OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland III. EXECUTIVE SUMMARY 8. At the outset, it is welcome that the Draft Act seeks to specify the procedure for lifting the Commissioner’s immunity, given that this question has so far not been outlined in the Act on the Commissioner for Human Rights in detail. In this respect, international standards recommend that clear, transparent and impartial procedures for lifting immunities be provided in NHRI legislation. 9. At the same time, the Polish legal framework should provide sufficient safeguards to protect the Commissioner and his or her staff from civil, administrative and criminal liability for words spoken or written, decisions made, or acts performed in good faith in their official capacities (“functional immunity”). Moreover, the Draft Act fails to indicate with sufficient clarity the modalities and criteria to be taken into account by the Sejm (or its competent authority) to ensure the fairness, transparency and impartiality of the procedure for lifting the Commissioner’s immunity in the context of criminal proceedings. 10. In order to ensure full compliance of the Draft Act with international standards and good practices, the OSCE/ODIHR makes the following key recommendations: A. to remove the current wording of Article 7a of the Draft Act and instead clearly state that the Commissioner as well as his or her deputies and staff shall be protected from civil, administrative and criminal liability for words spoken or written, decisions made, or acts performed in good faith in their official capacities [pars 29-30, 34-35, 38-39 and 42] - although different rules and procedures for lifting staff functional immunities could be considered [par 42] - while also specifying that: 1) such functional immunity shall also cover baggage, correspondence and means of communication of the Commissioner, deputies and the staff; [par 41] 2) the Commissioner’s Office property, documents and premises are inviolable; [par 41] 3) functional immunity should continue to be accorded even after the end of the Commissioner’s mandate or after the staff cease their employment with the Commissioner’s office; [par 43] and 4) in all other cases, the Commissioner (and his or her staff) may be civilly, administratively or criminally liable before a court of law, subject to a special procedure that would need to be followed in the case of criminal proceedings, i.e., getting approval from the Sejm; [par 31] B. re-consider, in Articles 7c par 1 and 7e par 2, having the request to the Sejm to allow criminal charges to be brought for publicly prosecuted offences made through the Minister of Justice and instead designate a different body as competent to submit such request, that is independent from the executive; [pars 47-49] C. specify in Article 7e par 2 that where an alleged act was not committed in flagrante delicto and where arrest or detention are not necessary to ensure the proper course of proceedings, the Commissioner may not be arrested or detained, and should be 4