OSCE/ODIHR Opinion on the Draft Federal Law on the Support to the National Human Rights
Institution of Switzerland
authorities to provide requested information and above-mentioned access.86 To ensure
this, the power to request information, which is central to the proper execution of the
NHRI’s mandate, should be supported by specific sanctions for non-compliance,
which should be set out in the Draft Act.87 Such sanctions should be adequate,
meaning that they should not be excessive, and should at the same time be serious
enough to dissuade public officials (and possibly representatives of other entities) from
ignoring the NHRI’s requests. Alternatively, at a minimum, other applicable legislation
could be cross-referenced in the Draft Act.
5.
The Leadership, Staffing, Operation and Funding of the NHRI
5.1. Governing Body
64.
Nothing is said in the Draft Act as to the composition of the NHRI’s governing body or
the modalities of its members’ appointments and terms and conditions of office, as well
as their dismissal. Aspects concerning the institution’s organisation and structure, in
particular that of its governing bodies, their tasks and personnel, are key to determining
whether an entity is independent or not, and to assess compliance with the Paris
Principles. The Draft Act (or a new, separate act) should specify the composition of
the NHRI’s governing body, the modalities of its members’ selection/appointment
and termination of mandate or dismissal, as well as the terms and conditions of
office.
65.
There are many different governance models for NHRIs. Whichever option is chosen, it
must guarantee the NHRI’s independence, as well as a high level of professionalism,
and needs to ensure public trust in the institution. Generally, NHRIs follow different
variants of a two-level structure consisting of a management board in charge of key
strategic decisions, financial matters and the administration of the NHRI, while a
director conducts the daily management of the institution.88 In the case of NHRIs in the
United Kingdom and Ireland, for instance, the governing body or members of the NHRI
are commissioners, whose appointment is confirmed by the Parliament. They deal with
general policy and governance issues, and have a secretariat to deal with the daily
management of the institution. In addition, many NHRIs have established an advisory
committee consisting of representatives of various social forces, including
representatives of disadvantaged or marginalized groups, to ensure input from a larger
group of stakeholders.89
66.
The Explanatory Statement to the Draft Act specifies that the policy-makers have
chosen the option “status quo +”, meaning that they will adopt a model similar to the
existing SCEHR, while addressing some of the shortcomings identified when evaluating
this structure.90 It is therefore likely that the organizational structure of the SCEHR will
be retained, meaning that there will be a Board of Directors composed of representatives
from partner Universities and chaired by a Director, as well as a Manager with an
86
87
88
89
90
See op. cit. footnote 16, page 149 (2010 UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions).
See e.g., Venice Commission, Opinion on the Draft Constitutional Law on the Human Rights Defender of Armenia, adopted by the
Venice Commission at its 109th Session (Venice, 9-10 December 2016), CDL-AD(2016)033, par 29,
<http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)033-e>.
See <http://www.legislationline.org/topics/topic/82>.
See op. cit. footnote 9, General Observation 1.7.
Op. cit. footnote 19, page 2 (Explanatory Statement to the Draft Act).
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