National human rights institutions in Europe

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1 National human rights institutions in Europe

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3 National human rights institutions in Europe Comparative, European and International Perspectives Jan Wouters Katrien Meuwissen (eds.) Cambridge Antwerp Portland

4 Publishing Ltd. Trinity House Cambridge Business Park Cowley Road Cambridge CB4 0WZ United Kingdom tel.: Distribution for the UK: NBN International Airport Business Centre, 10 Thornbury Road Plymouth, PL6 7PP United Kingdom Tel: Fax: Distribution for Austria: Neuer Wissenschaftlicher Verlag Argentinierstraße 42/ Wien Austria Tel.: office@nwv.at Distribution for the USA and Canada: International Specialized Book Services 920 NE 58 th Ave Suite 300 Portland, OR USA Tel.: (toll free) info@isbs.com Distribution for other countries: Publishing nv Groenstraat Mortsel Belgium Tel.: mail@intersentia.be National Human Rights Institutions in Europe. Comparative, European and International Perspectives Jan Wouters and Katrien Meuwissen (eds.) 2013, the editors and the authors Cambridge Antwerp Portland ISBN D/2013/7849/65 NUR 820 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher. ESF Provides the COST Office through an EC contract COST is supported by the EU RTD Framework programme

5 Acknowledgements The editors of this book would like to thank the European Cooperation in Science and Technology (COST) for their financial support of COST Action IS0702, including the support for the organisation of a COST conference on NHRIs at the KU Leuven Centre for Global Governance Studies (April 2012), and the publication of this volume. Our appreciation goes especially out to Ms. Helga Baumschabl, who guided us through the COST administration. We also want to express our gratitude to, the publisher of this book. We are thankful to all participants to the COST conference on NHRIs, specifically all members of COST Action IS0702 and Ms. Kirsten Roberts, who contributed to the elaboration of the COST Action IS0702 recommendations on NHRIs (Annex 1 to this book). We are much obliged to all authors for their kind cooperation throughout the publication process : from delivering a presentation during the COST conference in Leuven to the finalisation of the contributions in this book. v

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7 COST: European Cooperation in Science and Technology COST the acronym for European Cooperation in Science and Technology is the oldest and widest European intergovernmental network for cooperation in research. Established by the Ministerial Conference in November 1971, COST is presently used by the scientific communities of 36 European countries to cooperate in common research projects supported by national funds. The funds provided by COST less than 1% of the total value of the projects support the COST cooperation networks (COST Actions) through which, with EUR 30 million per year, more than European scientists are involved in research having a total value which exceeds EUR 2 billion per year. This is the financial worth of the European added value which COST achieves. A bottom up approach (the initiative of launching a COST Action comes from the European scientists themselves), à la carte participation (only countries interested in the Action participate), equality of access (participation is open also to the scientific communities of countries not belonging to the European Union) and flexible structure (easy implementation and light management of the research initiatives) are the main characteristics of COST. As precursor of advanced multidisciplinary research COST has a very important role for the realisation of the European Research Area (ERA) anticipating and complementing the activities of the Framework Programmes, constituting a bridge towards the scientific of emerging countries, increasing the mobility of researchers across Europe and fostering the establishment of Networks of Excellence in many key scientific domains such as: Biomedicine and Molecular Biosciences; Food and Agriculture; Forests, their Products and Services; Materials, Physical and Nanosciences; Chemistry and Molecular Sciences and Technologies; Earth System Science and Environmental Management; Information and Communication Technologies; Transport and Urban Development; Individuals, Societies, Cultures and Health. It covers basic and more applied research and also addresses issues of pre normative nature or of societal importance. Web: vii

