2003 Fellowship Interim Report
Interim Research
Paper
Andrea Barsova
Title of the Project:
Enhancing the effectiveness
of human rights protection mechanisms
in the
Note: This is a draft document only! Parts of the paper which are ”under construction” appear in italics. They will
be completed and redrafted substantially during the second part of the fellowship
period.
Table of Contents
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1 |
Introduction |
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2 |
National Human Rights
Institutions |
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2.1 Concept and History |
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2.2 Standards and
Functions |
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2.3 Definitions and
Types of NHRIs |
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2.4. Strengths and
Weaknesses of NHRIs: Preliminary Assessment |
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3 |
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3.1 Institutional
Landscape and Recent Changes |
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3.2 New Non-Judicial
Human Rights Bodies: Establishment and Mandate |
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3.2.1 Human Rights Commissioner |
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3.2.2 Human Rights Council |
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3.2.3 Public Defender of Rights |
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3.3 Non-Judicial Bodies: Some Preliminary Observations |
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4 |
Civil Society Actors
and Human Rights Protection |
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4.1 From 1989
to Present: The Changing Role of the Civil Society |
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4.2 Components
of the Human Rights Non-Profit Sector |
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5 |
Protection Mechanisms in Action (To be completed.) |
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5.1. Major Human
Rights Challenges |
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5.2. Case studies |
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6 |
Enhancing Effectiveness
of the Human Rights Protection Mechanisms: Options for Reform |
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6.1 Policy Options |
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6.2 Preferred
Approach |
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7 |
Conclusion |
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Appendices |
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Appendix A: |
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Appendix B: |
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References |
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Figures |
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Figure 2.2
Summary of the |
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Tables |
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Table 2.3 Types
of NHRIs and Similar Bodies |
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1 Introduction
As the concept of human rights ”stretches well
beyond cases of extreme cruelty and injustice” (Freeman, 2002: 4), adequate
protection of human rights is a constant challenge not only for democratising
states, but also for societies based on democratic governance and rule of
law. One of the ways to improve human rights protection, promoted by the UN,
is the building of ”national human rights institutions” (further NHRIs), that
is quasi-governmental, non-judicial bodies, the functions of which are specifically
defined in terms of protection and promotion of human rights. Since the early
1990s, these institutions have expanded considerably around the world, including
the countries of Central and
However, in the last five years, new and significant
developments have occurred on the national institutional landscape, including
the appointment of a Government Human Rights Commissioner in 1998, the creation
of a Government Human Rights Council in 1999, and the establishment of an
Ombudsman office in 2000. Being a product of domestic developments and not
of UN involvement, as is the case of some NHRIs in other countries, these
institutions diverge from the UN concept of an NHRI. Nonetheless, they fulfil
many of the functions assigned to NHRIs. The functional overlapping between
the UN-sponsored NHRIs and the new Czech non-judicial bodies involved, in
various ways, in human rights protection permits an examination of the functioning
of these new institutions from the perspective of international standards
developed in relation to NHRIs.
The proposal to study these supplementary,
non-judicial bodies involved in human rights protection against the background
of international standards has both international and domestic dimensions.
Internationally, there is a need to respond to pressure regarding the setting
up of an NHRI, which exists both on a general level and on a level of concrete
recommendations by international bodies addressed to the
At present, no binding international norm requests
the setting-up of an NHRI. However, there are non-binding international standards,
both at the UN and regional levels, represented, respectively, by the UN
General Assembly Resolution 48/134 (1993), commonly known as ”The Paris Principles”
and its follow-up resolutions1, and the by Council of Europe Recommendation
No R (97) 14 on the Establishment of Independent National Human Rights Institutions.
These ”soft law” rules function as a normative
measure to guide and assess state behaviour. States should consider them
with a view of deciding whether to apply them or not. Evidence shows that
democratic states adhering to international norms take these standards seriously.
A recent example of such an approach is a resolution of the German Bundestag
of 7 December 2000, which led to the establishment of ”German Institute for
Human Rights” in March 2001.
As regards the second component of international
pressure, that is concrete requests by international bodies, in particular
the recent criticisms by the UN treaty monitoring bodies, the Human Rights
Committee (2001)2, and the Committee on Economic, Cultural and Social Rights
(2002)3 are relevant. These bodies urged the Czech Government, in their respective
concluding observations to the submitted reports, that it should adopt measures
to establish effective independent monitoring mechanisms for the implementation
of the respective covenant rights and should create an NHRI.
Domestically, 3-5 years after the establishment
of the ”triplet” of entities involved in human rights protection, there is
a clear need for an initial evaluation of their performance. How do they meet
the expectations, in particular in terms of greater accessibility and affordability
of protection? Do they contribute significantly to a good human rights record?
