B Explanatory report by Ms Heike Engelhardt,
rapporteur
1 Introduction
1. On 29 September 2024, the President
of the Parliamentary Assembly received from the Public Prosecutor
General and Minister of Justice of Poland, Mr Adam Bodnar, a request
for waiver of the immunity of Mr Marcin Romanowski (Poland, EC/DA),
member of the Polish delegation to the Parliamentary Assembly. The
request was submitted in the context of the ongoing investigation
about criminal acts Mr Romanowski has allegedly committed between
2018 and 2023 in his capacity as a public officer, and in relation
to the management and distribution of the Fund for Victims' Support
and Post-Penitentiary Support (Justice Fund).
2. On 30 September 2024, the President of the Assembly announced
the request for waiver of Mr Romanowski’s immunity in the plenary
sitting just before the adoption of the agenda of the fourth part-session
of the Assembly. It was immediately referred for report to the Committee
on Rules of Procedure, Immunities and Institutional Affairs, in
line with Rule 73.2 of the Assembly’s Rules of Procedure, and the Assembly
agreed to hold the relevant debate on 2 October 2024. The committee
met in the afternoon of 30 September and appointed me rapporteur.
3. By a letter sent by the chairperson of the committee on 30
September 2024, as soon as the committee was seized with the request
for the waiver was received, Mr Romanowski was invited to participate
in a committee hearing on 1 October 2024 or to be represented by
any member of the Assembly, in line with Rule 73.3 of the Assembly’s
Rules of Procedure.
4. In an e-mail sent on 30 September 2024, in the evening, Mr Romanowski
asked for his hearing to be postponed. Considering that there were
no compelling reasons which were preventing Mr Romanowski from being
present in person or online at the committee hearing or to be represented
by any member of the Assembly, the committee undertook its role,
according to the Rules, and proceeded to “immediately consider the
request”.
2 General
legal frameworkNote
5. The General Agreement on Privileges
and Immunities of the Council of Europe (ETS No. 2, GAPI), concluded
further to Article 40 of the Statute of the Council of Europe (ETS
No. 1) provides two kinds of immunity for members of the Parliamentary
Assembly:
- non-liability (immunity
against any judicial proceedings for votes, opinions and remarks
related to the exercise of parliamentary office) – Article 14 GAPI,
and
- inviolability (exemption from arrest and prosecution)
in the exercise of their functions as Assembly members or when travelling
on Assembly business, whether this is inside or outside of their
national territory, with two exceptions: flagrante
delicto and waiver by the Parliamentary Assembly – Article
15 GAPI and Article 73 of the Assembly’s Rules of Procedure.
6. This immunity is of an autonomous nature; it is distinct from
and independent of any national immunity; it is based on international
law and can be interpreted only by the Parliamentary Assembly. The
parliamentary immunity of a member of the Assembly must be waived
before his or her freedom can be restricted; the Assembly alone
is able to waive the immunity of a member.
7. Immunity is not accorded for the personal benefit of the individual
Assembly member, but in order to guarantee the independence and
integrity of the Assembly as a whole and of its members, in the
exercise of their functions.
3 Procedure for
waiver of immunity of a member of the Assembly
8. According to Rule 73.2 of the
Rules of Procedure, a request for immunity to be waived should be addressed
to the President of the Assembly. It will be announced in a plenary
sitting (or Standing Committee meeting if this takes place earlier
than a plenary sitting) and will then be referred to the Committee
on Rules of Procedure, Immunities and Institutional Affairs (“Rules
Committee”). The latter “shall immediately consider the request”
and prepare the draft resolution to be considered by the Assembly
at the next part-session after the request is sent.
9. As soon as a request for a waiver of the immunity conferred
upon a parliamentarian by virtue of his membership of the Assembly
is submitted, the President of the Assembly sets in motion the necessary
internal procedures for an examination of this request in line with
the Rules of Procedure.
