Crackdown on “Populist” Opposition in Poland: PACE Intervenes to Defend MP’s Immunity

An interview with Jerzy Kwaśniewski about the recent arrest of Marcin Romanowski – a former secretary of state in Poland’s Ministry of Justice and currently an opposition MP – and about Romanowski’s release after the intervention of the President of the Parliamentary Assembly of the Council of Europe. According to the lawyer Jerzy Kwaśniewski, this arrest is part of a worrying drift by Donald Tusk’s government.

ECLJ: What is the broader context of the Romanowski case?

Jerzy Kwaśniewski: Polish MP Marcin Romanowski is a politician from former Justice Minister Zbigniew Ziobro’s Sovereign Poland party. A doctor in law, Romanowski was also under-secretary of state (2019–2023) and then secretary of state (2023) in Ziobro’s Ministry of Justice. After being reelected to the Sejm, Poland’s lower house of parliament, in last October’s parliamentary elections, he was appointed deputy representative of the Sejm in the Parliamentary Assembly of the Council of Europe (PACE) in January.

When he was working in the Ministry of Justice, Romanowski was responsible for managing the so-called “Justice Fund”, which until 2017 was called the “Fund for aid to victims and post-penitentiary assistance.” A law passed by parliament in 2017 extended its scope to include tasks such as “counteracting the causes of crime”, “undertaking educational and informational projects”, “promoting the system for providing assistance to victims”, and “disseminating knowledge of victims’ rights”, among others. The range of the Justice Fund’s potential beneficiaries was also expanded from associations and foundations in order to encompass government and public sector entities as well. This was related to the fact that the sums recovered from condemned criminals, which contribute towards this fund, had greatly risen over time.

When these changes were passed into law in the Sejm in 2017, the parties now in the ruling coalition, which were then in opposition, chose not to participate in the vote. Since then, however, they have accused the ruling coalition of that time, which was the United Right coalition led by Law and Justice (PiS) – and of which Ziobro and Romanowski’s Sovereign Poland was a member – of using the Justice Fund’s money for their own political purposes, i.e. to foster support for Sovereign Poland.

Bringing to account those responsible for alleged abuses in the use of the Justice Fund was one of Donald Tusk’s key electoral promises.

When was the decision to arrest Marcin Romanowski taken, and who was behind it?

A month and a half after Tusk took office as Poland’s prime minister – i.e., at the end of January – the Justice Ministry, now led by Adam Bodnar, announced the creation of a special team of prosecutors who had been appointed by the National Prosecutor’s office, designated Investigation Team No. 2, to examine the Justice Fund’s past use. From the beginning, opposition MP and former Secretary of State Marcin Romanowski was an important target of this prosecution team.

On June 19, Justice Minister Adam Bodnar, who is also Poland’s General Prosecutor, formally asked the Sejm to lift Romanowski’s parliamentary immunity in order to allow his arrest on 11 charges. As one can read in the Justice Ministry’s communique:

“Investigation Team No. 2, which was established within the National Prosecutor’s Office, is conducting proceedings (…) to determine whether powers were exceeded and there was a failure to comply with duties by public officials who were acting for reasons of financial and personal gain, specifically the Minister of Justice and officials of the Ministry of Justice, who were responsible for the management, distribution, and settlement of monies from (…) the Justice Fund. They provided financial support in a discretionary and arbitrary manner to beneficiaries of programs which have no connection with the objectives of the aforementioned Fund, by which they acted to the detriment of the public interest (…).”

On Friday, July 12, the Polish Sejm lifted Romanowski’s immunity thanks to the votes of the ruling coalition’s MPs. On the same day, MP Marcin Romanowski presented himself to the National Prosecutor’s Office, accompanied by his attorney, Bartosz Lewandowski (who also works with the Ordo Iuris Institute for Legal Culture), to put himself at the prosecutors’ disposal and assure them he would show up at any time if summoned to answer questions.

On the morning of Monday, July 15, Lewandowski called the National Prosecutor’s Office to ask if and when they wanted to interrogate his client, who was ready to answer their questions about his administration of the Justice Fund despite his PACE parliamentary immunity. Lewandowski said that he was then told that it was too early, as the documents from the Sejm had not yet been received, and that they would contact him when they arrived.

Just a few hours later, however, Poland’s National Prosecutor’s Office organized the spectacular arrest of opposition MP Marcin Romanowski in the presence of television cameras. Romanowski was first stripped naked and then searched in his home, after which he was exhibited in handcuffs while being taken to be booked by officers from the national security agency (ABW), who were wearing balaclavas and were accompanied by uniformed police reinforcements.

