OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights Institution of Switzerland occasions, the Sub-Committee on Accreditation has recommended that the relevant legislation be supplemented to include express provisions that clearly establish the functional immunity of an NHRI’s decision-making body.60 Although not expressly required by the Paris Principles, it is generally considered positive to extend the functional immunity to NHRI staff.61 43. The Draft Act in its current form does not contain any provisions aiming to protect the functional immunity of members of the NHRI’s leadership body or of the NHRI’s staff. In the underlying legislation, the scope of functional immunity should thus generally be drafted in a broad manner to protect the NHRI’s decision-making body and staff from civil, administrative and criminal liability for words spoken or written, decisions made, or acts performed in good faith in their official capacity.62 It is recommended to introduce such wording in the Draft Act (or separate act). The relevant provision should specify that functional immunity should apply even after the end of the leadership body’s mandate or after a staff member ceases his/her employment with the NHRI.63 44. An additional safeguard to protect functional immunity is also to guarantee in legislation the inviolability of the NHRI’s premises, property, means of communication and all documents, including internal notes and correspondence,64 as well as of baggage, correspondence and means of communication belonging to the members of the NHRI’s leadership body and professional staff.65 It is recommended to supplement the Draft Act (or separate act) accordingly. 45. Overall, there needs to be a proper balance between immunity as a means to protect an NHRI against pressure and abuse from state powers or individuals (including, in particular abusive prosecution, false, frivolous, vexatious or manifestly ill-founded complaints, or harassment) and the general concept that nobody, including members of an NHRI governing body, should be above the law.66 This concept derives from the principle of equality before the law, which is also an element of the rule of law.67 Indeed, the SubCommittee on Accreditation has recognized this, and has stated that the law should clearly establish the grounds, and a clear and transparent process, by which the 60 61 62 63 64 65 66 67 See e.g., Sub-Committee on Accreditation, Report and Recommendations of the Session (May 2016), page 37, <http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20FINAL%20REPORT%20-%20MAY%202016English.pdf>. See e.g., OSCE/ODIHR, Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland, 16 February 2016, Sub-Section 3.2 on the Personal and Temporal Scope of the Functional Immunity, <http://www.legislationline.org/documents/id/19896>; and Venice Commission, Opinion on Draft Amendments to Article 23(5) of the Law on the Human Rights Defender of Armenia, adopted by the Venice Commission at its 76th Plenary Session (Venice, 17-18 October 2008), CDL-AD(2008)028, pars 7-8, <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2008)028-e>. Op. cit. footnote 9, General Observation 2.3, which refers to the protection from legal liability for “actions and decisions that are undertaken in good faith in their official capacity”. See also Venice Commission, Opinion on Amendments to the Law on the Human Rights Defender of Armenia, CDL-AD(2006)038, adopted by the Venice Commission at its 69th Plenary Session (Venice, 15-16 December 2006), pars 74 and 76, <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2006)038-e>; and op. cit. footnote 11, par 7.5 (PACE Recommendation 1615(2003)). See Venice Commission, Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina, adopted by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015), CDL-AD(2015)034, par 69, <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)034-e>; and OSCE/ODIHR-Venice Commission, Joint Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro, adopted by the Venice Commission at its 88th Plenary Session (Venice, 14-15 October 2011), par 23, <http://www.legislationline.org/documents/id/16665>. See OSCE/ODIHR and Venice Commission, Joint Opinion on the Law No. 2008-37 of 16 June 2008 relating to the Higher Committee for Human Rights and Fundamental Freedoms of the Republic of Tunisia, 17 June 2013, par 52, <http://www.legislationline.org/documents/id/17976>. See e.g., op. cit. footnote 63, par 23 (2011 OSCE/ODIHR-Venice Commission Joint Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro). Op. cit. footnote 9, General Observation 2.3 which states that “[i]t is acknowledged that no office holder should be beyond the reach of the law and thus, in certain exceptional circumstances it may be necessary to lift immunity”. See Venice Commission, Rule of Law Checklist, CDL-AD(2016)007, 18 March 2016, pages 18-19, <http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e>. 16