OSCE/ODIHR Opinion on the Draft Act on the Independent National Human Rights Institution of Iceland the law, which is also an element of the rule of law.85 Indeed, the Sub-Committee on Accreditation has recognized this, and thus stated that the law should clearly establish the grounds, and a clear and transparent process, by which the functional immunity of the members of the decision-making body may be lifted.86 It is recommended to supplement the Draft Act accordingly. At the same time, a proper mechanism is needed to prevent or stop such investigations or proceedings where there is no proper evidence to suggest criminal liability on the part of the NHRI members, 87 or where functional immunity considerations apply. In particular, the request to lift immunity should be submitted by a body independent from the executive, and clear, transparent and impartial criteria and procedures shall determine whether immunity should be lifted or not in a given case.88 67. It is noted that different rules and procedures may apply for lifting staff immunities; for example, the Draft Act could set out that for staff members, the Board of Directors may decide whether or not to waive immunity.89 6. The NHRI’s Autonomy in Human Resources Management and Financial Independence 6.1. The NHRIs’ Autonomy in Human Resources Management 68. It appears that there are plans to transfer the staff of the Icelandic Human Rights Centre, which is currently funded by the Ministry of Interior, in its entirety to the new Institution. Generally, an NHRI not only needs to be independent, but must also be “seen” to be independent.90 NHRI members and staff should therefore not be too closely connected to the public service or considered or perceived as government employees.91 Hence, such a transfer of staff to the future NHRI may raise come concerns in terms of perceived and actual independence from the executive. Moreover, as noted in General Observation 2.5, an NHRI “must have the authority to determine its staffing profile and to recruit its own staff”. The fact that the entire staff body of a government agency would be transferred to the new entity would de facto limit the NHRI’s autonomy in that respect. 69. The employment status of the NHRI’s staff is also not clear. In that respect, it is noted that most countries have human resources policies pertaining to their public services that apply to all public agencies and entities, including NHRIs. 92 These types of 85 86 87 88 89 90 91 92 See Venice Commission, Rule of Law Checklist, CDL-AD(2016)007, 18 March 2016, pages 18-19, available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e. See e.g., op. cit. footnote 29, page 37 (SCA Report and Recommendations of May 2016). See e.g., regarding the immunity of judges, par 54 of Opinion No. 3 of the Consultative Council of European Judges to the attention of the CoE Committee of Ministers on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality (2002), available at https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2002)OP3&Sector=secDGHL&Language=lanEnglish&Ver=original&BackColorInternet= FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3. See e.g., op. cit. footnote 79, Sub-Section 4 on the Procedure for Lifting the Commissioner’s Immunity from Criminal Proceedings (2016 OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland). ibid. par 42 (2016 OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland). ibid. page 39 (2010 OHCHR Handbook on National Human Rights Institutions). See also e.g., op. cit. footnote 81, pars 12, 27-29 (2011 OSCE/ODIHR-Venice Commission Joint Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro). International Council on Human Rights Policy and OHCHR, Report on Assessing the Effectiveness of National Human Rights Institutions (2005), page 8, available at http://www.ichrp.org/files/reports/18/125_report.pdf. See op. cit. footnote 52, pars 19-22 (2016 OSCE/ODIHR Opinion on the Draft Amendments to the Law on Civil Service of Ukraine). See also OHCHR, Handbook on National Human Rights Institutions - History, Principles, Roles and Responsibilities (2010), page 156, available at http://www.ohchr.org/Documents/Publications/PTS-4Rev1-NHRI_en.pdf. 21