OSCE/ODIHR Opinion on the Draft Amendments to the Act on Establishment of the
Slovak National Centre for Human Rights
meaningful consultation presupposes that any comments received are duly taken into
consideration during the subsequent revision of the draft legislation. Pursuant to the
Recommendations on Enhancing the Participation of Associations in Public DecisionMaking Processes (2015), state authorities are encouraged to develop a mechanism
whereby decision-makers shall report back to those involved in consultations by
providing, in due time, meaningful and qualitative feedback on the outcome of public
consultations, including clear justifications for including or not including certain
comments/proposals. 104 Moreover, to guarantee effective participation, consultation
mechanisms must allow for input at an early stage and throughout the process, meaning
not only when the draft is being prepared by relevant government entities but also when
it is discussed before the Parliament (e.g., through the organization of public
hearings). 105 Throughout the lawmaking process, these commitments and
recommendations should be adhered to.
80.
As a general point, where NHRI laws are amended, an open, transparent and
consultative process should be undertaken. It is recommended that consultation take
place between the SNCHR, the relevant government office responsible for
developing the Draft Amendments, civil society, the Office of the High
Commissioner for Human Rights’ unit responsible for NHRIs, and the European
Network of NHRIs (ENNHRI). It may be noted that where an NHRI’s legislation is
in the process of being amended, SCA re-accreditation may be delayed at the
request of the NHRI.
6. Issues not Addressed in the Draft Law
6.1 Functional Immunity
81. There is no reference in the Draft Amendments, to protection from criminal and civil
liability for official actions and decisions undertaken in good faith (functional
immunity) for the board members or staff. This was an explicit recommendation of the
SCA in its previous comments on the Centre.106 SCA General Observation 2.3 requires
that such protection be given to members and staff of the NHRI as “[e]xternal parties
may seek to influence the independent operation of an NHRI by initiating, or by
threatening to initiate, legal proceedings against a member of the decision-making body
or a staff member of the NHRI. For this reason, members and staff of an NHRI
should be protected from both criminal and civil liability for acts undertaken in
good faith in their official capacity. Such protections serve to enhance the NHRI’s
ability to engage in critical analysis and commentary on human rights issues,
safeguard the independence of senior leadership, and promote public confidence in
the NHRI”.107 This immunity should also include baggage, correspondence, and
104
Recommendations on Enhancing the Participation of Associations in Public Decision-Making Processes
(from the participants to the Civil Society Forum organized by the OSCE/ODIHR on the margins of the 2015
Supplementary Human Dimension Meeting on Freedoms of Peaceful Assembly and Association), Vienna 1516 April 2015, par 16 (e), <http://www.osce.org/odihr/183991>.
105
See e.g., OSCE/ODIHR, Guidelines on the Protection of Human Rights Defenders (2014), Section II, SubSection G on the Right to Participate in Public Affairs, <http://www.osce.org/odihr/119633>.
106
Op. cit. fn 7, p. 10 (2014 ICC Sub-Committee on Accreditation Report).
107
SCA General Observation 2.3; In its justification, it notes that ‘[i]t is now widely accepted that the
entrenchment of these protections in law is necessary for the reason that this protection, being one that is
similar to that which is granted to judges under most legal systems, is an essential hallmark of institutional
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