OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland varies; however, such a body is most often independent from the executive,62 to ensure the independence of the NHRI. 49. The Draft Act does not specify the exact role that the Minister of Justice plays in that respect – it is not clear whether he/she merely transmits the request made by another body, or whether he/she has some discretion in the matter. It is recommended that the drafters re-consider the current procedure under Article 7c par 1 whereby such request is made through the Minister of Justice, and instead designate a different body as competent to submit such request, that is independent from the executive. The same argumentation applies to the procedure for allowing the arrest and detention of the Commissioner (Article 7e par 2). 50. Cases subject to private prosecution may lead to numerous requests being potentially submitted to the Marshal of the Sejm. The ‘procedural immunity’ should aim at providing the necessary safeguards to avoid potential false, frivolous, vexatious or manifestly ill-founded complaints (see pars 56-59 infra). 4.2. The Need for Clear, Transparent and Impartial Procedures 51. Regarding procedures for the approval of the arrest and detention of the Commissioner, it must be reiterated that Article 211 of the Constitution provides for very limited circumstances in which this would be possible. Namely, these involve situations where the alleged offence has been committed in flagrante delicto and cases where the detention is “necessary for ensuring the proper course of proceedings”. According to most criminal procedure rules, this is usually the case where there are reasonable grounds to believe that an accused or defendant may abscond or otherwise impede the proper conduct of criminal investigations.63 52. However, while Article 7a of the Draft Act repeats the provisions of Article 211 of the Constitution, Article 7e par 2 on the procedure to be followed to request the arrest or detention of the Commissioner does not mention these limited circumstances. It is recommended to specify also in this provision that where the 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. In cases where this does happen, the Draft Act shall clearly stipulate that he/she shall be immediately released as soon as the persons carrying out the arrest or responsible for the detention become aware of the identity of the Commissioner. 53. As regards the procedure for the lifting of immunity, ICC General Observation 2.3 specifically recommends that “national law provides for well-defined circumstances in which the functional immunity of the decision-making body may be lifted in accordance 62 63 The procedure is, for instance, initiated by a motion made by certain number of members of parliament (e.g., one third in Slovenia, see Article 21 of the Human Rights Ombudsman Act of 1993, available at http://www.legislationline.org/topics/country/3/topic/82); a Parliamentary Committee if the majority of its members so agrees (see e.g., Article 12 of the Law on the Protector of Citizens of Serbia (2005), available at http://www.legislationline.org/topics/country/5/topic/82); or the Chief Public Prosecutor (as an entity which in principle should enjoy a certain level of independence from the executive, see Venice Commission's Report on European Standards as regards the Independence of the Judicial System: Part II The Prosecution Service, CDL-AD(2010)040, Venice, 17-18 December 2010), available at http://www.venice.coe.int/webforms/documents/CDL-AD(2010)040.aspx). See e.g., Articles 170 (Arrest without a Warrant) and 177 (Grounds for Detention) of the Model Code of Criminal Procedure (2008) developed by the United States Institute of Peace in cooperation with the Irish Centre for Human Rights (ICHR), the Office of the UN High Commissioner for Human Rights (UNOHCHR), and the UN Office on Drugs and Crime (UNODC) (hereinafter “Model Code of Criminal Procedure (2008)”), available at http://www.usip.org/modelcodes-post-conflict-justice-/publication-the-model-codes/english-version-volume-2. 17