8.6.1.7 Enforcement and Remedies

The practical ability to achieve remedies and ensure a response to NHRI recommendations or requests for information of NHRIs is a common problem. In many countries, the NHRI has no executory power itself, and no clear path or process to access judicial mechanisms like the courts. In other countries that rely on a good offices model of non-binding recommendations (many Ombudsman Institutions, for example), the power to achieve a remedy is even weaker.

This is to some extent an issue for the enabling law: pathways to remedies or to punish obstruction of failure to comply with information requests, should be clearly set out in legislation. This is discussed in Chapter 7.

At the establishment phase, if the laws do exist, NHRIs should establish mechanisms to use them, and should develop procedures to engage the authority of the State where circumstances require it.

Implications for the establishment phase: NHRIs should have organisational systems in place to ensure:

• effective and timely resolution of cases,
• information systems to capture and analyse internal data on case outcomes,
• effective and timely write-up of case decisions and recommendations,
• effective engagement of public prosecution offices in the event that there are criminal issues to be addressed, and
• where the powers exist in law, capacity to intervene before the courts as parties or amicus curiae, including seeking interim measures to prevent irreparable harm.

NHRIs should have the influence and credibility to persuade officials and respondents to follow recommendations, where there is no enforcement power.