OSCE/ODIHR Opinion on the Draft Act on the Independent National Human Rights Institution of Iceland engage in critical analysis and commentary on human rights issues. 76 This is essential to ensure that an NHRIs’ independence is not compromised through fear of criminal proceedings or civil action by an allegedly aggrieved individual or entity, including public authorities.77 On several occasions, the Sub-Committee on Accreditation has recommended that the relevant legislation be supplemented to include express provisions that clearly establish the functional immunity of an NHRI’s decision-making body.78 Although not expressly required by the Paris Principles, it is generally considered positive to extend the functional immunity to NHRI staff.79 63. As it stands, the Draft Act does not contain any provisions aiming to protect the functional immunity of the members of the Board of Directors or of the NHRI’s staff. 64. In the underlying legislation, the scope of functional immunity should generally be drafted in a broad manner to protect the NHRI’s decision-making body and staff from civil, administrative and criminal liability for words spoken or written, decisions made, or acts performed in good faith in their official capacity.80 It is recommended to introduce such wording in the Draft Act. The provision should specify that such functional immunity should apply even after the end of the Board members’ mandate or after the staff cease their employment with the NHRI.81 65. An additional safeguard to protect functional immunity is also to guarantee the inviolability of the NHRI’s premises, property, means of communication and all documents, including internal notes and correspondence,82 as well as of baggage, correspondence and means of communication belonging to the Board members and professional staff.83 It is recommended to supplement the Draft Act accordingly. 66. Overall, there needs to be a proper balance between immunity as a means to protect an NHRI against pressure and abuse from state powers or individuals (including, in particular abusive prosecution, false, frivolous, vexatious or manifestly ill-founded complaints, or harassment) and the general concept that nobody, including an NHRI decision-making body, should be above the law.84 This concept derives from the principle of equality before 76 77 78 79 80 81 82 83 84 See justification to General Observation 2.3. See e.g., regarding the similar case of the immunity of judges, the case of Ernst v. Belgium, ECtHR Judgment of 15 October 2003 (Application No. 33400/96, only in French), par 85, available at http://hudoc.echr.coe.int/eng#{"fulltext":["33400/96"],"languageisocode":["FRE"],"documentcollectionid2":["GRANDCHAMBER","C HAMBER"],"itemid":["001-65779"]}, holding that immunity (‘privilège de juridiction’) pursues the legitimate aim of ensuring that judges are protected against undue lawsuits and enabling them to exercise their judicial function peacefully and independently. See e.g., op. cit. footnote 29, page 37 (SCA Report and Recommendations of May 2016). See e.g., OSCE/ODIHR, Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland, 16 February 2016, Sub-Section 3.2 on the Personal and Temporal Scope of the Functional Immunity, available at http://www.legislationline.org/documents/id/19896; and Venice Commission, Opinion on draft amendments to Article 23(5) of the law on the Human Rights Defender of Armenia, adopted by the Venice Commission at its 76th Plenary Session (Venice, 17-18 October 2008), CDL-AD(2008)028, pars 7-8, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2008)028-e. General Observation 2.3 refers to the protection from legal liability for “actions and decisions that are undertaken in good faith in their official capacity”. See also Venice Commission, Opinion on Amendments to the Law on the Human Rights Defender of Armenia, CDLAD(2006)038, adopted by the Venice Commission at its 69th Plenary Session (Venice, 15-16 December 2006), pars 74 and 76, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2006)038-e; and op. cit. footnote 8, par 7.5 (PACE Recommendation 1615(2003)). See op. cit. footnote 35, par 69 (2015 Venice Commission Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina); and OSCE/ODIHR-Venice Commission, Joint Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro, adopted by the Venice Commission at its 88th Plenary Session (Venice, 14-15 October 2011), par 23, available at http://www.legislationline.org/documents/id/16665. See op. cit. footnote 53, par 52 (2013 OSCE/ODIHR-Venice Commission Joint Opinion on the Law relating to the Higher Committee for Human Rights and Fundamental Freedoms of Tunisia). See e.g., op. cit. footnote 81, par 23 (2011 OSCE/ODIHR-Venice Commission Joint Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro). General Observation 2.3 which states that “[i]t is acknowledged that no office holder should be beyond the reach of the law and thus, in certain exceptional circumstances it may be necessary to lift immunity”. 20