Veronika Haász, dr.jur., LL. M.

Transcription

1 Veronika Haász, dr.jur., LL. M. National Human Rights Institutions Is the ombudsman suitable for the role? Central European, Scandinavian, and Latin American examples Ph.D. Exposé Martikelnummer: January 2018

2 A. Description of the topic The topic of National Human Rights Institutions (NHRIs) became popular among scholars especially in the last 20 years. They explored the history, development and main characteristics of the institutions. Similarly, ombudsman institutions have often been subject of academic research. Still, there is no comprehensive analysis dealing expressly and exclusively with ombudsman-type NHRIs. National Human Rights Institutions are cornerstones of strong domestic human rights protection systems. They usually advise governments on various human rights issues, monitor the implementation of international human rights instruments, promote the harmonisation of national law and practice with the international human rights standards, disseminate human rights information, cooperate with regional and international human rights bodies, and remedy human rights violations. Also the international human rights regime has recognised the importance of these domestic entities and tends to seek cooperation with them while supporting their strengthening. What is more, there is a trend among the latest international human rights instruments to impose duties on States to put in place effective NHRI-like national mechanisms for monitoring the implementation of these instruments. States tend to mandate their exiting NHRI for this assignment. Ombudsinstitutions, as one type of NHRIs, constitute more than one third of all National Human Rights Institutions (45 from 121 in May 2017). It is important to note that not all ombudsinstitutions are NHRIs; only those who applied for and were granted an accredited NHRI-status. The accredited status depends on the institutions conformity with internationally agreed minimum standards, the so called Paris Principles. Ombudsinstitutions are extraneous in comparison with other NHRI-types from more aspects. The most significant difference is due to their organisational structure, but there are further distinctive characteristics as regards to their competences and working methods. Ombudsinstitutions can be found on all continents, but their proliferation is especially remarkable in Latin America (17) and in Central and Eastern Europe (22). One third of NHRI-accredited ombudsinstitutions are not in full conformity with the Paris Principles. 1

3 The dissertation puts under scrutiny the ombudsman-type institutions and analyses whether ombudsinstitutions are suitable for the NHRI role. It claims that ombudsinstitutions recently accredited as NHRIs struggle between their traditional ombudsman role (handling complaints of citizens) and their new extended role as NHRI (promoting human rights). It assumes that the nature and original mission of ombudsinstitutions especially those in the Central and Eastern European region makes it difficult to them to perform effectively as an NHRI. At the same time, there are ombudsinstitutions worldwide especially in Latin America, which work efficiently. Thus, the main research question is how reactive ombudsinstitutions can turn to proactive National Human Rights Institutions. Further sub-questions seek the answer to: what are the main shortcomings of ombudsinstitutions? Which features need to be strengthened? In order to test the above hypotheses and answer the research question, the research applies two types of analysis. First, it examines the strengths, the weaknesses, the opportunities, and the threats of ombudsinstitutions in general. Then the analysis takes a more practical and comparative approach. The dissertation analyses three models of ombudstype NHRIs: the Central European, the Scandinavian, and the Latin American models. Taking 2-3 country examples each, it searches the answer to the question, whether one model is better than the other and more suitable for the role of NHRI. The overall aim is to highlight the features that makes a reactive complaint handling ombudsinstitution to a proactive national institution promoting and protecting human rights. B. Outline of the state of research The early research dates back to 2008 and 2009 when mainly desk research about the theory and practice of NHRIs was conducted in order to explore and understand the mission and functions of these national entities. Information were obtained from various written materials, including monographs, edited books, journal articles, official UN documentation, UN collections, conference and academic papers. The desk research has been ongoing since then and is complemented with empirical research. Observations and experiences were made in the accreditation sessions of NHRIs in 2

4 Geneva (2010/2011), in the German Institute for Human Rights (2011/2012) and with the National Human Rights Bodies Team of the EU Fundamental Rights Agency in Austria (2013/2014). Personal discussions took place with NHRI representatives on several occasions between 2009 and In December 2016, structured and semi-structured interviews were conducted with human rights actors in Paraguay and Uruguay. Research findings have been regularly published in Hungarian, English, and German-speaking academic journals, highlighting the different aspects of NHRIs. R2P and National Human Rights Institutions, in: Global Responsibility to Protect, 2017, 9, pp ; The Role of National Human Rights Institutions in the Implementation of the UN Guiding Principles, in: Human Rights Review, 2013, 14(3), pp ; Die Nationalen Menschenrechtsinstituionen als Grundsteine starker innerstaatlicher Rechtsschutzsysteme, in: Zeitschrift für Menschenrechte, 2011, 5(2), pp With regard to presenting the specific features of ombudsinstitutions in the course of comparative analysis, seven country examples (AT, HU, NO, PL, SE, PY, UY) were selected and determined in the end of This was the time when the final structure of the dissertation was also agreed. The systematic processing of data and drafting of the dissertation started in January C. Relevant literature The relevant literature encompasses monographs, edited books and academic articles, which discuss a number of key issues relating to NHRIs, such as the status and interpretation of the Paris Principles, the effectiveness and efficiency of the institutions and the ways how to measure their impact on the promotion and protection of human rights, the different angles of their competences, their complaint-handling function, and their independence. Their cooperation with the United Nations (UN) in general and with Treaty Bodies in particular, and their distinctive status in comparison to other national actors with special regard to nongovernmental institutions (NGOs) are also widely published. 3

