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NHRIs independence and effectiveness

NHRIs independence and effectiveness

Reporting by ENNHRI members reveals a deterioration of the enabling environment for human rights defenders (HRDs) and civil society space more generally in several EU countries.

HRDs and civil society organisations continue to be the target of attacks, smears and threats in many EU countries. These reportedly target in particular HRDs and civil society organisations working on sexual and reproductive rights, LGBTI+ rights, rights of migrants and asylum seekers and environmental protection, as reported by ENNHRI members in France, Greece, Poland and Slovakia.

In Greece, the NHRI explains how such attacks occur in a broader, concerning context of racist violence. In Poland, ENNHRI’s member also alerts about activists being targeted by police during demonstrations, and retaliations against prosecutors opposing controversial judicial reforms. Cases of legal harassment, including Strategic Lawsuits Against Public Participation (SLAPPs), also seem to be on the rise, as reflected in reports on Luxembourg and Slovenia.

Development in NHRIs establishment and accreditation

Since ENNHRI’s last Rule of Law Report, 6 European NHRIs were reviewed by the Sub-Committee on Accreditation (SCA), namely the NHRIs in Austria, Germany, Hungary, Luxembourg, Northern Ireland and Serbia. In the case of the Luxembourgish NHRI, the SCA reaccredited the institution with A-status. After a period of deferral, the SCA also regranted the Serbian NHRI its A-status. As regards the Hungarian NHRI, the SCA confirmed its recommendation that the Hungarian NHRI be downgraded,  and the institution now holds B-status. The Austrian NHRI was upgraded from B to A-status in March 2022. The reaccreditation of the German NHRI was deferred until October 2023, while the assessment of the Northern Ireland NHRI was deferred and will be finalized in October 2022, due to serious concerns regarding the available budget to the institution. Detailed information on the SCA recommendations and updates from the NHRIs are included under the respective country chapters.

Regarding the establishment of NHRIs in the region, it is worth noting that a new institution, the Swedish Institute for Human Rights, was created and commenced operations on 1 January 2022. This institution is not yet accredited, but it has been established with reference to the UN Paris Principles. ENNHRI provided comments on the legislative proposal to establish the Institute and stands ready to give further support towards its functioning and possible accreditation. The Institute has also been invited by ENNHRI to join the network. It is worth recalling that another institution, the Swedish Equality Ombudsman was a member of ENNHRI until December 2021 and it was accredited with B-status by SCA in May 2011. In view of the establishment of the new Institute, the Equality Ombudsman has left ENNHRI.

Other countries are taking steps towards creating an NHRI. In Switzerland, a legislation has been approved on the establishment of a NHRI and a new institution will be operating in 2023. In Iceland, a legislative proposal is expected in 2023.

By contrast, there have been no substantial developments in EU countries without NHRI. In Italy and Malta, legislative proposals are still stalled at the Parliament and ENNHRI is not aware of prospects for the establishment of NHRIs in both countries soon. Similarly, no substantive progress on the establishment of an NHRI in  Belarus,  and San Marino have been reported. While in Andorra, Monaco and Iceland, the establishment of a new institution or transformation of existing institutions into an NHRI is under consideration.

Steps towards strengthening existing institutions and seeking accreditation are also varied across Europe. In the Czech Republic, for various reasons the Czech Public Defender was not able to be active in the matter but remains committed to supporting developments towards this objective, which would require dedicated action from state authorities and legislative changes. In Romania, the situation is still stalled due to different legislative proposals that can impact the institutions seeking accreditation. In Liechtenstein, the Human Rights Association is considering to apply for first-time accreditation. The Belgian Federal Institute for the Promotion and Protection of Human Rights has submitted that its request for accreditation be scheduled for the SCA session of March 2023.  ENNHRI has also been in touch with existing institutions in Andorra and Monaco to further understand any intentions to develop as NHRIs, to join ENNHRI as associate members and to consider applying for accreditation. In Iceland, the government is working to develop a legislative proposal on the establishment of an NHRI by 2023, in consultation with ENNHRI.

