Thus, on September 29, A. Bodnar sent a request to the chairman of the PACE to consent to the prosecution of M. Romanowski and to his detention and pre-trial detention[22]. On October 2, PACE passed a resolution stripping MP Romanowski of his immunity[23], and on October 15 he was again charged[24]. The next day, another request was sent to the District Court for Warsaw-Mokotów in Warsaw to place him under temporary arrest[25]. M. Romanowski’s defense attorney, however, filed a motion to discontinue the proceedings.
On November 28, the District Court did not decide in the case due to the MP’s submission of a medical release. According to „Rzeczpospolita” journalists, „the prosecutor’s office, however, fought hard to have its request for Romanowski’s arrest, reviewed by the court in his absence,” and „in doing so, the prosecutor invoked one of the articles of the Code of Criminal Procedure, which allows the application of a preventative measure in the absence of the suspect, if his questioning is not possible, among other reasons, due to his health, and there is a need for ’immediate application’ of such a measure.” This is likely to be Article 313 § 1a of the Law of June 6, 1997. – Code of Criminal Procedure[26] with this content, which was added to the Code of Criminal Procedure by Article 3, paragraph 11 of the amendment of July 7, 2023.[27]. Arguably, this is why „after a heated exchange between the prosecution and the defense – the court ultimately did not share the prosecutor’s argument.”[28] Indeed, this regulation deals with a completely different issue – the announcement of the order to present charges and the immediately following interrogation of the suspect. On December 9, however, the District Court granted the prosecutor’s request and decided to apply pre-trial detention[29].
3. Lack of complaint by the legal National Prosecutor
Issued on the basis of the constitutional authorization of Article 105 (6), the Law of May 9, 1996 on the exercise of the mandate of deputy and senator[30] stipulates in its Article 7b that „a request for consent to prosecute a deputy or senator for a crime prosecuted by public indictment shall be submitted through the Prosecutor General”.
According to Article 17 § 1 item 9 of the Code of Criminal Procedure (Kodeks Postępowania Karnego – KPK), „criminal proceedings shall not be initiated, and initiated proceedings shall not be instituted, or, if previously instituted, shall be discontinued, when there is no permission required for prosecuting the act, or no motion to prosecute from a person so entitled, unless otherwise provided by law.” The occurrence of this circumstance, according to Article 439 § 1(9) of the Code of Criminal Procedure, constitutes one of the absolute grounds for appeal. This provides a basis for overturning any ruling that would have been issued against Romanowski by the court of first instance on the basis of the defectively signed applications.
In a resolution dated September 27, 2024 (ref. I KZP 3/24)[31] the Supreme Court ruled that the reinstatement of prosecutor Dariusz Barski and his appointment as National Prosecutor in 2022. – contrary to Bodnar’s insinuations – had a binding legal basis and was effective, and therefore the National Prosecutor in 2024 is still Dariusz Barski, not Dariusz Korneluk. On September 27, the National Prosecutor’s Office unjustifiably stated that the Supreme Court resolution „is not a resolution of the Supreme Court within the meaning of Article 441 of the Code of Criminal Procedure. This position has no legal effect because it was taken by unauthorized persons.”[32] On November 27, the Supreme Court’s Criminal Chamber refused to adopt separate resolutions in both the Korneluk case and that of his predecessor, Jacek Bilewicz (ref. I KZP 6/24[33] and I KZP 7/24[34]), „on the grounds that the questions asked by the Court of Appeals were poorly constructed. According to the Supreme Court, they were casuistic and aimed at the Supreme Court deciding a specific case, not a legal issue.”[35] This means that – regardless of Bodnar’s non-binding interpretations[36] – the September 27 resolution still stands. Also, the Constitutional Tribunal, in its judgment of November 22, 2024 (ref. SK 13/24[37]) confirmed the correctness of Barski’s position.