Are they a means of developing a real and reliable human rights culture or
are they just specialised parts of bureaucracy whose proposals are filed
unread in government dossiers? These issues have not
been so far examined systematically.
The purpose of this paper
is to review both the extent and the limitations of the present non-judicial
mechanisms for the protection and promotion of human rights in the Czech Republic;
to determine whether there is a need for additional institutions or institutional
reforms, and if so, whether such reforms should take the form of setting-up
a new NHRI or of other institutional arrangements.
The paper presents, in its section 3, a first
study on the new Czech non-judicial bodies of protection, which have short
histories and are still adapting to their environments and establishing their
roles vis-a-vis other institutions. Therefore, the paper cannot provide
in many regards definite judgements. In these cases, it draws attention to
existing trends and the dynamics of the development. It was also not possible,
for a study of this scope, to address the closely related, yet distinct issue
of the implementation of EU anti-discrimination legalisation and the setting
up of an ”equality body” in a comprehensive manner. In this regard, the study
limits itself to taking into consideration the key institutional implications
of the implementation of the EU ”Article 13” directives.
The paper opens with a global overview of issues
related to NHRIs, based primarily on recent scholarly work (section 2). In
the following section (section 3), after providing a brief overview of the
current Czech situation regarding human rights protection and its institutional
landscape, it presents recently established Czech non-judicial bodies for
human rights protection. Section 4 is devoted to the non-state actors involved
in human rights protection. The following section (section 5 – yet to be
completed) examines human rights protection mechanisms in action. Finally,
section 6 presents alternative proposals for reform
and argues for the preferred approach. The paper closes with conclusions and
a set of recommendations (to be completed).
2 National Human Rights Institutions
While the notion of a national human rights
institution is old and dates back to 1946, a sharp growth of these institutions
is a relatively recent development. The proliferation of these new actors
after the end of the Cold War, in which the UN has played a key role, led
at the turn of the century to more critical debates on the relevance, roles
and impacts of these institutions. Based on official documents and studies
of the topic4, the first part of this section provides a brief overview of
the concept and history of the NHRIs and focuses on the standards related
to the creation and functioning of NHRIs. The second part elaborates a comprehensive
typology of NHRIs. Finally, the third part sums up the opinions on positive
and adverse effects of NHRIs.
2.1 Concept and History
The concept of the NHRI was developed within
the context of the UN, and dates back to 1946.5 Historically,
the approach of the UN to NHRIs was pragmatic. The concept served primarily
to encourage the establishment of national entities, which could assist UN
bodies in securing implementation of UN treaty obligations. Initial standards
for NHRIs were vague and NHRIs were viewed as subsidiary
organisations. It was only in the late 1970s that the concept of the NHRI
began to consolidate. In 1978, the UN Commission on Human Rights decided
to organise a seminar on national and local human rights institutions to
draft guidelines for the structure and functioning of such bodies. Accordingly,
the seminar was held in
Nonetheless, it was only the global wave of
democratisation after the end of the Cold War that brought about the unprecedented
growth of these institutions. A decisive breakthrough for both the normative
basis and the significance of the NHRIs was a workshop organised by the Commission
on Human Rights in
In the 1990s, the concept of the NHRI also
gradually found its place within the Council of Europe. The first and second
European meetings of NHRIs took place in 1994 and 1997, respectively. On 30
September 1997, the Committee of Ministers of the Council of Europe adopted
Recommendation No R (97) 14 on the establishment of Independent National Human
Rights Institutions, and Resolution (97) 11 on co-operation between National
Human Rights Institutions of the Member States and between them and the Council
of Europe. In the former document, the Committee recommends that the Governments
of member states consider, taking into account the specific requirements
of each state, the possibility of establishing effective national human rights
institutions, in particular human rights commissions which are pluralistic
in their membership, ombudsmen, or comparable institutions. It also recommended
that the states draw on the experience acquired by the existing national
human rights commissions and other institutions, referring to the UN documents,
as well as the experience acquired by ombudsmen, having regard to its Recommendation
on the topic (Recommendation R (85) 13). In the latter document, the Committee
decided to institute, within the Council of Europe, regular meetings of the
NHRIs of the member states. Such meetings are held
every year. Nonetheless, the regional network of NHRIs in
NHRIs are also gradually forming a new category
of international actors. The UN High Commissioner for Human Rights Mary Robinson
declared NHRIs to be one of top priorities. First, her Office established
a post of a ”Special Adviser on National Institutions, Regional Arrangements
and Preventive Strategies”, who is supported by a small National Institutions
Team.9 In 1994, the International Co-ordinating Committee of National Institutions
(ICC) was established as a representative body of NHRIs, with the primary
function of co-ordinating, at the international level, activities of the NHRIs.
