Guidebook
5.2.
COMPLAINTS HANDLING AND PARTICIPATION IN COURT PROCEEDINGS
Engaging with courts
PARIS PRINCIPLES
The Paris Principles provide that NHRIs should have an advisory
function but do not contain any explicit reference on the participation of NHRIs in court proceedings. Many NHRIs have the power to
intervene in court proceedings as one means of undertaking this
function. Moreover, Article 3 (3) (e) of the Paris Principles explicitly
provides that NHRIs have the responsibility to cooperate with the
United Nations and any other organization in the United Nations
system, the regional institutions and the national institutions of other countries that are competent in the area of the protection and
promotion of human rights. Many NHRIs use this provision to justify
their mandate to intervene in international and regional court proceedings.
NAIROBI DECLARATION
Additional guidance is included in the Nairobi Declaration which
encourages NHRIs to contribute to the promotion of the role of the
judiciary in promoting and protecting human rights by not only
providing recommendations to strengthen the legal system and
judiciary, but also by promoting ‘adherence and compliance of the
judiciary to international human rights norms, including through
amicus [curiae] and legal education'.
CRPD, ART 33
‘Protection activities include … referring cases to the courts; participating in judicial proceedings’
Besides handling individual complaints, NHRIs have several other ways to
protect the individual rights of suspects and accused. This may include
referring cases to competent authorities, initiating procedures before
courts or lodging appeals, as well as intervening in legal proceedings.
These are formal ways for NHRIs to engage with courts, governed by clear
legal procedures and acknowledging the importance of the principle of
judicial independence.393
5.2.1. Referring cases to other competent authorities
Given the nature of their quasi-judicial powers, NHRIs will inevitably receive individual complaints that they do not have the competence to deal
with. Their practice should be to refer such complaints to the appropriate
body.394 A referral by NHRIs may increase the probability of a sanction,
although all decision is ultimately with the judiciary.395
5.2.2. Right to initiate proceedings and lodge appeals
Some NHRIs are mandated to initiate legal proceeding. When it comes
to initiate criminal proceedings, NHRIs may have the power to demand to
initiate criminal investigations or police inquiries in cases involving offences prosecuted ex officio. However, only few NHRIs have this power
(e.g. Poland and Finland) and also those who have it seem to use it very
rarely, hence, no concrete example could be found over the course of the
project.
Poland
The Polish NHRI is entitled to demand that criminal proceedings (i.e. an
investigation or inquiry) be initiated by a competent prosecutor in cases
involving offences prosecuted ex officio.396
Finland
VENICE PRINCIPLES
19(2) The Ombudsman shall preferably be entitled to intervene before relevant adjudicatory bodies and courts
98
The Ombudsman may order that a police inquiry, as referred to in Police
Act (493/1995) or pre-trail investigation, as referred to in the Pre-Trial
Investigation Act (449/1987) be carried out in order to clarify a matter
under investigation by the Ombudsman.397
99
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents