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The findings in this report underscore that, to fulfil their potential, NHRIs need a clear mandate, independence, adequate resources, and, in their memberships, to reflect our societies’ diversity. They also need to comply with the Paris Principles on the independence and effectiveness of NHRIs endorsed by the United Nations.
The FRA opinions are clustered under the following six headings, highlighting key aspects identified in this report.
This report looks at the importance of national human rights institutions (NHRIs, or the institutions) in promoting and protecting human rights at both national and EU levels. Given that the overwhelming part of national law- and policymaking is directly or indirectly influenced by EU law, NHRIs – with their broad mandates to promote and protect human rights – could play a greater role in the EU. The report highlights efforts that could be made to strengthen the institutions to increase their impact and efficiency and describes the challenges they face. It identifies ways forward for NHRIs to play a more significant role in the context of fundamental rights protection in the EU.
During the 10 years since FRA, in its first report on NHRIs, examined the institutions as part of the emerging fundamental rights architecture of the EU, the number of Paris Principles-compliant NHRIs has risen from nine to 16, among the current 27 EU Member States. An additional six EU Member States have NHRIs that are not fully compliant with the principles. Consequently, all but five EU Member States (Czechia, Estonia, Italy, Malta and Romania) have NHRIs. Developments are also under way in those five countries to accredit institutions and to achieve compliance with the Paris Principles. An important development since FRA’s 2010 report on the institutions is the establishment of the European Network of NHRIs (ENNHRI). This network supports, strengthens and connects NHRIs, providing advice on establishment and accreditation, peer exchange and capacity building, solidarity, and joint engagement with the EU and other mechanisms.
The EU has never legislated on issues dealing with NHRIs but, in its 2014 Regulation (EU) No. 235/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for democracy and human rights worldwide, it acknowledged the NHRIs’ key relevance by explicitly committing itself to supporting NHRIs in non-EU countries. In addition, the Paris Principles are referenced in the FRA Regulation. An explicit and operational involvement of bodies promoting fundamental rights in the implementation of EU law is included in the proposed revised Common Provisions Regulation for EU funding programmes. NHRIs are regularly referred to in the debate on EU rule-of-law mechanisms. NHRIs could also be more involved in EU strategies and frameworks, in relation to issues such as the application of the Charter of Fundamental Rights of the European Union (the EU Charter of Fundamental Rights) or reporting on the rule of law. The existence of strong, effective and independent NHRIs across all EU Member States is a precondition for achieving their full potential in an EU context.
FRA, recalling its opinion from its 2010 report on NHRIs, considers that all EU Member States should have independent, effective and impactful NHRIs that comply with the Paris Principles to deliver and promote human and fundamental rights more effectively.
Member States that have NHRIs should strive to improve their effectiveness, independence and impact, as recommended by GANHRI’s SCA. Member States establishing NHRIs should be guided by GANHRI SCA’s general observations to ensure that they are compliant with the Paris Principles. In this respect, Member States can draw on the technical assistance that is provided by ENNHRI, intergovernmental organisations, and the UN Human Rights Office (OHCHR).
The EU could draw more consistently on NHRIs as crucial actors for the implementation of fundamental rights, including by ensuring independent and effective fundamental rights monitoring in the EU Member States. Such reliance on NHRIs should be supported through close and regular relationships with specific NHRIs and ENNHRI in particular. A qualified interaction could be reserved for Paris Principles-compliant NHRIs and ENNHRI. The capacity of NHRIs and ENNHRI to engage effectively must also be ensured by providing sufficient human and financial resources.
Any such involvement must be effected without compromising the independence and effectiveness of the NHRIs, as defined in the Paris Principles. NHRIs do not replace the duty of states to implement fundamental rights, but can provide independent advice and country-specific recommendations and can serve as an independent monitoring mechanism for the state delivery of their fundamental rights commitments.
The EU institutions could establish a more regular exchange with NHRIs. For instance, this could be done in the Council of the European Union, in its working parties on fundamental rights or in other working parties.
A regular exchange of promising practices and challenges related to NHRIs could allow mutual learning on how to best enhance the effectiveness, independence and impact of the NHRIs to make best use of them in an EU context.
In addition, exchange could be had with the European Commission in contexts such as the monitoring of the EU Charter of Fundamental Rights and the rule of law.
The EU should continue providing resources to NHRIs and ENNHRI to further support their effective contribution to the implementation of fundamental rights and the rule of law in Europe. The European Commission could consider more funding opportunities to help NHRIs develop expertise on the Charter’s application at national level. This could facilitate their role in assisting Member States apply the Charter, including in law and policy making and when using European structural and investment funds.
