22/47 Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya
Document Type: Final Report
Date: 2013 Jan
Session: 22nd Regular Session (2013 Feb)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.
Human Rights Council Twenty second session
Agenda item 3 Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya*
Summary
In the present report, submitted pursuant to Human Rights Council resolutions 7/8 and 16/5, the Special Rapporteur provides an account of her activities during the reporting year and draws the attention of Member States to the 252 communications sent under the mandate during the past year.
The main focus of the report is the role of national human rights institutions in the promotion and protection of human rights, highlighting the fact that they can be considered as human rights defenders.
The Special Rapporteur elaborates on the potential role national institutions can play in the protection of human rights defenders. She outlines a number of measures currently in practice in institutions in various Member States which could be replicated in other contexts. She also points to a number of areas where national institutions need strengthening in order to effectively protect human rights defenders.
The Special Rapporteur provides her conclusions and recommendations.
* Late submission.
Contents Paragraphs Page
I. Introduction ............................................................................................................. 1–4 3
II. Activities during the reporting period ..................................................................... 5–
A. Communications transmitted to States ............................................................ 5 3
B. Country visits .................................................................................................. 6–
C. Cooperation with the United Nations system and intergovernmental
organizations ................................................................................................... 9–
D. Invitations by Governments ............................................................................ 15 5
E. Cooperation with non-governmental organizations ........................................ 16–
III. National human rights institutions .......................................................................... 23–
A. Introduction and methodology ........................................................................ 23–
B. The Paris Principles and beyond ..................................................................... 28–
C. National human rights institutions as human rights defenders ....................... 34–
IV. The role of national human rights institutions in the protection of human rights
defenders ................................................................................................................ 84–
A. Formal complaints mechanisms and protection programmes ......................... 85–
B. Advocacy in favour of a conducive work environment for defenders ............ 91–
C. Interaction with international and regional mechanisms ................................ 95–
D. Public support in cases of violations against human rights defenders ............ 98–
E. Visits to prisons and detention centres and provision of legal assistance ....... 103–
F. Conflict mediation .......................................................................................... 106–
G. Capacity strengthening for human rights defenders........................................ 109–
V. Conclusions and recommendations ......................................................................... 115–
A. Conclusions .................................................................................................... 115–
B. Recommendations ........................................................................................... 119–
I. Introduction
1. The present report is the fifth submitted to the Human Rights Council by the Special Rapporteur, and the thirteenth thematic report submitted by the mandate holder on human rights defenders since 2000. The report is submitted pursuant to Human Rights Council resolutions 7/8 and 16/5.
2. Since the inception of the mandate, the key role played by national human rights institutions in the promotion and protection of human rights has continuously been emphasized. As independent public bodies, national institutions can play an important part in advising Governments on national developments in the light of their human rights obligations as well as mainstreaming international human rights principles and standards in public law and policymaking. The Special Rapporteur is of the opinion that national institutions can be considered as human rights defenders.
3. In addition, the interaction between such institutions and individuals and
associations acting in defence of human rights has always been considered essential by the
mandate holder. National institutions can cooperate with defenders to assess the human
rights situation on the ground and ensure accountability for human rights violations. As
emphasized by the Special Rapporteur in her 2010 report to the Human Rights Council,
national institutions, especially those mandated to receive complaints and follow individual
cases, can be powerful allies of human rights defenders and contribute significantly to their
protection if needed.
4. After providing an overview of her activities during the reporting period, the Special Rapporteur briefly outlines her approach to national human rights institutions and the methodology used in the current report. She then focuses on the vital role played by national institutions in the promotion and protection of human rights. She goes on to provide observations on the current mechanisms in place within these institutions to protect human rights defenders. In the last section, the Special Rapporteur provides her conclusions and recommendations.
II. Activities during the reporting period
A. Communications transmitted to States
5. Between 1 December 2011 and 30 November 2012, the Special Rapporteur sent 252 communications. Communications were sent to 83 States, and, at the time of writing, 104 responses had been received, which indicates only a 41 per cent response rate. In addition, the Special Rapporteur received 40 responses to communications sent prior to the current reporting period. Observations on communications sent during the period and on the corresponding responses by Governments are included in addendum 4 to the present report (A/HRC/22/47/Add.4).
B. Country visits
6. During the reporting period, the Special Rapporteur visited Honduras from 7 to 14 February 2012; Tunisia from 27 September to 5 October 2012; and Ireland from 19 to 23
November 2012. Separate reports on these visits have been submitted to the 22nd session of the Human Rights Council.
Pending requests
7. As of December 2012, the Special Rapporteur has the following outstanding visit requests: Bahrain (2012), Belarus (2002, 2003, 2004, 2010, 2011), Bhutan (2001, 2002), Burundi (2012), Cambodia (2012), Cameroon (2012), Chad (2002, 2003, 2004), China (2008, 2010), Dominican Republic (2012), Egypt (2003, 2008, 2010, 2012), Equatorial Guinea (2002), Fiji (2010, 2012), Indonesia (2012), Jamaica (2012), Kazakhstan (2011, 2012), Kenya (2003, 2004), Kyrgyzstan (2012), Malawi (2012), Malaysia (2002, 2010), Maldives (2006), Mexico (2011), Mozambique (2003, 2004), Namibia (2011), Nepal (2003, 2004, 2005, 2008, 2009, 2012), Oman (2012), Pakistan (2003, 2007, 2008, 2010), Philippines (2008, 2010, 2012), Russian Federation (2004, 2011), Saudi Arabia (2012), Senegal (2012), Singapore (2002, 2004), Sri Lanka (2008, 2010), Syrian Arab Republic (2008, 2010), Thailand (2012), Turkmenistan (2003, 2004), United Arab Emirates (2012), Uzbekistan (2001, 2004, 2007), Bolivarian Republic of Venezuela (2007, 2008, 2010), Viet Nam (2012) and Zimbabwe (2002, 2004, 2008, 2010, 2011). The Special Rapporteur regrets that some of these requests are long-standing, and hopes that States will give due attention to all her requests in a timely manner.
