OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland proportionate, provided that an aggrieved person is able to seek compensation for damages through other means.36 27. Functional immunity is therefore closely linked to the mandate of NHRIs and only applies to actions undertaken in their official capacity. Hence, all other words spoken or written, as well as acts performed outside of the exercise of their functions or which, by their nature, inherently fall outside the scope of their official mandate (e.g., accepting bribes, corruption, influence peddling or other similar intentional criminal offenses) should not be protected by the functional immunity.37 28. Article 211 of the Constitution of the Republic of Poland provides that the Commissioner “shall not be held criminally responsible nor deprived of liberty without prior consent granted by the Sejm […] [and] shall be neither detained nor arrested, except for cases when he has been apprehended in the commission of an offence and in which his detention is necessary for securing the proper course of proceedings”. As such, this provision does not distinguish between criminal proceedings initiated for words spoken or written, or other acts performed in his or her official capacity, and other acts. However, it provides for certain procedural safeguards (obtaining the consent of the Sejm) in the context of criminal proceedings and certain derogatory rules regarding the Commissioner’s arrest or detention. Otherwise, neither the provisions of the Act on the Commissioner for Human Rights, the Draft Act nor Articles 208 to 212 of the Constitution of the Republic of Poland explicitly address the functional immunity of the Commissioner and his or her staff. 29. It must be noted that Article 7a of the Draft Act merely re-states ad litteram Article 211 of the Constitution,38 and would thus appear to be redundant, all the more given that Article 8 par 2 of the Constitution expressly states that “the provisions of the Constitution shall apply directly, unless the Constitution provides otherwise”. 30. It would thus be preferable to remove the current wording of Article 7a, and to instead clearly specify, as recommended at the international level,39 the principle of functional immunity (or ‘non-liability’) (see also Section 3 infra regarding the scope of such immunity). This principle constitutes a cornerstone of the institutional independence of the Commissioner (see par 27 supra), which is guaranteed by Article 210 of the Constitution of Poland.40 31. Specifying functional immunity in the Draft Act would also provide a clear legal basis for courts. In legal proceedings, civil, administrative or criminal claims would become inadmissible where the functional immunity of the Commissioner and 36 37 38 39 40 See e.g., in the case of judges, ibid. par 85 (ECtHR judgment in the case of Ernst and Others v. Belgium, 15 October 2003). See page 250 of the UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (December 2010), available at http://www.ohchr.org/Documents/Countries/NHRI/1950-UNDP-UHCHR-Toolkit-LR.pdf. Article 211 of the Constitution of the Republic of Poland states: “The Commissioner for Human Rights shall not be held criminally responsible nor deprived of liberty without prior consent granted by the Sejm. The Commissioner for Citizens' Rights shall be neither detained nor arrested, except for cases when he has been apprehended in the commission of an offence and in which his detention is necessary for securing the proper course of proceedings. The Marshal of the Sejm shall be notified forthwith of any such detention and may order an immediate release of the person detained.” Op. cit. footnote 6, page 36, General Observation 2.3 (ICC General Observations). See also Belgrade Principles on the Relationship Between National Human Rights Institutions and Parliaments developed on the occasion of an international seminar co-organized by the Office of the United Nations High Commissioner for Human Rights, the International Coordinating Committee of National Institutions for the promotion and protection of human rights, the National Assembly and the Protector of Citizens of the Republic of Serbia, with the support of the United Nations Country Team in the Republic of Serbia (Belgrade, 22-23 February 2012), available at http://nhri.ohchr.org/EN/Themes/Portuguese/DocumentsPage/Belgrade%20Principles%20Final.pdf, particularly par 12 which states: “Parliaments should secure the independence of an NHRI by incorporating in the founding law a provision on immunity for actions taken in an official capacity”. Article 210 of the Constitution of the Republic of Poland states: “The Commissioner for Human Rights shall be independent in his activities, independent of other State organs and shall be accountable only to the Sejm in accordance with principles specified by statute”. 11