OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland said acts shall be impossible during his/her term of office,81 irrespective of whether they are covered by functional immunity. If the procedure for lifting immunities for the Commissioner has the same legal consequences as other such procedures such as the lifting of judges’ or prosecutor’s immunities, it is assumed that the police and prosecuting authorities would still “collect evidence […] even before the immunity is lifted, carry out activity (in rem proceedings) and that the issue of lifting the immunity arises only after the defendant is formally charged (in personam proceedings)”.82 If this is the case, these actions should not impede the activities of the Commissioner and of his or her staff nor constitute harassment. It would be advisable to specify this in the Draft Act. 62. In any case, after the end of the Commissioner’s mandate, any claim concerning words spoken or written, recommendations, decisions and other acts covered by the Commissioner’s functional immunity should remain inadmissible before a court of law (see par 32 supra). The same should apply regarding staff after they cease their employment with the Commissioner’s office. 63. In all other cases falling outside the scope of the functional immunity, the criminal proceedings that were put on hold due to Commissioner’s immunity could proceed after the end of his/her mandate. In that respect, it is welcome that Article 7b of the Draft Act seeks to clarify the rules pertaining to the statute of limitation by specifying that “[i]n the case of acts covered by immunity, the period of limitation in criminal proceedings does not run until the immunity expires”. However, in light of the above-mentioned comments on the temporal scope of the functional immunity (see par 44 supra), this wording should be changed to reflect that the functional immunity does not expire. Moreover, it would be advisable to specify that when immunity is not lifted, the period of limitation should be considered to be suspended from the date of the request for lifting immunity until the end of the Commissioner’s mandate. It is recommended to amend Article 7b accordingly. 64. In this context, it is also important to inquire whether lifting the Commissioner’s immunity in the context of criminal proceedings may potentially trigger his/her removal from office. Article 7 par 1 of the Act on the Commissioner for Human Rights enumerates the three grounds that may be invoked to seek removal, i.e., when the Commissioner “1) renounced performing the duties; 2) became permanently incapable to perform obligations as a result of illness, disability or lower strength – observed with a medical certificate; 3) made an untrue lustration statement, observed with a final and binding court decision”. Article 7 par 2 also provides the possibility of removal where the Commissioner “defected from the oath made”. Read together with Article 4 of the Act where the oath is mentioned, this may provide a ground for removal in cases where his or her acts are not considered to be in accordance with “the Law and the principles of community life and social justice”. 65. While not directly affected by the Draft Act, OSCE/ODIHR feels that it is important to examine whether the ground mentioned in Article 7 par 2 is compliant with international standards. Indeed, ICC General Observation 2.1 states that “[t]he grounds for dismissal must be clearly defined and appropriately confined to only those actions which impact adversely on the capacity of the member to fulfil their mandate”. The main purpose of an oath is in general to commit to the highest standards of ethics, professional conduct and personal behaviour, which are, given their very nature, often 81 82 See e.g., Section 7(1) of the Czech Republic Act on the Public Defender of Rights No. 349/1999 (as amended in 2009). See op. cit. footnote 27, par 66 (second indent) (2004 Compliance Report on Poland of GRECO First Evaluation Round). 20