OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland 37. Other provisions of the Criminal Code, particularly those relating to defamation and insults, including of public officials, which are punishable by up to three years of imprisonment,46 are also not in line with the international consensus that such criminal offences should be abolished in view of their chilling effect on free expression.47 Moreover, the existence in the Polish Criminal Code of criminal offences pertaining to defamation and insult of certain public officials could lead to a situation where investigations initiated by the Commissioner against such officials could be compromised by the threat of criminal proceedings for defamation and insult. 38. Overall, there needs to be a balance between immunity as a means to protect the Commissioner against pressure and abuse from state powers or individuals (e.g., abusive prosecution, false, frivolous, vexatious or manifestly ill-founded complaints, harassment) and the general concept that nobody, including the Commissioner, should be above the law, given the principle of equality before the law, which is also an element of the rule of law.48 In principle, the Commissioner and his or her deputies and staff should only benefit from functional immunity in the exercise of lawful functions; if they commit a criminal offense in the exercise of their functions, for instance in cases of corruption, they should not be immune from criminal liability.49 39. In legislation, the scope of functional immunity should generally be drafted in a broad manner to protect the NHRIs and their staff from civil, administrative and criminal liability for words spoken or written, decisions made, or acts performed in good faith in their official capacity.50 It is recommended to introduce such a wording in the Draft Act. This would also be in line with the required scope of the functional immunity for NPM bodies (see par 32 supra).51 At the same time, fhe functional immunity (‘nonliability’) should not extend to opinions or conduct that do not have a direct link to the Commissioner’s mandate or functions.52 40. In all other cases, individuals and public entities should be able to bring a claim, or initiate criminal proceedings – which, according to Article 211 of the Constitution, should be subject to special procedural safeguards to protect the Commissioner’s 46 47 48 49 50 51 52 http://www.osce.org/fom/154846?download=true; and Principle 12.3 of the Camden Principles on Freedom of Expression and Equality (2009), prepared by the international non-governmental organization Article 19 on the basis of discussions involving a group of high-level UN and other officials, and civil society and academic experts in international human rights law on freedom of expression and equality issues, available at https://www.article19.org/data/files/pdfs/standards/the-camden-principles-on-freedom-of-expression-and-equality.pdf. See e.g., Articles 133 (Public Insult of the Nation or Republic of Poland), 135 (Public Insult of the President) and 226 (Insult of Public Officials and Constitutional Authority of the Republic of Poland) of the Criminal Code of Poland. See op. cit. footnote 45, par 37 (UN Human Rights Committee General Comment No. 34 (2011)); and par 2 (2010 Joint Declaration on Ten Key Threats to Freedom of Expression). See also Recommendation 1814 (2007) and Resolution 1577 (2007) of the Parliamentary Assembly “Towards decriminalisation of defamation”, available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17588&lang=en. See, in the case of parliamentary immunities, op. cit. footnote 21, par 38 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). Op. cit. footnote 5, General Observation 2.3 (ICC General Observations), which states: “It is acknowledged that no office holder should be beyond the reach of the law and thus, in certain exceptional circumstances it may be necessary to lift immunity”. ICC General Observation 2.3 refers to the protection from legal liability for “actions and decisions that are undertaken in good faith in their official capacity”. See also op. cit. footnote 40, pars 74 and 76 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia); and op. cit. footnote 14, par 7.5 (PACE Recommendation 1615 (2003)). See op. cit. footnote 36, page 125 (APT-IIHR Joint Implementation Manual on OPCAT (2010)); and page 43 (APT’s Guide on Establishment and Designation of National Preventive Mechanisms (2006)). See as a matter of comparison, when dealing with the non-liability of parliamentarians, op. cit. footnote 21, par 182 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See also the case of Cordova v. Italy, ECtHR judgment of 30 January 2003 (Application nos. 40877/98 and 45649/99), par 63, where the ECtHR held that the behaviour of the parliamentarian in question was “not connected with the exercise of parliamentary functions in the strict sense” and that it was therefore a violation of Article 6 of the ECHR to deny access to court. 14