Should the Polish authorities request the CoE Parliamentary Assembly to lift MP Marcin Romanowski’s immunity?

By Anca Ailincai

Immunity of high-ranking State officials from foreign criminal jurisdiction has been a topic of considerable debate for several years (e.g. here). The summer news has provided a rare opportunity to shed light on the more confidential issue of the immunities from jurisdiction and arrest of members of the Parliamentary Assembly of the Council of Europe (PACE).

The press reports that Marcin Romanowski, a Polish opposition MP, has been prosecuted for 11 criminal offences, including exceeding powers regarding the Justice Fund, which he allegedly committed during his tenure as Deputy Minister of Justice in the previous Law and Justice (PiS) government. On 12 July 2024, the Polish Sejm revoked the MP’s parliamentary immunity, resulting in his arrest on 15 July.

As Mr Romanowski has been a PACE substitute member since 22 January 2024, his attorney immediately informed the President of the Assembly. On 16 July, the latter provided the Sejm’s President with information regarding the immunities and privileges afforded to Mr Romanowski in accordance with Council of Europe (CoE) regulations. He stressed that “[a]ny national authority lodging a request to waive the immunity of a Parliamentary Assembly member in respect of their own national parliament must therefore also lodge a request with the Assembly”. A few hours later, a judicial decision granted Mr Romanowski’s release on the grounds of ambiguity concerning his international protection.

The Polish prosecutor lodged an appeal against this ruling. On 17 July, he provided the PACE with further details regarding the ongoing investigation. Nevertheless, he did not request the waiver of Mr Romanowski’s immunity, arguing that two legal opinions, drawn up by Prof. Andrzej Jackiewicz and Prof. Joanna Juchniewicz, asserted that Mr Romanowski was not protected by PACE immunity. PACE’s President reiterated his stance in a response dated 19 July. It has been reported that the Polish Minister of Justice disregarded this position, relying on the opinions of Prof. Andrzej Zoll and Prof. Marek Safjan, who have claimed that “there is an usurpation of competence by the Parliamentary Assembly of the Council of Europe, because the acts of which Mr. Romanowski is suspected have nothing to do with activities in the Council of Europe”.

This blogpost aims to ascertain whether the Polish authorities are required to request PACE for the waiver of Mr. Romanowski’s immunity. Firstly, it provides an overview of the relevant rules and the difficulties in interpreting them. Secondly, it argues that PACE is empowered to interpret these rules. The final three sections discuss the arguments put forward by the two experts consulted by the Polish prosecutor. The third section establishes that Article 15 of the CoE General Agreement on Privileges and Immunities is applicable in the case at hand. The fourth and fifth sections argue that the Polish authorities have to request PACE for the waiver of Mr. Romanowski’s immunity, even if he only benefits from national immunity.

1. Relevant texts and difficulties of interpretation

The issue at stake is complex for two principal reasons. 

Firstly,the applicable texts are old and somewhat unclear. According to Article 40 (a) of the 1949 Statute of the CoE,

This provision was further elaborated upon, notably in Article 15 of the 1949 General Agreement on Privileges and Immunities, which was ratified by Poland. This provision states that

Interpreting these provisions is a challenging task. Understandably, Article 40 of the CoE Statute does not provide a comprehensive overview of the immunities afforded to PACE’s members. Article 15 of the General Agreement represents a compromise between the negotiating States, which were not allowing the same privileges and immunities to their MPs (see here, §§ 5-10). It is therefore somewhat mysterious. There are discrepancies between the wording of the French and English versions, and the provision does not specify whether the immunity granted is of a personal or functional nature. Furthermore, except for the French members of the Assembly, it does not make much sense to protect PACE members from arrest on their national territory only for the limited duration of the Assembly’s sessions (part-sessions now), when they are supposed to be in Strasbourg.

Secondly, there is no consensus on the correct understanding of these texts. PACE has interpreted them with a view to ensuring effective protection of its members, and hence of its own independent functioning, while preventing abuse of immunity from generating impunity. However, Rule 73 of its Rules of Procedure (RoP) and the appended Guidelines remain partly problematic, as explained below. Moreover, there is a lack of relevant practiceas no petition for the waiver of parliamentary immunity was submitted to PACE in some cases (e.g. Belgium, § 70), and because the few requests made ended up going through other channels than a definitive decision by PACE. A request to waive Silvio Berlusconi’s immunity was sent to PACE by the Spanish Supreme Court in 2001, but he resigned from PACE before a decision could be reached (see here, § 64). In March 2005, PACE’s competent Committee issued a draft report on Raffaele Iannuzzi’s immunity, but he had already been reprieved by the Italian President in February 2005.

