OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland (including its staff) has been empowered to perform.39 Functional immunity should cover words spoken or written, recommendations, decisions and other acts undertaken in good faith while performing these functions.40 Indeed, the NHRI (including its staff) should be saved from civil, administrative or criminal claims when making a recommendation, adopting decisions, or voicing an opinion or views on a human rights matter, even if it is then proved to be false and/or damaging; immunity should not extend however to acts undertaken in bad faith or involving an abuse of power, for example, if an opinion is voiced that someone knew to be wrong or clearly unsupported.41 The ICC has often recognized the risk that “[e]xternal parties may seek to influence the independent operation of a NHRI by initiating, or by threatening to initiate, legal proceedings against a member”,42 which hence justifies the existence of a functional immunity to protect NHRIs and their staff. Functional immunity is specifically meant to avoid situations where NHRIs are sued for slander, libel or similar causes of action as a result of fulfilling their mandate as required by law.43 36. 39 40 41 42 43 44 45 In that respect, it is worth reiterating the concerns raised by OSCE/ODIHR in its recent Opinion on the Draft Amendments to Certain Provisions of the Criminal Code of Poland44 concerning the current version of Article 196 of the Criminal Code relating to offences to the religious feelings of others, and its potential restriction on the right to freedom of expression. Given the danger that this criminal provision could be used to prevent or punish criticism directed at ideas, beliefs or ideologies, religions or religious institutions, or religious leaders, OSCE/ODIHR recommended to remove such an offence from the Criminal Code to comply with international human rights standards.45 Op. cit. footnote 35, page 250 (UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (2010)). Op. cit. footnote 5, General Observation 2.3 (ICC General Observations). See also Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia, CDL-AD(2006)038, adopted by the Venice Commission at its 69th Plenary Session (Venice, 15-16 December 2006), paragraphs 74 and 76, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2006)038-e; and op. cit. footnote 14, par 7.5 (PACE Recommendation 1615 (2003)). Op. cit. footnote 35, page 250 (UNDP-OHCHR Toolkit for on National Human Rights Institutions (2010)). See also par 27 of the Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the Draft Amendments to the Law on the Human Rights Defender of the Republic of Armenia, CDL-AD(2015)035, adopted by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015), available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)035-e, which states that “the only possible exclusion from the general immunity rule should be where the Defender makes deliberately false and very grave public accusations”. See e.g., ICC Sub-Committee on Accreditation Report (March 2015), pages 10 and 20, available at http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20MARCH%202015%20FINAL%20REPORT% 20-%20ENGLISH.pdf. Op. cit. footnote 35, page 250 (UNDP-OHCHR Toolkit for on National Human Rights Institutions (2010)). See par 51 of the OSCE/ODIHR Opinion on the Draft Amendments to Certain Provisions of the Criminal Code of Poland, 3 December 2015, available at http://www.legislationline.org/countries/country/10. ibid. par 51. See UN Human Rights Committee, General Comment No. 34 on Article 19: Freedoms of opinion and expression, 12 September 2011, par 48, available at http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf, where the Committee has expressly recognized that “[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in Article 20 par 2 of the Covenant” i.e., when constituting incitement to discrimination, hostility or violence. See also par 19 of the 2012 Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, Conclusions and recommendations emanating from the four regional expert workshops organised by OHCHR, in 2011, and adopted by experts in Rabat, Morocco, on 5 October 2012, available at http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf, where it is stated that “the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule”. Additionally, see UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, 2010 Joint Declaration on Ten Key Threats to Freedom of Expression, 3 February 2010, Section 2 on Criminal Defamation, available at 13