8. The Special Rapporteur thanks the Governments of Mongolia and Turkey for having accepted her requests to visit in 2013. The modalities and dates of these visits are currently being negotiated. Concerning her request to visit Turkey, the Special Rapporteur hopes that sufficient time will be given to her in order to assess the situation of defenders in a thorough and impartial manner.
C. Cooperation with the United Nations system and intergovernmental
organizations
9. The Special Rapporteur has continued to place particular emphasis on cooperation with all bodies of the United Nations and other regional intergovernmental human rights organizations.
12. On 26 June 2012, the Special Rapporteur participated in the annual full-day discussion on women’s human rights at the twentieth session of the Human Rights Council, in a panel discussion concerning women human rights defenders.
13. From 27 September to 5 October 2012, the Special Rapporteur conducted a joint country visit to Tunisia with the Special Rapporteur on human rights defenders in Africa, of the African Commission on Human and Peoples’ Rights, resulting in a joint statement at
the end of the visit.3 The observations and recommendations of the United Nations Special
Rapporteur are presented to the Human Rights Council as an annex to the current report
(A/HRC/22/47/Add.
14. The Special Rapporteur was scheduled to present her fifth report to the General Assembly (A/67/292) on 29 October 2012. Due to Hurricane Sandy, the Special Rapporteur regretfully had to cancel her participation at the General Assembly, and the Special Rapporteur in the field of cultural rights kindly read out her statement on 2 November 2012. The report focused on the use of legislation to regulate the activities on human rights defenders, including the most common restrictions faced by human rights defenders in the context of different sorts of legislation. The report provided recommendations to States to ensure legislation respects the rights of defenders, as well as guidance on procedural and other safeguards to be followed in the implementation of legislation.
D. Invitations by Governments
15. From 6 to 8 June 2012, the Special Rapporteur, together with other independent experts, participated in a seminar entitled “Human Rights Defenders and Peaceful Protests” organized by the Governments of Norway and Switzerland in cooperation with the International Service for Human Rights, which was held in Oslo, Norway. The Special Rapporteurs present issued a joint statement on human rights defenders and peaceful protests following the meeting.4
E. Cooperation with non-governmental organizations
19. On 19 April 2012, an OHCHR staff member participated in the conference entitled “The Internationalization of the Protection of Human Rights and Human Rights Defenders”
organized by Lawyers Without Borders in London, United Kingdom.
20. The Special Rapporteur was the keynote speaker at a regional conference organized by the OHCHR Regional Office for the Middle East in Beirut, Lebanon, on 22 and 23 May 2012 to promote enhanced respect for fundamental freedoms.
21. On 18 June 2012, the Special Rapporteur hosted a round table in Geneva in collaboration with Protection International on national mechanisms and public policies for the protection of human rights defenders.
22. On 24 and 25 October 2012, an OHCHR staff member participated in a conference in London, United Kingdom, organized by Peace Brigades International entitled “Women Human Rights Defenders: Empowering and Protecting the Change-makers”.
III. National human rights institutions
A. Introduction and methodology
23. As independent public bodies, ideally established by the Constitution and an act of
Parliament, national institutions are in a unique position to guide Governments regarding
their human rights obligations and ensure international human rights principles and
standards are incorporated into the law and mainstreamed and implemented in public
policymaking. The Special Rapporteur believes that national institutions which operate in
compliance with the Paris Principles relating to the Status of National Institutions,
weaker areas of engagement for national human rights institutions”. According to the
survey, only about 62 per cent of respondents had activities specifically designed for
defenders. The importance of strengthening the capacity of national institutions in this area
has already been highlighted.
27. The Special Rapporteur intends to assess existing initiatives in this respect and
provide recommendations to States and national institutions on how to protect defenders
more effectively. To this end, the Special Rapporteur sent questionnaires to States, national
institutions and human rights defenders. She is very grateful for the large number of
responses received and would like to thank all stakeholders for their time and interest.
Responses to the questionnaires can be consulted in their entirety as received on the website
of the mandate.
B. The Paris Principles and beyond
28. The Paris Principles (1991) are a set of minimum standards that national institutions,
regardless of their structure and mandate, should respect. They are now broadly accepted
as benchmarks for the accreditation of national institutions and a litmus test of an
institution’s legitimacy.
29. The network of national institutions was formally established in 1993 as the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). ICC, through its Bureau, coordinates the activities of the national institutions, accredits its members and assists them in various ways, including by recommending the provision of technical assistance.
30. ICC has four Regional Coordinating Committees representing and supporting national institutions at the regional level. They are responsible for nominating members to the Bureau as well as to the positions of Chairperson and Secretary of ICC. A representative of each regional network, known as Regional Coordinator, acts as the regional focal point on the Bureau and works closely with the Chairperson in the implementation of decisions.
31. The Paris Principles require that national institutions work in the promotion and protection of human rights, including by receiving and investigating complaints, mediating in conflicts, and raising awareness about human rights. The Paris Principles establish six main criteria for fully functioning national institutions, that is, broad mandate and competence; autonomy from Government in their functioning and methods of operation; independence, which should be enshrined by law or in the Constitution; pluralism through membership or cooperation; adequate financial, material and human resources; and adequate powers of investigation.
32. The Paris Principles also acknowledge the importance of non-governmental organizations (NGOs) in “expanding the work of the national institution” and encourage national institutions to establish relations with civil society. This interaction can assist
7 OHCHR, National Human Rights Institutions: History, Principles, Roles and Responsibilities,
Professional Training Series, No. 4 (Rev.1) (2010), p. 23. 8 http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/SRHRDefendersIndex.aspx 9 National Human Rights Institutions (see note 7 above), chap. III.
national institutions in protecting their independence and pluralism, thereby enhancing their effectiveness and reinforcing their legitimacy.10
33. In addition to the Paris Principles, the ICC Sub-Committee on Accreditation has adopted general observations,11 which provide further guidance on how to interpret and implement the Paris Principles.
