OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human
Rights of Poland
III. EXECUTIVE SUMMARY
8.
At the outset, it is welcome that the Draft Act seeks to specify the procedure for lifting
the Commissioner’s immunity in the context of criminal proceedings, given that this
question has so far not been outlined in the Act on the Commissioner for Human Rights
in detail. In this respect, international standards recommend that clear, transparent and
impartial procedures for lifting immunities be provided in NHRI legislation.
9.
At the same time, the existing Polish legal framework fails to provide sufficient
safeguards to protect the Commissioner and his or her staff from civil, administrative
and criminal liability for words spoken or written, decisions made, or acts performed in
good faith in their official capacities (“functional immunity”). Moreover, the Draft Act
does not indicate with sufficient clarity the modalities and criteria to be taken into
account by the Sejm (or its competent authority) to ensure the fairness, transparency and
impartiality of the procedure for lifting the Commissioner’s immunity in the context of
criminal proceedings.
10.
In order to ensure full compliance of the Draft Act with international standards and
good practices, the OSCE/ODIHR makes the following key recommendations:
A. to remove the current wording of Article 7a of the Draft Act and instead clearly
state that the Commissioner as well as his or her staff shall be protected from civil,
administrative and criminal liability for words spoken or written, decisions made,
or acts performed in good faith in their official capacities [pars 30-32 and 36-40] while also specifying:
1)
clear rules and procedures for lifting staff immunities which may differ from
the ones applicable to the Commissioner; [par 43]
2)
the inviolability of the Commissioner’s Office premises, property, means of
communication and all documents, including internal notes and
correspondence as well as of baggage, correspondence and means of
communication belonging to the Commissioner; [par 42]
3)
that the 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; [par 44] and
4)
that in all other cases, the Commissioner (and his or her staff) may be civilly,
administratively or criminally liable before a court of law, subject to a special
procedure that would need to be followed in the case of criminal proceedings
against the Commissioner, i.e., getting approval from the Sejm; [par 41]
B. re-consider, in Articles 7c par 1 and 7e par 2, the role of the Minister of Justice in
requesting the Sejm to allow criminal charges to be brought for publicly prosecuted
offences (or specify that the Minister merely transmits the said request) and instead
designate a different, more independent body as competent to submit such request;
[pars 47-49]
C. specify in Article 7e par 2 that where the Commissioner is not caught in flagrante
delicto and where arrest or detention are not necessary to ensure the proper course
of proceedings, the Commissioner may not be arrested or detained, and should be
immediately released as soon as the persons carrying out the arrest or responsible
for the detention become aware of the identity of the Commissioner; [par 51]
4