OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland 48. The Draft Act does not specify the exact role that the Minister of Justice plays in that respect – it is not clear whether he/she merely transmits the request made by another body, or whether he/she has some discretion in the matter. However, to safeguard the independence of the Commissioner, it is recommended that the drafters re-consider the current procedure under Article 7c par 1 and instead designate a different body as competent to submit such request, that is independent from the executive. The same argumentation applies to the procedure for allowing the arrest and detention of the Commissioner (Article 7e par 2). Alternatively, the Draft Act could specify that the Minister of Justice merely transmits the request. 4.2. The Need for Clear, Transparent and Impartial Procedures 49. Regarding procedures for approving the arrest and detention of the Commissioner, it must be reiterated that Article 211 of the Constitution provides for very limited circumstances in which this would be possible. Namely, these involve situations where the Commissioner is caught in flagrante delicto or where the detention is “necessary for ensuring the proper course of proceedings”. According to most criminal procedure rules, this is usually the case where there are reasonable grounds to believe that an accused or defendant may abscond or otherwise impede the proper conduct of criminal investigations.67 50. However, while Article 7a of the Draft Act repeats the provisions of Article 211 of the Constitution, Article 7e par 2 on the procedure to be followed when requesting the arrest or detention of the Commissioner does not mention these limited circumstances. It is recommended to specify also in this provision that where the Commissioner is not caught in flagrante delicto and where arrest or detention are not necessary to ensure the proper course of proceedings, the Commissioner may not be arrested or detained. In cases where this does happen, the Draft Act shall clearly stipulate that he/she shall be immediately released as soon as the persons carrying out the arrest or responsible for the detention become aware of the identity of the Commissioner. 51. As far as the lifting of immunity is concerned, ICC General Observation 2.3 recommends that “national law provides for well-defined circumstances in which the functional immunity of the decision-making body may be lifted in accordance with fair and transparent procedures”. While the ICC has not elaborated further the criteria and guidelines for lifting immunity, these would be a useful addition to the Draft Act in order to avoid selective and arbitrary decisions,. In this context, it is paramount that relevant provisions of the Draft Act specify further the respective steps and modalities of the procedure to ensure the fairness, transparency and impartiality of the process.68 They should be comprehensive, clear and predictable, and known to the public.69 52. In particular, the procedure for the lifting of immunity should be clearly regulated and should comply with general principles of procedural law, including the right to be heard.70 At the same time, such procedure should not resemble judicial proceedings, and 67 68 69 70 See e.g., Articles 170 (Arrest without a Warrant) and 177 (Grounds for Detention) of the Model Code of Criminal Procedure (2008) developed by the United States Institute of Peace in cooperation with the Irish Centre for Human Rights (ICHR), the Office of the UN High Commissioner for Human Rights (UNOHCHR), and the UN Office on Drugs and Crime (UNODC), available at http://www.usip.org/model-codes-post-conflict-justice-/publication-the-model-codes/english-version-volume-2. See e.g., in the context of parliamentary immunity, the justification for developing criteria and guidelines for lifting such immunity in op. cit. footnote 22, par 171 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See e.g., ibid. par 191 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). On the general principles of procedural law, see e.g., op. cit. footnote 22, par 191 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)) which lists a number of general principles of procedural law. 17