OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland 4. 44. Procedure for Lifting the Commissioner’s Immunity from Criminal Proceedings In the Draft Act, Article 7a-d delineates a special procedure for prior approval from the Sejm before criminal proceedings may be initiated against the Commissioner. Such procedural safeguards are particularly important in a country like Poland where criminal proceedings can be started at the instigation of a private individual (“private prosecution”), potentially leading to the initiation of numerous actions against the Commissioner. In this context, 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 Commissioner,65 or where functional immunity considerations apply (see pars 56-57 infra). 4.1. The Request to Lift Immunity 45. Pursuant to Article 7c of the Draft Act, the request for approval to bring criminal charges for publicly prosecuted offences against the Commissioner shall be submitted through the Minister of Justice (Article 7c par 1). In cases involving offences subject to private prosecution, such requests would be made by private prosecutors after having brought the case to court (Article 7c par 2) subject to certain requirements listed in paragraph 3 in the latter case (signature of an attorney-at-law or legal counsel, except in cases involving legal professionals). Both requests should be submitted to the Marshal of the Sejm (Article 7d). 46. In principle, and as stated above, the Commissioner needs to be able to effectively fulfil his or her institutional mandate in an independent manner, without fear of harassment or undue charges particularly from the executive. The procedure proposed in the Draft Act, whereby all requests for approval to bring criminal charges for publicly prosecuted offences should go through the Minister of Justice, would appear to place the Commissioner under some sort of scrutiny by the executive. Granting the Ministry of Justice this function could well constitute a serious encroachment upon the independence of the Commissioner. 47. In other countries, the practice as to which body is authorized to initiate the procedure for lifting of immunity of an Ombudsperson or of members of a national human rights body varies; however, such a body is most often independent from the executive (e.g., a certain minimum number of parliamentarians, a parliamentary committee or the Prosecutor General as a body enjoying a certain level of independence from the executive),66 to not endanger the independence of the NHRI. 65 66 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. The procedure is, for instance, initiated by a motion made by certain number of members of parliament (e.g., one third in Slovenia, see Article 21 of the Human Rights Ombudsman Act of 1993, available at http://www.legislationline.org/topics/country/3/topic/82); a Parliamentary Committee if the majority of its members so agrees (see e.g., Article 12 of the Law on the Protector of Citizens of Serbia (2005), available at http://www.legislationline.org/topics/country/5/topic/82); or the Chief Public Prosecutor (as an entity which in principle should enjoy a certain level of independence from the executive, see Venice Commission's Report on European Standards as regards the Independence of the Judicial System: Part II The Prosecution Service, CDL-AD(2010)040, Venice, 17-18 December 2010), available at http://www.venice.coe.int/webforms/documents/CDL-AD(2010)040.aspx). The prosecution service would a fortiori not be independent from the executive in cases where the functions of Prosecutor General and of Minister of Justice are exercised by the same person, as will be the case in Poland once the new Law on Prosecution Service (J.o.L. 2016, item 177) enters into force on 4 March 2016 (see Article 1 par 2 sentence 2 of the new Law which states that the Minister of Justice holds the Office of the Prosecutor General). 16