Changes in regulatory frameworks

In general, European NHRIs have a broad legal mandate to contribute to access to justice by individuals in varied ways. Approximately two thirds of the NHRIs have the competence to handle complaints submitted by individuals (in Albania, Armenia, Austria, Azerbaijan, UNIA and MYRIA in Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Hungary, Estonia, Finland, Georgia, Kosovo, Latvia, Liechtenstein, Lithuania, Moldova, Montenegro, North Macedonia, Portugal, Poland, Romania, Serbia, Slovakia, Slovenia, Spain, Turkey, Ukraine). Moreover, almost half of the NHRIs are mandated to undertake strategic litigation before courts (in Albania, Armenia, Belgium, Bulgaria, Croatia, Denmark, Estonia, Georgia, Germany, Great Britain, Greece, Hungary, Ireland, Kosovo, Latvia, Liechtenstein, Moldova, Montenegro, Northern Ireland, Poland, Slovenia, Turkey and Ukraine). It is worth noting that, sometimes, NHRIs can act before courts only in specific cases – for example the NHRI in Hungary can act in equality and environment cases, while the NHRI in Croatia pursues strategic litigation only in cases concerning antidiscrimination and whistle blowers. NHRIs from Estonia, Norway and Germany may only take on the role of third-party intervener to provide an amicus curiae opinion to courts.

Some NHRIs also provide legal assistance to individuals (in Albania, Armenia, Belgium, Bosnia and Herzegovina, Denmark, Estonia, Great Britain, Ireland, Kosovo, Latvia, Liechtenstein, Moldova, North Macedonia, Northern Ireland, Slovakia, Turkey and Ukraine) or general legal advice and information (in Bulgaria, Croatia, Cyprus, Portugal and Romania). The majority of European NHRIs have an awareness-raising function in relation to access to justice for individuals (in Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Great Britain, Greece, Hungary, Ireland, Kosovo, Latvia, Liechtenstein, Luxembourg, Moldova, Montenegro, North Macedonia, Northern Ireland, Norway, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Turkey, Ukraine).

A number of NHRIs report about changes in the national regulatory frameworks in which they operate. For instance, a number of NHRIs were granted new competences. Some NHRIs were, in particular, recently appointed as Independent Monitoring Mechanism for the UN Convention on the Rights of Persons with Disabilities (CRPD) (in Ireland, France and Serbia) and as National Rapporteurs on trafficking of human beings (in Ireland and Serbia). The Irish NHRI also was granted a broader mandate to act in the area of gender equality, and is expected to be appointed as co-ordinating body of the National Preventative Mechanism (NPM). In Serbia, where changes were prompted by a new comprehensive law on the Protector of Citizens, the NHRI was also appointed special body to protect and promote the rights of the child. In Croatia, the NHRI was assigned new tasks within the framework of the implementation of the EU Directive on whistle blowers protection.

While the expansion and strengthening of NHRIs’ mandate is a welcome step, it must be noted, as also flagged by ENNHRI members in Croatia, Germany and Serbia, that NHRIs do not always receive sufficient financial resources to perform additional mandates they are given. Elsewhere, new independent institutions with thematic mandates, separate from the NHRIs, were established, namely the Ombudsperson for Older Persons and a Rapporteur for Gender Based Violence in Finland and the Intelligence Ombudsmen in Lithuania.

NHRIs also report about legislative reforms concerning their institutions other than additional mandates. In Hungary, for example, ENNHRI member welcomed the decision to merge the NHRI and the equality body, as a consequence of which the mandate of the Commissioner for Fundamental Rights was revised to strengthen its powers in the area of non-discrimination, and the conditions to terminate its mandate were clarified.

