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Independence and effectiveness of NHRIs

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Developments in NHRIs’ establishment and accreditation and changes to the regulatory frameworks

In 2021, 6 European NHRIs were reviewed by the Sub-Committee on Accreditation (SCA) only 2 being from EU Member States (Hungary, Ireland). In the case of the Irish NHRI, the SCA reaccredited with institution with A-status. As regards the Hungarian NHRI, the Sub-Committee recommended the Hungarian NHRI to be downgraded to B-status. However, this recommendation does not take effect for a period of one year and, in March 2022, the Hungarian NHRI will have the opportunity to provide additional information to the SCA in relation to concerns about its full compliance with the UN Paris Principles. 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 EU, 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.

By contrast, there have been no substantial developments in EU countries without an accredited 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. In the Czech Republic, for various reasons the Czech Public Defender was not able to be active in the matter of the establishment of an NHRI in the country in 2021 but remains committed to supporting developments towards this objective. In Romania, no significant developments in relation to the accreditation of an NHRI occurred in 2021.

In general, NHRIs in the European Union have a broad legal mandate to contribute to access to justice by individuals in varied ways. Over half of the EU NHRIs have the competence to handle complaints submitted by individuals (Austria, Belgium, Bulgaria, 33 Croatia, Cyprus, Czech Republic, Hungary, Estonia, Finland, Latvia, Portugal, Poland, Romania, Slovakia, Slovenia, Spain). Moreover, almost half of the EU NHRIs are mandated to undertake strategic litigation before courts (in Belgium, Croatia, Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovenia). 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 and Germany may only take on the role of third-party intervener to provide an amicus curiae to the Court. Some EU NHRIs also provide legal assistance to individuals (in Belgium, Bulgaria, Denmark, Estonia, Ireland, Latvia and Slovakia) or general legal advice and information (in Croatia, Cyprus, Portugal and Romania). The majority of EU NHRIs have an awareness-raising function in relation to access to justice for individuals (in Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Latvia, Luxembourg, Portugal, Romania, Slovakia, Slovenia, Spain).

A number of EU NHRIs reported about changes in the national regulatory frameworks in which they operate. For instance, some NHRIs were granted new competences. In Ireland, the NHRI received a broader mandate to act in the area of gender equality and also became an independent rapporteur on trafficking. Moreover, the Irish NHRI is expected to be appointed as co-ordinating body of the National Preventative Mechanism framework and as an Independent Monitoring Mechanism for the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The NHRI in France started acting as an independent national rapporteur on the evaluation of public policy related to the effectiveness of the rights of people with disabilities. In Finland, new human rights bodies were established – the Ombudsperson for Older Persons and a Rapporteur for Gender Based Violence – separate from the NHRI in Finland. As reported in Croatia, the NHRI received new tasks as a consequence of implementation of the EU Directive on whistle blowers protection. Although, as reported by ENNHRI members from Croatia and Germany, it has to be noted that NHRIs do not always receive sufficient financial resources to perform those additional mandates. NHRIs also reported on legislative reforms concerning their institutions other than additional mandates.

The NHRI from Hungary pointed at a number of changes introduced at the national level concerning the mandate of the Commissioner for Fundamental Rights – the conditions to terminate its mandate were clarified. Due to the fact that in Hungary the NHRI and equality body merged, the NHRI’s powers were strengthened in the area of non-discrimination. On the other hand, in Romania, the 34 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, nevertheless, the legislative reform of the Romanian institution is still ongoing. Some legislative changes in regulatory framework were also introduced during this past year in Greece, where the aim of the legislation was to improve NHRI’s functional independence and administrative and financial autonomy, legal personality following NHRI 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, while no progress was recorded on a 2015 proposal to secure a constitutional basis for the institution. In Portugal, a new legal act strengthening institution to enhance realisation of its mandate and compliance with the Paris Principles was adopted. Moreover, it was reported by Belgian institutions that the establishment of a new regional human rights institution in Flanders, Belgium, raises concerns about its impact on Unia’s (Interfederal Centre for Equal Opportunities and Opposition to Racism) mandate as well as access to justice for victims of human rights violations, considering the increasing complexity of the institutional human rights system in Belgium.

Despite reporting to have a satisfactory regulatory framework, NHRIs from Cyprus, Finland, France, Germany, Greece, Luxembourg, Slovakia and Slovenia provided suggestions to further strengthening their institutions. In terms of shortcomings in the national regulatory framework, the NHRI in Hungary mentioned that the NHRI’s selection process is still not sufficiently transparent.

