OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland proceedings would seriously endanger the institutional functions of the Commissioner.69 58. On the other hand, the following could be cited as considerations in favour of lifting immunity, e.g., (i) when the respective request is based on sincere, serious and fair grounds; (ii) when the person concerned is caught in flagrante delicto; (iii) when the alleged offence is of a particularly serious nature (the ICC often citing corruption practices as an example);70 (iv) when the request concerns a criminal conduct which is not strictly related to the performance of Commissioner’s functions but concerns acts committed in relation to other personal activities; (v) when proceedings should be allowed in order not to obstruct justice or in order to safeguard the authority and legitimacy of the Commissioner as an institution; (vii) when the Commissioner requests that immunity be lifted.71 Immunity should be lifted in any case for offences conducted outside the scope of authority,72 for instance accepting bribes, corruption, influence peddling or other similar criminal offenses,73 unless the Sejm or competent body mentioned in Article 7e of the Draft Act finds that the complaint is manifestly false or ill-founded. 59. Parliamentary procedures for lifting immunity may also give rise to other, more general problems. Particularly, they may conflict with the principle of presumption of innocence, as protected by the ICCPR and the ECHR74 if the Sejm/competent authority proceeds with an analysis of the merits of the case. In addition, this would also potentially be in breach of fundamental principles of separation of powers, under which it is for the courts alone (and not for the legislature) to assess individual cases of criminal responsibility.75 Consequently, given that this only constitutes a preliminary assessment of the case, it is recommended to specify that the Sejm/competent authority should not analyse the merits of the case and that they should duly respect the principle of the presumption of innocence. 60. Furthermore, it is also questionable whether making the case files available to the authority competent to examine them under the by-laws of the Sejm (Article 7d par 5) would therefore be necessary, all the more given that this may also violate the principles of confidentiality of criminal proceedings and the separation of powers. The drafters should therefore re-consider the inclusion of such provision in the Draft Act. 61. Finally, regarding the lifting of NHRI immunity, the ICC General Observation 2.3 recommends that “a special majority of parliament” be required. Article 7d par 8 requires an absolute majority of the statutory number of deputies of the Sejm for the adoption of a resolution lifting the Commissioner’s immunity. While this is a higher threshold than a simple majority of those deputies present at the parliamentary session, it is doubtful whether such a majority would prevent a potential politicisation of the decision regarding the lifting of immunity. A higher majority could be considered by 69 70 71 72 73 74 75 ibid. pars 188-189 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See e.g., page 27 of the ICC Sub-Committee on Accreditation Report (November 2013), page 27, available at http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20NOVEMBER%202013%20FINAL%20REPO RT%20ENGLISH.pdf; and op. cit. footnote 42, page 20 (ICC Sub-Committee on Accreditation Report (March 2015)). Op. cit. footnote 21, par 189 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). Op. cit. footnote 35, page 250 (UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (2010)). See e.g., op. cit. footnote 42, page 20 (ICC Sub-Committee on Accreditation Report (March 2015)), expressly referring to corruption. Article 14 par 2 of the ICCPR and Article 6 par 2 of the ECHR. See e.g., in the context of lifting parliamentary immunities, op. cit. footnote 21, par 191 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). ibid. par 149 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). 19