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9 Contents Acknowledgements...v COST: European Cooperation in Science and Technology... vii List of Abbreviations... xvii National Human Rights Institutions in Europe: An Introduction Jan Wouters and Katrien Meuwissen Background and Focus Objectives National Human Rights Institutions in a European Context European NHRIs as Multi Dimensional Human Rights Actors Structure...5 National Human Rights Institutions in Europe: Comparative, European and International Perspectives Manfred Nowak What are National Human Rights Institutions (NHRIs)? What are the Paris Principles? Which Types of NHRIs Exist in the World? How are NHRIs Accredited? How Many NHRIs Exist Worldwide? (as of February 2013) Where Have NHRIs Been Established in Europe and in the EU? (as of February 2013) Which Types of NHRIs With Status A can be Found in Europe and in the EU? Which Types of NHRIs With Status B can be Found in Europe and in the EU? Why Should States Establish NHRIs? Which Conclusions can be Drawn from this Comparative Survey? ix

10 Contents Part I. Comparative Perspectives The Danish Experience: The Danish Institute for Human Rights Christoffer Badse Introduction Background and History The 2012 Act: Strengthened independence and Clear Mandate as a NHRI The 2012 Act in Denmark North Atlantic Dimension of the 2012 Act Institutional Structure and Budget Institutional Structure and Administration The Board The Council Daily Management International Area and National Area, Administration and Communication Budget Substantive Functions of the DIHR Monitoring Functions Review of Legislative and Administrative Regulation National Reporting Research, Education and Information DIHR Interaction with Other Actors Active in the Field of Human Rights Relationships with Civil Society Relationship with Other National Bodies Cooperation with the United Nations and Other International Actors The Universal Periodic Review (UPR) Interaction with the UN Treaty Body System Visit by Delegations Reporting to International Networks and Agencies Conclusion: Challenges and Best Practices of the DIHR NHRI in Poland: As good as it gets? Aleksandra Gliszczyńska Grabias and Katarzyna Sękowska Kozłowska Introduction Status Independence x

11 Contents Legal Autonomy Appointment and Dismissal Immunity Budget Pluralism Mandate Key Competence: a Complaint Body Impact on a Legislative Process International Cooperation Cooperation with Civil Society Promotion and Education on Human Rights Research on Human Rights Conclusion The Newly Established Netherlands Institute for Human Rights: Integrating Human Rights and Equal Treatment Yvonne Donders and Marjolijn Olde Monnikhof Introduction History Legal Process Mandate and Tasks Creating and Developing the NIHR Developing a Strategic Plan Stakeholders Consultation Investigative Research The Balancing Framework Vision, Mission and Strategy Developing the Organisation Challenges and Opportunities Federalism, Equality Bodies and NHRIs: A Critical Analysis of the Belgian Debate on Equality Bodies and NHRIs Jogchum Vrielink and Stefan Sottiaux Introduction An Interfederal Institution vs Federated Institutions Innovation, Autonomy and Policy Responsiveness Focus and Subsidiarity Double Protection and Budgetary Issues Accountability and Independence Coordination and Efficiency Conclusion xi

12 Contents 3. A Separate Equality Body vs an Integrated National Human Rights Institution Advantages Disadvantages Influencing Factors Conclusion Epilogue Part II. European Perspectives NHRI and their European Counterparts: Scope for Strengthened Cooperation and Performance towards European Human Rights Institutions Bruce Adamson Introduction The Origin, Work and Functioning of the European Group of NHRIs The Need for a Secretariat for the European Group Working Groups Asylum and Immigration Working Group Legal Working Group (LWG) CRPD Working Group Human Rights Education Working Group Proposals for Other Working Groups Engagement with Regional Bodies Engagement with the Council of Europe General Observations on the Engagement with the Council of Europe European Court of Human Rights a) Reform of the European Court of Human Rights b) Amicus Curiae Council of Europe Commissioner of Human Rights Engagement with the European Union and the European Union Agency for Fundamental Rights European Union European Union Agency for Fundamental Rights Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) Conclusions xii