Lewandowski then publicly announced the fact that his client was still protected by immunity as a member of the Parliamentary Assembly of the Council of Europe (PACE), which he said he was certain the prosecutors should be aware of.

How did the President of the Parliamentary Assembly of the Council of Europe intervene in this case?

On July 16, the day after Romanowski’s arrest, PACE Chairman Theodoros Rousopoulos wrote a letter to Sejm Speaker Szymon Hołownia, asking him to urgently draw the attention of Polish prosecutors to the fact that PACE member Marcin Romanowski enjoys immunity and that they should suspend their judicial proceedings for as long as his parliamentary immunity has not been lifted by the Parliamentary Assembly of the Council of Europe.

Rousopoulos likewise sent a declaration to Romanowski’s attorney to confirm that the latter benefits from parliamentary immunity. In fact, as the Polish media informed the public the following day, the Council of Europe’s institutions had already informed the Polish authorities of Romanowski’s immunity in June.

It was only late in the evening on July 16 that a Warsaw district court ordered Romanowski’s immediate release due to his PACE immunity. In answering a letter from Dariusz Korneluk, who was appointed to the post of National Prosecutor in March after the incumbent National Prosecutor had been dismissed by Justice Minister Adam Bodnar – without President Duda’s approval normally required by Polish law – PACE Chairman Theodoros Rousopoulos wrote on July 19:

“I take this opportunity to stress that immunity is not a privilege conferred upon a person but rather aims at guaranteeing respect for democratic institutions. No one can invoke it to commit a crime, but no one can ignore it, either. As regards any further examination of the possible waiving of immunity conferred upon Mr. Romanowski, this must be carried out by the competent bodies of the Assembly, in accordance with our Rules of Procedure. Indeed, the immunity conferred upon a member of the Assembly under Article 15 of the General Agreement on Privileges and Immunities of the Council of Europe of 1949 (ETS N° 2) applies unless ‘the Assembly has waived the immunity’, and, for its waiver, a separate formal request should be lodged by a competent national authority.”

Polish Prime Minister Donald Tusk seems to have been of a different opinion, however – at least if we are to believe the message he posted on Twitter/X on July 17:

“Scenes as if from a gangster movie. The suspect is released from custody thanks to legal tricks, using questionable immunity. An avalanche of criticism falls on law enforcement officers, and the audience is disappointed. There are indeed such moments in the fight against crime. But the 11 charges, including participation in an organized criminal group, persist. This is not the end of the movie. The rule of law has many advantages, except for one: it is not simple and, just as in gangster films, bad guys can also take advantage of it. But only for a short time. The prosecutor’s office did a good job in collecting reliable evidence. So: what has been delayed will not be escaped from.”

What do you think of Prime Minister Donald Tusk’s reaction?

There were many other messages from members of the governing coalition which showed this case’s highly politicized nature, questioned Romanowski’s right to parliamentary immunity, and grossly ignored the principle of the presumption of innocence, just as in the prime minister’s tweet. Other tweets from leading politicians of the ruling coalition called for a ban on Law and Justice altogether, which some in the ruling Left-Liberal coalition believe should be considered.

It is also worth noting that in order to justify Romanowski’s arrest by supposedly independent prosecutors, Bodnar’s Ministry of Justice had ordered and paid for two “independent” legal opinions questioning the validity of Romanowski’s PACE immunity. This modus operandi is not new for Poland’s current ruling coalition. Justice Minister Adam Bodnar based his decision to dismiss the previous National Prosecutor without President Duda’s approval on legal opinions, according to which his predecessor had been appointed in breach of the law. Those legal opinions had been ordered and paid for by the Justice Ministry as well.

Furthermore, the Polish prosecutor’s office has taken a stance against the clear position of the PACE president by appealing the Council of Europe’s interpretation of the scope of immunities that benefit PACE members. It can be pointed out that the only country that had rejected this interpretation up to now was Russia in the Nadiya Savchenko case.

But this is still a slight improvement over the way Donald Tusk’s government unlawfully and forcefully took over Poland’s public media just ten days after it took office in December, when Bodnar famously said after the fact that the government was then “looking for some legal basis” for its actions.

Doesn’t the Polish public prosecutor’s office act independently now that Poland has a new government?

