OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland when the Commissioner requests that immunity be lifted.75 Immunity should be lifted in any case for offences inherently falling outside the scope of the official mandate,76 for instance accepting bribes, corruption, influence peddling or other similar criminal offenses,77 unless the Sejm or competent body mentioned in Article 7e of the Draft Act finds that the complaint is manifestly false or ill-founded. 57. Parliamentary procedures for lifting the Commissioner’s immunity may also give rise to other, more general problems. Particularly, they may conflict with the principle of presumption of innocence, as protected by the ICCPR and the ECHR78 if the Sejm/competent authority proceeds with an analysis of the merits of the case. In addition, this would also potentially be in breach of fundamental principles of separation of powers, under which it is for the courts alone (and not for the legislature) to assess individual cases of criminal responsibility.79 Consequently, given that the procedure should only enable the Sejm to form a preliminary opinion on the case, it is recommended to specify that the Sejm/competent authority should not analyse the merits of the case and that they should duly respect the principle of the presumption of innocence. 58. Furthermore, it is also questionable whether making the case files available to the authority competent to examine them under the by-laws of the Sejm (Article 7d par 5) would therefore be necessary, all the more given that this may also violate the principles of confidentiality of criminal proceedings and the separation of powers. The drafters should therefore re-consider the inclusion of such provision in the Draft Act. 59. Finally, regarding the lifting of immunity, ICC General Observation 2.3 recommends that “a special majority of parliament” be required. Article 7d par 8 requires an absolute majority of the statutory number of deputies of the Sejm for the adoption of a resolution lifting the Commissioner’s immunity. While this is a higher threshold than a simple majority of those deputies present at the parliamentary session, it is doubtful whether such a majority would prevent a potential politicisation of the decision regarding the lifting of immunity.80 A higher majority could be considered by the drafters in order to de-politicize the procedure and guarantee that a Commissioner could never be removed from office simply because his or her legal acts, undertaken in good faith, are disapproved of or questioned by the governmental majority in Parliament. 4.3. The Outcome of the Procedure 60. It is noted that the Draft Act does not specify the possible outcomes of the procedure on the lifting of immunity, and the legal consequences in cases where immunity is either lifted, or not lifted. 61. In cases where the Commissioner’s immunity is not lifted, the criminal proceedings should not proceed further and criminal prosecution of the Commissioner for the 75 76 77 78 79 80 Op. cit. footnote 22, par 189 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). Op. cit. footnote 37, page 250 (UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (2010)). See e.g., op. cit. footnote 45, page 20 (ICC Sub-Committee on Accreditation Report (March 2015)), expressly referring to corruption. Article 14 par 2 of the ICCPR and Article 6 par 2 of the ECHR. See e.g., in the context of lifting parliamentary immunities, op. cit. footnote 22, par 191 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). ibid. par 149 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See e.g., although in the context of removal from office, Venice Commission Opinion on the Law on the People's Advocate (Ombudsman) of the Republic of Moldova, CDL-AD(2015)017, adopted by the Venice Commission at its 103rd Plenary Meeting (Venice, 19-20 June 2015), pars 60-61, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)017-e. 19