A/67/396 States; (vi) the Ombudsperson’s authority to disclose sensitive information to the petitioner was similarly at the discretion of States; (vii) there was no requirement that the petitioner be informed of the identity of the designating State; (viii) neither the comprehensive report, nor the Ombudsperson’s conclusions, could be disclosed to the petitioner; (ix) the Committee was under no obligation to provide reasons for its decision; and (x) the office of the Ombudsperson lacked the authority to grant appropriate relief where human rights were violated. 32. Some of these criticisms have been addressed by resolution 1989 (2011). With regard to issues (i) to (iv) above, the effect of the reversal of the consensus requirement in resolution 1989 (2011) is to create a strong presumption that the Ombudsperson’s recommendation to delist will be honoured by the Committee. This significantly increases the traction of the mandate, but the ultimate decision-making power continues to reside with the Committee or, in the event of disagreement, with the Security Council. So far, the Committee has exercised a self-denying ordinance with respect to the “trigger mechanism”, 55 but there has been at least one instance in which it reportedly came close to being used. 56 If the Committee, by consensus, decides not to accept a delisting recommendation, or if the “trigger mechanism” is used, the requirements of independence and impartiality would be openly flouted since in that situation “the accuser is also the judge”. 57 The more finely balanced question is whether the mere existence of this possibility vitiates the regime as a whole. 33. There are no grounds for concluding that the present Ombudsperson lacks personal independence or impartiality. The Special Rapporteur notes that she has gone to very considerable lengths to make her Office as effective as possible in affording petitioners a measure of procedural justice. She has succeeded in delivering significant due process improvements, and has demonstrated independence of mind, an ability to gain the confidence of all stakeholders, and a personal determination to make the system as fair and effective as it can be within the limits of her mandate. 34. However, as regards an (objective) appearance of independence, the structural flaws remain the same. The United Nations Human Rights Committee has held that the power of an executive body to “control or direct” a judicial body “is incompatible with the notion of an independent tribunal”. 58 The European Court of Human Rights has similarly held that a requirement for quasi-judicial determinations to be ratified by an executive body with power to vary or rescind it contravenes the “very notion” of an independent tribunal. 59 This principle does not depend upon a perception that the existence of such a power might indirectly influence the manner in which such a body handles and decides cases. 60 The “very existence” of an executive power to overturn the decision of a quasi-judicial body is sufficient to deprive that body of the necessary “appearance” of independence __________________ 55 56 57 58 59 60 14 See S/2012/590, para. 30. See http://www.reuters.com/article/2012/07/02/us-un-sanctions-saudiidUSBRE86100D20120702. See Abdelrazak v. The Minister of Foreign Affairs [2009] FC 580. CCPR/C/GC/32, para. 19. See European Court of Human Rights, Findlay v. United Kingdom (1997), 24 EHRR 221. See European Court of Human Rights, Van de Hurk v. Netherlands (1994), 18 EHRR 481, para. 45. 12-52254