A number of measures are perceived by NHRIs as positive steps towards enhanced independence and effectiveness. In Greece, changes were introduced to improve the NHRI’s functional independence, its administrative and financial autonomy, and strengthen its legal personality, following the NHRI’s mobilisation. In Latvia, a new law strengthened parliamentary requirements for the nomination of the Ombudsman and introduced a limitation on holding more than two consecutive terms, although no progress was yet recorded on a 2015 proposal to secure a constitutional basis for the institution. In Portugal, a new legal act strengthening the institution to enhance the realisation of its mandate and compliance with the Paris Principles was adopted. In Serbia, a new law concerning the NHRI’s mandate has been adopted to ensure more transparency in the Ombudsman’s election process and stronger cooperation with civil society and international mechanisms. In the Russian Federation, the NHRI is no longer obliged to pay administrative fees when filing administrative claims and a proposal to extend the NHRI’s competences to allow handling complaints on actions of organisations which perform certain public functions is under parliamentary discussion. The NHRI from Bosnia and Herzegovina also informs about a planned legislative reform to improve the functioning of the institution and its compliance with Paris Principles.

Elsewhere, amendments of the regulatory framework have been more controversial. In Romania, the government’s legislative proposal to absorb the Romanian Institute for Human Rights into the state authority combating discrimination has been recently rejected by the Senate, although the legislative reform of the Romanian institution is still ongoing. Belgian institutions reported that the establishment of a new regional human rights institution in the region of Flanders raises concerns about its impact on the mandate of the existing Interfederal Centre for Equal Opportunities and Opposition to Racism (UNIA), as well as in terms of access to justice for victims of human rights violations, considering the increasing complexity of the institutional human rights system in the country. In Lithuania, the NHRI equally alerts about legislative changes about to be adopted that risk undermining the independence of the NHRI by imposing a 6-month deadline on the institution to handle the case as well as by taking away the NHRI’s competence to mediate.

Numerous NHRIs (notably from Albania, Armenia, Bosnia and Herzegovina, Cyprus, Finland, France, Georgia, Germany, Great Britain, Greece, Kosovo, Liechtenstein, Lithuania, Luxembourg, Montenegro, North Macedonia, Slovakia, Slovenia and Ukraine) provide suggestions to further strengthening their institutions’ regulatory frameworks. For example, the NHRI from Great Britain calls for a wider mandate to tackle human rights violations, to align it with powers granted to the institution when handling cases on non-discrimination; and the NHRI in Montenegro calls for additional safeguards to ensure the institution’s independence. A number of NHRIs also call for improvements to enable the institutions to more effectively exercise their role in the checks and balances system – such as strengthening the institution’s right to appeal in Liechtenstein, or easing the interventions by the institutions before constitutional courts in Kosovo and Lithuania.

Enabling environment and safe space

More than half of the European NHRIs take the view that relevant state authorities have a generally good awareness of the NHRI’s mandate, independence and its role (in Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Cyprus, Denmark, Estonia, Finland, France, Georgia, Germany, Great Britain, Ireland, Kosovo, Latvia, Liechtenstein, Montenegro, Northern Ireland, Norway, Portugal, Romania, Slovakia, Spain, Turkey and Ukraine). On the contrary, ENNHRI members from Bosnia and Herzegovina, Lithuania, Luxembourg, North Macedonia, and Serbia regret insufficient or even lack of state authorities’ awareness of the NHRI’s mandate, which also negatively impacts the NHRIs’ effectiveness.

Moreover, NHRIs from Albania, Lithuania, Luxembourg and Romania underline the need to raise authorities’ attention for further compliance with the Paris Principles, especially in terms of the NHRIs’ efficiency and independence. In addition, the NHRIs from Belgium and Finland raise concerns about the existence of many human rights bodies at national level which may lead to confusion and fragmentation of the national human rights infrastructure which can be detrimental for the awareness and enjoyment of human rights by individuals.

