OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland should under no circumstances assess the question of guilt, which is for the courts alone to decide (see also par 58 infra). 53. Article 7d par 3 of the Draft Act states that the request for lifting immunity is referred to the competent authority pursuant to the by-laws of the Sejm. It is unclear whether this involves an ad hoc or a permanent body of the Sejm. Unless such a body is already clearly designated in the by-laws, it would be advisable to explicitly mention in the Draft Act which is this competent authority. It is also important that this authority’s composition be fixed ab initio in the Draft Act or in the by-laws of the Sejm to ensure a more transparent procedure.71 54. Article 7d pars 3 and 6 of the Draft Act provides that the Commissioner shall be notified of the content of the request and allows the Commissioner to provide explanations and submit his or her own requests. This aims to ensure respect for the rights of the Commissioner. At the same time, the Draft Act does not set out any criteria that should be considered by the Sejm (or by the competent authority as per Article 7d par 3) when deciding whether to consent to the initiation of criminal proceedings against the Commissioner. Such clear and objective criteria are key to ensuring the transparency and impartiality of the procedure, and to prevent arbitrary or political decisions, all the more so given the majority required for the vote of the Sejm (see comment on this issue in par 60 infra). 55. In that respect, a number of criteria could be taken into consideration when determining whether immunity should be lifted or not in a given case.72 It is recommended to supplement the Draft Act in that respect. The Draft Act could for instance specify that the following criteria should be taken into consideration in favour of maintaining immunity and refusing to approve the initiation of criminal proceedings, e.g., (i) when the allegations involve words spoken or written, or any acts falling within the scope of the functional immunity (see Section 3.1. supra); (ii) when they are clearly and obviously unfounded; (iii) when they are clearly brought for partisan-political motives (fumus persecutionis) in order to harass or intimidate the Commissioner or to interfere with his or her mandate; or (iv) when legal proceedings would seriously endanger the institutional functions of the Commissioner.73 56. On the other hand, the following could be cited as considerations in favour of lifting immunity, e.g., (i) when the respective request is based on sincere, serious and fair grounds; (ii) when the person concerned is caught in flagrante delicto; (iii) when the alleged offence is of a particularly serious nature (the ICC often cites corruption practices as an example);74 (iv) when the request concerns a criminal conduct which is not strictly related to the performance of Commissioner’s functions but concerns acts committed in relation to other personal activities; (v) when proceedings should be allowed in order not to obstruct justice or in order to safeguard the authority and legitimacy of the Commissioner as an institution; (vii) 71 72 73 74 See e.g., although in the context of the appointment of the ombudsperson, par 2 (fifth sub-paragraph) of the Venice Commission Memorandum on the Organic Law on the Institution of the Ombudsman of the Federation of Bosnia and Herzegovina , CDLINF(2001)007, approved by the Venice Commission at its 46th Plenary Meeting (Venice, 9-10 March 2001), available at http://www.venice.coe.int/webforms/documents/?pdf=CDL(2011)079-e. See also op. cit. footnote 59, pars 59-60 (2015 Venice Commission Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina). See e.g., as a matter of comparison, although in the context of lifting of parliamentary immunities, op. cit. footnote 22, pars 188-189 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). ibid. pars 188-189 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See e.g., page 27 of the ICC Sub-Committee on Accreditation Report (November 2013), page 27, available at http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20NOVEMBER%202013%20FINAL%20REPORT%20ENGLI SH.pdf; and op. cit. footnote 45, page 20 (ICC Sub-Committee on Accreditation Report (March 2015)). 18