To increase the available analysis and evidence base to check compliance with the Charter when transposing and implementing EU legislation, Member States should consider inviting NHRIs to contribute to relevant procedures. This could be in relation to, for example, compatibility checks and impact assessments.
To reinforce the impact of NHRIs, EU Member States could invite such institutions to make recommendations on the fundamental rights implications of draft legislation and policies to improve fundamental rights compliance, including during the state of emergency as recently declared in the context of the COVID-19 pandemic. Parliaments could also have a formalised relationship with NHRIs and ensure that reports by NHRIs addressed to parliament are properly presented and discussed.
EU Member States could ensure that there is a systematic tracking and public reporting of the followup and implementation of NHRIs’ recommendations. This could include reporting on which recommendations are still pending and at which stage, as well as which recommendations have explicitly been rejected or left without reaction by competent national authorities.
If NHRIs’ recommendations are not acted on, there could be effective formal ways for NHRIs to have these addressed by parliament.
For reasons of independence and effectiveness, EU Member States could, when establishing new or strengthening existing NHRIs, ensure a firm legal foundation – ideally secured with a constitutional provision. Changes to the legal basis require prior effective consultative processes, including a strong role for the NHRI itself.
In addition to having a broad human rights mandate to address all human rights and a clear reference in their mandate to international human rights law (including treaties and interpretations made by the corresponding monitoring mechanisms), the legal basis or equivalent of NHRIs could also reference EU law, the Charter and the jurisprudence of the Court of Justice of the European Union. This will contribute to strengthening links to EU fundamental rights.
EU Member States should ensure that NHRIs are sufficiently resourced to undertake periodic evaluations of the impact and effectiveness of their work, including external evaluations, where necessary. The results of such evaluations must be made public.
In accordance with the Paris Principles and with reference to the general observations of the SCA, FRA considers that EU Member States should enhance the selection and appointment process of members (leaders) of NHRIs, ensuring greater transparency and processes open to the widest possible range of applicants. Such processes could include independent expert committees and parliamentary involvement.
As underlined by the Council of the European Union, EU Member States should ensure a safeguarding and enabling environment for NHRIs and civil society, so that NHRIs are free from threats and harassment. To prevent NHRIs, including their leadership and staff, from threats or other forms of pressure related to the work of promoting and protecting human rights, the EU and its Member States must, in close cooperation with the NHRIs, put in place safeguarding measures, including legislation. NHRIs, their members and staff must be protected from harassment, attacks or other acts of intimidation as a result of their mandated activities, and any such actions must be properly addressed as a priority by the EU Member States.
In accordance with the Paris Principles, EU Member States are encouraged to ensure that the structures and membership of NHRIs capture the diverse nature of society. This can be achieved through the composition of collegiate decision-making bodies, advisory bodies and staff. NHRIs must also be able to conduct regular and constructive engagement with civil society. Reflecting the plurality of society, including marginalised groups, is essential for the credibility and effectiveness of NHRIs.
EU Member States should consider increasing support for cooperation between NHRIs and cities or regions – with dedicated resources. Such cooperation would not only reinforce human rights locally but also support the awareness of rights. SDG target 16.10 (“ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements”) could be further considered when increasing exchanges of NHRIs with different layers of governance including cities and regions.
In line with the Paris Principles and recommendations for specialised bodies by the Council of Europe and the European Commission, EU Member States should ensure that NHRIs are allocated financial and human resources at a level that enables operational capacity to deliver their mandates effectively and independently. To this end, timely exchange between NHRIs and policymakers, in the form of pre-budget consultation without prejudice to their independence, could be useful. Any overall budget cuts to public services should not disproportionately disadvantage NHRIs.
Resources should be sufficient for NHRIs to be able to address key human rights issues and implement their functions in an effective manner. This is important in general as well as to reinforce their own expertise on issues such as the Charter. NHRIs must also have the capacity to increase awareness about their mandate and functions with the general public and vulnerable groups.
Resources should also allow NHRIs to cooperate with other institutions with a human rights remit at national level, to ensure coordination and to interact with the UN, the Council of Europe and other international and regional organisations, including EU institutions.
Special attention should be paid to ensuring that each explicit mandate and additional task of an NHRI is endowed with sufficient resources to be carried out effectively and without undermining existing work. The EU and its Member States must also ensure that additional mandates and additional tasks do not impinge on the effectiveness of the NHRI by disproportionately locking up capacity or indicating strategic choices. EU Member States should consult NHRIs on any legislative or policy initiatives that impact NHRIs, including mandates and budgets.