2. PACE is entitled to interpret the relevant texts

The Parties to a treaty are collectively empowered to interpret it with binding force. However, the CoE’s Member States proved unable to reach a consensual agreement on the meaning of the foregoing texts. As early as 1969, State representatives identified the necessity to update PACE’s immunity regime. In 2004, the majority of them considered that it was preferable to do so through an additional Protocol to the General Agreement rather than interpretation by the Committee of Ministers. Nevertheless, negotiations for a new Protocol were never launched due to discrepancies between Member States (see here, here and here).

In this context, it must be admitted that PACE is, by necessity, competent to interpret at least the provisions of the CoE Statute and the General Agreement relating to it. It is widely accepted that treaties of this kind, which are not synallagmatic in nature and contain institutional elements, must be applied, and hence interpreted, by the organs of the international organisation concerned. Similarly, the Committee of Ministers recognised that PACE had competence to amend its RoP in relation to the composition of national delegations, despite the fact that a revision of the relevant Article 25 of the CoE Statute was not achievable. Acceptance of PACE’s inherent power of interpretation is all the more important when considering the question of parliamentary immunities. Their aim is to preserve PACE members’ independence in the performance of their duties. Given that the Assembly is composed of representatives of the European peoples, it would be somewhat incongruous to leave the interpretation of provisions with such a purpose to the executive alone. Incidentally, the Group of States against Corruption (GRECO) (here, § 3), the Independent Investigation Body on the allegations of corruption within the Parliamentary Assembly (here, p. 147) and, to some extent, the European Court of Human Rights (here, § 41) have implicitly recognised that PACE is entitled to interpret the 1949 General Agreement.

3. Article 15 of the General Agreement is applicable in the Romanowski case

In light of the literal wording of Article 15 of the General Agreement, Prof. Andrzej Jackiewicz posited that the provision may not be applicable in the case at hand, because Mr. Romanowski was not arrested “during the sessions of the [Parliamentary] Assembly” nor while “travelling to [or] from the place of meeting of the [Parliamentary] Assembly”.

Yet PACE’s 2021 Guidelines state that “[t]he term ‘during the sessions’ covers the whole parliamentary year in view of the continuous activity of the Assembly and its bodies”. This leads to the opposite conclusion that Article 15 is applicable in the Romanowski case. This conclusion is consistent with Article 31 § 1 of the Vienna Convention on the Law of Treaties (VCLT), which permits an evolutionary approach whereby the meaning of a treaty provision is sought at the time of its interpretation. The meaning of the term ‘session’ has evolved over time. The initial annual one-month session was divided into four part-sessions. This practice is not contrary to Article 32 of the CoE Statute, according to which “[t]he Consultative Assembly shall meet in ordinary session once a year, the date and duration of which shall be determined by the Assembly”. Consequently, the Assembly can claim that its session covers the entire calendar year, and hence that Article 15 of the General Agreement is applicable throughout the year, including in the Romanowski case.

4. Marcin Romanowski is not protected by ‘European parliamentary immunity’

Both experts consulted by the Polish prosecutor emphasised that application of Article 15 is contingent upon a territorial criterion. Based on the provision’s literal wording, they concluded that the national regime of immunities is applicable because Romanowski’s prosecution and arrest occurred on his national territory.

However, PACE has introduced a functional criterion in addition to the territorial criterion set out in Article 15 § 1, stating that its members benefit from a European regime of functional immunity, supplementary to national immunity and providing a minimum level of protection for all the Assembly’s members, regardless of differences between national regimes. Prof. Jackiewicz regards this approach as excessive. Yet it seems possible to infer the concept of ‘European parliamentary immunity’ from the existing texts, interpreted in the light of their object and purpose. Two legal bases can be identified. Firstly, it could be deduced directly from Article 40 (a) of the CoE Statute, which is not based on any territorial criterion. It could be argued that the General Agreement does not exhaust the content of this provision since it has not been updated in line with the development of PACE’s functions after 1989. Secondly, European immunity could be deduced, not from Article 15 § 1 of the General Agreement, as the Assembly did, but rather from the French version of Article 15 § 2. In the English version, Paragraph 2 commences with the expression ‘this immunity,’ which refers to the first paragraph and indicates that the immunities mentioned in the two paragraphs are identical. However, the French version does not link the two paragraphs. Paragraph 2 begins with the word ‘l’immunité’, which does not necessarily refer to the immunity granted by Paragraph 1, but could be regarded as referring to a different immunity, of a purely European nature. 