While numerous NHRIs report an overall good cooperation with national authorities (in  Austria, Azerbaijan, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Germany, Georgia, Great Britain, Hungary, Ireland, Latvia, Montenegro, Northern Ireland, Norway, Portugal, Serbia, Spain, Ukraine and Turkey), many of them report difficulties in cooperation with national authorities in legislative and policy-making processes, as is the case for ENNHRI members in Albania, Belgium, Bosnia and Herzegovina, France, Georgia, Germany, Greece, Luxembourg and Romania. In Bosnia and Herzegovina, as well as in Poland, the NHRIs experience an overall problematic cooperation with state authorities. State authorities often fail to timely and effectively consult with NHRIs on legislative proposals. Sometimes, there is no systematic involvement of NHRIs in relevant legislative and policy processes, as reported in Romania, Slovakia and Spain, or consultations are often not held, or held within very tight timeframes, as reported in Albania. Against this background, it is worth noting that the NHRIs from Armenia, Azerbaijan, Liechtenstein and Northern Ireland declare being consulted on draft laws systematically. The NHRIs from Albania, Croatia, Georgia and Luxembourg highlight that they sometimes witness lack of access to information and lack of cooperation to provide data and information requested by the institution.

Despite the 2021 Council of Europe Recommendation which calls on states to make it a legal obligation for addressees of NHRIs’ recommendations to provide a timely and reasoned reply, this is not the case in many countries across the region, including Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Latvia, Liechtenstein, Luxembourg, Northern Ireland, Romania and Slovakia. NHRIs from Greece, Luxembourg, Slovakia and Slovenia explicitly signal the need to introduce a legal obligation to implement the NHRI’s recommendations. ENNHRI members from Austria, Bulgaria, Croatia, Cyprus, Estonia, Great Britain, Kosovo, Lithuania, Montenegro, Portugal, Serbia, Spain, Slovenia, Ukraine and Turkey confirm that a legal obligation to provide a timely and reasoned response is established in their countries.

Irrespective of whether such legal obligations exists, many NHRIs signal that the implementation rate of the NHRI’s recommendations, unfortunately, remains in practice unsatisfactory – as reported in Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, Kosovo, Luxembourg, North Macedonia and Slovenia. The NHRI in Albania points that this problem still persists even in spite of the recent establishment of a Parliamentary mechanism for the systematic monitoring of the follow-up and implementation of independent institutions’ recommendations by relevant authorities. In this respect, it is noteworthy that the 2021 Council of Europe Recommendation on NHRIs recommends authorities to develop processes to facilitate effective follow-up of NHRI recommendations, in a timely manner.

As regards protection against threats to the NHRI’s independence and effectiveness, many institutions pointed at an overall good level of protection of heads of institutions and staff against threats and harassment and any other forms of intimidation (including SLAPP actions) in their countries. This is the case for NHRIs in Albania, Armenia, Azerbaijan, Belgium (FIRM), Bulgaria, Cyprus, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, Ireland, Kosovo, Latvia, Romania, Slovenia and Spain. Increased criminal protection exists in Cyprus, Czech Republic, Estonia, Georgia, Hungary and Latvia, while in Germany specific provisions ensure enhanced protection of privacy. The NHRI from Armenia informs that following attacks on its institution, criminal liability for publishing defamatory information on the NHRI has been recently introduced in the Armenian legal system.

By contrast, no specific measures and rules on immunity to ensure NHRIs’ independence are in place in Austria, Belgium (UNIA), Bosnia and Herzegovina, Denmark, France, Great Britain, Ireland, Lithuania, Liechtenstein, Luxembourg, North Macedonia, Northern Ireland, Norway, Portugal, Slovakia and Ukraine. In Lithuania, the NHRI raises serious concerns over the provision which make it possible to remove the head of the institution from the office following a parliamentary no-confidence vote, when no clear and reasonable conditions for such action are clarified by law.

Despite measures introduced at national level to combat threats towards NHRIs, some European NHRIs have experienced threats, attacks, harassment and state authorities’ practices obstructing NHRI’s work. In Armenia, the NHRI has been the subject of attacks such as hate speech and fake news about its actions while reporting, at the same time, that its work and positions were intentionally not covered by public media. In Georgia, the NHRI has been a subject of verbal attacks from the public authorities and politicians who were also questioning the NHRI’s duties. In Slovenia, the NHRI experienced pressure and smears when taking actions on specific topics.