Korneluk’s highly questionable appointment as National Prosecutor was followed by a wave of dismissals, transfers, and appointments in prosecutors’ offices throughout the country, which, notwithstanding the fact that the legality of these prosecutors’ actions can be questioned in the future (and already has been by some courts) due to their lack of top-down legitimacy, means that Poland’s prosecution system is now largely in the hands of the ruling coalition’s people.

Among the appointments made by Korneluk are those prosecutors who make up Investigation Team No. 2 at the National Prosecutor’s Office, which is, as I’ve already mentioned, the team in charge of investigating the Justice Fund case. Most, if not all, of the members of this team have personal reasons to seek revenge against former Justice Minister Zbigniew Ziobro and the likes of Marcin Romanowski, as they were punished by decisions which were made by them under the governments of their United Right coalition. This is the case, for example, with Marzena Kowalska, who was appointed by Korneluk as head of Investigation Team No. 2. Kowalska was demoted by Ziobro in 2016 from a leading role in the National Prosecutor’s office to a basic prosecutor’s position. As such, she should not have been appointed to this particular case.

What are the charges against Marcin Romanowski?

The charges brought forward by Investigation Team No. 2 in themselves raise serious questions. They seem to have been formulated more for their impact in the media than to win the case in court. For example, one of the 11 charges the prosecutors and politicians are boasting about in the Polish media is based on the idea that Ziobro’s Justice Ministry was an organized criminal group. Another claims that Marcin Romanowski supposedly enjoyed personal benefits from his decisions, whereas those benefits consisted of the satisfaction he supposedly felt in supporting organizations which are in line with his ideas. It should be stressed that Romanowski is not being accused of having embezzled money from the Justice Fund for his personal enrichment, and that Polish law gives the Justice Ministry broad discretionary powers over the allocation of these funds.

In addition to the accusations I’ve just described, the charges brought by the prosecutors relate to abuse of power, Romanowski’s failure to fulfill his obligations and misrepresentations he is alleged to have made in Ministry of Justice documents, by which he is said to have caused significant damage to the state budget. He is also accused of failing to comply with certain formalities. For example, the prosecutors reproach Romanowski for having continued to exercise his powers to manage the Justice Fund when he was promoted from Under-Secretary of State to Secretary of State, without the power of attorney granted to him by the Minister of Justice in his capacity as Under-Secretary of State being reissued with the name of his new position. This is how he exceeded his functions according to the prosecutors, who have shown great creativity in multiplying the charges.

Is Romanowski’s arrest a one-off case?

No, unfortunately. One Catholic priest and two civil servants have been detained for months at the request of Investigation Team No. 2. The priest in question, Father Olszewski, had obtained a subsidy from the Justice Fund for his organization Profeto, to build a center for victims of violence. Bodnar’s prosecutors have reproached Fr. Olszewski for having submitted Profeto’s application for that subsidy while Profeto supposedly did not fulfil the necessary conditions, and in particular did not have the necessary experience in the project’s field. When Fr. Olszewski was arrested in March, false information was leaked to the media claiming that he had been in the company of a woman, allegedly his mistress, at the time of his arrest. This was only the first in a series of humiliating treatments Fr. Olszewski received, which many Poles would say remind them of the country’s communist past.

It also seems that the two female civil servants who were detained at the same time allegedly received similar treatment, according to testimonies from their friends and relatives. It appears as if the goal of the prosecutors has been to “break” them and force them to level charges against those above them.

Meanwhile, the vice-president of the district court which ordered MP Romanowski’s immediate release has just resigned due to – in his own words – “political pressure.” At the same time, the justice minister has dismissed over a dozen presidents and vice-presidents of the Warsaw courts in July alone, and this was done by following questionable procedures. Indeed, when met with opposition from the panel of judges in those courts, instead of turning to the National Council of the Judiciary (KRS) as required by Polish law in such cases, Justice Minister Bodnar suspended the judges in such a way that he modified the composition of the said panels of judges in a manner which was favorable to obtain the dismissals, and then repeated the dismissal procedures, which is illegal.

As for the question of parliamentary immunity, Romanowski’s arrest was not the first time Prime Minister Donald Tusk’s ruling coalition acted in breach of parliamentary immunity despite all their talk about the rule of law when they were in opposition. In March, just before Easter, Korneluk’s Investigation Team No. 2 ordered the search of the private homes of former Justice Minister and current MP Zbigniew Ziobro and of former Justice Vice-Minister and current MP Michał Woś, as well as the latter’s room in the Sejm’s hotel. Ziobro’s home was raided by police in his absence, as he was undergoing cancer treatment in a hospital in Berlin, and in the absence of a representative of the homeowner, which  also does not conform to Polish law. It was searched for some 24 hours, with extensive accompanying media coverage.