13 Contents (Future) Interaction between Data Protection Authorities and National Human Rights Institutions in the European Union Peter J. Hustinx Introduction Independent Supervision Diversity and Deficiencies Requirement of Complete Independence Proposals for a New EU Legal Framework for Data Protection Drivers of EU Review Continuity and Change Substance of the Proposed Regulation Data Subject Data Controller Supervision and Enforcement Global Privacy Interaction between DPAs and NHRIs The Court s Ears and Arms: National Human Rights Institutions and the European Court of Human Rights Antoine Buyse Introduction Before: Prevention and Information During: Interventions After: Implementation and Prevention of Renewed Violations Conclusion The European Union and National Human Rights Institutions Jan Wouters, Katrien Meuwissen and Ana Sofia Barros Introduction: The EU Multi layered Human Rights Architecture EU NHRI Cooperation: Contribution to a Fundamental Rights Culture within the EU NHRIs Relevance for EU Policy and Law Making in Accordance with Fundamental Rights NHRIs Relevance for Ensuring Member States Compliance with the Charter The Relevance of NHRIs in Connecting Citizens with their Fundamental Rights EU NHRI Cooperation in EU External Relations NHRIs and EU Development Cooperation xiii

14 Contents 3.2. NHRIs as Cross regional Partners in the UN Human Rights Council Coherent Thematic Engagement across Human Rights Fora Concluding Thoughts: Towards a More Structured Integration of NHRIs in the EU Human Rights Architecture? Part III. International Perspectives The Role and Functioning of the International Coordinating Committee of National Human Rights Institutions in International Human Rights Bodies Kirsten Roberts Introduction Rationale for NHRI Engagement at the International Level Role of NHRIs: Domestic v. International Independence Positioning of NHRIs: The Fourth Space Human Rights Focus and Expertise The International Coordinating Committee of NHRIs Regional Groups The Accreditation Process The ICC and International Human Rights Mechanisms Promoting International Engagement The Human Rights Council UPR General Assembly and Other UN Bodies Treaty Bodies Special Procedures Challenges and Opportunities Compliance with the Paris Principles and the ICC Sub Committee on Accreditation Gauthier de Beco Introduction Paris Principles International Recognition of the Paris Principles National Human Rights Institutions (NHRIs) Responsibilities Fundamental Principles ICC Sub Committee on Accreditation The ICC and the ICC Sub Committee on Accreditation xiv

15 Contents 3.2. Advantages and Disadvantages of a Peer Review Accreditation Consequences of the Accreditation of NHRIs beyond Membership of the ICC Accreditation Procedure Periodic Review and Special Review Accreditation Procedure Application Summary Recommendation Decision Illustrations of the Accreditation Procedure Evaluation of the Accreditation Procedure NHRI Participation to United Nations Human Rights Procedures: International Promotion Versus Institutional Consolidation? Katrien Meuwissen Introduction NHRI Consolidation in Institutional Frameworks of UN Human Rights Mechanisms UN Human Rights Council From Human Rights Commission to Human Rights Council NHRI Institutionalisation in the Procedures of the Commission on Human Rights NHRI Participation Rights in the UN Human Rights Council HRC as Promoter of UN NHRI Cooperation Beyond the HRC UN Treaty Procedures UN Human Rights Treaties Treaty Bodies and NHRIs: Rules of Procedure; Working Methods and General Comments or Statements Towards Harmonised Treaty Body Interaction with NHRIs NHRI Conceptualisation: Participation of National Institutions ICC Accredited NHRIs in the UN Human Rights Council UN Treaty Bodies: Thematic Focus Regarding NHRI Participation Conclusion xv

16 Contents Perspectives on the Need for National Human Rights Institutions in Europe and the World Jan Jařab Role of NHRIs as Laid Down in the Paris Principles Reasons for Creating NHRIs Based on International Law Reasons for Creating NHRIs in All European Democracies Central and Eastern Europe: Risks of Immature Democracies Imperfections of Mature Democracies Substantive Reasons for Establishing NHRIs in the 21 st Century NHRIs as National and International Actors NHRIs in Europe and the World Conclusion: Towards a Better Understanding of European NHRIs in a Multi Layered Human Rights System Katrien Meuwissen and Jan Wouters Understanding National Human Rights Institutions in Europe Towards a More Comprehensive NHRI Landscape in Europe Understanding European NHRIs as Multi Dimensional Human Rights Actors Towards a More Strategic Integration of European NHRIs in the Multi Layered Human Rights System Some Areas for Further Research Annex 1: Cost Action IS0702. Recommendations on National Human Rights Institutions Annex 2: Principles Relating to the Status of National Institutions (The Paris Principles) About the Editors and the Authors Index xvi