Meanwhile, the motions to prosecute M. Romanowski were signed by Dariusz Korneluk, not Dariusz Barski. In connection with the Supreme Court resolution, on October 4,[38] a group of deputies of the Law and Justice Parliamentary group submitted to the Sejm a draft resolution to declare invalid all 12 resolutions passed by the Sejm on July 12, 2024 in the case of Marcin Romanowski[39].
4. Summary
The procedural violations committed by individual officers and officials subordinate to Adam Bodnar in the Marcin Romanowski case go beyond the national scale, reaching all the way to the level of international conventions. Mr. Romanowski’s immunity was violated in this case in two ways – first, his special status, which he held not only as a parliamentarian, i.e. a representative of the people vis-à-vis the executive branch, but also as a member of the Parliamentary Assembly of the Council of Europe elected on January 18, 2024, i.e. a representative of the people vis-à-vis the international institution, was ignored. Through his unlawful detention, the authority of PACE, which has already made clear since 2021 that the immunity of its members extends throughout the parliamentary year, has been violated. Secondly, the procedure for stripping him of his parliamentary immunity, carried out by the Sejm’s resolutions of July 12, 2024, was initiated by an unauthorized person – prosecutor Dariusz Korneluk, who falsely, contrary to the law, presents himself as the National Prosecutor, while in fact the real National Prosecutor is still another person – Dariusz Barski. Without judging whether we were dealing here with a lack of due diligence or a deliberate display of brute force against political opponents, this case is symbolic because it shows the level of disregard the ruling camp in Poland has for existing procedures.
Nikodem Bernaciak
[1] OJ . 1997 No. 78 item 483, as amended.
[2] Communiqué on the motion to waive the immunity of Marcin Romanowski, 19/06/2024, https://www.gov.pl/web/prokuratura-krajowa/prokurator-generalny-adam-bodnar-przekazal-dzisiaj-do-marszalka-sejmu-rzeczypospolitej-polskiej-szymona-holowni-wniosek-o-wyrazenie-przez-sejm-rzeczypospolitej-polskiej-zgody-na-pociagniecie-posla-na-sejm-rp-marcina-romanowskiego-do-odpowiedzialnosci-karnej-oraz-jego-zatrzymanie-i-tymczasowe-aresztowanie (accessed: 11/12/2024).
[3] Motion of the National Prosecutor, dated June 19, 2024, for the Sejm to approve the prosecution and detention and pre-trial detention of MP Marcin Romanowski, https://www.sejm.gov.pl/Sejm10.nsf/PrzebiegProc.xsp?nr=16597-z (accessed: 11/12/2024).
[4] M.P. 2024 items 655-665.
[5] M.P. 2024 item 666.
[6] Information on the detention of MP Marcin Romanowski, 15/07/2024, https://www.gov.pl/web/prokuratura-krajowa/informacja-o-zatrzymaniu-posla-marcina-romanowskiego (accessed: 11/12/2024).
[7] Information about the referral of a request for pre-trial detention of suspect Marcin Romanowski, 16/07/2024, https://www.gov.pl/web/prokuratura-krajowa/informacja-o-skierowaniu-wniosku-o-tymczasowe-aresztowanie-podejrzanego-marcina-romanowskiego2 (accessed: 11/12/2024).
[8] Communication from the Chancellery of the Sejm on the procedure for nominating members of the permanent delegation of the Sejm and Senate to the Parliamentary Assembly of the Council of Europe, 19/07/2024, https://www.sejm.gov.pl/sejm10.nsf/komunikat.xsp?documentId=306034BB4631F89CC1258B5F003FCE05 (accessed: 11/12/2024).
[9] Agata Bzdyń, 12/07/2024, https://x.com/AgataBzdyn/status/1811713223214690419 (accessed: 11/12/2024).
[10] General Agreement on the Privileges and Immunities of the Council of Europe, made at Paris on September 2, 1949, and Additional Protocol to the General Agreement, drawn up in Strasbourg on November 6, 1952, OJ 2001 No. 23 item 270.
[11] Resolution 2392, Guidelines on the scope of the parliamentary immunities enjoyed by members of the Parliamentary Assembly, 27/09/2021 (accessed: 11/12/2024).
