OSCE/ODIHR Preliminary Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland with fair and transparent procedures”. While it is welcome that the Draft Act seeks to specify such a procedure, the respective steps and modalities would benefit from amendments to ensure the fairness, transparency and impartiality of the process. 54. In particular, the procedure for the lifting of immunity should be clearly regulated and should comply with general principles of procedural law, including the rights of both parties to be heard.64 Furthermore, they should be comprehensive, clear and predictable, and should be transparent and known to the public.65 At the same time, such procedures should not be made to resemble judicial proceedings, and under no circumstances should they assess the question of guilt, which is for the courts alone to decide; as such, the procedures should always respect the principle of the presumption of innocence, as protected by the ECHR.66 55. Article 7d par 3 of the Draft Act states that the request is referred to the competent authority pursuant to the by-laws of the Sejm. It is unclear whether this involves an ad hoc or a permanent body of the Sejm. Unless such a body is already clearly designated in the by-laws, it would be advisable to explicitly mention in the Draft Act which is this competent authority. It is also important that this authority’s composition be fixed ab initio in the Draft Act or in the by-laws of the Sejm to ensure greater transparency of the procedure.67 56. Article 7d pars 3 and 6 of the Draft Act provides that the Commissioner shall be notified of the content of the request and allows the Commissioner to provide explanations and submit his or her own requests, all of which aims to ensure respect for the rights of the Commissioner. At the same time, the Draft Act does not set out any criteria that should be considered by the Sejm (or by the competent authority as per Article 7d par 3) when deciding whether to consent to the initiation of criminal proceedings against the Commissioner. Such clear and objective criteria are key to ensure the transparency and impartiality of the procedure, and to prevent arbitrary or political decisions, all the more so given the majority required for the vote of the Sejm (see comment on this issue in par 61 infra). 57. In that respect, a number of criteria could be taken into consideration when determining whether immunity should be lifted or not in a given case.68 It is recommended to supplement the Draft Act in that respect. The Draft Act could for instance specify that the following criteria should be taken into consideration in favour of maintaining immunity and refusing to approve the initiation of criminal proceedings, e.g., (i) when the allegations involve words spoken or written, or any acts falling within the scope of the functional immunity (see Section 3.1. supra); (ii) when they are clearly and obviously unfounded; (iii) when they are clearly brought for partisan-political motives (fumus persecutionis) in order to harass or intimidate the Commissioner or to interfere with his or her mandate; or (iv) when legal 64 65 66 67 68 On the general principles of procedural law, see e.g., op. cit. footnote 21, par 191 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)) which lists a number of general principles of procedural law. See e.g., ibid. par 191 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See e.g., ibid. par 191 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See e.g., although in the context of the appointment of the ombudsperson, par 2 (fifth sub-paragraph) of the Venice Commission Memorandum on the Organic Law on the Institution of the Ombudsman of the Federation of Bosnia and Herzegovina , CDL-INF(2001)007, approved by the Venice Commission at its 46th Plenary Meeting (Venice, 9-10 March 2001), available at http://www.venice.coe.int/webforms/documents/?pdf=CDL(2011)079-e. See e.g., as a matter of comparison, although in the context of lifting of parliamentary immunities, op. cit. footnote 21, pars 188-189 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). 18