OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights Institution of Switzerland III. EXECUTIVE SUMMARY 9. At the outset, it should be noted that in principle, the Draft Act is welcome, as it seeks to create the basis for the establishment of an NHRI in Switzerland, in compliance with the United Nations Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (hereinafter “the Paris Principles”).3 This is a significant first step in addressing the recommendations made to Switzerland previously by various human rights monitoring bodies.4 At the same time, it would be advisable to expand the Draft Act significantly (or to adopt a separate law for this purpose), so as to include important aspects pertaining to the NHRI and its functioning, especially those at the core of the institution’s basic guarantees of independence, and to ensure full compliance with the Paris Principles. 10. In particular, the fact that the NHRI would be attached to universities or higher education institutions and be governed by a contract between an administrative unit of the Federal Council and the NHRI raises concerns, as this approach could call into question the permanence and independence of this new entity. Instead, it would be preferable if the Swiss decision-makers would establish an independent and autonomous body in compliance with the Paris Principles. 11. In addition, the legal drafters should introduce into the Draft Act (or separate act) specific safeguards to protect the NHRI’s independence, while including provisions concerning this body’s management and ensuring that its appointment process complies with the NHRI’s institutional independence. In particular, the NHRI’s leadership should be protected from civil, administrative and criminal liability for words spoken or 3 4 The UN Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (hereinafter “the Paris Principles”) were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris (7-9 October 1991), and adopted by UN General Assembly Resolution 48/134 of 20 December 1993, <http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx>. See, in particular, Recommendations 123.17 to 123.23 of the Second Cycle Report of the Working Group on the Universal Periodic Review (UPR) for Switzerland, A/HRC/22/11, 7 December 2012 (next review will take place in November 2017), <https://documentsdds-ny.un.org/doc/UNDOC/GEN/G12/186/16/PDF/G1218616.pdf?OpenElement>; UN Human Rights Committee (UN HRC), Concluding Observations on Switzerland, CCPR/C/CHE/CO/4, 22 August 2017, pars 14-15, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CHE/CO/4&Lang=En>; UN Committee on the Elimination of Discrimination against Women, Concluding Observations on Switzerland, CEDAW/C/CHE/CO/4-5, 25 November 2016, pars 18-19, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/CHE/CO/45&Lang=En>, which recommends in particular to “[s]trengthen the mandate of the Swiss Centre of Expertise on Human Rights, in particular with regard to gender equality, and ensure that it complies with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles)”; UN Committee against Torture, Concluding Observations on Switzerland, CAT/C/CHE/CO/7, 7 September 2015, par 9, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT/C/CHE/CO/7&Lang=En>; UN Committee on the Rights of the Child, Concluding Observations on Switzerland, CRC/C/CHE/CO/2-4, 26 February 2015, pars 18-19, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC/C/CHE/CO/2-4&Lang=En>, where the Committee urged “the State party to take measures to establish expeditiously an independent mechanism for monitoring human rights in general, and a specific mechanism for monitoring children’s rights that is able to receive, investigate and address complaints by children in a child-sensitive manner, ensure the privacy and protection of victims, and undertake monitoring and follow-up activities for victims”; UN Committee on the Elimination of Racial Discrimination, Concluding Observations on Switzerland, CERD/C/CHE/CO/7-9, 13 March 2014, par 10, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CHE/CO/79&Lang=En>; UN Committee on Economic, Social and Cultural Rights (CESCR), Concluding Observations on Switzerland, E/C.12/CHE/CO/2-3, 26 November 2010, par 6, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E/C.12/CHE/CO/2-3&Lang=En>. See also the preliminary summary conclusions of the Council of Europe’s Commissioner for Human Rights following a visit to Switzerland from 22 to 24 may 2017, available at http://www.coe.int/en/web/commissioner/-/switzerland-commissioner-welcomes-progress-on-asylum-butthe-most-vulnerable-need-better-protection, where the Commissioner welcomed “the decision of the Swiss government to set up a national institution for human rights, which would reinforce the legal and institutional framework for the protection and promotion of human rights in Switzerland” although encouraging “the Swiss authorities to be ‘more ambitious with their plans and create an institution that is pluralistic, adequately funded and fully independent’” and recommending that the institution “receive a broad mandate and monitor the implementation of human rights standards at all levels of Swiss administration”. 4