10.1.6 Independence through privileges and immunities

The ICC Sub-committee has strongly recommended that provisions be included in national law to protect legal liability for actions undertaken in the official capacity of the NHRI.15

There are two types of immunity: the first is specifically meant to avoid situations where members are sued for slander or similar causes of action as a result of doing their job as required by the law. This immunity is limited to acts performed under the enabling law and it is lifted for offences conducted outside the scope of that authority.

The second is general immunity: The purpose of this latter kind is to protect NHRI members and staff from malicious accusations, and from using such accusations as a pretext to oust a member or harass a staff person. As a general rule, NHRI legislation provides for the first type of immunity. The second is generally taken into consideration indirectly through rigour in dismissal procedures that require some form of Parliamentary or judicial approval prior to dismissing a member for illegal conduct.

Staff discipline should be addressed through the human resources process.

Acts performed in an official capacity are those that are related to the mandate and functions of the organisation, that are sanctioned or authorised by the organisation and/or for which the official had been empowered to perform.

A member of a NHRI would be saved from libel claims, for example, when coming to a recommendation or decision or voicing an opinion or view on a human rights matter even if it were proved to be false and/or to have been damaging.

An official with the NHRI would be allowed to seize documents pertinent to an enquiry with impunity when such seizure is authorised by the enabling law and is done in accordance to its rules of procedure.

Immunity does not extend to acts taken in bad faith or in abuse of process, for example, if the member voiced an opinion that he or she knew to be wrong or clearly unsupported, or if the official seized a document that he or she knew was not pertinent but wanted for reasons other than the enquiry, including personal gain.

As well, members and staff should be held inviolable and immune from search, seizure, requisition, confiscation or any other form of interference in their archives, files, documents, communications, property, funds and assets of the Office or in their possession. This immunity is important to protect the ability of the NHRI to gather and maintain evidence and documents, and is vital to ensuring the safety of complainants and witnesses. This, in turn, is a requisite for the NHRI to undertake its responsibilities, which will often involve dealing with allegations of violations involving individuals in positions of power, including the police, the armed forces and the security services.

Checklist: Autonomy and Independence

(Note that this checklist contains information on "Financial Autonomy" that is replicated later in this Chapter in the section on Principle 5: Financial Resources.)

15 ICC Sub-Committee on Accreditation General Observations (Geneva, June 2009).

16 "Core programming" in this context means that the Institution has enough funds available to conduct investigations, carry out general outreach programming and publish an Annual Report.