C. National human rights institutions as human rights defenders
34. The Special Rapporteur considers that national institutions which operate in compliance with the Paris Principles and their members and staff, can be considered as human rights defenders. She is aware that they face important challenges and are exposed to attacks, threats, intimidation and harassment in connection to their human rights activities.
35. The Special Rapporteur and her predecessor have expressed concerns about the challenges faced by members and staff of national institutions on a number of occasions. In connection with the country visit to Guatemala in 2008, the issue of members and staff of national institutions often being the victims of threats or attacks was raised in the report.12
36. Furthermore, the mandate has sent a number of communications to Governments on reported attacks against staff of national institutions while conducting an inquiry (Philippines, 2008);13 threats to the life of a chairperson of an institution for reporting on abuses by security forces (Kenya, 2008);14 alleged acts of intimidation, harassment and reprisals against the head of a national institution who cooperated with the former mandate holder during a country visit (Indonesia, 2007),15 a reported case of harassment of the Chairperson of an institution for his engagement with ICC (Malawi, 2012),16 and the reported undue interference of the Government in the extension of the mandate of the head of a national institution (France, 2009).17
37. The responses received to the questionnaire sent by the Special Rapporteur indicate that national institutions face considerable challenges and constraints when discharging their functions to promote and protect human rights, including when interacting with human rights defenders, which could seriously undermine their independence, efficiency and legitimacy. Despite their institutional and thematic diversity, reported challenges relate inter alia to the mandates of the institutions and their implementation; to composition, selection and appointment of members and staff; to conditions of tenure; and to the availability of resources. The responses have also served to identify examples of good practice.
1. Mandate and competence
38. As stated in the Paris Principles, mandates entrusted to national institutions should be broad, set forth in a constitutional or legislative text specifying its composition and
10 International Council on Human Rights and OHCHR, “Assessing the effectiveness of National
Human Rights Institutions” (2005), p. 15. 11 National Human Rights Institutions (see note 7 above), annex IV. 12 A/HRC/10/12/Add.3, para. 66. 13 A/HRC/10/12/Add.1, paras. 2103-2106. 14 A/HRC/10/12/Add.1, paras. 1489-1491. 15 A/HRC/7/28/Add.1, paras. 1109, 1113, 1114 and 1117. 16 A/HRC/21/49, p. 36. 17 A/HRC/13/22/Add.1, paras. 832-838.
sphere of competence. The mandate should be clearly stated and include the promotion and protection of human rights, which is the case for many national institutions, such as Afghanistan, Canada, Nicaragua, Nigeria, South Africa and Uruguay, among others.
39. However, there are instances where the mandate of national institutions is reportedly established by a royal decree (Morocco), a presidential decree (Algeria, Kazakhstan) or an executive order (Philippines).
40. Moreover, limitations to the mandate or sphere of competence of national institutions have been reported in some cases which include restrictions to their jurisdiction, such as limitations on the type of issue they can handle. Other restrictions concern the branches of the State or the type of actors they can monitor, notably military and private actors in some cases exempted from the oversight of national institutions.
41. Several national institutions are not empowered to investigate complaints against the Head of State and Parliament (Hungary, Kazakhstan, Philippines). The national institution of the Philippines is limited to consideration of violations of civil and political rights, although the institution has managed to work on economic, social and cultural rights under its Omnibus Rules of Procedure. It is also reported that the national institution in India cannot deal directly with members of the armed forces and has to seek reports from the Ministry/ Departments with competence over them.
42. As established by the Paris Principles, the mandate of national institutions should include preparing and submitting reports to relevant international bodies, including the Universal Periodic Review of the Human Rights Council and the Treaty Bodies, as well as interacting with regional and international human rights mechanisms, including with the special procedures of the Human Rights Council. This is the case for the mandate of the national institution in Canada and, while not as specific, that in Afghanistan.
43. The mandate of national institutions should also be clear enough to avoid any overlap or confusion with the mandate and work of other branches of the State or human rights-related bodies, such as thematic human rights commissions (India, Indonesia) or human rights institutions at the constituent unit level18 in federal States (Canada, Mexico, South Africa). As stated by the Sub-Committee on Accreditation in its general observations, national institutions should cooperate with other statutory bodies, coordinate their work and share information with them.
44. The Special Rapporteur would like to highlight the fact that several national institutions reported facing important challenges when trying to ensure adequate implementation of and follow-up to their recommendations. In the absence of necessary provisions in the statutory framework obliging the Government and other public bodies to formally respond to their recommendations, implementation of such appears to be a problem (South Africa). This is likely to be the case with most institutions which are provided with a limited consultative or advisory type of mandate (Germany, Kazakhstan), which could undermine their impact and effectiveness.
45. In the opinion of the Special Rapporteur, the credibility and legitimacy of national institutions is certainly strengthened if their mandate originates from a legislative act of Parliament, is clear and broad, including interaction with regional and United Nations human rights mechanisms and establishing coordination mechanisms with other relevant human rights bodies. The mandates of national institutions should state their jurisdiction, and they should be accountable to Parliament through the submission of a periodic report
18 This refers to the states, provinces or cantons within federal systems. For more details, refer to
“National human rights institutions in federal States. A study for the Office of the High Commissioner for Human Rights” (September 2011).
on activities which should be discussed by the legislature, made public and disseminated by all necessary means. Appropriate provisions should be made in order to allow effective implementation and follow-up to the recommendations made by national institutions.
