Chapter 1
Introducing National Human
Rights Institutions

Chapter 2
Models of NHRIs

Chapter 3
Roles and Responsabilities of
NHRIs

Chapter 4
The Rule of Law and the NHRI

Chapter 5
NHRIs, Development and
Democratic Governance

Chapter 6
Situating NHRI Support in the UN Planning & Programming Process

Chapter 7
Pre-establishment Phase of NHRIs

Chapter 8
Establishing NHRIs

Chapter 9
Consolidation Phase:
Strengthening the Mature NHRI

Chapter 10
Paris Principles and Accreditation

Strengthening the Rule of Law


4.2.1 Strengthening the Rule of Law


NHRIs can, and should, play a role in advancing all aspects of the rule of law, including with regard to the judiciary, law enforcement agencies and the prison and detention system. Specific areas in which NHRIs can engage, and where UNCTs can provide support if requested are:

Table 1: Strengthening the Rule of Law2

Administration of justice and judicial institutions

NHRI efforts in this area could focus on:

  • legislative reforms, harmonisation and compliance with international standards, removal of reservations, etc.;
  • procedures related to the appointment of prosecutors and judges and qualifying lawyers;
  • Is the NHRI involved in reforming and strengthening the judicial institutions?
  • the security and working conditions of prosecutors and judges;
  • monitoring and accountability mechanisms within the judicial system, e.g. disciplinary procedures for judges;
  • monitoring the independence and impartiality of the judiciary and its capacity to adjudicate cases fairly and competently;
  • equal access to fair justice, especially people living in poverty;
  • ensuring that the NHRI undertakes monitoring activities, including monitoring of pre-hearing detention facilities;
  • establishing a Legal Aid program and supporting the development of paralegal professionals;
  • providing professional development for judges, lawyers, prosecutors and other judicial authorities in human rights law;
  • rule of law training that emphasises human rights and international humanitarian law;
  • support to legal education facilities, for example, libraries and the online publication of legal decisions and all bills and laws; and
  • ensuring that the administration of justice conforms to human rights standards and provides effective remedies particularly to minorities and to the most vulnerable groups in society.

Has the NHRI made active use of the OHCHR Professional Training Series No. 9: Manual on Human Rights for Judges, Lawyers and Prosecutors?3

Police and Security forces

  • Is the NHRI involved in reforming and strengthening of law enforcement and security forces?
  • Does the NHRI regularly inspect police holding cells to ensure that human rights are respected? Does it report on those inspections and make recommendations for action as necessary?

NHRI efforts in this area could focus on:

  • Establishing and carrying out effective and impartial vetting procedures for the recruitment of law enforcement personnel to identify persons involved in criminal acts of violence as well as corruption and other serious crimes;
  • Professionalism in the security forces, through senior management training, including
  • human rights training,
  • setting up of accountability mechanisms based on the development of standard operating procedures and standing orders,
  • a monitoring system to ensure their application,
  • and an internal investigation procedure leading to concrete sanctions including prosecution in case of misconduct,
  • arrest procedures,
  • collection and preservation of evidence,
  • procedures for protecting witnesses, including the confidentiality of witnesses when necessary, and
  • interrogation procedures and preparation of reports.

Has the NHRI made active use of the OHCHR Professional Training Series No. 5: Human Rights and Law Enforcement: A Manual on Human Rights Training for the Police4

Prisons

Is the NHRI involved in efforts to ensure that:

  • detention facilities meet minimum international standards
  • appropriate regulations govern the intake, incarceration and transfer of inmates
  • regulations are adhered to
  • all personnel receive human rights training and training in proper interviewing and investigatory techniques

Has the NHRI made active use of the OHCHR (2005) “Human Rights and Prisons: A Compilation of International Human Rights Instruments concerning the Administration of Justice.” 5

Is the NHRI mandated and engaged in conducting prison visits to monitor conditions of detention (both announced and unannounced visits, and private interviews with detainees)? Does the NHRI report on its inspections and make recommendations for change as needed?

Is the NHRI dealing with families of detained persons that appeal to the NHRI in case of irregularities?

Does the NHRI have a process to receive and investigate complaints filed by detainees?

Has the NHRI made active use of the OHCHR Professional Training Series No. 11: “Human Rights and Prisons: A Manual on Human Rights Training for Prison Officials?” and additional related reference materials?

It should be noted that recent human rights treaties like the Optional Protocol to the Convention Against Torture (OPCAT), the Convention on the Rights of Persons with Disabilities (CRPD), and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPED) explicitly refer to the importance of linking up human rights institutions at the national and international level as a necessity for actually implementing international human rights law. OP-CAT and art. 33 of the CRPD, for example, require states to establish effective mechanisms at the national level that are responsible for monitoring the implementation of these two new international human rights treaties.

NHRIs can actively advocate that States implement the concluding observations of Treaty Bodies. As well, it is generally recognised that in some circumstances, States may derogate from certain of these rights. For example, there are specific principles that apply to determine what may be acceptable derogations from human rights for public security reasons in times of public emergency or in other circumstances. The Siracusa Principles7 set standards of acceptable limitations and derogations from the ICCPR which supplement treaty norms.

Additional standards on the rule of law and the Administration of Justice, and the particular role of NHRIs can be obtained from:

Nairobi Declaration on the Administration of Justice, adopted at the Ninth International Conference of National Human Rights Institutions (Nairobi, Kenya, 21-24 October 2008).

  • Developing or revising standing orders that apply to police and security forces to meet international law standards, especially for places of detention, and arrest, investigation and interrogation procedures;
  • Encouraging non-custodial alternatives to pre-trial detention (such as bail, surveillance reporting and non-cash guarantees);
  • Encouraging non-custodial measures of punishment (such as community service, fines, restitution or compensation to the victim), especially for breast-feeding mothers;
  • Presenting concrete proposals aimed at ensuring that minor offences do not come under the ambit of the criminal law system (e.g. strengthening mediation and direct victim compensation, and promoting local community structures for resolving petty crimes);
  • Periodic site inspections (announced and unannounced) of police stations and prisons, in close partnership with other independent structures tasked with this role and law enforcement and other national authorities, encouraging them to take appropriate, prompt action;
  • Legislative proposals on the setting up of accountability mechanisms, monitoring systems to ensure their application and internal investigation procedures and sanctions;
  • Monitoring and reporting on alleged cases of corruption in the police and security forces;
  • Assistance in vetting processes (through the provision of confidential information on past human rights violations - for serious abuses there are no time limits - the violators, as well as cases of corruption and abuse of authority); and
  • Encouraging fair remuneration and working conditions for law enforcement and ecurity personnel.

 

 

 

 

 

2 See OHCHR, Guidance Note: National Human Rights Institutions and the Work of OHCHR at Headquarters and Field Level, 2007.