The ICC co-operates with the UN High Commissioner for Human Rights. In 2000,
the ICC started the registration of membership procedures.10 As of
Gradually, the NHRIs are acquiring official
international status. NHRIs took their first steps in this direction when
they participated as a group at the 1993 World Human Rights Conference in
Until the present, the dynamics of the NHRIs
proliferation has been sustained, with new institutions (such as Human Rights
Commission in Scotland, 2003) being established and old ones being reformed
(e.g. the Danish Centre for Human Rights, which in 2003 acquired a
statutory basis and a competence to handle complaints in the field of racial
and ethnic discrimination). The UN still attaches high priority to building
strong national institutions. In his report to the UN General Assembly of
2.2 Standards and Functions
“The Paris Principles” are an international
non-binding standard, a part of the ”appropriate
arrangements at the national level to ensure the effective implementation
of international human rights standards”, as expressed in its Preamble. They
set standards for NHRIs as regards their competence and responsibilities”,
composition and guarantees of independence and pluralism” and methods of
operation”. The brief summary of the Paris Principles appears in a figure
below:
Figure 2.2
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Summary of the |
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Competence and
responsibilities * A national institution shall promote
and protect human rights |
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Composition and
guarantees of Independence * The plurality of society should be
reflected in the membership of the institution |
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Methods of operation The national institution shall: |
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Additional principles
concerning the status of commissions with quasi-jurisdictional competence A national institution may be authorized to consider complaints concerning
individual situations. The functions entrusted to it may be based on the
following principles: |
”The Paris Principles” is a policy document,
easy to read, but lacking more systematic structure. For instance, the methods
of operation involve such means as hearing persons and obtaining documents.
Logically, they should be reflected in the competencies
of the body, but this is not clearly spelled out. It is therefore useful to
highlight some of the observations by academics who
analysed the document systematically.
As observed by Aichele, the Principles contain
various rules (i.e. rules with regard to competence, mandate, responsibilities,
powers, legal foundation, composition, and selection of members) and several
principles, such as independence, pluralistic composition, co-operation, accessibility
and transparency. As regards functions, Aichele argues that the ”promotion” and ”protection” of human rights written
in NHRIs’ mandate describe two distinct categories of functions that the
institutions might perform. The obligations ”to
respect, protect and fulfil,” which are entrenched in international conventions,
need to be distinguished from ”promotional obligations”. The promotional
obligations aim to support those social and cultural conditions
which are essential for the protection of individuals and for the
realisation of human rights on a more general level. An NHRI can explicitly
be assigned by the state either to support public authorities in discharging
their promotional obligations or it can be assigned to fulfil promotional
obligations by itself, e.g. in the field of human rights education,
dissemination or information (Aichele, 2003).
Cardenas, who also studied the function of
the NHRIs, argues that we can classify the functions according to whether
they are regulative or constitutive (i.e. that they are based on the
distinction between regulative and constitutive types of norms). On the regulative
side, all national institutions undertake multiple and often overlapping functions
in three important spheres: government compliance (e.g. counsel government,
lobby for treaty ratification), relations with the judiciary (e.g.
assist victims in attaining legal redress, refer cases to courts) and independent
activities (e.g. review national policies, investigate complaints
or issue reports on national situation). On the constitutive side, NHRIs
perform two fundamental sets of activities. The first involves socialisation
(e.g. diffusing international norms domestically by means of media,
grassroots campaigning, and education). A second set of constitutive activities
moves beyond socialisation and addresses issues of international co-operation,
e.g. networking with other NHRIs, co-ordinating activities with the UN (Cardenas
2003:25-27).
In conclusion, we can sum up some of the above
observations, taking into account the practical aspects of the application
of the Paris Principles. First, the Paris Principles set certain fundamental
criteria as regards the institutional framework of an NHRI and its position
within the structure of public institutions. In brief, the NHRI is an independent
statutory body which is neither executive nor judicial
nor legislative, but occupies a specific position. Second, the Paris Principles
request that NHRI have certain core competencies and functions, both in relation
to other state institutions and to the UN. These competencies and functions
fall into several categories. While scholars present different categorisations
of these functions, they agree that some functions pertain more to the human
rights protection and other to human rights promotion. Protective functions
can be carried out effectively only by an independent body (e.g. investigating
complaints, conducting inspections, assisting victims); promotional obligations
can be carried out well also by institutions that are
”defective”. Examples are public awareness raising, educational or
research activities. Finally, it is also important to note that a complaint-handling
function is not, under Paris Principles, an indispensable competence of NHRIs.
