Guidebook 5.1. COMPLAINTS HANDLING AND PARTICIPATION IN COURT PROCEEDINGS Individual complaints before the NHRIs PARIS PRINCIPLES The Paris Principles provide that quasi-judicial powers, such as complaints handling concerning individual petitions, are only optional and not a necessary element of NHRIs’ mandate.372 CRPD Art 33(2) CRPD states that independent mechanisms should ‘protect’ the implementation of the Convention. The CRPD Committee interprets it as ‘taking into consideration individual or group complaints alleging breaches of the Convention’ and ‘conducting inquiries’. 373 of innocence as well as if they amounted to degrading treatment. In April 2018 the French Ombudsperson made the decision that the systematic appearance of defendants in secured glass boxes in court restricts their defence rights, especially the right to be presumed innocent and may amount to degrading treatment in certain conditions.376 The the French Ombudsperson further pointed out that the systematic installation of secure boxes was not proportionate to alleged security concerns, as no individual risk assessment is carried out before the hearings.377 In this case, the defendant recalled both the jurisprudence of the ECtHR (Karachentsev v Russia 378. Svinarenko et Slyadnev v Russia)379 and the EU Directive on the Right to be Presumed Innocent.380 He decided that the indiscriminate use of glass boxes in criminal courts especially runs contrary to EU legislation, including the Directive on the Right to be Presumed Innocent.381 This Directive requires Member States to “[…] take appropriate measures to ensure that suspects and accused persons are not presented as being guilty, in court or in public […]” (Art 5 Directive)382. VENICE PRINCIPLES Preamble “… The right to complain to the Ombudsman is an addition to the right of access to justice through the courts”. In the EU area, a considerable number of NHRIs (14 out of 24) have the power to handle individual complaints.374 All 14 NHRIs are ombudsinstitutions. In some countries the mandate to handle individual complaints lies with domestic human rights body other than NHRIs (e.g. France, Sweden, and Netherlands). Also these bodies often play an important role in protecting procedural rights. One interesting example comes from the French Ombudsperson (Defender of Right).375 France In 2017 a claim was lodged with the Defender of Rights (Ombudsperson) regarding the practice of using glass boxes in criminal courts and whether they infringed the rights of defence, including the presumption 94 In those cases, NHRIs should ensure close cooperation and coordination, for example by exchanging information as well as following up on their recommendations. These could be done by following on the issues arising by the case by conducting promotional activities, writing opinions for a change in law and in practice, conducting general human rights investigations or other activities such as monitoring visits to places of detention. In the EU, however, the power to handle complaints lies with the NHRI in most cases. Nevertheless, the competence of NHRIs to receive complaints in regard to procedural rights is rather limited due to the principle of independence of the judiciary (see above, Chapter 2.3). Most NHRIs laws establish a principle of subsidiarity with a view to preserve their complementary in respect to the judiciary.383 This in practice means that complaints that are simultaneously pending before a court are inadmissible and that complainants are thus first required to exhaust domestic remedies (e.g. Croatia, Slovenia, Austria, Cyprus, and Spain).384 Other laws additionally define as inadmissible complaints that have already been decided by a court of law (e.g. Hungary, Lithuania, Czech Republic, Estonia and Slovakia).385 95