[12] Bartosz Lewandowski, 15/07/2024, https://x.com/BartoszLewand20/status/1812858850317349024 (accessed: 11/12/2024).
[13] Jerzy Jaskiernia, Immunitet parlamentarny członka Zgromadzenia Parlamentarnego Rady Europy, „Zagadnienia prawa konstytucyjnego. Księga jubileuszowa dedykowana Profesorowi Krzysztofowi Skotnickiemu w siedemdziesiątą rocznicę urodzin”, Volume 1, Lodz 2023, p. 563.
[14] Prof. Kamiński: Romanowski is not only a member of the Polish parliament, but also a member of PACE. In this second role, he is also entitled to immunity, 16/07/2024, https://wpolityce.pl/polityka/699113-prof-kaminski-o-romanowskim-przysluguje-mu-immunitet (accessed: 11/12/2024).
[15] Bartosz Lewandowski, 16/07/2024, https://x.com/BartoszLewand20/status/1813278881547448461 (accessed: 11/12/2024).
[16] Position in connection with the disregard of the prosecutor’s request for preliminary detention, 17/07/2024, https://www.gov.pl/web/prokuratura-krajowa/stanowisko-w-zwiazku-z-nieuwzglednieniem-wniosku-prokuratora-o-tymczasowe-aresztowanie (accessed: 11/12/2024).
[17] Legal opinions on the functioning of the immunity of the Parliamentary Assembly of the Council of Europe, 16/07/2024, https://www.gov.pl/web/sprawiedliwosc/opinie-prawne-dotyczace-funkcjonowania-immunitetu-zgromadzenia-parlamentarnego-rady-europy (accessed: 11/12/2024).
[18] Statement by Minister of Justice Adam Bodnar, 17/07/2024, https://www.gov.pl/web/sprawiedliwosc/oswiadczenie-ministra-sprawiedliwosci-adama-bodnara (accessed: 11/12/2024).
[19] Grażyna Zawadka, Detention of MP Romanowski. Ekspertyzy bez podpisów, 23/10/2024, https://www.rp.pl/polityka/art41333451-zatrzymanie-posla-romanowskiego-ekspertyzy-bez-podpisow (accessed: 11/12/2024).
[20] Information about the referral of a complaint against the Court’s decision not to grant the prosecutor’s request for pre-trial detention, 23/07/2024, https://www.gov.pl/web/prokuratura-krajowa/informacja-o-skierowaniu-zazalenia-na-postanowienie-sadu-o-nieuwzglednieniu-wniosku-prokuratora-o-zastosowanie-tymczasowego-aresztowania (accessed: 11/12/2024).
[21] Communiqué dated 27/09/2024, https://bip.warszawa.so.gov.pl/artykul/455/296/komunikaty (accessed: 11/12/2024).
[22] Communiqué on the request for waiver of the immunity of Marcin Romanowski by the Parliamentary Assembly of the Council of Europe, 30/09/2024, https://www.gov.pl/web/prokuratura-krajowa/komunikat-w-sprawie-wniosku-o-uchylenie-immunitetu-marcinowi-romanowskiemu-przez-zgromadzenie-parlamentarne-rady-europy (accessed: 11/12/2024).
[23] Resolution No. 2572, Request for waiver of the immunity of Mr Marcin Romanowski, 02/10/2024, https://pace.coe.int/en/files/33869 (accessed: 11/12/2024).
[24] Information on the presentation of charges and interrogation of Marcin Romanowski as a suspect, 15/10/2024, https://www.gov.pl/web/prokuratura-krajowa/informacja-o-przedstawieniu-zarzutow-marcinowi-romanowskiemu-i-o-przesluchaniu-go-w-charakterze-podejrzanego (accessed: 11/12/2024).
[25] Information about the referral of a request for pre-trial detention of suspect Marcin Romanowski, 16/10/2024, https://www.gov.pl/web/prokuratura-krajowa/informacja-o-skierowaniu-wniosku-o-tymczasowe-aresztowanie-podejrzanego-marcina-romanowskiego3 (accessed: 11/12/2024).
