OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland 4. Procedure for Lifting the Immunity 44. As far as the lifting of immunity is concerned, the ICC General Observation 2.3 recommends that “national law provides for well-defined circumstances in which the functional immunity of the decision-making body may be lifted in accordance with fair and transparent procedures”. While the ICC has not elaborated further the criteria and guidelines for the lifting of immunity, these would be a useful addition to the Draft Act in order to avoid misuse, and it is welcome that the Draft Act seeks to fill this gap. In this context, it is paramount that relevant provisions of the Draft Act contain safeguards to avoid selective and arbitrary decisions on the lifting of immunity, and to ensure adequate transparency of procedure.60 45. In the Draft Act, Articles 7a-d delineate a special procedure for prior approval from the Sejm before criminal proceedings are initiated, to protect the Commissioner from potentially false accusations or vexatious claims. Such a procedure is particularly important in a country like Poland where criminal proceedings can be started at the instigation of a private individual, and should involve a proper mechanism to prevent or stop such investigations or proceedings when there is no proper evidence to suggest criminal liability on the part of the Commissioner (and his or her staff).61 4.1. The Request to Lift Immunity 46. Pursuant to Article 7c of the Draft Act, the request for approval to bring criminal charges for publicly prosecuted offences against the Commissioner shall be submitted through the Minister of Justice (Article 7c par 1). In cases involving offences subject to private prosecution, such requests would be made by private prosecutors after having brought the case to court (Article 7c par 2) subject to certain requirements listed in paragraph 3 in the latter case (signature of an attorney-at-law or legal counsel, except in cases involving legal professionals). Both requests should be submitted to the Marshal of the Sejm (Article 7d). 47. In principle, and as stated above, the Commissioner needs to be able to effectively fulfil his or her institutional mandate in an independent manner, without fear of harassment or undue charges particularly from the executive. The procedure proposed in the Draft Act, whereby all requests for approval to bring criminal charges for publicly prosecuted offences should go through the Minister of Justice, would appear to place the Commissioner under some sort of scrutiny by the executive. Granting the Ministry of Justice this function could well constitute a serious encroachment upon the independence of the Commissioner. 48. In other countries, the practice as to which body is authorized to initiate the procedure for lifting of immunity of an Ombudsperson or of members of a human rights body 60 61 See e.g., in the context of parliamentary immunity, the justification for developing criteria and guidelines for lifting such immunity in op. cit. footnote 21, par 171 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See e.g., regarding the immunity of judges, par 54 of Opinion No. 3 of the Consultative Council of European Judges to the attention of the CoE Committee of Ministers on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality (2002), available at https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2002)OP3&Sector=secDGHL&Language=lanEnglish&Ver=original&Back ColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3. 16