10. This involves verification by the Rules Committee that the
conditions for a waiving of immunity are fulfilled, allowing for
a decision by the Assembly at the first sitting day after the report
by the committee has been tabled. According to the Rules, the committee
shall not make any examination of the merits of the case in question,
nor shall it pronounce on the guilt or otherwise of the member concerned.
In line with the Guidelines on the scope of parliamentary immunities
enjoyed by members of the Parliamentary Assembly (paragraph 9.6), and
in view of the functional purpose underlying the concept of immunities
conferred upon a member of the Assembly, when considering a request
to waive the immunity, the committee and – on the basis of its report
– the Assembly, have to consider the following elements: legal proceedings
initiated against the member should not jeopardize the proper functioning
of the Assembly; and the request must be serious, namely it should
not be inspired by reasons other than that of dispensing justice.
If both these conditions are fulfilled, the Assembly should, in
the usual course of events, propose to waive the immunity.
11. The report of the committee shall conclude with a draft resolution
for the retention or the waiver of immunity. No amendment to that
decision will be admissible.
4 Marcin Romanowski’s
case
12. In 2018 the Minister of Justice
appointed Mr Romanowski as his plenipotentiary responsible for supervising
the operation of the Justice Fund. The Justice Fund is a Polish
public fund managed by the Minister of Justice, established in 2012
pursuant to the Code of Execution of Criminal Judgments. Initially
named “Fund for Victims' Aid and Post-Penitentiary Assistance”,
its role was to assist victims of crime and witnesses; to prevent
crime; and to provide assistance to persons deprived of their liberty,
those released from prisons and detention centres, and their relatives.
13. Mr Romanowski was appointed Undersecretary of State at the
Ministry of Justice (a role commonly referred to as the Deputy Minister
of Justice) on 4 June 2019. He was dismissed from this post in December 2023,
following the change of government.
14. On 15 October 2023, Mr Romanowski was elected a deputy to
the Sejm. On 18 January 2024, the Presidium of the Sejm approved
the composition of the Polish delegation to the Parliamentary Assembly
and Mr Romanowski became a substitute member of the delegation.
15. On 19 June 2024, the Prosecutor General lodged a request with
the Speaker of the Sejm of the Republic of Poland, for the Sejm
to consent to the prosecution of Mr Marcin Romanowski and his arrest
and detention on remand. According to this request, the evidence
gathered in the case includes personal sources of evidence, documentation
concerning proceedings for the award of grants from the Justice
Fund, analysis of secure documents and electronic data carriers,
and indicates a sufficiently justified suspicion that Mr Marcin Romanowski,
during his mandate as Deputy Minister of Justice, committed 11 crimes,
including participation in an organised group focused on committing
crimes against property, in particular by exceeding his powers and
failing to fulfil duties, as well as by declaring falsehoods in
official documents, and causing large-scale damage to the property
of the State Treasury, in order to obtain personal and financial
gains, namely offences punishable under several provisions of the
Penal Code.
16. In addition, according to the Prosecutor General, the established
circumstances of the case created a real fear of unlawful obstruction
of the proceedings by Mr Marcin Romanowski, which, in view of the
need to safeguard the proper course of the proceedings, justified
the request to detain him in order to carry out procedural activities
requiring his participation and to apply immediately to the court
for the application of a preventive measure in the form of detention
on remand, due to the existing fear of obstruction and the threat of
a severe punishment being imposed.
17. Following a vote, the Sejm lifted Mr Romanowski’s immunity
on 12 July 2024, consenting for him to be prosecuted under each
of the 11 charges specified in the request, as well as for him to
be arrested and detained on remand.
18. On 15 July 2024, upon the instructions of the National Prosecutor’s
office, Mr Romanowski was arrested on the basis of 11 charges for
his activities during his term as Deputy Minister under the previous
government.
19. On 16 July 2024, the Assembly received a letter from Mr Romanowski’s
lawyer asking the President to defend his client’s immunity as a
member of the Assembly.