2. Autonomy from Government and independence
46. National institutions should be able to work independently, without interference of any sort from the authorities or other branches of the State. In this connection, the Paris Principles and the general observations of the Sub-Committee on Accreditation provide substantive guidance on how to strengthen the organizational and operational structure of institutions with the aim of ensuring their autonomy and independence.
47. The criteria and processes for nomination, appointment and security of tenure of the members of the governing bodies of these institutions should be established and controlled by Parliament. They should ensure an open and transparent process for nomination and appointment. The Sub-Committee on Accreditation has indicated that the participation of members of Government in national institutions should be limited to an advisory capacity and that no secondments of civil servants should be allowed. Tenure should be secure and dismissal only possible in exceptional and clearly defined circumstances.
48. The participation of civil society, including defenders, and other relevant stakeholders in the nomination and appointment process is also considered essential in order to ensure independence and autonomy. This is the case in various countries and national institutions, which positively affects the degree of pluralism of the institutions and enhances their credibility. In this connection, through the responses to her questionnaire, the Special Rapporteur has identified various examples of good practices in relation to the criteria and process of nomination and appointment of members of governing bodies of national institutions.
49. For example, the position of Commissioner of the national institution in Canada is widely advertised when vacant, and anyone can apply. In Uruguay, the law establishes that the members of the national institution can be nominated by NGOs, which is also widely the case in practice. In New Zealand, the criteria for appointment of Commissioners are clearly established in the regulatory framework and groups and individuals can nominate candidates. In South Africa, an ad-hoc Parliamentary Committee is set up to interview potential Commissioners following a nationwide public announcement of the vacancies. Interviews take place in public and civil society organizations are allowed to attend.
50. In the development of the law establishing the Irish Human Rights and Equality Commission, which was yet to be adopted at the time this report was finalized, it was emphasized that its independence would be strengthened if it was empowered to recruit its own staff and that there should be no civil service secondment at senior level to the body.19
51. On the other hand, it has also been reported that the selection process for members of the Commission on Human Rights of the Philippines is not defined in its regulatory framework. This lack of procedure reportedly allows for the President to be the only authority entitled to nominate and appoint its members. The Commission is advocating for the adoption of the “Commission on Human Rights Charter” precisely to strengthen its
organizational, operational and fiscal structure, including the procedure for selection and appointment of its members.
19 Oireachtas Joint Committee on Justice, Defence and Equality, “Report on hearings in relation to the
Scheme of the Irish Human Rights and Equality Commission Bill” (July 2012).
52. In India, the Chairperson and members of the national institution are appointed by the President on the recommendations of a Committee formed by the Prime Minister as a Chair and members of the ruling party as well as the opposition parties. It is reported that consultations are carried out by the members of the Committee in order to ensure consensus in the nominations. After her visit to India, the Special Rapporteur recommended that the functioning of the national commission be strengthened by, inter alia, broadening the selection criteria for the appointment of the Chair and diversifying the composition of the Commission, including regarding gender.20
53. The Special Rapporteur would like to emphasize that, as underlined by the Sub- Committee on Accreditation, the selection of staff working for national institutions should be carried out by the national institution itself.
54. The Sub-Committee on Accreditation has strongly recommended that provision be included in legislation to protect members and staff of national institutions from legal liability for official actions. The Special Rapporteur believes that privileges and immunities for members and the staff of national institutions discharging their functions in good faith are an important safeguard, allowing them to carry out their activities without undue interference.
55. It has been reported that members and staff of the Uganda Human Rights Commission enjoy immunity from civil proceedings for any act done in good faith in the performance of their duties. In some cases, members of the governing body enjoy immunities but provisions regarding staff are unclear (Togo, Jordan). In Panama, a decision of the Supreme Court in 1998 declared the immunities of the head of office unconstitutional. In Egypt, the legislative framework that established the National Council for Human Rights (Law No. 94, 2003) does not provide immunities for its staff members, including the President and Vice-President. The institution in Egypt has proposed amendments to the existing legislation to address this shortcoming.
56. An illustration of the serious challenges that the staff working for a national institutions face is the reported case of the arbitrary detention of three staff working for the national institution in El Salvador while verifying the deportation of a non-national in 2005.
57. The Special Rapporteur is of the opinion that national institutions with a broad and clear mandate are able to work independently and more effectively, leading to a higher degree of legitimacy among their constituencies. She also considers that all members and staff of national institutions should enjoy immunity from civil and criminal proceedings while discharging their functions in good faith to avoid undue liabilities and restrictions in the conduct of their legitimate human rights work.
3. Adequate resources
58. The Paris Principles also indicate that national institutions should have adequate infrastructure and funding in order for them to have their own staff and premises and be financially independent from the Government. The source and nature of funding must be clearly stated and secured in the regulatory framework. The institution should be able to manage its funding independently. The Sub-Committee on Accreditation provides additional details on what adequate funding should include, as a minimum.21
20 A/HRC/19/55/Add.1, para. 149. 21 National Human Rights Institutions (see note 7 above), annex IV.
59. The Special Rapporteur and her predecessor have raised the issue of lack of financial and human resources in several reports following fact-finding visits (Armenia, Honduras, Ireland, Togo and the Democratic Republic of Congo).22
60. It is reported that some national institutions have discretion to propose their own budgets to legislators (Uruguay). In the case of the Netherlands Institute for Human Rights, the draft budget is made public when submitted to Parliament for approval.
61. However, responses to the questionnaire sent by the Special Rapporteur indicate that there are instances where the financial autonomy of national institutions has been challenged and/or revoked (Panama and the Philippines) by the Supreme Court. This has had an important impact on the independence and capacity of the institutions.
62. It has been widely reported that national institutions face financial constraints of various sorts. In some countries, there are limitations to the type of expense to be covered under public budgets, such as in Jordan, where the budget allocated is only meant to cover operational costs and not activities. This severely undermines the capacity of national institutions to interact with defenders, amongst other things.
