OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland 13. The ensuing recommendations are also based on the General Observations issued by the Sub-Committee on Accreditation (hereinafter “the SCA”) and adopted by the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (hereinafter “the ICC”),4 which serve as interpretive tools of the Paris Principles.5 According to the SCA, which is also in charge of reviewing and accrediting national human rights institutions in compliance with the Paris Principles, the Commissioner for Human Rights of Poland (hereinafter “the Commissioner”) is accredited with A status, which means that it is considered to be fully compliant with the Paris Principles.6 14. While the Paris Principles do not specifically address the issue of immunity of NHRIs, the guarantee of functional immunity is dealt with explicitly in ICC General Observation 2.3. This General Observation strongly 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”.7 It further highlights the importance of functional immunity in order to “reinforce the independence of a National Institution, [and] promote the security of tenure of its decision-making body, and its ability to engage in critical analysis and commentary on human rights issues”.8 General Observation 2.3 also provides, however, that such immunity may be lifted in “certain exceptional circumstances” and “in accordance with fair and transparent procedures” (see also Section 4.2 infra); in that respect, it recommends that the decision to lift the immunity of an NHRI “should not be exercised by an individual, but rather by an appropriately constituted body such as the superior court or by a special majority of parliament” [emphasis added].9 The UN High Commissioner for Human Rights has also reiterated the importance of ensuring that members and staff of national human rights institutions enjoy immunity while discharging their functions in good faith.10 15. More generally, the UN Human Rights Council has also stated in one of its resolutions that “national human rights institutions and their respective members and staff should not face any form of reprisal or intimidation, including political pressure, physical intimidation, harassment or unjustifiable budgetary limitations, as a result of activities 4 5 6 7 8 9 10 The International Coordinating Committee for National Human Rights Institutions (ICC) was established in 1993 and is the international association of national human rights institutions (NHRIs) from all parts of the globe. The ICC promotes and strengthens NHRIs to be in accordance with the Paris Principles, and provides leadership in the promotion and protection of human rights. Through its Sub Committee on Accreditation (SCA), it also reviews and accredits national human rights institutions in compliance with Paris Principles. The ICC may also assist those NHRIs under threat and encourage NHRI statutory legislations' reforms and the provision of technical assistance, such as education and training opportunities, to strengthen the status and capacities of NHRIs. See http://nhri.ohchr.org/EN/Pages/default.aspx. Latest revised General Observations of the Sub-Committee on Accreditation, as adopted by the International Coordinating Committee Bureau (hereinafter “ICC General Observations”) at its meeting in Geneva on 6-7 May 2013, available at http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20GENERAL%20OBSERVATIONS%20ENGL ISH.pdf. See http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/Chart%20of%20the%20Status%20of%20NHRIs%20%2 823%20May%202014%29.pdf and page 22 of the Report and Recommendations of the Session of the Sub-Committee on Accreditation (SCA), Geneva, 19-23 November 2012, available at http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20Report%20November%202012%20(English).p df. Op. cit. footnote 5, page 36, par 1 of General Observation 2.3 (ICC General Observations). ibid. page 36, par 2 of General Observation 2.3 (ICC General Observations). ibid. page 36, par 3 of General Observation 2.3 (ICC General Observations). See par 106 of the Report of the UN Secretary-General on National institutions for the promotion and protection of human rights, A/HRC/27/39, 30 June 2014, available at http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A_HRC_27_39_ENG.doc. 6