17 List of Abbreviations ACp APF apt Cat CDDh CEDAW CERD CEoor Chr Cosp Cost Cpt CRC CRE CRPD CSOs CSP CSW Dihr DRC Droi DPA EaP ECOSOC EChr ECthr ECJ ECri EDF EDps EEOC african, Caribbean and Pacific countries asia-pacific Forum of National Human Rights Institutions association for the Prevention against Torture Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Council of Europe Steering Committee for Human Rights Convention on the Elimination of All Forms of Discrimination against Women Committee on the Elimination of Racial Discrimination Centre for Equal Opportunities and Opposition to Racism (Belgium) united Nations Commission on Human Rights Conference of State Parties European Cooperation in Science and Technology European Committee on the Prevention of Torture and Inhuman and Degrading Treatment or Punishment Convention on the Rights of the Child Commission for Racial Equality (United Kingdom) Convention on the Rights of Persons with Disabilities civil society organisations country strategy paper Commission on the Status of Women Danish Institute for Human Rights Disability Rights Commission (United Kingdom) subcommittee on Human Rights of the European Parliament Data Protection Authority Eastern Partnership united Nations Economic and Social Council European Convention on Human Rights European Court of Human Rights European Court of Justice European Commission against Racism and Intolerance European Development Fund European Data Protection Supervisor Equal Employment Opportunity Commission (United States of America) xvii

18 List of Abbreviations EHRC EIDhr EIGE ENOC EOC EQUINEt EU FRA HRC HChr ia ICC ICC SCA ICCpr ICED ICERD ICESCr ICm ICMW IHRC ioi LGBt NEB NGO Nhri Nhrs Nihr Nirms NJCm Npm OHChr Equality and Human Rights Commission (United Kingdom) European Instrument for Democracy and Human Rights European Institute for Gender Equality European Network of Ombudsperson for Children Equal Opportunities Commission (United Kingdom) European Network for Equality Bodies European Union European Union Agency for Fundamental Rights united Nations Human Rights Council united Nations High Commissioner for Human Rights impact Assessment international Coordinating Committee of National Human Rights Institutions international Coordinating Committee of National Human Rights Institutions Sub- Committee on Accreditation international Covenant on Civil and Political Rights international Convention for the Protection of All Persons from Enforced Disappearance international Convention on the Elimination of All Forms of Racial Discrimination international Covenant on Economic, Social and Cultural Rights inter-committee Meeting of United Nations treaty body representatives international Convention on the Protection of the Rights of All Migrant Workers and Members of their Families irish Human Rights Commission international Ombudsman Institute lesbian, gay, bisexual and transgender national equality body non-governmental organisation national human rights institution national human rights structure Netherlands Institute for Human Rights National Institutions and Regional Mechanisms Section of the UN Office of the High Commissioner for Human Rights Nederlands Juristen Comité voor Mensenrechten [Section of the International Commission of Jurists in the Netherlands] national preventive mechanism under the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment united Nations Office for the High Commissioner of Human Rights xviii

19 List of Abbreviations OPCat OSCE OSCE ODihr Paris Principles RCt TAIEX TEu TFEu UK UN UNDp UN ga UN Chr UN HRC UPR usa optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment organization for Security and Cooperation in Europe organization for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights principles Relating to the Status of National Institutions for the Promotion and Protection of Human Rights research Centre for Torture Victims (Denmark) technical Assistance and Information Exchange Instrument (European Commission) treaty on European Union treaty on the Functioning of the European Union united Kingdom united Nations united Nations Development Programme united Nations General Assembly united Nations Commission on Human Rights united Nations Human Rights Council universal periodic review united States of America xix

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