OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland that similar draft amendments are being introduced to relevant legislation pertaining to the Commissioner for Children, the President of the Supreme Chamber for Audit, the Inspector General for Personal Data Protection, the President of the Institute of National Remembrance, Deputies and Senators - the main purpose of these amendments being to harmonize the different procedures for lifting immunity from criminal and other liability. 22. While the purpose of this Preliminary Opinion is amendments to the Act on the Commissioner for Human Rights only, it is worth noting that the Council of Europe’s Group of States against Corruption (GRECO) recommended to Poland to reduce those categories of holders of public office benefiting from immunities and the scope of these immunities and to simplify the procedure for lifting the immunity of State officials. 25 In that respect, the Draft Act is to a certain extent welcome as it aims at clarifying such a procedure. 23. However, while the desire to seek to harmonize such procedures is understandable, these attempts could well raise some concerns from a legal point of view, since they do not appear to take into consideration the very different institutional statuses, mandates, roles and functions of such bodies or persons, as well as the different legal frameworks, including international standards, that apply to them. 24. First, the institutional roles of the Parliament and of the Commissioner are fundamentally different. While the former has as one of its key roles the oversight of the executive, the latter’s mandate is much broader, as the Commissioner is tasked to oversee the overall human rights situation in the country, and to protect and promote the human rights of individuals. Second, the Parliament is a collective body and lifting the immunity of one of its members would in itself not impede the functioning of the institution as a whole. In contrast, as a single head institution, the Commissioner is heavily dependent on his/her reputation, integrity and leadership, and his/her position could be jeopardized if he/she were not adequately protected against external pressure. Ensuring an NHRIs’ independence from the executive and the legislature as a matter of priority, is thus paramount to enable them to fulfil their mandates. For this reason, some additional safeguards should be in place to render the removal of the Commissioner’s immunity even more difficult than the lifting of parliamentarians’ immunity. 25. Moreover, while there are no international or European rules explicitly regulating parliamentary immunity at the national level,26 there are such standards pertaining to the immunity of NHRIs (see Section 1 supra). At the same time, in the case of state audit institutions (hereinafter “SAI”), the International Organization of Supreme Audit Institutions has developed some non-binding rules such as the Mexico Declaration on SAI Independence which states, in its Principle 2, that national legislation should guarantee the immunity of the SAI Head from any prosecution for any act that results from the normal discharge of his/her duties.27 As for the Inspector General for Personal Data Protection, the standards developed at the Council of Europe and European Union level require a ‘complete independence’ of the supervisory authorities responsible for 25 26 27 See Recommendation xvii (pars 20-24) of the Addendum to the Compliance Report on Poland of GRECO’s First Evaluation Round, 13 October 2006, available at https://www.coe.int/t/dghl/monitoring/greco/evaluations/round1/GrecoRC1(2004)5_Add_Poland_EN.pdf. Op. cit. footnote 21, par 2 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See http://www.issai.org/media/12922/issai_10_e.pdf. See also page 17 of the OECD Good Practices in Supporting Supreme Audit Institutions (2012), available at http://www.oecd.org/dac/effectiveness/Final%20SAI%20Good%20Practice%20Note.pdf. 9