OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland followed (i.e., getting approval from the Sejm in accordance with Article 211 of the Constitution) in the case of criminal proceedings. This constitutes an additional procedural safeguard (sometimes referred to as ‘procedural immunity’) to protect the independence of NHRIs, as it prevents potentially abusive prosecution, or similar procedures based on frivolous, vexatious or manifestly ill-founded complaints, as well as criminal charges that would be covered by the functional immunity, to proceed further (see also Section 4.2 infra). This also means that immunity should be lifted for offences conducted outside the scope of the Commissioner’s authority.35 32. Such an inclusion would also be in line with Article 35 of the OPCAT on immunities of NPM members, which is interpreted as covering immunity of OPCAT bodies from personal arrest and detention, as well as from legal actions in respect of words spoken or written, or acts performed, in the course of their NPM duties.36 3. 33. Scope of Immunity As regards the functional immunity of the Commissioner (and of his or her staff) in general, it is necessary to first consider the substantive aspects relating to the material, personal and temporal scope of the functional immunity (see Sub-Sections 3.1, 3.2 and 3.3 infra), which should provide the legal grounds to pronounce the inadmissibility of a complaint against the Commissioner. Second, it is necessary to review the procedural safeguards which exist to protect such a functional immunity (i.e., the procedure for seeking consent of the Sejm, see Section 4 infra)) to ensure that they are necessary and proportionate (see par 18 supra). These issues are addressed separately in the following sub-sections. 3.1. Material Scope of the Functional Immunity 34. As far as the material scope of such functional immunity is concerned, ICC General Observation 2.3 recommends that “provisions be included in national law to protect legal liability of members of the National Human Rights Institution’s decision-making body for the actions and decisions that are undertaken in good faith in their official capacity”. As mentioned in par 29 supra, this constitutes an essential guarantee of NHRI’s independence.37 NHRIs need to be able to engage in the proper exercise of their functions without fear of reprisals through criminal proceedings or civil action by individuals or state authorities.38 35. Acts performed in an official capacity are those related to the mandate and functions of the NHRI, that are sanctioned or authorised by the NHRI and/or which the NHRI 35 36 37 38 See page 250 of the UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (December 2010), available at http://www.ohchr.org/Documents/Countries/NHRI/1950-UNDP-UHCHR-Toolkit-LR.pdf. See e.g., page 125 of the Association for the Prevention of Torture (APT) and Inter-American Institute for Human Rights (IIHR) Joint Implementation Manual on the Optional Protocol to the UN Convention against Torture (revised edition, 2010), available at http://www.apt.ch/content/files_res/opcat-manual-english-revised2010.pdf. See also page 43 of the Association for the Prevention of Torture (APT)’s Guide on Establishment and Designation of National Preventive Mechanisms (2006), available at http://www.apt.ch/content/files_res/NPM.Guide.pdf. Op. cit. footnote 5, par 1 of the Justification to General Observation 2.3 (ICC General Observations). See e.g., regarding 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#{"itemid":["001-65779"]}, holding that the immunity (‘privilège de juridiction’) pursues the legitimate aim of ensuring that judges are protected against undue lawsuits and enable them to exercise their judicial function peacefully and independently. 12