OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland undertaken in accordance with their respective mandates, including when taking up individual cases or when reporting on serious or systematic violations in their countries”.11 16. In addition, pursuant to Article 1 par 4 of the Act on the Commissioner for Human Rights of Poland as amended in 2007,12 the Commissioner performs the function of a national preventive mechanism (hereinafter “NPM”) under the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment13 (hereinafter “the OPCAT”). As such, the legislation pertaining to the Commissioner should comply with the relevant provisions of the OPCAT, particularly its Article 35 which states that “[m]embers […] of the national preventive mechanisms shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions”. 17. At the Council of Europe level, the key role of NHRIs and key principles regulating their establishment and functioning, including compliance with the Paris Principles, are highlighted in various documents.14 In particular, Parliamentary Assembly Recommendation 1615 (2003) underlines a number of characteristics considered essential for any Ombuds institution, including the “personal immunity from any disciplinary, administrative or criminal proceedings or penalties relating to the discharge of official responsibilities, other than dismissal by parliament for incapacity or serious ethical misconduct”.15 18. Immunities may, in some specific cases, potentially conflict with rights protected by the International Covenant on Civil and Political Rights16 (hereinafter “ICCPR”) and by the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “ECHR”),17 particularly their Articles 14 and 6 respectively, which encompass the right of access to courts in the determination of criminal charges and rights and obligations in a suit at law.18 As stated by the UN Human Rights Committee, any restrictions regarding access rights must be based on law and justified on objective 11 12 13 14 15 16 17 18 See par 9 of the UN Human Rights Council Resolution 27/18 on National institutions for the promotion and protection of human rights, A/HRC/27/L.25, 25 September 2014, available at http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Pages/ResDecStat.aspx. Available at http://www.legislationline.org/download/action/download/id/6164/file/Poland_Act%20on%20the%20Commissioner%20 for%20Human%20Rights_1987_en.pdf. UN Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), adopted by the UN General Assembly by Resolution A/RES/57/199 of 18 December 2002. The Republic of Poland ratified the OPCAT on 14 September 2005. See e.g., CoE Committee of Ministers’ Recommendation Rec(97)14E on the Establishment of Independent National Institutions for the Promotion and Protection of Human Rights, 30 September 1997, available at https://wcd.coe.int/ViewDoc.jsp?id=589191; Parliamentary Assembly of the Council of Europe (PACE) Recommendation 1615 (2003) on the Institution of Ombudsman (hereinafter “PACE Recommendation 1615 (2003)), 8 September 2003, available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=17133&lang=en; PACE Recommendation 1959 (2013) on the Strengthening the Institution of Ombudsman in Europe, adopted on 4 October 2013, available at http://www.assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=20232&lang=en. See ibid. par 7.5 (PACE Recommendation 1615 (2003)). UN International Covenant on Civil and Political Rights (hereinafter “ICCPR”), adopted by the UN General Assembly by Resolution 2200A (XXI) of 16 December 1966. The Republic of Poland ratified the ICCPR on 18 March 1977. The Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “ECHR”), signed on 4 November 1950, entered into force on 3 September 1953. Poland ratified the ECHR on 19 January 1993. See page 30 of the OSCE/ODIHR Legal Digest of International Fair Trial Rights (2012), available at http://www.osce.org/odihr/94214, where it is stated that it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 14 of the ICCPR and Article 6(1) of the ECHR if, for example, a State could remove from the jurisdiction of the courts a whole range of civil claims without restraint, or confer immunities on large groups or categories of persons. 7