OSCE/ODIHR Opinion on the Draft Act on the Independent National Human Rights Institution of Iceland clearly in the Draft Act. Practice varies greatly across the OSCE region with Ombudspersons or Human Rights Commissioners being recognized as having equal status to judges of the Constitutional or Supreme Courts, the Public Prosecutor or the Governor of the National Bank, but generally, the status and remuneration of Board members should correspond to other positions with a high rank within the state apparatus.71 It is recommended to amend Article 4 par 1 of the Draft Act accordingly. 59. Article 5 of the Draft Act provides that the Board of Directors shall appoint the Director of the NHRI, who is in charge of the institution’s day-to-day activities and operation, as well as of engaging its employees and other experts. Hence, the Director’s real and perceived independence should be ensured in order not to have a negative impact on the independence and autonomy of the NHRI itself. Nothing is said as to the eligibility requirements and incompatibilities for the Director’s position, or as to the rank of this post. As mentioned in par 44 supra, NHRI functions are not compatible with the performance of another function or profession, public of private, or with membership in political parties or unions.72 The Draft Act should therefore specify the eligibility criteria for the Director’s position and incompatibilities to ensure that the perceived independence of the NHRI is preserved. 60. In addition, the Draft Act should contain general regulations concerning the remuneration of the Director that correspond to the upper end of the public sector’s salary scale,73 and should not leave this issue to the free interpretation and decision of the Official Remuneration Council (Article 5 par 2 of the Draft Act). Article 5 par 2 of the Draft Act should be amended in that respect (see also par 70 infra regarding the remuneration of the staff). 61. Finally, the Draft Act fails to specify the nature of the working relationships between the Board of Directors and its Chairperson (and reporting lines) as well as that of the Director vis-à-vis the Board, and does not clearly delineate their respective roles and responsibilities. Lack of clarity in this regard may lead to considerable problems related to the division of authority within the NHRI and effective management of the institution overall. These aspects should be clarified. 5. 62. 71 72 73 74 75 The NHRI’s Functional immunity The functional immunity74 of the members of an NHRIs’ decision-making bodies exists as an essential corollary of their institutional independence75 and protects their ability to See e.g., Article 10 (5) of the Ombudsman Act (1995) of Malta referring to remuneration equivalent to the judge of superior courts; Section 8 of the Law on the Public Defender of Rights (1999, as amended 2009) of the Czech Republic which refers to the salary, severance pay, reimbursement of expenses and benefits in kind equal to that of the President of the Supreme Audit Office; Article 12 of the Law on Establishment of a Mediator of Luxembourg (2003) referring to the specific upper salary scale applicable in the public service; all are available at http://www.legislationline.org/topics/topic/82. See also op. cit. footnote 15, Section 4.1.1 on Rank and Salary (2016 Venice Commission’s Compilation of Opinions concerning the Ombudsman Institution). Venice Commission, the Commissioner for Human Rights and the Directorate General of Human Rights of the Council of Europe, Joint Opinion on the Draft Law on the Ombudsman of Serbia, adopted by the Venice Commission at its 61st Plenary Session (Venice, 3-4 December 2004), CDL-AD(2004)041, par 13, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2004)041-e. See op. cit. footnote 14, pages 123 and 152 (2010 UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions). i.e., the protection from liability for the words spoken and written and the actions and decisions undertaken in good faith in one’s official capacity (“functional immunity” or “non-liability”). See General Observation 1.1 and justification to General Observation 2.3 which considers functional immunity as being an “essential hallmark of institutional independence”. 19