OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights Institution of Switzerland functional immunity of members of the decision-making body may be lifted.68 This aspect should also be addressed in the Draft Act (or separate act). At the same time, 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 NHRI members,69 or where functional immunity considerations apply. In particular, the request to lift immunity should be submitted by a body independent from the executive, and clear, transparent and impartial criteria and procedures shall determine whether immunity should be lifted or not in a given case.70 46. It is noted that different rules and procedures may apply for lifting staff immunities; for example, the Draft Act could set out that for staff members, the NHRI’s governing body may decide whether or not to waive immunity.71 4. The Mandate of the NHRI of Switzerland 4.1. The Scope of the Mandate 47. As mentioned above, Article 3 of the Draft Act refers to the mandate to “promote human rights”. As noted by the UN Human Rights Committee, this is not completely in line with the Paris Principles, which require NHRIs to be vested with competences to both protect and promote human rights (Paris Principle A.1). Article 3 of the Draft Act should be amended this effect. 48. Article 3 of the Draft Act lists a number of tasks that the institution will carry out to fulfil its mandate, including information and documentation, research, the preparation of opinions and recommendations, the promotion of dialogue and collaboration between entities involved in the implementation and promotion of human rights, education and awareness-raising on human rights and exchanges at the international level. These primarily encompass functions pertaining to the NHRI’s promotional mandate. 49. In principle, the institution’s tasks should, at the very minimum, encompass the scope defined in the Paris Principles. General Observation 1.2 provides further detail by stating that the protection mandate of NHRIs should include functions such as “those that address and seek to prevent actual human rights violations [including] monitoring, inquiring, investigating and reporting on human rights violations” and may also include individual complaints handling.72 It is thus recommended to expand Article 3 of the Draft Act to include concrete examples of what the NHRI’s protection mandate would entail in line with General Observation 1.2. It is also crucial to ensure that the NHRI is endowed with adequate resources to effectively fulfill such a protection mandate (see also Sub-Section 5.4 infra). 68 69 70 71 72 See e.g., op. cit. footnote 60, page 37 (SCA Report and Recommendations of May 2016). 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), <https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2002)OP3&Sector=secDGHL&Language=lanEnglish&Ver=original&BackColorInternet =FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3>. See e.g., op. cit. footnote 61, Sub-Section 4 on the Procedure for Lifting the Commissioner’s Immunity from Criminal Proceedings (2016 OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland). ibid. par 42 (2016 OSCE/ODIHR Final Opinion on the Draft Act Amending the Act on the Commissioner for Human Rights of Poland). Op. cit. footnote 9, General Observation 1.2. 17