Guidebook
THE MANDATE AND ROLE OF THE NATIONAL HUMAN RIGHTS INSTITUTIONS
based and ensure pluralism in order to strengthen real and publicly
perceived independence.229 Personal independence also includes working
in a pressure-free environment 230 and proper remuneration of personnel
to protect it against dependency on external sources.231 Lastly, privileges
and immunities are key to prevent undue exertion of influence by the
government and should be provided for by national law as well.232 In
addition, for NHRIs with specialised mandates additional guidance on
independence may also be found on their respective treaties, including
e.g. OPCAT (Art 18);233 CRPD (Art 33 (2)).234
More recently, the issue of independence from political pressure and
other forms of intimidation was raised by the UN Human Rights Council
that stressed that “national human rights institutions and their respective
members and staff should not face any form of reprisal or intimidation,
including political pressure, physical intimidation, harassment or unjustifiable budgetary limitations, as a result of activities undertaken in accordance with their respective mandates, including when taking up individual
cases or when reporting on serious or systematic violations”.235
The question of independence is also emphasised in the Venice Principles,
adopted “following threats to these institutions in recent years”. 236 Already
in the very first principle, they call States to “support and protect the
Ombudsman Institution and refrain from any action undermining its independence”,237 including adequate resources, stable mandate and immunity.238 In its resolution endorsing the Venice Principle, the Parliamentary
Assembly of the Council of Europe explicitly called member states to
“refrain from any action aiming at or resulting in the suppression or
undermining of the Ombudsman institution and from any attacks or threats
against such institutions and their staff, and protect them against such
acts”.239
2.3.
The role of NHRIs vis-à-vis public authorities
To protect and promote the procedural rights effectively it is important
that the NHRIs have the power to address the police, prosecutors and
judges on matters concerning human rights.
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According to the Paris Principles, NHRIs are allowed to address their
recommendations to all public authorities. Their mandate should extend ‘to protect the public from acts and omissions of public authorities,
including officers and personnel of the military, police and special security
forces. Where such public authorities, who may potentially have a great
impact on human rights, are excluded from the jurisdiction of the NHRI,
this may serve to undermine the credibility of the Institution.’240 The Paris
Principles and the SCA General Observations, however, make no explicit
reference to the judiciary, except when regulating the quasi-judicial
function.241 Thus the question arises whether and to what extent NHRIs are
mandated to address the judiciary.
In this regard, some international guidance was put forward by the
OHCHR, which affirmed that NHRIs, although they should always respect
the independence of the judiciary and the rule of law, are not prevented
from ‘monitoring and reporting on court activities, and making independent recommendations meant to improve the application of human rights
principles in the court setting or to remove undue delay in judicial proceedings.’242 The same is also emphasised in the Nairobi Declaration of
2008 stating that NHRIs should consider contributing to the promotion
of the role of the judiciary in promoting and protecting human rights, by
providing recommendations to strengthen the legal system and judiciary,
as well as promoting adherence and compliance of the judiciary to international human rights norms, including through amicus curiae and legal
education.243
As many NHRIs in the EU are Ombudsinstitutions, it is also worth looking
at the standards concerning Ombudsinstitutions. In this regard, the 2019
Venice Principles state that ‘the right to complain to the Ombudsman is
an addition to the right of access to justice through the courts’244 and that
the ‘competence of the Ombudsman relating to the judiciary shall be confined to ensuring procedural efficiency and administrative functioning of
that system’.245 The Venice Principles further add that ‘the Ombudsman
shall have the power to address individual recommendations to any bodies or institutions within the competence of the Institution’.246 Yet even the
Venice Principles state that Ombudsinstitutions should preferably have
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