63. In other countries, national institutions claim to be financially ill-resourced in general which, in some instances, amounts to lack of basic office equipment (Burkina Faso) or means that they are not able to be fully operational in the regions, thereby restricting opportunities for interaction with grass-roots organizations (South Africa). An extreme situation would be the case of the national institution in El Salvador which, 20 years after its establishment, does not have premises of its own.
64. The Special Rapporteur is conscious of the fact that the financial crisis in 2008 and the economic recession that followed have led to drastic cuts in public expenditure affecting the public sector in general, including national institutions. Nevertheless, she strongly recommends that national institutions be adequately resourced and be able to propose and manage their own budgets independently.
4. Composition and pluralism
65. The Paris Principles establish that the composition of a national institution and the appointment of its members should ensure a pluralistic representation of the actors involved in the promotion and protection of human rights. NGOs working on human rights issues are acknowledged specifically in this context. The Sub-Committee on Accreditation emphasizes the importance for national institutions of keeping regular contact with civil society and acknowledges that pluralism can be achieved in various ways.
66. National institutions should therefore be inclusive and accessible to the different constituencies. This could be reflected at the level of the composition of their membership and staff, but also in the ways they interact with the main stakeholders, including defenders and activists. Interaction with civil society will reinforce the credibility and legitimacy of the institution and can certainly strengthen the design and implementation of its activities.
67. As mentioned, members of the national institution in Uruguay are usually nominated by NGOs, and all five current members come from the NGO sector. In New Zealand, civil society is part of the interview panels for the selection of members of the national institution.
22 In alphabetical order: Armenia (A/HRC/16/44/Add.2); Honduras (A/HRC/22/47/Add.1); Ireland
(A/HRC/22/47/Add.3); Togo (A/HRC/10/12/Add.2); Democratic Republic of the Congo (A/HRC/13/22/Add.2).
68. The national institution in India is composed of members who have occupied high- level seats in the judiciary, which is reported to ensure their credibility and also serve as a protective mechanism. Similarly, the Executive Secretary of the Governing Council of the Nigerian Human Rights Commission is to be a retired judge or a lawyer with relevant experience, although other members of the Council can include representatives from human rights organizations, journalists, trade unions and the Bar Association. The Special Rapporteur believes that the composition of the governing body of a national institution should be as diverse as possible, including representatives from civil society and people with relevant human rights experience.
69. The Special Rapporteur has stated on various occasions that standard operating procedures to ensure interaction with civil society in the work of national institutions are important and can endorse the legitimacy of the work of defenders (Indonesia, 2007). In this connection, she has recommended the establishment of a focal point on human rights defenders and systematic consultation with civil society (Armenia, 2010).
70. In the responses to her questionnaire, it has been reported that some national institutions have a dedicated focal point or desk for human rights defenders (India, Philippines and Uganda). Others report having a service dealing specifically with external stakeholders, including human rights defenders (New Zealand). Some institutions are mandated to establish relations with civil society working in relevant areas (Afghanistan and Mexico) and do so by establishing agreements and memoranda of understanding with NGOs for promotion, protection and capacity-building activities.
71. Some national institutions have reported that they have regular contact and meetings with defenders and civil society networks and organize different types of events and activities in coordination with them (Jordan, Sri Lanka). In certain countries, national institutions establish advisory groups which include defenders in their composition (Norway), in some cases with thematic focus (Serbia, Ukraine). Other institutions report that they encourage civil society to establish advocacy committees to increase synergies with the institution (Afghanistan).
72. The Special Rapporteur is of the view that regulatory frameworks for national institutions should mandate the establishment of a permanent, dedicated focal point for human rights defenders. Ideally, they should also encourage the collection of disaggregated data on violations against them and the establishment of a protection programme taking into account their specific profile and risks. In addition, she considers that the existence of regional or local offices of the institution established in the regions, either permanent (South Africa, Uganda) or itinerant (New Zealand), certainly makes the institution more accessible to local, grass-roots organizations and defenders working in remote areas. The Special Rapporteur emphasizes the importance of such local offices being responsive to complaints received.
5. Adequate powers of investigation
73. The Paris Principles contain additional guidance for national institutions with a mandate to hear and consider individual complaints and petitions.
74. From the responses to the questionnaire, the Special Rapporteur is pleased to note that most national institutions are entrusted by law to receive individual complaints on alleged violations of human rights. Most commonly, national institutions can receive individual complaints and are able to conduct an enquiry and then refer the matter to the specialized body or to the courts to obtain a binding decision (El Salvador, India).
76. The Special Rapporteur is of the view that national institutions should be mandated to receive and consider individual complaints, including visiting detention centres. In addition, institutions should have a specific protection programme to address the situation and allegations of violations against human rights defenders. Further observations in this regard are provided in Chapter IV.
6. Protection of national institutions against attacks, harassment, threats and
intimidation
77. The Special Rapporteur is aware that members and staff of national institutions face different levels of harassment and intimidation by State and non-State actors due to their human rights-related work. As stated above, she has been apprised of cases in various instances and has acted upon them. Moreover, responses to the questionnaire also contain information that confirms this trend, which is a source of great concern to the Special Rapporteur.
78. It is reported that members and staff working for national institutions have faced attacks, including armed attacks, while conducting investigations (the Philippines), including by members of the police (Panama). In other instances, they have been attacked and threatened by private individuals who come to enquire about their services (Canada, South Africa). Members and staff of institutions have also been harassed and intimidated by members of the Government or other branches of the State. In one instance, a Commissioner was summoned by the Supreme Court and in another instance suspended by the Attorney General’s Office in connection with their work (Afghanistan).
79. There are also instances of reported retaliation against staff working for national institutions in the form of administrative and legal actions against them, such as an inspection by tax authorities or retention of salaries, or legal action on the part of private businesses immediately after an enquiry (Hungary).