20. In a letter sent on the same day to Mr Szymon Hołownia, Marshal
of the Sejm, the President of the Assembly clarified that, as a
member of the Assembly, Mr Romanowski enjoyed parliamentary immunity
under the special rules on immunity at European level, laid down
by the General Agreement on Privileges and Immunities of the Council
of Europe of 1949 (GAPI) and its additional Protocol of 1952 (ETS
Nos. 2 and 10).
21. Taking into account the President of the Assembly’s letter
invoking his immunity, Mr Romanowski was released by the Polish
court in the evening of the same day, which refused to grant the
prosecutor’s request and detain Mr Romanowski on remand.
22. In a letter dated 19 July 2024, addressed to Mr Dariusz Korneluk,
First Deputy Public Prosecutor General, National Public Prosecutor
of Poland, the President of the Assembly also explained the Assembly’s Rules
that specify the procedure to be followed to waive the immunity
of a member of the Assembly, following a request by a competent
national authority, as well as the role of the President in defending
the immunity of a member of the Assembly who has been arrested or
deprived of freedom of movement.
23. As mentioned above, a request to waive the immunity of Mr Romanowski
was sent by the Public Prosecutor General and Minister of Justice
of Poland to the President of the Assembly on 29 September 2024, after
a Polish court rejected the appeal by the national prosecutor against
the decision of 27 September 2024 not to detain Mr Romanowski on
remand in view of his immunity as member of the Assembly.
5 Verification
that the conditions for a waiving of immunity are fulfilled
24. The Rules Committee is asked
to consider whether the conditions for a waiving of immunity are
fulfilled or not. According to Rule 73 of the Rules of Procedure
“The committee shall not make any examination of the merits of the
case in question. In particular, the committee shall not, under
any circumstances, pronounce on the guilt or otherwise of the member,
or on whether or not the opinions or acts attributed to him or her
justify prosecution.”
25. From the outset, it should be recalled that immunity cannot
be invoked in case of in flagrante delicto. This
is not the case of Mr Romanowski.
5.1 Question 1: Was
the request for waiver of immunity transmitted in accordance with
Rule 73 of the Rules of Procedure of the Assembly?
26. Immunity cannot be waived except
by the Assembly at the request of a “competent authority” of the member
State concerned.
27. Paragraph 9.7 of the Guidelines on the scope of parliamentary
immunities enjoyed by members of the Parliamentary Assembly states
that “The competent authority is normally the judge in charge of
the case, but it could also be the public prosecutor or the Minister
of Justice.”
28. Insofar as the request was submitted by the Public Prosecutor
General and Minister of Justice of Poland, the conditions for the
“competent authority” have been met.
5.2 Question 2: Do
the legal proceedings initiated against Mr Romanowski jeopardize
the proper functioning the Parliamentary Assembly?
29. Parliamentary inviolability
is a democratic safeguard, born of the need to preserve the integrity
of parliaments, including in their operation and their acts, and
to protect their members’ independence in the performance of their
duties. Having considered the tasks of the member in question, the
prosecution, possible arrest and detention of Mr Romanowski would
not, as such, affect the proper functioning of the Assembly.
5.3 Question 3: Is
the request serious? That is not inspired by reasons other than
that of dispensing justice.
30. While being aware of the controversy
surrounding various recent appointments in Poland, including that of
the national prosecutor, I consider that, on the basis of the different
elements before the committee, there are no sufficient reasons to
doubt the genuine intention of the prosecution against Mr Romanowski
as solely aiming at the proper administration of justice.
6 Conclusions
31. For all the above-mentioned
reasons and without any prejudice as to the merits of the case,
I propose that the Assembly waives Mr Romanowski's immunity in order
to allow justice to be administered. At the same time, it is expected
from the Polish authorities to ensure that such administration of
justice will be fair and impartial, in full respect of national
law and the guarantees provided by the European Convention of Human Rights
(ETS No. 5).
