OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland ensuring data protection.28 Hence, the international rules applicable to these bodies or persons, if they so exist, vary greatly, but do in some instances state the necessity of preserving the independence of independent oversight bodies. 26. As noted by GRECO,29 it is acknowledged that the immunities granted by the Polish Constitution to some persons representing the highest political and judicial functions of the State30 aim at guaranteeing “the proper functioning of the organs” for which those persons exercise their functions. The Commissioner’s immunity is indeed essential to the effective fulfilment of his or her mandate, without fear of harassment or undue charges from the executive, the courts or political opponents, and protects the independence of the institution itself (not the individual) (see also comments on functional immunity in Section 2 infra). 27. In this context, it is important to inquire whether the lifting the Commissioner’s immunity in the context of criminal proceedings may potentially trigger his/her removal from office. Article 7 par 1 of the Act on the Commissioner for Human Rights enumerates the three grounds that may be invoked to seek removal, i.e., when the Commissioner “1) renounced performing the duties; 2) became permanently incapable to perform obligations as a result of illness, disability or lower strength – observed with a medical certificate; 3) made an untrue lustration statement, observed with a final and binding court decision”. However, Article 7 par 2 also provides the possibility of removal where the Commissioner “defected from the oath made”. Read together with Article 4 of the Act where the oath is mentioned, this may provide a ground for removal in cases where his or her acts are not considered to be in accordance with “the Law and the principles of community life and social justice”. 28. While not directly affected by the Draft Act, OSCE/ODIHR feels that it is important to examine whether the ground mentioned in Article 7 par 2 is compliant with international standards. Indeed, the ICC General Observation 2.1 states that “[t]he grounds for dismissal must be clearly defined and appropriately confined to only those actions which impact adversely on the capacity of the member to fulfil their mandate”. The main purpose of an oath is in general to commit to the highest standards of ethics, professional conduct and personal behaviour, which are, given their very nature, often 28 29 30 Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows, CETS No. 181, which entered into force in Poland on 1 November 2005, available at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680080626. Its Article 1 par 3 states that “[t]he supervisory authorities shall exercise their functions in complete independence”. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Official Journal L 281 , 23/11/1995 P. 0031 – 0050, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML. Its Article 28 par 1 specifies that the Supervisory Authorities shall act with complete independence in exercising the functions entrusted to them. See also Section 5.2 (pages 114-118) of the EU Fundamental Rights Agency (FRA) Handbook on European Data Protection Law (2014), available at http://fra.europa.eu/sites/default/files/fra-2014handbook-data-protection-law-2nd-ed_en.pdf. See par 67 of the Compliance Report on Poland of GRECO First Evaluation Round, 2 July 2004, available at https://www.coe.int/t/dghl/monitoring/greco/evaluations/round1/GrecoRC1(2004)5_Poland_EN.pdf. i.e., Deputies (Article 105 of the Constitution), Judges (Article 181 of the Constitution), Judges of the Constitutional Tribunal (Article 196 of the Constitution), Members of the Tribunal of State (Article 200), the President of the Supreme Chamber of Control (Article 206) and Commissioner for Human Rights (Article 211). In addition, the President of the Republic, the Prime Minister and members of the Council of Ministers, the President of the National Bank of Poland, the President of the Supreme Chamber of Control, members of the National Council of Radio Broadcasting and Television, persons to whom the Prime Minister has granted powers of management over a ministry, and the Commander-in-Chief of the Armed Forces are accountable before the Tribunal of State for “violations of the Constitution or of a statute committed by them within their office or within its scope” (Article 198). The President is also held accountable before the Tribunal of State for the commission of any other offence (Article 145) and the members of the Council of Ministers for “the commission of an offence connected with the duties of his office” (Article 156). 10