Either way, ‘European parliamentary immunity’ does not apply in the Romanowski case. According to Rule 73.7.a of PACE’s RoP, Article 15 § 1 (a) of the General Agreement means that the “Assembly representatives or substitutes are immune from prosecution and arrest 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. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country”. Rule 73.7.b adds that the “[t]he terms ‘in the exercise of their functions’ include all official duties discharged by Assembly representatives and substitutes in the Member States on the basis of a decision by a competent Assembly body and with the consent of the appropriate national authorities”. As Marcin Romanowski was not prosecuted or arrested while discharging his European duties, the Polish regime of immunities should apply.

In accordance with the 2021 Guidelines, European immunity “could also cover proceedings initiated prior to becoming a member of the Assembly as long as those proceedings contain evidence of fumus persecutionis”. The wording is somewhat clumsy. The concept of ‘European parliamentary immunity’ is designed to protect PACE’s (substitute) members from politically motivated national proceedings that could prevent them from fulfilling their European functions. This aim could justify extension of the protection to acts committed before the commencement of the mandate as a PACE (substitute) member, but not to proceedings initiated prior to such a mandate. It is not logical to claim that such proceedings could have been initiated with the intention of hindering a PACE member’s future political activity, because the mandate as a member of PACE is hypothetical until PACE ratifies the credentials of the national delegation concerned. This could be a relevant consideration in the case at hand, since the proceedings against Mr. Romanowski are related to his actions predating his PACE mandate, but were initiated after the beginning of this mandate. Nevertheless, the Guidelines’ wording prevails and consequently, the national regime of immunities should once again apply.

5. PACE must be requested to waive Mr. Romanowski’s national immunity

In the Polish experts’ view, applicability of the national regime of immunities encompasses substantial and procedural aspects alike. Once it is established that the national regime is applicable, waiver of the immunity by the Sejm is sufficient, and hence no request need be submitted to the PACE.

Such a conclusion seems to ignore the second Paragraph of Article 15, which calls for a distinction between the substance and the procedure. Even if the national regime of immunities is applicable, there is a European procedure whereby PACE should be requested to waive national immunity. According to Article 15 § 2, national immunity “does not […] apply […] in cases where the Assembly has waived the immunity”. This necessarily implies that the waiver of national immunity at national level does not entail the waiver of the same immunity at European level. This is even more obvious in the French version of Article 15 § 2: « [l]’immunité […] ne peut non plus mettre obstacle au droit de l’Assemblée de lever l’immunité d’un représentant ou d’un suppléant ». Hence, PACE is vested with the authority to determine whether the immunity should be waived, irrespective of whether it is national or European. Accordingly, even if the Sejm has waived Mr. Romanowski’s national immunity, the Polish authorities are expected to request a waiver of the same immunity from PACE.

The request must be submitted by a ‘competent authority’, which “is normally the judge in charge of the case” (Guidelines). In the absence of a referral by the Polish First Instance Court to the Assembly, a request may still be submitted to it by the Court of Appeal, the public prosecutor, or the Minister of Justice. Subsequently, the PACE will verify whether national proceedings are based on political motives. If not, “the Assembly should normally propose waiving immunity” (Guidelines).

Conclusion

In 2016, the Committee of Ministers noted that “many political and legal issues are raised by the privileges and immunities of parliamentarians” as PACE members. From a legal point of view, the Polish regime of immunities should apply in the case at hand and PACE should nevertheless be requested to waive Mr. Romanowski’s immunity. This conclusion may give rise to political difficulties. As the Czech representative pointed out in 2004, it may be perceived as an unwarranted encroachment upon national sovereignty in that PACE might be seen as occupying a position superior to that of national parliaments. Such a stance would be highly sovereigntist and difficult to reconcile with the need for European cooperation. It would be preferable to adopt a constructive approach, so that the regime applicable to immunities is capable of avoiding abusive invocation of immunity for personal ends and unscrupulous lifting of immunity in order to target members of the national opposition.