OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights Institution of Switzerland institution. In this context, although Article 8 of the Draft Act states that the NHRI is independent in the performance of its tasks with regard to the universities/higher education institutions and the Confederation, the applicable legislation de facto confers on the Confederation a certain oversight over the NHRI. 34. In light of the foregoing, the contemplated scheme should be reconsidered in its entirety and the Swiss legislator should rather provide for the establishment of an autonomous and independent entity, which shall benefit from a separate budget line (see Sub-Section 5.4 infra on budget and funding of the NHRI), and whose role and mandate would be in full compliance with the Paris Principles. 3. The Independence of the NHRI of Switzerland 3.1. Safeguards to Protect the NHRI’s Independence 35. Article 2 of the Draft Act provides that the NHRI will be attached to one or more universities or other higher education institutions, which shall provide it with the necessary infrastructure, including premises and computer equipment, free of charge. Article 8 of the Draft Act further states that the NHRI “is independent in the performance of its tasks with regard to the universities or other institutions in the field of higher education to which it is attached and to the Confederation”. While it is overall welcome that the principle of independence of the NHRI is expressly stated in its Article 8, the Draft Act fails to detail what is meant by “independence” and the safeguards that will be in place to protect and guarantee such independence. 36. As mentioned in pars 22 and 24 supra, the future NHRI should support and complement the cantonal human rights mechanisms, while at the same time overcoming the shortcomings identified in the pilot project, particularly as regards the lack of independence of the SCEHR.45 There are various ways in which to guarantee the independence of an NHRI, including by granting the entity a distinct legal personality and functional immunity (see Sub-Section 3.2 infra), ensuring its operational and financial independence and autonomy (see Sub-Section 5 infra), and through the terms and conditions governing the appointment and dismissal of the NHRI’s governing body (see Sub-Section 5.1 infra). 37. The enabling legislation establishing an NHRI should in principle give the institution a separate legal personality sufficient to allow it to make decisions and undertake responsibilities independently,46 as contemplated in the Explanatory Statement,47 although this is not expressly mentioned in the Draft Act. Moreover, Article 8 only refers to the NHRI’s independence vis-à-vis the universities and higher education institutions as well as the Confederation, but not its protection from any other outside influence. It is recommended to supplement the Draft Act accordingly. 38. At the same time, the planned connection with universities or higher education institutions raises certain doubts with regard to the NHRI’s independence from such entities. In light of the need to maintain its complete autonomy and independence from 45 46 47 Op. cit. footnote 19, Sub-Sections 11.3 and 1.3.3 (Explanatory Statement to the Draft Act). Op. cit. footnote 16, Sub-Section 10.1.4 on page 247 (2010 UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions). Op. cit. footnote 19, Sub-Section 2, comments concerning Article 8, on page 23 (Explanatory Statement to the Draft Act). 13