80. National institutions report that they use the existing channels to raise situations of threats, harassment and intimidation towards their staff, including the corresponding complaint with the police or relevant authority. Some indicate that they resort to the highest levels of Government to try to dilute tensions.
81. The Special Rapporteur welcomes steps taken by the Canadian Human Rights Commission, which conducted a Threat and Risk Assessment in 2008 and has reportedly implemented various measures to guarantee the security of its staff, including access control through card-activated locks to all its offices; live monitoring; full-time security guards; panic buttons connected to the police; and self-protection and risk awareness training for staff.
82. In addition, the legal framework of the Canadian Commission includes a provision to consider it a discriminatory practice on the part of a person against whom a complaint has been filed, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or against the alleged victim. Under the regulatory act, any person who threatens, intimidates or discriminates against an individual who has made a complaint is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.
IV. The role of national human rights institutions in the protection of human rights defenders
84. National human rights institutions can potentially play a substantive role in protecting human rights defenders. The Special Rapporteur has recommended on numerous occasions that such institutions establish a focal point for human rights defenders with the responsibility of ensuring their protection.23 Protection constitutes a wide range of possible measures and interventions, including formal complaints mechanisms and protection programmes; advocacy in favour of a conducive work environment for defenders; public support when violations against defenders are perpetrated; visits to defenders in detention or prison and provision of legal aid in this context; mediation when conflicts occur between defenders and other parts of society; and strengthening of the capacity of defenders to ensure their own security. The Special Rapporteur has noted a number of commendable initiatives taken by national institutions which are detailed below.
A. Formal complaints mechanisms and protection programmes
85. The most common measure by national institutions to ensure protection of human rights defenders appears to be complaints mechanisms. Most national institutions are mandated to receive complaints from individuals whose rights have been violated, with some also allowed to receive petitions from representatives of victims and associations. The majority of the institutions which responded to the Special Rapporteur’s questionnaire indicated that defenders could present complaints to them using the same channels as other individuals.
perform a number of services which are available to defenders and other individuals, including legal assistance, witness protection, financial assistance and medical assistance to victims of violations. The Philippines Commission noted that it is working on consolidating its services available to defenders, which include a focal point for cases pertaining to them. Submissions from NGOs confirmed that such consolidation is needed.
89. The Special Rapporteur notes that in a number of Member States where national institutions have resources dedicated specifically to the protection of human rights defenders, she has received information indicating a lack of effectiveness, responsiveness and transparency in the proceedings. Human rights defenders have in many cases reported that once a complaint is lodged with the institution, it is difficult to find out what action has been taken, if any. National institutions should ensure transparency in complaints handling, especially in urgent cases. The example referred to above of the recommendations of the institution being made public is commendable, although this needs to be assessed according to the situation in order to ensure the security of the defender(s) affected is not compromised. It is also important that national institutions clearly communicate to human rights defenders what sort of protection they are able to provide them in order to manage expectations and ensure defenders can do a proper security assessment in relation to their own situation.
90. The Special Rapporteur is concerned about accounts of a lack of responsiveness and effectiveness among national institutions in their response to violations reported by human rights defenders, as this discourages defenders from filing cases under the mechanisms that were designed to protect them. She reiterates the importance of institutions working closely with civil society in the development of protection policies (A/HRC/13/22, para. 113(a)). Comprehensive policies and guidelines on protection of human rights defenders should be developed and disseminated by national human rights institutions. Furthermore, resources dedicated to the protection of defenders need to be sufficient, and national institutions should reflect this in their proposed budgets to Governments.
B. Advocacy in favour of a conducive work environment for defenders
91. As provided for in the Paris Principles, a key function of national institutions should be their ability to pronounce opinions and recommendations on the domestic legal framework in an effort to bring this into compliance with the country’s international human
rights obligations. In several Member States, national institutions have fulfilled this function in a proactive manner. For example, in Serbia, the Protector of Citizens drafted on its own initiative a law to ensure whistle-blowers are protected from retaliation when submitting complaints to public authorities.
C. Interaction with international and regional mechanisms
95. The advocacy activities of national institutions are not limited to the national level. These institutions have also participated actively in international forums such as the Human Rights Council, treaty bodies and the Universal Periodic Review. The Special Rapporteur notes with appreciation that, for example, in the preparation of submission to the Universal Periodic Review, many national institutions have consulted and cooperated closely with human rights defenders. Among recent examples, the National Human Rights Commission of India closely consulted civil society in the preparation of its report for the review of India in 2012 (A/HRC/WG.6/13/IND/1, also confirmed by reports from civil society), and the Commission on Human Rights and Administrative Justice in Ghana (see A/HRC/WG.6/14/GHA/3) prepared a joint submission with a prominent network of human rights organizations for the review of the country in the same year. The Special Rapporteur believes such cooperation strengthens the visibility and credibility of human rights defenders, thereby contributing to their protection.
96. The Special Rapporteur has found few examples of national institutions including information on the situation of human rights defenders in their reports under the Universal Periodic Review. She recommends institutions strengthen this aspect in their reports.
97. The Special Rapporteur also observes that few national institutions provide information to her mandate or regional mechanisms authorized to monitor the situation of human rights defenders, even though a number of cases raised in their annual reports relate to defenders. The Special Rapporteur recommends national institutions make use of such international mechanisms when they deem it appropriate.
D. Public support in cases of violations against human rights defenders
98. When violations are perpetrated against defenders, in the form of threats, harassment, attacks and others, it is commonplace for human rights associations to make public statements condemning such acts. The Paris Principles stipulate that national human rights institutions should be in a position to address public opinion directly or through the press in order to convey to the public its opinions and recommendations (para. 3(c)). In the Special Rapporteur’s view, this should include denouncing violations suffered by
individuals and associations acting to defend human rights as a result of their work, as well as voicing public support for this.
