Rule of Law Recovery: Between Immunity and Impunity

—Adam Bodnar, Professor of Law at SWPS University in Warsaw

[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists and all our columnists from previous years, see here.]

Since December 2023, Poland has been undergoing a process of rule of law recovery. This process involves not only institutional rebuilding but also accountability for past abuses of power. The change in government, being the result of the historical parliamentary elections of 15 October 2023, was effected through a peaceful transition of power. Despite political obstacles, the new ruling majority succeeded in forming a government led by Prime Minister Donald Tusk.

Accountability has become a central issue in Polish politics. During the illiberal period of 2015-2023 Law and Justice (Prawo i Sprawiedliwość) rule, numerous abuses occurred, including using public funds for purely partisan purposes or to support politically aligned NGOs, as well deploying the Pegasus spyware for political ends. Contemporary accountability efforts for acts committed during that illiberal period are conducted primarily through the prosecution service, though other mechanisms are also used, such as the Tribunal of State (Trybunał Stanu) – a central organ responsible for constitutional accountability, and parliamentary investigative committees. Accountability meets a lot of obstacles. But because it is conducted in accordance with rule of law and fair trial principles, not in a revolutionary way, it requires compliance with a number of Article 6 ECHR formal requirements, such as a right to fair trial or right to defend oneself. One of them is immunity protection for persons holding elected offices.[1]

These accountability processes mainly concern politicians from the former government and former ruling majority. Many of them currently sit in the Polish Sejm (lower chamber of Parliament) or the European Parliament. Compared with any previous parliamentary term, there has been a record number of motions to lift parliamentary immunity to the current Polish Sejm of 10^th term. Prosecution service submitted more than 10 such motions. In addition, 5 motions were submitted to the European Parliament. Under the Polish Constitution, criminal charges cannot be brought against a Member of Parliament unless their functional immunity is lifted. Similar protections apply to holders of certain high offices, including the First President of the Supreme Court, the President of the Constitutional Court, the Ombudsman, and the President of the Supreme Audit Chamber.[2]

Over the past two years, public debate has increasingly focused on the role, nature, and procedures related to dealing with the past abuses of power, including the procedure to lift immunity. This debate has also had an educational dimension, as Poland previously had limited experience with such proceedings. Many stakeholders—including those sitting in relevant parliamentary committees or prosecutors—are encountering these procedures for the first time.

A particularly sensitive issue is the relationship between immunity proceedings and the presumption of innocence. While any suspect must be considered innocent until proven guilty, the process of lifting immunity is inherently political. It requires parliamentary debate and a majority vote. This creates a delicate balance in public discourse, as political statements about suspects may undermine the presumption of innocence. Such statements can later be used by defense lawyers to argue that proceedings were politically motivated.

One of the first major challenges concerned the immunity of a former Deputy Minister of Justice, Marcin Romanowski. He was suspected of abuses related to the Justice Fund, which had been originally intended to support victims of crime but was allegedly used by the previous government to finance, in a fraudulent manner, partisan initiatives and NGOs. Romanowski was both a member of the Polish Sejm and the Parliamentary Assembly of the Council of Europe (PACE). While his domestic immunity was lifted (including consent for detention and arrest), his PACE immunity was not. Polish prosecutors did not submit the motion to the PACE in order to lift his immunity, as the case was unrelated to any activities of Romanowski in the PACE. However, the PACE took a different view, claiming the formal nature of immunity protection, and requested release of M. Romanowski. As a result, Romanowski – after the arrest and initial one-day detention, had to be released due to the strong statement of the PACE President (and subsequent decision of the domestic court). Upon such a stance, formal proceedings before PACE were initiated, which resulted in a vote agreeing to lift his immunity. Despite completion of the legal protocol and obtaining the court’s decision on pre-trial detention, ultimately, M. Romanowski could not be detained. He fled to Hungary, and obtained political asylum there. The case highlighted limited experience within PACE regarding immunity protection and led to the development of clearer rules for the future.

Timing presents another major challenge. Accountability requires swift action, yet parliamentary procedures demand careful analysis and deliberation. This tension is particularly visible in cases involving Members of the European Parliament (MEPs), where immunity reviews typically take at least six months. Such delays can frustrate public expectations, especially given limited public understanding of how the EU institutions operate. The situation is further complicated by differing national and European Parliament procedures. While the Polish Parliament generally conducts committee work transparently, the European Parliament’s Committee on Legal Affairs (JURI) operates in a semi-confidential way. Final reports are available, but the whole discussion inside the JURI Committee is hidden from public scrutiny and attention.

