OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland the drafters in order to de-politicize the procedure and guarantee that a Commissioner could never be removed from office simply because his or her legal acts, undertaken in good faith, are disapproved of or questioned by the governmental majority in Parliament. 4.3. The Outcome of the Procedure 62. It is noted that the Draft Act does not specify the possible outcomes of the procedure on the lifting of immunity, and the legal consequences in cases where immunity is not lifted. First, in cases where the words spoken or written, recommendations, decisions and other acts are covered by the functional immunity (see Section 3.1. supra), then no further actions should be possible even after the end of the Commissioner’s mandate or after the staff cease their employment with the Commissioner’s office. This should be a ground for inadmissibility of the claim before a court of law. In all other cases, the criminal prosecution of the Commissioner for the respective offence shall be impossible during his/her mandate.76 It is recommended to supplement the Draft Act accordingly. 63. Moreover, if the procedure for lifting immunities for the Commissioner is indeed similar to other such procedures such as the lifting of judges’ or prosecutor’s immunities, it is assumed that the police and prosecuting authorities would still “collect evidence […] even before the immunity is lifted, carry out activity (in rem proceedings) and that the issue of lifting the immunity arises only after the defendant is formally charged (in personam proceedings)”.77 If this is the case, these proceedings should not impede the activities of the Commissioner and of his or her staff nor constitute harassment. 5. 64. 76 77 78 Final Comments The following comments are in addition to the above-mentioned key recommendations. In light of recent recommendations made to Poland by international and regional human rights monitoring bodies,78 OSCE/ODIHR would like to reiterate that it is essential for the independence of the Office of the Commissioner that sufficient funding is provided to allow this Office to have the human, financial, material and technical capacity to guarantee the proper implementation of the Act on the Commissioner for Human See e.g., Section 7(1) of the Czech Republic Act on the Public Defender of Rights No. 349/1999 (as amended in 2009). See par 66 (second indent) of the Compliance Report on Poland of GRECO First Evaluation Round, 2 July 2004, available at https://www.coe.int/t/dghl/monitoring/greco/evaluations/round1/GrecoRC1(2004)5_Poland_EN.pdf. See Concluding Observations of the UN Committee on the Elimination of Discrimination against Women on the Republic of Poland (14 November 2014), pars 14-15, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/POL/CO/7-8&Lang=En, where the Committee recommends to Poland to “[p]rovide the Office of the Human Rights Defender with sufficient financial and human resources so as to enable it to fully implement its mandate to protect women’s rights and promote gender equality, in compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) (General Assembly resolution 48/134, annex)”; Concluding Observations of the UN Committee on the Elimination of Racial Discrimination on the Republic of Poland (19 March 2014), par 9, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/POL/CO/20-21&Lang=En; Concluding Observations of the UN Committee against Torture on the Republic of Poland (23 December 2013), par 16, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT/C/POL/CO/56&Lang=En. See also op. cit. footnote 6, page 24 (Report and Recommendations of the Session of the SCA (November 2012)). 20