102. The Special Rapporteur has received disconcerting information that upon receipt of complaints, notably in relation to peaceful protests by human rights defenders, certain national institutions have deemed such complaints inadmissible on grounds that the activities undertaken by defenders were unlawful. The Special Rapporteur wishes to stress that international standards should be the guiding principles for national institutions. In this connection, as long as activities are conducted peacefully and in defence of human rights, national institutions should intervene on behalf of defenders.
E. Visits to prisons and detention centres and provision of legal assistance
103. Numerous national institutions are mandated to conduct visits to prisons and detention centres. The Special Rapporteur considers as good practice the ability of such institutions to conduct visits without prior authorization. Notably, in cases where human rights defenders are detained or imprisoned, national institutions should be able to access them without restrictions. Information sharing is important in this context between defenders and national institutions. Defenders should notify national institutions if they believe they are persecuted and face charges as a result of their peaceful activities in defence of human rights.
104. The Afghanistan Independent Human Rights Commission reported that in addition to visiting human rights defenders in detention, the institution is in a position to provide them with free legal assistance through cooperation with the Afghanistan Bar Association. The Special Rapporteur finds this initiative highly commendable and recommends its replication in other countries.
105. The Institution of the Human Rights Defender in Armenia has entered into formal cooperation with NGOs specialized in monitoring of prisons and detention centres. Besides strengthening cooperation between the national institution and civil society in this field, the NGOs concerned are granted access to prisons, detention centres and other relevant institutions. The Special Rapporteur notes that this is a useful way of enhancing cooperation with regard to monitoring of prisons and places of detention, including in cases where human rights defenders are detained.
F. Conflict mediation
G. Capacity strengthening for human rights defenders
109. The Special Rapporteur has argued on previous occasions (A/HRC/13/22, paras. 67 and 68) that one of the most important efforts to protect human rights defenders is measures taken by defenders themselves. This includes individual security measures related to their work and personal life, as well as organizing themselves in networks with other defenders.
110. Several national human rights institutions reported that they are engaged in activities aimed at strengthening the capacity of human rights defenders to protect themselves and otherwise make their work more effective. In Mexico, both the National Human Rights Commission and the Human Rights Commission of the Federal District (Mexico City) have developed publications which provide guidelines on protection of human rights defenders.
111. In other countries, national institutions are working directly with defenders by providing them with technical assistance. The Uganda Human Rights Commission has contributed to strengthening the advocacy skills of defenders, and through strategic partnerships the institution has secured the participation of defenders and their organizations at events and training sessions organized by the commission. The Uganda Human Rights Commission also participates in events organized by civil society to strengthen links with defenders. The National Human Rights Commission in Togo is also engaged in activities organized by NGOs, and the institution has NGOs participate in its own activities.
112. The Afghanistan Independent Human Rights Commission has included the strengthening of civil society in its strategic plan. It has identified the capacity of civil society to advocate for increased protection of human rights as one of the key elements of its interventions in this area and is working actively with NGOs to this end.
113. Similarly, the Protector of Citizens in Serbia noted that the institution has a long- standing tradition of working closely with human rights defenders in advocating for legislative changes, organizing campaigns and conferences, and conducting investigations. The Protector of Citizens has established permanent advisory councils on several thematic issues comprised of human rights defenders, among others.
114. The Special Rapporteur notes that defenders working in rural areas are marginalized, with few means to protect themselves in cases of violation. Certain national institutions work to increase awareness of human rights in rural areas, which contributes to a more conducive environment for defenders. This is for example the case with the New Zealand Human Rights Commission, which has a project designed to build human rights knowledge and expertise in regional communities and works in partnership with organizations from marginalized groups to promote awareness of the rights of such groups.
V. Conclusions and recommendations
A. Conclusions
115. As independent public bodies, national human rights institutions are in a unique position to hold Governments accountable to their human rights obligations
and international standards and principles in this regard, thereby becoming a vital
actor in the fight against impunity for human rights violations.
116. As established by the Paris Principles, national human rights institutions should have broad and solid mandates and be properly equipped to be able to operate
independently. Credible national institutions are autonomous from the influence of
Government and ensure pluralism in their composition and activities, particularly
through effective interaction with civil society organizations working on human rights
issues. Members and staff of these institutions can be considered as human rights
defenders and, as such, should be supported by public authorities and protected if
needed.
117. National human rights institutions can potentially play a significant role in the protection of human rights defenders. Such a role is ensured by national institutions
having a robust mandate with competence to receive complaints from individuals and
associations working to defend human rights, investigate such complaints and provide
a wide range of protection measures.
118. The most common measure applied by national institutions to protect human rights defenders appears to be formal complaints mechanisms. Several institutions
have established focal points and units dedicated specifically to human rights
defenders in recent years. This is highly commendable, but there is a need to ensure
that such entities are adequately resourced and have the capacity to act promptly
when violations against defenders are reported. Their effectiveness and transparency
are crucial in order to ensure such mechanisms are credible in the eyes of those they
are designed to protect. To ensure this, relevant authorities must be responsive to the
recommendations issued by the national human rights institution. As these rarely
carry legal responsibility due to the advisory function of the national institution,
Governments should find ways to implement the recommendations effectively and
promptly. In this connection, it is of great importance that Government officials are
sensitized to the important work of defenders and familiar with the Declaration on
human rights defenders.
