OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland paramount to enabling the institution to fulfil its mandate. For this reason, some additional safeguards should be in place to render the removal of the Commissioner’s immunity even more difficult than the lifting of parliamentarians’ immunity. 25. Moreover, while there are no international or European rules explicitly regulating parliamentary immunity at the national level,30 there are such standards pertaining to the immunity of NHRIs (see Section 1 supra). At the same time, in the case of state audit institutions (hereinafter “SAI”), the International Organization of Supreme Audit Institutions has developed some non-binding rules such as the Mexico Declaration on SAI Independence which states, in its Principle 2, that national legislation should guarantee the immunity of the SAI Head from any prosecution for any act that results from the normal discharge of his/her duties.31 As for the Inspector General for Personal Data Protection, the standards developed at the Council of Europe and European Union level require a ‘complete independence’ of the supervisory authorities responsible for ensuring data protection.32 Hence, the international rules applicable to these bodies or persons, if they so exist, vary greatly, but do in some instances state the necessity of preserving the independence of independent oversight bodies.In light of the above, rules and procedures on immunities that differ from those applicable to other bodies or public office holders may be necessary to protect the independence of the Commissioner as a single head institution. 2.2. Principle of Functional Immunity 26. 30 31 32 33 34 35 At the outset, it must be highlighted that the protection of NHRIs from liability for the words spoken and written, the actions and decisions that are undertaken in good faith in their official capacity (“functional immunity” or “non-liability”) exists as an essential corollary of their institutional independence guaranteed by Paris Principles.33 Functional immunity promotes the security of tenure of members of NHRIs’ decision-making bodies and their ability to engage in critical analysis and commentary on human rights issues.34 This is essential to ensure that NHRIs are able to engage in the proper exercise of their mandates without their independence being compromised through fear of criminal proceedings or civil action by an allegedly aggrieved individual or entity, including public authorities.35 The ECtHR has recognized that functional immunities which have the effect of barring suits against certain persons/entities to ensure these persons/entities’ independence may in certain circumstances be justified and Op. cit. footnote 22, par 2 (Venice Commission Report on the Scope and Lifting of Parliamentary Immunities (2014)). See http://www.issai.org/media/12922/issai_10_e.pdf. See also page 17 of the OECD Good Practices in Supporting Supreme Audit Institutions (2012), available at http://www.oecd.org/dac/effectiveness/Final%20SAI%20Good%20Practice%20Note.pdf. Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows, CETS No. 181, which entered into force in Poland on 1 November 2005, available at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680080626. Its Article 1 par 3 states that “[t]he supervisory authorities shall exercise their functions in complete independence”. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Official Journal L 281 , 23/11/1995 P. 0031 – 0050, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML. Its Article 28 par 1 specifies that the Supervisory Authorities shall act with complete independence in exercising the functions entrusted to them. See also Section 5.2 (pages 114-118) of the EU Fundamental Rights Agency (FRA) Handbook on European Data Protection Law (2014), available at http://fra.europa.eu/sites/default/files/fra-2014-handbook-data-protection-law-2nd-ed_en.pdf. Op. cit. footnote 6, page 12, General Observation 1.1 (ICC General Observations) and page 36, justification to General Observation 2.3 (ICC General Observations) which considers functional immunity as being an “essential hallmark of institutional independence”. ibid. page 36, justification to General Observation 2.3 (ICC General Observations). See e.g., regarding the immunity of judges, the case of Ernst v. Belgium, ECtHR Judgment of 15 October 2003 (Application No. 33400/96, only in French), par 85, available at http://hudoc.echr.coe.int/eng#{"fulltext":["33400/96"],"languageisocode":["FRE"],"documentcollectionid2":["GRANDCHAMBER","C HAMBER"],"itemid":["001-65779"]}, holding that the immunity (‘privilège de juridiction’) pursues the legitimate aim of ensuring that judges are protected against undue lawsuits and enabling them to exercise their judicial function peacefully and independently. 10