OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland 22. The Council of Europe’s Group of States against Corruption (GRECO) considers that immunities may raise serious problems in respect of an effective fight against corruption and that immunities from criminal proceedings, be it for corruption or other charges, should be granted in a parsimonious and controlled manner.26 At the same time, as also acknowledged by GRECO,27 immunities granted by the Polish Constitution to some persons representing the highest political and judicial functions of the State28 aim at guaranteeing “the proper functioning of the organs” for which those persons exercise their functions. The Commissioner’s immunity is indeed essential to the effective fulfilment of his or her mandate, which he/she should be able to pursue without fear of harassment or undue charges from the executive, the courts or political opponents. The immunity protects the independence of the institution itself (not the individual) (see also comments on functional immunity in Section 2 infra). 23. While this Opinion analyses the amendments to the Act on the Commissioner for Human Rights only, it is worth noting that GRECO recommended to Poland to reduce those categories of holders of public office benefiting from immunities and the scope of these immunities and to simplify the procedure for lifting the immunity of State officials.29 In that respect, the Draft Act is to a certain extent welcome as it aims at clarifying such a procedure. However, while the desire to seek to harmonize the abovementioned procedures is understandable, these attempts could well raise some concerns from a legal point of view. Indeed, the proposed amendments do not appear to take into consideration the very different institutional statuses, mandates, roles and functions of the respective bodies or public office holders, as well as the different legal frameworks, including international standards that apply to them. 24. First, the institutional roles of the Parliament and of the Commissioner are fundamentally different. While the former has as one of its key roles the oversight of the executive, the latter’s mandate is much broader, as the Commissioner is tasked to oversee the overall human rights situation in the country, to protect and promote the human rights of individuals as well as to counter and remedy instances of maladministration by the executive. To perform such functions, the Commissioner enjoys extensive powers, such as the possibility to demand that civil, administrative or criminal cases be initiated (Article 14 of the Act) or that disciplinary proceedings be instituted or official sanctions imposed (Article 15 of the Act), among others. Second, the Parliament is a collective body and lifting the immunity of one of its members would in itself not impede the functioning of the institution as a whole. In contrast, as a single head institution, the Commissioner is heavily dependent on his/her reputation, integrity and leadership, and his/her position could be jeopardized if he/she were not adequately protected against external pressure. Ensuring the Commissioner’s independence from the executive and the legislature as a matter of priority, is thus 26 27 28 29 See pages 41-46 of GRECO Thematic Article on “Immunities of Public Officials as Possible Obstacles in the Fight Against Corruption” (2005), available at http://www.coe.int/t/dghl/monitoring/greco/general/Compendium_Thematic_Articles_EN.pdf. See par 67 of the Compliance Report on Poland of GRECO’s First Evaluation Round, 2 July 2004, available at https://www.coe.int/t/dghl/monitoring/greco/evaluations/round1/GrecoRC1(2004)5_Poland_EN.pdf. i.e., Deputies (Article 105 of the Constitution), Judges (Article 181 of the Constitution), Judges of the Constitutional Tribunal (Article 196 of the Constitution), Members of the Tribunal of State (Article 200), the President of the Supreme Chamber of Control (Article 206) and Commissioner for Human Rights (Article 211). In addition, the President of the Republic, the Prime Minister and members of the Council of Ministers, the President of the National Bank of Poland, the President of the Supreme Chamber of Control, members of the National Council of Radio Broadcasting and Television, persons to whom the Prime Minister has granted powers of management over a ministry, and the Commander-in-Chief of the Armed Forces are accountable before the Tribunal of State for “violations of the Constitution or of a statute committed by them within their office or within its scope” (Article 198). The President is also held accountable before the Tribunal of State for the commission of any other offence (Article 145) and the any member of the Council of Ministers for “the commission of an offence connected with the duties of his office” (Article 156). See Recommendation xvii (pars 20-24) of the Addendum to the Compliance Report on Poland of GRECO’s First Evaluation Round, 13 October 2006, available at https://www.coe.int/t/dghl/monitoring/greco/evaluations/round1/GrecoRC1(2004)5_Add_Poland_EN.pdf. 9