OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland legitimate aim and whether they are proportionate to such aim.21 Hence, immunity from prosecution must always be justified and shall not extend beyond what is proportionate and necessary in a democratic society.22 The ensuing analysis will also take into account these principles when assessing the compliance of the Draft Act with international human rights standards and OSCE commitments. 19. Finally, in the 1990 Copenhagen Document, OSCE participating States have committed to “facilitate the establishment and strengthening of independent national institutions in the area of human rights and the rule of law”.23 The OSCE/ODIHR has been specifically tasked to “continue and increase efforts to promote and assist in building democratic institutions at the request of States, inter alia by helping to strengthen […] Ombud[s] institutions”,24 which should be impartial and independent.25 2. General Comments 2.1. Purpose of the Draft Act 20. Articles 208 to 212 of the Constitution of the Republic of Poland provide for the establishment of a Commissioner for Human Rights, whose mandate is to be specified in a law. The Act on the Commissioner for Human Rights adopted on 15 July 1987 (as amended, hereinafter “the Act”), provides for a broad mandate, and includes competences as an equality body and as the national preventive mechanism of the OPCAT, as well as the handling of individual complaints alleging human rights violations. 21. The Draft Act mainly addresses the immunity of the Commissioner (Articles 7a and 7b) and the procedure for lifting such immunity in the context of criminal proceedings and arrest and detention (Articles 7c - 7f), which would also be applicable in proceedings seeking to hold the Commissioner liable for petty offences (Article 7g). It is understood that similar draft amendments are simultaneously being introduced to relevant legislation pertaining to the Commissioner for Children, the President of the Supreme Chamber for Audit, the Inspector General for Personal Data Protection, the President of the Institute of National Remembrance, Deputies and Senators - the main purpose of these amendments being to harmonize the different procedures for lifting immunity from criminal and other liability. 21 22 23 24 25 See e.g., regarding parliamentary immunities, the case of A v. United Kingdom, ECtHR judgment of 17 December 2012 (Application no. 35373/97), available at http://hudoc.echr.coe.int/eng#{"fulltext":["35373/97"],"documentcollectionid2":["CHAMBER"],"itemid":["00160822"]}, particularly par 78 where the ECtHR states that “the broader an immunity, the more compelling must be its justification in order that it can be said to be compatible with the Convention” although noting that “when examining the proportionality of an immunity, its absolute nature cannot be decisive”. See also par 74 which states: “However, the right of access to a court is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” See e.g., by way of comparison regarding parliamentary immunities, par 34 of the European Commission for Democracy through Law of the Council of Europe (Venice Commission) Report on the Scope and Lifting of Parliamentary Immunities, CDL-AD(2014)011, 14 May 2014, available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)011-e. See par 27 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990, available at http://www.osce.org/odihr/elections/14304?download=true. See par 10 of the Bucharest Plan of Action for Combating Terrorism (2001), Annex to OSCE Ministerial Council Decision on Combating Terrorism, MC(9).DEC/1, 4 December 2001, available at http://www.osce.org/atu/42524?download=true. See e.g., par 42 (second indent) of the OSCE Action Plan for the Promotion of Gender Equality (2004), Annex to OSCE Ministerial Council Decision No. 14/04, MC.DEC/14/04, 7 December 2004, available at http://www.osce.org/mc/23295. 8