OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland 41. Finally, an additional safeguard to protect such functional immunity is to guarantee the inviolability of the Commissioner’s Office premises, property, means of communication and all documents, including internal notes and correspondence,59 as well as of baggage, correspondence and means of communication belonging to the Commissioner.60 It is recommended to supplement the Draft Act accordingly. 3.2. Personal and Temporal Scope of the Functional Immunity 42. In principle, both members of the NHRI’s decision-making body and its staff should benefit from functional immunity.61 The ICC specifically recommended to Poland to supplement the Act on the Commissioner for Human Rights to include “provisions to protect the officers and staff members of the [Commissioner] from legal liability for actions undertaken in their official capacity”.62 It is therefore proposed to reflect this in the Draft Act, although different rules and procedures for lifting staff immunities could be considered. For example, the Draft Act could set out that for staff members, the Commissioner should waive immunity. 63 This should be based on clear criteria, similar to the ones taken into consideration when debating whether or not to lift the Commissioner’s immunity (see pars 56-57 infra). 43. Additionally, as mentioned in par 22 supra, since the functional immunity aims at protecting the institution and not an individual, it is attached to the actions performed on behalf of the NHRI or in an official capacity and not to the status of the individual having performed them. Moreover, the functional immunity would be worthless if the Commissioner and his or her staff would fear for possible legal proceedings as soon as their mandate or employment with the Commissioner’s office ends. Hence, functional immunity should continue to be accorded even after the end of the Commissioner’s mandate or after the staff cease their employment with the Commissioner’s office.64 59 60 61 62 63 64 See pars 67-69 of the Venice Commission Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina, CDL-AD(2015)034-e, adopted by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015), available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)034-e. See also par 52 of the OSCE-ODIHR-Venice Commission Joint Opinion on the Law no. 2008-37 of 16 June 2008 on the Higher Committee for Human Rights and Fundamental Freedoms of the Republic of Tunisia, CDL-AD(2013)019, 17 June 2013, available at http://www.legislationline.org/documents/id/17976. See e.g., par 23 of the Joint OSCE/ODIHR-Venice Commission 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), available at http://www.legislationline.org/documents/id/16665. ibid. 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 44, pars 74-76 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia); and op. cit. footnote 59, par 69 (2015 Venice Commission Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina); and par 18 of the Joint Opinion on the Draft Law on the Ombudsman of Serbia by the Venice Commission, the Commissioner for Human Rights and the Directorate General of Human Rights of the Council of Europe, CDLAD(2004)041, adopted by the Venice Commission at its 61st Plenary Session (Venice, 3-4 December 2004), available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2004)041-e. Op. cit. footnote 7, page 22 (Report and Recommendations of the Session of the SCA (November 2012)). See e.g., op. cit. footnote 44, par 74 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia); and op. cit. footnote 46, par 26 (2015 Venice Commission-DG I Joint Opinion on the Draft Amendments to the Law on the Human Rights Defender of the Republic of Armenia). See op. cit. footnote 59, par 69 (2015 Venice Commission Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina); op. cit. footnote 60, 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 44, pars 74-76 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia); and op. cit. footnote 61, par 18 (2004 Joint Venice Commission-CHR-DGHR Opinion on the Draft Law on the Ombudsman of Serbia). 15