OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights Institution of Switzerland 2.2. The Non-Permanent Nature of the NHRI 30. According to Article 1 of the Draft Act, the NHRI may be granted financial assistance by the Confederation in the form of a contribution to operating costs. Article 6 par 1 further provides that the financial assistance is paid on the basis of a contract of indefinite duration, which governs the amount of the operating grant, the payment terms and the grounds for termination (Article 6 par 2). The Explanatory Statement to the Draft Act specifies, however, that termination may still occur on the basis of “usual termination grounds”, such as a change of the legal basis or the incomplete performance of the legal and contractual conditions of the grant.40 This ability to terminate the contract that forms the basis of the NHRI’s funding calls into question the permanence of the new institution. General Observation 1.1 provides that the legal basis for the establishment of NHRIs should provide sufficient protection to ensure permanency and independence of the institution. The Draft Act does not appear to provide such safeguards, given that the contract providing funding for the NHRI can be terminated by an administrative entity without the intervention of the legislator (see also pars 31-32 infra). 31. Article 6 par 3 provides that an administrative unit of the Federal Council is responsible for the conclusion and implementation of the contract. The Sub-Committee on Accreditation has noted that the creation of an NHRI by a decision of the executive (through a decree, regulation, motion, or administrative action) and not by the legislature also raises concerns regarding permanency, independence from Government and the ability to exercise its mandate in an unfettered manner.41 This is because such decisions may be modified or cancelled at the discretion of the executive, and do not require legislative scrutiny.42 32. The Explanatory Statement to the Draft Act specifies that the management or control of the use of the grant is governed by the general rules applicable to grants, as reflected in the contract referred to in Article 6 of the Draft Act.43 In Switzerland, grants are generally regulated by the Federal Law on Financial Aid and Allowances of 5 October 1990.44 A number of provisions of this Federal Law may be problematic if applied to the NHRI from the viewpoint of its institutional independence, for instance the fact that the beneficiary of a grant is required to provide information and give access to its files and premises (Article 11), subject to administrative sanctions in case of violation (Article 40), or the competent authority’s control over the performance of the tasks in accordance with the applicable legislation and conditions (Article 25). The Law also specifies that the competent authority may interrupt payment of the grant in case of nonor faulty performance (Article 28) or that the contract may be revoked (Article 31). 33. In that respect, Paris Principle B.2 specifically states that an NHRI should not be subject to any financial control that may affect its independence. Contrary to this principle, the above-mentioned rules mean that overall, the NHRI would be subject to a certain control by the Federal Council/the Confederation and that its source of funding is not necessarily guaranteed in the long term (see also Sub-Section 5.4 infra on budget and funding of the NHRI), which could potentially jeopardize the independence of this new 40 41 42 43 44 See op. cit. footnote 19, Sub-Section 2 on page 22 (Explanatory Statement to the Draft Act) Op. cit. footnote 9, Justification to General Observation 1.1. ibid. Op. cit. footnote 19, Sub-Section 5.4.2 (Explanatory Statement to the Draft Act). Available at <https://www.admin.ch/opc/fr/classified-compilation/19900241/index.html>. 12