7.6.7 Capacity of NHRIs as National Preventative Mechanisms
As noted in Chapters 3 and 5, countries that have adhered to the Optional Protocol to the UN Convention against Torture (OPCAT) are required to establish a National Preventive Mechanism (NPM). Regardless of whether the NHRI is designated as the NPM, the NHRI is expected to play an enhanced role in preventing torture.
The decision to allocate these responsibilities to a NHRI implies that the NHRI will be equipped to undertake the role. The first issue is similar to those faced by hybrid institutions that have additional mandates and responsibilities: becoming a NPM can detract from other central responsibilities, especially if the activity is unfunded.
On the other hand, being designated as the NPM raises the profile of the NHRI and is consistent with its other human rights responsibilities.
Each country will have its own solutions, but the main issue is that the decision to designate a particular entity as NPM should be made carefully with due regard to capacity, rather than simply assuming that the NHRI can take over the duties with no additional resources. The NHRI may become the NPM, or it may be part of a designated umbrella group, that could include a wide range of representatives.
7.6.8 Capacity to Obtain Information and Documents
A frequently-cited deficiency in NHRI legislation is the failure in the legislation to either grant powers to compel production of documents and information, or to punish failure to do so through the courts. If the NHRI is perceived as powerless, government officials may ignore requests for information.
The perceived powerlessness of the NHRI also has consequences for the powers to obtain information: It is not unusual to see the enabling law make it an offence to fail to comply with the requests of an NHRI, but it is rare to see the law specify the penalty, or integrate the offence into administrative or criminal laws: it is even rarer to see the NHRI use such provisions where they do exist.
This issue is clearly stated in the following text:
The most serious complaint that we have heard … refers to the practical absence of effective legal mechanisms for ensuring a response to … recommendations or requests for information. While … the law on the NHRI creates an offence of interfering with or impeding activities of the ombudsman, they do not list any specific punishment and simply refers to “relevant legislation”. In practice … the institution has almost no means of compelling the authorities to respond to its recommendations or to provide requested information. This appears to be a problem for practically most NHRIs in the region. In order to solve this problem it would be necessary to amend the law on NHRI and several other relevant laws and, which is even harder, to change the established judicial practice.8
The solution is in part in the legislation in the pre-establishment phase, when the laws are being drafted. Even for those NHRIs that cannot enforce their decisions, many laws will indicate that public officials (and sometimes others as well) are obliged to comply with requests for information. There should be a clear mechanism to enforce these powers, including the creation of specific summary offences (or the equivalent in criminal or administrative law).
7.6.9 Capacity to undertake monitoring9
At the pre-establishment phase, the legislation should be reviewed to ensure that the NHRI has the mandate to review and report on human rights situations, and that is provides for unimpeded access to public officials and information as necessary.
Finally, NHRIs require the legal right to visit the sites of incidents, private property, public institutions – including places of detention – and freely publicise the results without the need for prior approval.
If the NHRI is to monitor places of detention, the enabling legislation should specifically provide for this, and confer authority to: enter any place of detention without prior warning; see official records and take copies as required; see and take statements from prisoners alone and in unsupervised situations and request that any detainee be presented.
7.6.10 Capacity to provide advice to the state institutions10
Enabling legislation should specifically provide that the NHRI:
- can provide advice either at the request of the State or on its own initiative directly to the authority that the NHRI considers the most appropriate, and without the prior consent by any higher authority;
- can publicise its advice without restriction or prior approval; and
- is entitled, within a reasonable delay, to a full response from the authorities indicating the actions they will take and by when.
7.6.11 Human Rights and Business
The NHRI’s role in this area will depend in part on the jurisdiction provided for in the enabling law, e.g. whether the NHRI can accept complaints about private sector activities.
At another level, however, the Paris Principles require NHRIs to advise state institutions on human rights-related legislation, and thus NHRIs can play a role in the regulatory and enforcement frameworks regarding corporate behaviour and human rights, and this entails the capacity to review legislation, which is dealt with above in section 7.6.6.