In January, two Law and Justice MPs, Mariusz Kamiński (the former minister of the interior) and Maciej Wąsik (a former secretary of state in the Interior Ministry), were arrested without their parliamentary immunity being lifted, based on a decision by Sejm Speaker Szymon Hołownia to terminate their mandates following their condemnation by a criminal court in a case in which they had previously benefited from a presidential pardon. The arrest was carried out despite the Supreme Court having invalidated Hołownia’s decision, and President Duda had to pardon the two men a second time in the same case in order to have them freed. A side effect of that legal conflict was that Duda was referring all laws passed by parliament in the absence of the two MPs to the Polish Constitutional Tribunal, as Hołownia and his ruling coalition partners were still acting as if Kamiński and Wąsik were no longer MPs, and would not allow them entrance to the Sejm. Fortunately enough, both men were elected to the European Parliament on June 9, and this has now resolved this particular legal conflict.

In another spectacular action which was carried out on July 3, Bodnar’s prosecutors, accompanied by the police, launched an unannounced raid on the premises of the Polish National Judicial Council, the KRS, and forcibly removed files concerning disciplinary proceedings in the absence of the disciplinary judges who were in possession of those files. Similarly, the president of the Warsaw Court of Appeal, who was dismissed in February by the minister of justice without the legally required green light from his court’s panel of judges, as well as two of his former deputies at the Court of Appeal, had their KRS offices searched by the police on July 3, in violation of their immunity as judges.

However, a Warsaw-Mokotów District Court judge quickly ordered Marcin Romanowski’s release. Doesn’t this demonstrate that justice in Poland still functions independently of the executive?

Certainly, but concerns remain as to how the Polish justice system will examine the appeal against this decision lodged by the public prosecutor’s office with the Warsaw Regional Court.

Initially, the public prosecutor’s office requested a change in the judge drawn to examine the appeal. The reason given was that the said judge had been promoted from a district court to the Warsaw Regional Court on the recommendation of the National Judicial Council (KRS) following the latter’s reform, which has been contested from the outset by the current ruling coalition and part of the judiciary. On August 7, however, the Warsaw Regional Court rejected the prosecutor’s request, as it rightly considered it to be totally unfounded.

The same court decided, however, that the case was of such importance that it required a court of three judges, not just one, to rule on MP Romanowski’s immunity. Two other judges were then chosen by lot. But one of these two judges had worked in the Ministry of Justice under the previous coalition government, and therefore asked for the case to be taken away from her and assigned to another. However, the third judge, who had been asked to sign the exclusion of this judge from the case, at the same time signed, on August 12, an order excluding the first judge, i.e. the one previously challenged by the public prosecutor’s office. He had no right to do so!

Yet this third judge is known for his political opinions, which he openly displays on social networks even though his position forbids him from doing so, as a judge in Poland is not allowed to publicly display his political convictions. And this third judge’s political stance is openly favorable to the current coalition and violently hostile to the previous coalition of which Marcin Romanowski was a member. This should normally lead him to ask to be relieved of this case too, since his impartiality can reasonably be questioned in this particular case.

The problem is that the presidency of this court has been appointed by the current Minister of Justice, Adam Bodnar, and Romanowski’s defense therefore fears that this activist judge’s decision will eventually be accepted by the Regional Court, and that the drawing of judges to examine Romanowski’s immunity as a PACE member on appeal will now be repeated until the “right” judges are found to achieve the result desired by the executive! Apart from the problem this poses in this particular case, it would set a dangerous precedent and render meaningless the system of drawing lots for judges assigned to each case, which had been put in place as part of the justice reforms introduced by the previous parliamentary majority.

Despite all the criticism previously heard under the governments of the United Right coalition during the years 2015–2023, all the events described above are unprecedented in democratic Poland. Further, all of this is being done under the guise of “restoring the rule of law” – i.e. according to the doctrine of transitional justice – which was, up to now, only applied in countries which were transitioning to democracy after years under dictatorial rule. This should worry us all, as the same doctrine could be applied in the future in other supposedly democratic countries to fight so-called “right-wing populists”, a label that is often attached to conservatives and sovereigntists in today’s European Union.

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Jerzy Kwaśniewski is a Polish attorney as well as the President of the Board and co-founder of Poland’s Ordo Iuris Institute for Legal Culture (Instytut Ordo Iuris na rzecz Kultury Prawnej).