OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland should be saved from civil, administrative or criminal claims when making a recommendation, adopting decisions, or voicing an opinion or views on a human rights matter. In this context, the ICC has often recognized the risk that “[e]xternal parties may seek to influence the independent operation of an NHRI by initiating, or by threatening to initiate, legal proceedings”.45 The protection of functional immunity applies even in cases where actions undertaken later prove to be false and/or damaging. At the same time, immunity does not extend to acts undertaken in bad faith or involving an abuse of power, for example, if an opinion is voiced that an NHRI member (or its staff) knew to be wrong or clearly unsupported.46 36. Functional immunity is thus specifically meant to avoid situations where an NHRI member (or its staff)is sued for slander, libel or similar causes of action as a result of fulfilling his or her mandate as required by law.47 In that respect, it is worth reiterating the concerns raised by OSCE/ODIHR in its recent Opinion on the Draft Amendments to Certain Provisions of the Criminal Code of Poland48 concerning the current version of Article 196 of the Criminal Code relating to offences to the religious feelings of others, and its potential restriction of the right to freedom of expression. Given the danger that this criminal provision could be used to prevent or punish criticism directed at ideas, beliefs or ideologies, religions or religious institutions, or religious leaders, OSCE/ODIHR recommended to remove this offence from the Criminal Code to comply with international human rights standards.49 37. Other provisions of the Criminal Code, particularly those relating to defamation and insults, including of public officials, which are punishable by up to three years of imprisonment,50 are also not in line with the increasing international consensus that such criminal offences should be abolished in view of their chilling effect on free expression.51 Public figures should generally be prepared to tolerate criticism and the 45 46 47 48 49 50 51 See e.g., ICC Sub-Committee on Accreditation Report (March 2015), pages 10 and 20, available at http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20MARCH%202015%20FINAL%20REPORT%20%20ENGLISH.pdf. Op. cit. footnote 37, page 250 (UNDP-OHCHR Toolkit for on National Human Rights Institutions (2010)). See also par 27 of the Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the Draft Amendments to the Law on the Human Rights Defender of the Republic of Armenia, CDL-AD(2015)035, 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)035-e, which states that “the only possible exclusion from the general immunity rule should be where the Defender makes deliberately false and very grave public accusations”. Op. cit. footnote 37, page 250 (UNDP-OHCHR Toolkit for on National Human Rights Institutions (2010)). See par 51 of the OSCE/ODIHR Opinion on the Draft Amendments to Certain Provisions of the Criminal Code of Poland, 3 December 2015, available at http://www.legislationline.org/countries/country/10. ibid. par 51. See UN Human Rights Committee, General Comment No. 34 on Article 19: Freedoms of opinion and expression, 12 September 2011, par 48, available at http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf, where the Committee has expressly recognized that “[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in Article 20 par 2 of the Covenant” i.e., when constituting incitement to discrimination, hostility or violence. See also par 19 of the 2012 Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, Conclusions and recommendations emanating from the four regional expert workshops organised by OHCHR, in 2011, and adopted by experts in Rabat, Morocco, on 5 October 2012, available at http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf, where it is stated that “the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule”. Additionally, see UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, 2010 Joint Declaration on Ten Key Threats to Freedom of Expression, 3 February 2010, Section 2 on Criminal Defamation, available at http://www.osce.org/fom/154846?download=true; and Principle 12.3 of the Camden Principles on Freedom of Expression and Equality (2009), prepared by the international non-governmental organization Article 19 on the basis of discussions involving a group of high-level UN and other officials, and civil society and academic experts in international human rights law on freedom of expression and equality issues, available at https://www.article19.org/data/files/pdfs/standards/the-camden-principles-on-freedom-of-expression-and-equality.pdf. See e.g., Articles 133 (Public Insult of the Nation or Republic of Poland), 135 (Public Insult of the President) and 226 (Insult of Public Officials and Constitutional Authority of the Republic of Poland) of the Criminal Code of Poland. See op. cit. footnote 49, par 37 (UN Human Rights Committee General Comment No. 34 (2011)); and par 2 (2010 Joint Declaration on Ten Key Threats to Freedom of Expression). See also Recommendation 1814 (2007) and Resolution 1577 (2007) of the Parliamentary 13