[26] Consolidated text: OJ 2024 item 37.
[27] OJ 2023 item 1860.
[28] Marcin Romanowski will be taken into custody? There is new information from the court, 28/11/2024, https://www.rp.pl/prawo-karne/art41512051-marcin-romanowski-trafi-do-aresztu-sa-nowe-informacje-z-sadu (accessed: 11/12/2024).
[29] Arrest warrant issued for Law and Justice MP Marcin Romanowski, 09/12/2024, https://www.pap.pl/aktualnosci/jest-areszt-dla-posla-pis-marcina-romanowskiego (accessed: 11/12/2024).
[30] Consolidated text: OJ 2024 item 907.
[31] Supreme Court resolution of September 27, 2024, ref. I KZP 3/24, https://www.sn.pl/sites/orzecznictwo/orzeczenia3/i kzp 3-24-1.pdf (accessed: 11/12/2024).
[32] Statement of the National Prosecutor’s Office on today’s position expressed in the Supreme Court, 27/09/2024, https://www.gov.pl/web/prokuratura-krajowa/oswiadczenie-prokuratury-krajowej-w-sprawie-dzisiejszego-stanowiska-wyrazonego-w-sadzie-najwyzszym (accessed: 11/12/2024).
[33] I KZP 6/24, 27/11/2024, https://www.sn.pl/sprawy/SitePages/Zagadnienia_prawne_SN.aspx?ItemSID=1953-301f4741-66aa-4980-b9fa-873e90506a11&ListName=Zagadnienia_prawne (accessed: 11/12/2024).
[34] I KZP 7/24, 27/11/2024, https://www.sn.pl/sprawy/SitePages/Zagadnienia_prawne_SN.aspx?ItemSD=1964-301f4741-66aa-4980-b9fa-873e90506a11&ListName=Zagadnienia_prawne (accessed: 11/12/2024).
[35] The Supreme Court has refused to adopt resolutions on the status of prosecutor Dariusz Barski. Ordo Iuris Institute participated in the proceedings, 29/11/2024, https://ordoiuris.pl/wolnosci-obywatelskie/sad-najwyzszy-odmowil-podjecia-uchwal-w-sprawie-statusu-prokuratora-dariusza (accessed: 11/12/2024.
[36] Information about the written reasons for the Supreme Court’s decisions in the cases of ref. I KZP 6/24 i I KZP 7/24 [Information about the written reasons for the Supreme Court’s decisions in the cases of ref. I KZP 6/24 and I KZP 7/24, 04/12/2024, https://www.gov.pl/web/prokuratura-krajowa/informacja-o-pisemnym-uzasadnieniu-postanowien-sadu-najwyzszego-w-sprawach-o-sygn-i-kzp-624-i-i-kzp-724 (accessed: 11/12/2024).
[37] Judgment of the Constitutional Tribunal of November 22, 2024, ref. SK 13/24, https://trybunal.gov.pl/postepowanie-i-orzeczenia/wyroki/art/ograniczenie-do-dwoch-miesiecy-prawa-prokuratora-w-stanie-spoczynku-do-powrotu-na-swoj-wniosek-do-sluzby-3 (accessed: 11/12/2024).
[38] Rafał Bochenek, https://x.com/RafalBochenek/status/1842243160065417540 (accessed: 11/12/2024).
[39] Parliamentary draft resolution on the annulment of the resolution of the Sejm of the Republic of Poland of July 12, 2024 on the expression of consent by the Sejm of the Republic of Poland for the arrest and pre-trial detention of MP Marcin Romanowski and the resolutions of the Sejm of the Republic of Poland of July 12, 2024. on the Sejm of the Republic of Poland’s consent to criminal prosecution of MP Marcin Romanowski, SH-021-116/24, https://orka.sejm.gov.pl/Druki10ka.nsf/Projekty/10-021-116-2024/$file/10-021-116-2024.pdf (accessed: 11/12/2024).