B. Recommendations
119. To Member States:
(a) Should follow the Paris Principles and the advice provided by the Sub-
Committee on Accreditation and ICC when it comes to establishing, mandating and
supporting the work on national institutions in order to ensure that institutions are
strong, independent and effective partners in the promotion and protection of human
rights;
(b) National human rights institutions should be accountable to Parliament
and to the public, including through the discussion of annual reports, which should be
widely disseminated and made easily available to the public;
(c) Appropriate follow-up mechanisms to recommendations issued by
national institutions should be established. In this connection, it is advisable that
annual reports of national institutions be presented and discussed in Parliament and
that adequate follow-up be entrusted to the corresponding parliamentary committees
and that an interministerial task force be appointed to mainstream their
recommendations and monitor their implementation;
(d) Members and staff working for national institutions should be
considered, in law and in practice, as human rights defenders and, as such, be publicly
recognized and supported by the Government and public authorities;
(e) Governments and other branches of the State should refrain from
unduly interfering with the independence and autonomy of national human rights
institutions. Any instance of intimidation, stigmatization, harassment or attack against
members or staff of national institutions should be promptly investigated, with
perpetrators brought to justice and remedy provided to victims;
(f) Effective protection measures or programmes should be in place to
guarantee the security of members and staff of national institutions. Both staff and
members should enjoy immunity while discharging their official functions in good
faith;
(g) National institutions should be given the highest profile possible, beyond
merely consultative or advisory bodies, and all branches of the State should be
mandated to cooperate with them and implement their recommendations;
(h) There should not be any limitations to the jurisdiction of national
institutions and they should be able to investigate all allegations of violations by all
branches of the State and all types of actors, including armed forces and private
businesses;
(i) National human rights institutions should be provided with adequate
resources, financial, material and human, as well as with the necessary autonomy to
propose and manage their own budgets and recruit their own staff;
(j) National human rights institutions should be entrusted with adequate
powers of investigation, including authorization to visit detention centres, to allow
them to conduct prompt and impartial investigations into all allegations of violations
and provide remedy to victims;
120. To national human rights institutions:
(a) Should widely disseminate the Declaration on human rights defenders at
the national level, including by making it available and by translating it into local
languages;
(b) Should make every effort to sensitize Government officials and other
branches of the State about the provisions of the Declaration on human rights
defenders to raise awareness of the important role played by human rights defenders
in society and the protection they are entitled to under international law, including
strengthening their capacity to deal effectively with defenders;
(c) Should raise awareness among their own members and staff about the
Declaration on human rights defenders and about their role as defenders, including
the risks associated to this role as well as basic self-protection measures;
(d) Any instance of intimidation, stigmatization, harassment or attack
against members or staff of the institution should be immediately reported,
documented and processed, including by taking the necessary protection measures at
the institutional level;
(e) Should coordinate actions with other existing national institutions whose
mandates are related to human rights, including thematic commissions or institutions
at the constituent unit level in federal States, in order to create synergies and avoid
unnecessary duplication;
(f) Should interact with defenders and civil society in a regular manner and
include them in the planning and implementation of their activities;
(g) Should establish a focal point or an entity dedicated to human rights
defenders with specific attention to groups of defenders at particular risk such as
women defenders and those working for women’s rights and gender issues; those
working on the rights of lesbian, gay, bisexual and transgender (LGBT) communities;
defenders working on environmental and land issues; journalists; and lawyers. This
entity must be adequately resourced in order to respond promptly to reported
violations and to offer necessary protection;
(h) Should work closely with human rights defenders when setting up,
implementing and evaluating programmes and policies aimed at ensuring their
protection;
(i) Should make sure that protection mechanisms for defenders are
adequately resourced and have adequate capacity to respond to and investigate
complaints received in a prompt and impartial manner;
(j) Should ensure that the mechanisms available for protecting human
rights defenders are widely known to them and easily accessible through telephone,
Internet, social media and publications. It should be possible to present complaints by
various means, including on the website of the institution, through a hotline and
through text messaging;
(k) Annual reports on activities should be widely disseminated and include a
specific section on the situation of defenders with a brief description of the general
context, relevant references to the regulatory frameworks, main challenges and
opportunities, and groups most at risk;
(l) Should strengthen their interaction with regional and United Nations
human rights mechanisms by actively reaching out to them, including for their
protection when needed, and periodically providing reports and/or participating in
their sessions;
121. To ICC and the regional networks:
(a) Should advocate for the consideration of national human rights
institutions as defenders and disseminate knowledge about the Declaration on human
rights defenders among its members;
(b) Should continue to publicly support those national institutions whose
members and staff are intimidated, harassed, stigmatized and attacked;
(c) ICC should provide guidance to national institutions about risks
assessment and protective measures for members and staff, including by offering
relevant information on how to react depending on the specific case and context. This
could be done in cooperation with OHCHR, if necessary;
(d) Regional networks should enhance their cooperation, ideally by setting
up permanent secretariats, to reinforce the regional dimension of the work of national
institutions and provide the necessary guidance at this level;
(e) Regional networks should be active in providing support to their
members, notably when they are exposed to harassment or intimidation, and
strengthen their capacity where needed;
(f) Regional networks should also strengthen their interaction with regional
and United Nations human rights mechanisms.
122. To defenders and civil society:
(a) Continue disseminating the Declaration on Human Rights Defenders, in
particular regarding the work of national human rights institutions;
(b) Continue supporting the work of national human rights institutions by
cooperating with them, advocating for their strengthening and collaborating in the
planning and implementation of their activities and programmes;
(c) Cooperate with national institutions in the follow-up to their
recommendations, including by giving visibility to their work;
(d) Advocate for the establishment of a national institution fully compliant
with the Paris Principles where such does not yet exist.
123. To donors and the international community:
(a) Continue supporting the work of national human rights institutions,
including capacity-building programmes as necessary, and mainstreaming issues
related to them in their work with the main stakeholders;
(b) Advocate for the consideration of national human rights institutions as
defenders and support their work publicly as a protective measure if needed;
(c) Allocate additional (emergency) resources to address instances of
physical threats against members and staff working for national human rights
institutions if necessary;
(d) Continue engaging in constructive dialogue with Governments when
members or staff of national institutions are exposed to intimidation or harassment.