In some European countries, the NHRI’s work and effectiveness was impacted by state authorities’ actions threatening the continuity of head of institution’s service. For instance, this was the case in Poland, where the NHRI’s activities in the area of migrants’ rights were obstructed by the state of emergency imposed on the Belarusian-Polish border. The NHRIs from Kosovo and North Macedonia alert about purposeful lack of appointment of the NHRI’s deputies, whereas in Moldova the NHRI has been functioning for quite some time without a head of institution.

Various NHRIs also refer to insufficient financial and human resources as a major challenge and obstacle to NHRIs’ effectiveness. The need to ensure more resources and adequate conditions to exercise the institutions’ mandate is specifically raised by ENNHRI members in Austria, Croatia, Greece, Lithuania, Moldova, Montenegro, North Macedonia, Serbia and Slovenia. The NHRIs from Bulgaria, Germany, North Macedonia, Northern Ireland and Norway draw attention to the lack of additional resources provided to carry out additional, specific mandates to perform international obligations (such as acting as a monitoring body under the CRPD). Progress in this respect is reported in a minority of countries (Albania, Luxembourg, Poland, Serbia and Slovakia), and in some cases the increase in budget is said as insufficient to meet the NHRI’s reasonable needs (as reported in Albania and Poland).

Requests for an increase in budget submitted by institutions were rejected in Norway and North Macedonia. Some NHRIs, namely in Northern Ireland and North Macedonia, even reported about budget cuts. In addition, NHRIs from Great Britain, Moldova, Norway, Portugal and Slovenia stressed the need to better ensure financial independence of their institutions. For example, in Norway and Portugal the NHRI’s budget is still a part of the Parliament’s budget even while the Paris Principles require a separate budget line for NHRIs.

Key recommendations

Reporting by ENNHRI members exposes persisting challenges to NHRIs’ establishment, independence and effectiveness across Europe. While most European countries have established and accredited NHRIs, some yet do not, and no significant steps were reported with exception of Sweden and Switzerland. In several countries, existing institutions continue to experience obstacles in carrying out their work and are the object of threats to their independence and effectiveness, such as reduced formal independence, mandate limitations, lack of sufficient resources, dismissal attempts and other obstructions to their work including flawed consultation practices and poor cooperation on the side of government authorities.

Against this background, ENNHRI and its members recommend to national authorities, regional and international actors to work together, in close cooperation with ENNHRI and NHRIs, and taking into account the Paris Principles and 2021 Council of Europe Committee of Ministers Recommendation on NHRIs to:

1. Work towards implementation of the standards and recommendations of international bodies on NHRIs, including accreditation reports of the GANHRI Sub-Committee on Accreditation and Council of Europe Committee of Ministers’ Recommendation 2021(1);

2. Secure with no delay the establishment of NHRIs in those countries where an NHRI does not yet exist;

3. Strengthen the mandate of existing institutions, enabling them to effectively and independently address human rights and rule of law issues;

4. Ensure provisions on functional immunity to protect heads of institutions and other staff in supervisory positions against threats, pressure and coercion;

5. Provide NHRIs with adequate resources, including additional financial and human resources when expanding NHRIs’ mandates and functions, while securing NHRIs’ financial independence, including through appropriate financial planning and reporting obligations;

6. Enable NHRIs to carry out their mandate, including through providing access to information, and though timely consultation on human rights implications of draft law and policy making processes;

7. Ensure an effective consideration and implementation of NHRIs’ recommendations, including by making it a legal obligation for all addressees of NHRI recommendations to provide a reasoned reply within an appropriate time frame, and by developing processes to facilitate effective follow-up of NHRI recommendations in a timely fashion, and ensuring reporting by authorities of their implementation of NHRI recommendations;

8. Foster awareness about NHRIs’ role and functions among public authorities, stakeholders and the general public.

NHRIs, including through ENNHRI, stand ready to cooperate with national authorities and regional and international actors to that effect, while ENNHRI will continue to support the establishment and accreditation of NHRIs across the region, and will bolster its support for NHRIs under threat.