5 Aichele, Valentin (2003), Nationale Menschenrechtsinstitutionen (Frankfurt am Main: Lang); Cardenas, Sonia (2003), Emerging Global Actors: The United Nations and National Human Rights Institutions, in: Global Governance 9 (1), pp ; Goodman, Ryan and Pegram, Thomas (eds.), Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions (Cambridge University Press, 2012). Official UN documents, especially General Assembly resolutions, Secretary General reports, as well as general comments, and concluding observations of Treaty Bodies, and the reports of Special Procedures provide an assessment of NHRIs from the international level. General Assembly Resolution 63/169. The role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, 20 March 2009, A/RES/63/169; UN Secretary-General Report, The role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, 31 July 2017, A/72/230; CRC Committee, General Comment No. 2: The role of independent national human rights institutions in the promotion and protection of the rights of the child, 15 November 2002, CRC/GC/2002/2; UN Committee against Torture, Concluding observations on the third periodic report of Uruguay, 10 June 2014, CAT/C/URY/CO/3. The research relies significantly on the online available conference papers of the International Ombudsman Institute, which provide a rich inside into the practice of ombudsinsitutions, without what the SWOT analysis could not be authentic enough. 4

6 Kucsko-Stadlmayer, Gabriele, The Spread of the Ombudsman Idea in Europe, 0to%20the%20Roots_Gabriele%20Kucsko%20Stadlmayer.pdf; Merino, Beatriz, Protecting the People: The Latin American Approach to Ombudsmanship, Conference_28. Back to the Roots_Beatriz Merino.pdf; Reif, Linda C., Human Rights Ombudsman Institutions as GANHRI Accredited National Human Rights Institutions (NHRIs): Benefits, Challenges and Limitations, Breakout Session II Prof. Linda C. Reif - Human Rights and Ombudsman Institutions as GANHRI Accredited NHRIs Benefits%2C Challenges and Limitations. Breakout Session II Prof.pdf. Another group of sources relate to international and regional human rights offices and agencies that promote the work of NHRIs. Asia Pacific Forum of National Human Rights Institutions (July 2012), International Human Rights and the International Human Rights System: A Manual for National Human Rights Institutions, International%20HR%20System%20Manual.pdf; Office of the UN High Commissioner for Human Rights/Global Alliance of National Human Rights Institutions/UNDP (2011), Information Note National Human Rights Institutions (NHRIs) interaction with the UN Treaty Body System, Documents/NIRMS - NHRIs and the Treaty Bodies Infonote 2011.pdf; OSCE Office for Democratic Institutions and Human Rights (2012), Handbook for National Human Rights Institutions on Women's Rights and Gender Equality, 5

7 D. Time and work schedule The dissertation contains an Introduction, three main chapters, the Conclusions, three Annexes, and the Bibliography. Chapter 1 gives an overview on National Human Rights Institutions by describing the development of the NHRI-concept; the standards within the Paris Principles: the institution-mandate, the competences and responsibilities, the methods of operation, the guarantees of independence and pluralism; as well as the typology of NHRIs. Within this first part, the accreditation of NHRIs is demonstrated as well, including the tasks of the Global Alliance of NHRIs (GANHRI; former name: International Coordinating Committee of NHRIs (ICC)) and the function and significance of the accreditation process. In order to locate NHRIs in the national human rights protection system, distinction is made from other national actors for the promotion and protection of human rights, like public authorities, national courts, and human rights NGOs. Closing the chapter, the interaction of NHRIs with the international human rights mechanisms is analysed. The aim of this unit is to make it understandable why National Human Rights Institutions have a special importance in national human rights systems. Chapter 2 introduces ombudsinstitutions. It presents their origin and the two traditionally distinguished types, the classic and the human rights type. In the course of SWOT analysis, the dissertation identifies the strengths, the weaknesses, the opportunities, and the threats of ombudsinstitutions. It explores those internal factors that advantage over or disadvantage ombudsinstitutions with others, and those external elements that ombudsinstitutions could exploit or avoid. After the first NHRI-focused and the second ombudsinstitution-specific chapters, the findings are tested on the three ombudsinstitution models in Chapter 3. First, the three Central European institutions, the Austrian Ombudsman Board, the Hungarian Commissioner for Fundamental Rights, and the Polish Human Rights Defender are analysed. Within the Scandinavian system the Swedish Equality Ombudsman, and the Norwegian Parliamentary Ombudsman along with the Norwegian National Human Rights Institution are introduced. The third part of the chapter is devoted to the Latin American model, namely the Institución Nacional de Derechos Humanos y Defensoría del Pueblo in Uruguay and the Defensor del Pueblo de la República del Paraguay. 6

8 The dissertation winds up in the Conclusions that attempts to answer the question of the dissertation title, whether ombudsinstitutions are suitable for the NHRI role. Three Annexes complement the piece: the text of The Paris Principles, a world map on the accreditation status of National Human Rights Institutions (2018), and The chart on the accredited status of ombudsinstitutions worldwide (2018). The drafting intends to go according to the following timeline: January 2018 February March April May June Ongoing July-August Structure, Introduction, Timeline Chapter 1 (NHRIs) Chapter 2 (The definition, origin and types) Chapter 2 (SWOT analysis) Chapter 2 (SWOT analysis) Chapter 2 - Review Chapter 3 (Latin American model) Chapter 3 (Latin American model) Chapter 3 (Scandinavian model) Chapter 3 (Scandinavian model) Chapter 3 (Central European model) Chapter 3 (Central European model) Conclusions Review The defence of the dissertation should take place as soon as the procedure can be arranged, in winter 2018 or spring 2019, the latest. 7