OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland drafted in general and vague terms. Hence, a number of actions could potentially be interpreted to fall under Article 7 par 2, which may in practice not be grave enough to justify a removal from office. It is thus doubtful whether the violation of an oath fulfils the requirements of legal certainty and foreseeability, which would apply in cases leading to such removal. Moreover, the mere lifting of immunity should not be used as a ground for removal for breach of oath as long as a final judgment has not been rendered (which is, for example, necessary prior to removal from office for making untrue lustration statements). The removal from office without such a court decision could otherwise conflict with the principle of presumption of innocence, as protected by Article 14 par 2 of the ICCPR and Article 6 par 2 of the ECHR. 29. Finally, Article 7a of the Draft Act merely re-states ad litteram Article 211 of the Constitution,31 and would thus appear to be redundant, all the more given that Article 8 par 2 of the Constitution expressly states that “the provisions of the Constitution shall apply directly, unless the Constitution provides otherwise”. It would thus be preferable to remove this provision, and to instead clearly specify in the Draft Act, as recommended at the international level,32 the principle of functional immunity (or ‘non-liability’), which aims to protect NHRIs from civil, administrative and criminal liability for words spoken or written, decisions made, or acts performed in good faith in their official capacity (see also Section 3.1 infra regarding the scope of such immunity). This principle constitutes a cornerstone of the independence of the institution, which is guaranteed by Article 210 of the Constitution of Poland.33 As also mentioned in the justification to ICC General Observation 2.3, this is an “essential hallmark of institutional independence”, while promoting the security of tenure of NHRI decision-making bodies and their ability to engage in critical analysis and commentary on human rights issues.34 30. Specifying such a functional immunity in the Draft Act would also provide a clear legal basis for courts, in legal proceedings, to consider a claim inadmissible where the functional immunity of the Commissioner and his/her staff applies. It is recommended to clarify in the Draft Act that a court should considered a criminal claim inadmissible when covered by the functional immunity (see also par 62 infra). 31. In any cases falling outside of this scope, meaning in cases that do not involve actions taken by the Commissioner in the exercise of his official functions, the Commissioner (and his or her staff) could be civilly, administratively or criminally liable before a court of law as any other individual, except for the special procedure that would need to be 31 32 33 34 Article 211 of the Constitution of the Republic of Poland states: “The Commissioner for Human Rights shall not be held criminally responsible nor deprived of liberty without prior consent granted by the Sejm. The Commissioner for Citizens' Rights shall be neither detained nor arrested, except for cases when he has been apprehended in the commission of an offence and in which his detention is necessary for securing the proper course of proceedings. The Marshal of the Sejm shall be notified forthwith of any such detention and may order an immediate release of the person detained.” Op. cit. footnote 5, page 36, General Observation 2.3 (ICC General Observations). See also Belgrade Principles on the Relationship Between National Human Rights Institutions and Parliaments developed on the occasion of an international seminar co-organized by the Office of the United Nations High Commissioner for Human Rights, the International Coordinating Committee of National Institutions for the promotion and protection of human rights, the National Assembly and the Protector of Citizens of the Republic of Serbia, with the support of the United Nations Country Team in the Republic of Serbia (Belgrade, 22-23 February 2012), available at http://nhri.ohchr.org/EN/Themes/Portuguese/DocumentsPage/Belgrade%20Principles%20Final.pdf, particularly par 12 which states: “Parliaments should secure the independence of a NHRI by incorporating in the founding law a provision on immunity for actions taken in an official capacity”. Article 210 of the Constitution of the Republic of Poland states: “The Commissioner for Human Rights shall be independent in his activities, independent of other State organs and shall be accountable only to the Sejm in accordance with principles specified by statute”. Op. cit. footnote 5, page 36, justification to General Observation 2.3 (ICC General Observations). 11