OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland limits of acceptable criticism should be wider compared to those of a private individual.52 Moreover, the existence in the Polish Criminal Code of criminal offences pertaining to defamation and insult of certain public officials could lead to a situation where investigations initiated by the Commissioner against such officials, or the public condemnation of certain actions by these officials, could be compromised by the threat of criminal proceedings for defamation and insult. 38. Overall, there needs to be a balance between immunity as a means to protect the Commissioner against pressure and abuse from state powers or individuals (including, in particular abusive prosecution, false, frivolous, vexatious or manifestly ill-founded complaints, or harassment) and the general concept that nobody, including the Commissioner, should be above the law.53 This concept derives from the principle of equality before the law, which is also an element of the rule of law.54 39. In legislation, the scope of functional immunity should generally be drafted in a broad manner to protect the Commissioner and his or her staff from civil, administrative and criminal liability for words spoken or written, decisions made, or acts performed in good faith in their official capacity.55 It is recommended to introduce such wording to Article 7a of the Draft Act. This would also be in line with the required scope of the functional immunity for NPM bodies (see par 33 supra).56 40. At the same time, functional immunity should not extend to opinions or conduct that are not part of the exercise of the Commissioner’s mandate or functions.57 In principle, the Commissioner and his or her deputies and staff should only benefit from functional immunity in the exercise of lawful functions. There should be no immunity from criminal liability for acts that, even if undertaken during the performance of duties, inherently fall outside the scope of the official mandate (for instance in cases involving the acceptance of bribes and other forms of corruption, influence peddling or similar criminal offenses).58 Hence, the procedure mentioned in Article 211 of the Constitution should in principle allow the lifting of the Commissioner’s immunity in these cases (see also pars 56-57 infra regarding the criteria for lifting immunity). Hence, the Draft Act should specify that in all cases falling outside the scope of the functional immunity, the Commissioner (and his or her staff) could be civilly, administratively or criminally liable before a court of law as any other individual, except for the special procedure to be followed in the case of criminal proceedings against the Commissioner according to Article 211 of the Constitution. 52 53 54 55 56 57 58 Assembly “Towards decriminalisation of defamation”, available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTMLen.asp?fileid=17588&lang=en. See e.g., in the case of Eon v. France, ECtHR judgment of 14 March 2013 (Application no. 26118/10), par 63, available at http://hudoc.echr.coe.int/fre#{"itemid":["001-117742"]}. See also op. cit. footnote 46, par 27 (2015 Venice Commission-DG I Joint Opinion on the Draft Amendments to the Law on the Human Rights Defender of the Republic of Armenia), Op. cit. footnote 6, General Observation 2.3 (ICC General Observations), which states: “It is acknowledged that no office holder should be beyond the reach of the law and thus, in certain exceptional circumstances it may be necessary to lift immunity”. See, in the case of parliamentary immunities, op. cit. footnote 22, par 38 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). ICC General Observation 2.3 refers to the protection from legal liability for “actions and decisions that are undertaken in good faith in their official capacity”. See also op. cit. footnote 44, pars 74 and 76 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia); and op. cit. footnote 15, par 7.5 (PACE Recommendation 1615 (2003)). See op. cit. footnote 41, page 125 (APT-IIHR Joint Implementation Manual on OPCAT (2010)); and page 43 (APT’s Guide on Establishment and Designation of National Preventive Mechanisms (2006)). See as a matter of comparison, when dealing with the non-liability of parliamentarians, op. cit. footnote 22, par 182 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See also the case of Cordova v. Italy, ECtHR judgment of 30 January 2003 (Application nos. 40877/98 and 45649/99), par 63, where the ECtHR held that the behaviour of the parliamentarian in question was “not connected with the exercise of parliamentary functions in the strict sense” and that it was therefore a violation of Article 6 of the ECHR to deny access to court. See e.g., op. cit. footnote 45, page 20, Section 1 on “Functional Immunity” in relation to Serbia’s Protector of Citizens (ICC SubCommittee on Accreditation Report (March 2015)), expressly referring to corruption. 14