OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland his/her staff applies. At the same time, the special procedure to follow when handling criminal cases against the Commissioner in general (i.e., getting approval from the Sejm in accordance with Article 211 of the Constitution) would also become clearer (see also Section 4 infra). This special procedure constitutes a procedural safeguard to protect the Commissioner’s independence, as it prevents potentially abusive prosecution, or similar procedures based on frivolous, potentially false accusations, vexatious or manifestly ill-founded complaints, to proceed further (see also Section 4.2 infra). 32. The above amendment to the Draft Act would also be in line with Article 35 of the OPCAT on immunities of NPM members. This provision is interpreted as covering immunity of OPCAT bodies from personal arrest and detention, as well as from legal actions in respect of words spoken or written, or acts performed, in the course of their duties as NPM.41 3. 33. Scope of the Functional Immunity As regards the functional immunity of the Commissioner (and of his or her staff) in general, it is necessary to first consider the substantive aspects of the material, personal and temporal scope of the functional immunity (see Sub-Sections 3.1 and 3.2 infra), which should provide the legal basis for declaring certain claims against the Commissioner (and of his or her staff) inadmissible. Second, it is necessary to review the procedural safeguards which exist to protect the independence of the Commissioner (i.e., the procedure for seeking consent of the Sejm, see Section 4 infra)) to ensure that they are necessary and proportionate (see par 18 supra). These issues are addressed separately in the following sub-sections. 3.1. Material Scope of the Functional Immunity 34. As far as the material scope of functional immunity is concerned, ICC General Observation 2.3 recommends that “provisions be included in national law to protect legal liability of members of the National Human Rights Institution’s decision-making body for the actions and decisions that are undertaken in good faith in their official capacity”. As mentioned in par 27 supra, this constitutes an essential guarantee of NHRIs’ independence42 to be able to engage in the proper exercise of their functions. 35. Acts performed in an official capacity are those related to the mandate and functions of the NHRI, that are sanctioned or authorised by the NHRI and/or which the NHRI (including its staff) has been empowered to perform.43 Functional immunity should cover words spoken or written, recommendations, decisions and other acts undertaken in good faith while performing these functions.44 Indeed, the NHRI (including its staff) 41 42 43 44 See e.g., page 125 of the Association for the Prevention of Torture (APT) and Inter-American Institute for Human Rights (IIHR) Joint Implementation Manual on the Optional Protocol to the UN Convention against Torture (revised edition, 2010), available at http://www.apt.ch/content/files_res/opcat-manual-english-revised2010.pdf. See also page 43 of the Association for the Prevention of Torture (APT)’s Guide on Establishment and Designation of National Preventive Mechanisms (2006), available at http://www.apt.ch/content/files_res/NPM.Guide.pdf. Op. cit. footnote 6, par 1 of the Justification to General Observation 2.3 (ICC General Observations). Op. cit. footnote 37, page 250 (UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (2010)). Op. cit. footnote 6, General Observation 2.3 (ICC General Observations). 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), paragraphs 74 and 76, available at http://www.venice.coe.int/webforms/documents/?pdf=CDLAD(2006)038-e; and op. cit. footnote 15, par 7.5 (PACE Recommendation 1615 (2003)). 12