OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland institutional independence. Such a procedure should in principle allow the lifting of the immunity for certain acts that, even if undertaken during the performance of duties, inherently fall outside the scope of the functional immunity – for instance cases involving the acceptance of bribes and other forms of corruption, influence peddling or similar criminal offenses53 (see also pars 57-58 infra regarding the criteria for lifting immunity). 41. Finally, functional immunity should also cover baggage, correspondence and means of communication of the Commissioner, Deputies and the staff.54 In this context, it is important that the Act on the Commissioner for Human Rights also include guarantees as to the inviolability of the Commissioner’s Office property, documents and premises.55 It is recommended to supplement the Draft Act accordingly. 3.2. Personal and Temporal Scope of the Functional Immunity 42. In principle, both the NHRI and its staff should benefit from functional immunity.56 The ICC specifically recommended to Poland to supplement the Act on the Commissioner for Human Rights to include “provisions to protect the officers and staff members of the [Commissioner] from legal liability for actions undertaken in their official capacity”.57 It is therefore proposed to reflect this in the Draft Act, although different rules and procedures for lifting staff functional immunities could be considered (e.g. waiving of functional immunity by the Commissioner for his or her staff).58 43. Additionally, such functional immunity should continue to be accorded even after the end of the Commissioner’s mandate or after the staff cease their employment with the Commissioner’s office.59 53 54 55 56 57 58 59 See e.g., op. cit. footnote 42, page 20, Section 1 on “Functional Immunity” in relation to Serbia’s Protector of Citizens (ICC Sub-Committee on Accreditation Report (March 2015)), expressly referring to corruption. See e.g., par 23 of the Joint OSCE/ODIHR-Venice Commission Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro, adopted by the Venice Commission at its 88th Plenary Session (Venice, 14-15 October 2011), available at http://www.legislationline.org/documents/id/16665. See e.g., par 52 of the OSCE-ODIHR-Venice Commission Joint Opinion on the Law no. 2008-37 of 16 June 2008 on the Higher Committee for Human Rights and Fundamental Freedoms of the republic of Tunisia, CDL-AD(2013)019, 17 June 2013, available at http://www.legislationline.org/documents/id/17976. See e.g., op. cit. footnote 54, par 23 (2011 OSCE/ODIHR-Venice Commission Joint Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro); and op. cit. footnote 40, pars 74-76 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia). See also par 69 of the Venice Commission Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina, CDL-AD(2015)034-e, adopted by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015), available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)034-e; and par 18 of the Joint Opinion on the Draft Law on the Ombudsman of Serbia by the Venice Commission, the Commissioner for Human Rights and the Directorate General of Human Rights of the Council of Europe, CDL-AD(2004)041, adopted by the Venice Commission at its 61st Plenary Session (Venice, 3-4 December 2004), available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2004)041-e. Op. cit. footnote 6, page 22 (Report and Recommendations of the Session of the SCA (November 2012)). See e.g., op. cit. footnote 40, par 74 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia); and op. cit. footnote 41, par 26 (2015 Joint Opinion on the Draft Amendments to the Law on the Human Rights Defender of the Republic of Armenia). See op. cit. footnote 56, par 69 (2015 Venice Commission Opinion on the Draft Law on Ombudsman for Human Rights of Bosnia and Herzegovina); op. cit. footnote 54, par 23 (2011 OSCE/ODIHR-Venice Commission Joint Opinion on the Law on the Protector of Human Rights and Freedoms of Montenegro); op. cit. footnote 40, pars 74-76 (2006 Venice Commission Opinion on Amendments to the Law on the Human Rights Defender of Armenia); and op. cit. footnote 56, par 18 (2004 Joint Venice Commission-CHR-DGHR Opinion on the Draft Law on the Ombudsman of Serbia). 15