Enabling environment and safe space

A significant number of EU NHRIs reported that their relevant state authorities have a generally good awareness of the NHRI’s mandate, independence and its role (in Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Ireland, Latvia, Portugal, Romania, Slovakia and Spain). However, NHRIs from Luxembourg and Romania underlined 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 raised 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.

While several NHRIs report an overall good cooperation with national authorities (in Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Germany, Hungary, Ireland, Latvia, Portugal and Spain), a number of them report difficulties in cooperation with national authorities in legislative and policy-making processes, as is the case for ENNHRI members in Belgium, France, Germany, Greece, Hungary, Luxembourg and 35 Romania (also in the context of the pandemic). 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 Slovakia. In Poland, the NHRI experiences an overall problematic cooperation with state authorities while in Hungary, the NHRI reports struggles in cooperation with government and other state bodies, especially in the field of environmental issues. The NHRI from Hungary also raises concerns over the reoccurring situations when the Government either does not consult with the NHRI important draft bills at all or such consultations are established with a very short deadline to submit an opinion. The Romanian institution reports only to be consulted at request from the Parliament, while the NHRI in Spain does is not formally included in the process of drafting laws but contacts policy-makers at its own initiative. The NHRIs from Croatia and Luxembourg highlighted that they sometimes witness lack of cooperation to provide data and information requested by the institution. Furthermore, as identified by the NHRI from Luxembourg, what sometimes negatively impacts NHRIs’ effectiveness is insufficient knowledge about the National Human Rights Institution’s role and mandate.

Despite the 2021 Council of Europe Recommendation for states to make it a legal obligation for addressees of NHRIs’ recommendations to provide a timely and reasoned reply, with a view to enhance impact of NHRI recommendations, this is not the case in many EU countries, including Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Latvia, Luxembourg, Romania and Slovakia. EU NHRIs from Belgium, Greece, Luxembourg, Slovakia and Slovenia explicitly signalled the need to introduce a legal obligation to implement the NHRI’s recommendations. ENNHRI members from Austria, Bulgaria, Croatia, Cyprus, Estonia, Portugal, Spain and Slovenia and confirmed that a legal obligation to provide a timely and reasoned response is established in their countries. NHRIs in Croatia and Luxembourg reported that state authorities sometimes fail to provide a reply to the NHRI’s recommendations, requests and reports at all, whereas the NHRI from Slovenia found that the state authorities’ legal obligation to address the NHRI’s proposals still remains insufficient and the implementation rate of the NHRI’s recommendations, unfortunately, remains unsatisfactory. In this sense, 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 fashion.

In relation to possible 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 36 SLAPP actions) in their countries. This is the case for institutions in Belgium (FIRM), Bulgaria, Cyprus, Czech Republic, Estonia, Finland, Germany, Greece, Hungary, Ireland, Latvia, Romania, Slovenia and Spain. Increased criminal protection was noted in Cyprus, Czech Republic, Estonia, Hungary and Latvia, while in Germany the focus also lies on the protection of privacy. However, no specific measures and rules on immunity to ensure NHRIs’ independence are in place in Austria, Belgium (UNIA), Denmark, France, Ireland, Luxembourg, Portugal and Slovakia.

Despite some measures introduced at national level to combat threats towards NHRIs, in Slovenia the NHRI experienced pressure and smear attacks in concrete cases, when taking actions on specific topics. Likewise, in Poland the NHRI’s work and effectiveness was impacted by state authorities actions threatening the continuity of head of institution’s service as well as the state of emergency imposed on the Belarusian-Polish border (in terms of the NHRI activities in the area of migrants’ rights).

Some EU NHRIs also raised the subject of insufficient financial and human resources which are crucial to ensure NHRI’s effectiveness. While in some countries the institution’s budget was increased (such as in the case of NHRIs from Luxembourg and Slovakia), in Poland an increase in budget still did not meet the NHRI’s reasonable needs. Also, the NHRIs from Bulgaria, Croatia, Greece and Slovenia stressed the need to ensure more resources and adequate conditions to exercise their mandate. The NHRI from Germany drew attention to the lack of additional resources provided to carry out additional, specific mandates to perform international obligations (f. ex. acting as a monitoring body under the CRPD). In addition, NHRIs from Hungary, Portugal and Slovenia argued the importance of financial independence of their institutions. For example, in Portugal the NHRI’s budget is still a part of the Parliament’s budget.

Last but not least, NHRIs from Austria and Cyprus highlighted that the effectiveness of the NHRI could also be enhanced if the financial situation would be improved and allowed the institution to employ more staff.

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