OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights Institution of Switzerland appropriate (see General Observation 1.7). Permanent or ad hoc advisory boards with a pluralist composition could for instance assist the NHRI in determining its programming, annual work plans and priorities. At the same time, the independence of the NHRI is without prejudice to the importance of effective co-operation between NHRIs and other institutions, including Parliament, non-governmental organizations and supra-national human rights bodies.54 41. Finally, Article 4 of the Draft Act states that within the framework of its tasks, the NHRI shall provide, against payment, services to authorities and private persons. Although the Explanatory Statement to the Draft Act notes the importance of keeping the NHRI as a service provider under the contemplated scheme,55 this provision appears to be problematic in terms of the NHRI’s independence. Indeed, an extensive “commercialization” of its activities/services may threaten the institution’s autonomy when carrying out its statutory tasks, as well as its independence, primarily its financial independence, particularly if the Confederation’s annual allocation is insufficient to carry out its core functions (see pars 22-23 supra and Sub-Section 5.4 infra). This also means that private actors have the potential to influence the setting of priorities for the NHRI’s research and studies (see par 90 infra). Such “commercialization” may also have potentially negative consequences for the public perception of the institution’s role in society, with the NHRI potentially being considered as a private commercial entity rather than a public body (see also Sub-Section 5.4 infra). It is recommended to include in the Draft Act an explicit guarantee protecting against any excessive “commercialization” of the NHRI’s activities, for instance by specifying that income and revenues from such activities should not represent more than a certain percentage of the total allocation provided by the Confederation. 3.2. The Need to Ensure the NHRI’s Functional Immunity 42. 54 55 56 57 58 59 The functional immunity56 of members of NHRIs’ governing bodies exists as an essential corollary of their institutional independence57 and protects their ability to engage in critical analysis and commentary on human rights issues.58 Because their tasks require special examinations/investigations of frequently politically sensitive issues and reporting on actions of the Government often resulting in strong criticism of authorities, such institutions may be a likely target of actions motivated by political or other interests. Functional immunity is therefore essential to ensure that NHRIs’ independence is not compromised through fear of criminal proceedings or civil action by an allegedly aggrieved individual or entity, including public authorities.59 On several See op. cit. footnote 9, General Observation 1.5 and its justification. See also the 2012 Belgrade Principles on the Relationship between National Human Rights Institutions (NHRIs) and Parliaments, developed during a Seminar co-organized by the Office of the United Nations High Commissioner for Human Rights, the International Coordinating Committee of National Institutions for the promotion and protection of human rights, the National Assembly and the Protector of Citizens of the Republic of Serbia, with the support of the United Nations Country Team in the Republic of Serbia, <http://nhri.ohchr.org/EN/Themes/Portuguese/DocumentsPage/Belgrade%20Principles%20Final.pdf>. Op. cit. footnote 19, Sub-Sections 1.3.3 on page 9 and 1.3.7 on page 13 (Explanatory Statement to the Draft Act). i.e., the protection from liability for the words spoken and written and the actions and decisions undertaken in good faith in one’s official capacity (“functional immunity” or “non-liability”). Op. cit. footnote 9, General Observation 1.1 and Justification to General Observation 2.3 which considers functional immunity as being an “essential hallmark of institutional independence”. ibid. Justification to General Observation 2.3. See e.g., regarding the similar case of 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, <http://hudoc.echr.coe.int/eng#{"fulltext":["33400/96"],"languageisocode":["FRE"],"documentcollectionid2":["GRANDCHAMBER"," CHAMBER"],"itemid":["001-65779"]}>, holding that 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. 15