An additional complication arises from the fact that Polish Sejm must issue separate consents: one to bring charges and another to allow detention or arrest. In cases involving alleged financial crimes, the latter is especially controversial. These are rarely situations of flagrante delicto requiring immediate action. Instead, evidence is examined over time by parliamentary committees and debated publicly. This delay gives suspects opportunities to influence witnesses, interfere with evidence, or flee the country. Parliament and the courts therefore face a difficult question: what is the purpose of arrest if most facts and evidence are already known? Addressing this dilemma requires trust that state institutions are acting to establish the truth rather than pursue political revenge.

A further challenge emerged in a case involving classified information. One politician (Antoni Macierewicz) for many years led a controversial committee aimed at investigating the crash of the presidential airplane in Smolensk. For the purpose of his work, he had access to “top secret” information. He used some of “top secret” material in his publicly available denouncements and reports. Prosecutors thus wanted to present charges for violation of rules on classified information. They submitted the relevant motion to the Polish Sejm. However, it appeared that Polish MPs by virtue of their mandate have access only to “secret” (which is a lower level of protection than “top secret”) information. Therefore, they cannot review the motion to lift immunity, which refers and includes “top secret” information. Vetting all MPs to grant the highest clearance was impractical. As a result, prosecutors had to find a way to present credible evidence at the “secret” confidentiality level. This example shows how administrative regulations can obstruct accountability. In the past, no one anticipated that MPs would one day face such a case, or that specific procedures for handling “top secret” information in the context of immunity would be necessary.

The most significant recent case concerns former Minister of Justice and Prosecutor General Zbigniew Ziobro. He is suspected of committing 26 crimes related to misuse of the previously mentioned Justice Fund, including steering the “organized criminal group”. The Polish Sejm consented both to lifting his immunity and to his detention and arrest, enabling the court to consider pre-trial detention. However, before the court could act, Ziobro too escaped Poland for Hungary.

This move followed the example of Marcin Romanowski, who had previously fled to Hungary and was granted political asylum. Ziobro did the same. In response, the Hungarian government passed a new legislation on 22 December 2025 preventing the surrender, under a European Arrest Warrant, of anyone granted political asylum. This law effectively shields such individuals from surrender to other EU Member States.[3]

This situation goes beyond Polish–Hungarian relations. It threatens one of the core instruments of European judicial cooperation. If governments of EU Member States selectively refuse to apply the European Arrest Warrant for arbitrary political reasons, the system risks collapse. Although the European Commission is likely to initiate legal action against Hungary for violating EU law on this matter, timing is critical. Political benefits accrue immediately to the Hungarian government, while legal consequences may take years. Moreover, if more illiberal regimes emerge within the EU, they may become safe havens for individuals evading justice. Loyalty between Member States risks being replaced by narrow political interest, echoing elements of Trump-style politics.

These examples illustrate why accountability processes can be far more complex than imagined when different immunity regimes are involved. They also offer important lessons from Poland’s experience of rule of law backsliding and recovery. Parliamentary immunities play a vital protective role, but their effectiveness depends not only on their legal existence but also on their practical operation. When immunities are abused to avoid accountability, public trust in democracy is inevitably weakened. Immunity, when allowed to harden into impunity, undermines public confidence by transforming a democratic safeguard into a symbol of unequal accountability.

Suggested citation: Adam Bodnar, Rule of Law Recovery: Between Immunity and Impunity, Int’l J. Const. L. Blog, Feb. 4, 2026, at: http://www.iconnectblog.com/rule-of-law-recovery-between-immunity-and-impunity/

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[1] Issue of immunity protection is subject of interest of the Venice Commission, Report on the scope and lifting of parliamentary immunities adopted by the Venice Commission at its 98th plenary session (Venice, 21-22 March 2014), CDL-AD(2014)011, https://www.coe.int/en/web/venice-commission/-/cdl-ad-2014-011-e

[2] There are also charges presented to politicians and former high-level officers, who are not in the Parliament. In such a case, the immunity protection does not apply. There are cases pending or finished against former Chief Police Officer, former MEPs, former Minister of Health or heads of special state agencies (such as e.g. State Agency for State Reserves or the National Agency for Research and Innovation).

[3] See on this Petra Bárd: Ziobro’s Asylum in Hungary: Accountability, Mutual Trust, and Autocratic Legalism, VerfBlog, 2026/1/20, https://verfassungsblog.de/ziobros-asylum-in-hungary/, DOI: 10.17176/20260120-172246-0.