2.3 Definition and Types of NHRIs
Although the NHRIs acquired in the Paris Principles
a normative basis, neither the Principles, nor any other UN document gives
their precise definition and/or classification. We can explain this peculiarity
by concerns of states that a standard concept of national institution could
amount to interference with internal affairs. The drafters of the Paris Principles
met these concerns by stressing, ”Diverse approaches
adopted throughout the world for the protection and promotion of human rights
at the national level”. Later, the UN recognised explicitly that it is the
right of each state to choose the framework for the national institutions
best suited to its particular needs. The lack of any prescribed legal shape
and insufficient clarification of the place of NHRIs in national landscapes,
together with diverse cultural, societal and legal frameworks, in which the
NHRIs operate, has resulted in a situation in which NHRIs have taken on the
forms of an extremely wide range of distinct entities. On the one hand, this
causes substantial difficulties for any researcher, who engages in definition
and classification of these institutions. On the other hand, this makes such
an endeavour even more important for policy makers. After all, an NHRI is
always a concrete body and not a set of abstract principles, and a state considering
the creation of one needs some practical guidance.
To fill the gap, this section brings an overview
of existing definitions and classifications, and finally, constructs a more
comprehensive classification.
There is no a single definition of an NHRI.
A UN Handbook on the Establishment and Strengthening of National Institutions
for the Promotion and Protection of Human Rights12 describes a NHRI as ”a
body which is established by Government under the Constitution, or by law
or decree, the functions of which are specifically defined in the terms of
the promotion and protection of human rights”. UN Fact Sheet No. 19 opens
the definition section with an observation that activities of a large number
and range of institutions, such as churches, trade unions, the mass media
and many non-governmental organizations touch directly on human rights issues,
as do those of most government departments, the courts and the legislature.
Against this background, it goes on to explain that: ”The concept of a national
human rights institution is, however, far more specific – referring as it
does to a body whose functions are specifically defined in terms of the promotion
and protection of human rights. While no two institutions are the same, a
number of similarities can be identified which
serve to separate these institutions from the various entities mentioned above.
The national institutions being considered here are all administrative in
nature – in the sense that they are neither judicial nor law-making. As a rule, these institutions have on-going,
advisory authority in respect to human rights at the national and/or international
level. These purposes are pursued either in a general way, through opinions
and recommendations, or through the consideration and resolution of complaints
submitted by individuals or groups.”
Most scholars stick to the UN definition. Anne
Gallagher (2000: 202), for instance, defines NHRIs as ”independent entities
which have been established by a government under constitution or by law and
entrusted specific responsibilities in terms of the promotion and protection
of human rights.” Students of international law tend to emphasise the link
between the NHRIs and international law.
When it comes to a typology of NHRIs, the picture
turns even more colourful. According to UN documents, a majority of existing
national institutions can be grouped together
in two broad categories: human rights commissions and ombudsmen. However, in addition, a ”less common, but no less important
variety are the specialized NHRIs, the function of which is to protect rights
of a particular vulnerable groups, such as ethnic and linguistic minorities,
indigenous populations, children, refugees or women”.13 Aichele (Aichele,
2003) distinguishes four different models of NHRIs, to which he links four
archetypal representatives: the advisory committee model (National Consultative
Commission for Human Rights in France), the institute model (Danish Institute
for Human Rights), the ombudsman model (El Defensor del Pueblo, Spain) and
the commission model (Human Rights and Equal Opportunity Commission, Australia).
After examining these models, he concludes that all four models obviously
differ immensely and that, therefore, it is simply impossible to reduce
the number of existing institutions to a single type. Linda C. Reif (2000),
with special focus on ”democratising states”,
distinguishes: (classical) ombudsman, human rights commission and hybrid
human rights ombudsman, favoured in
Below, a ”merger
typology” is designed. It includes all the types identified by UN and scholars
mentioned, with some exceptions and modifications. It does not include ”parliamentary
human rights bodies” as proposed by Cardenas (2001) as standing parliamentary
committees are, normally, an integral part of law-making bodies and are
composed of MPs. Further, the classification includes another type distinguished
by Cardenas - ”national bodies devoted to international humanitarian law”
- under the broadly defined sub-category of ”specialised bodies”, that is
those whose competence is limited to a category of potential human rights
violations, such as discrimination, or protection of specific, vulnerable
groups.
NHRIs can be divided
into two sub-categories: NHRIs with a general competence and specialised institutions
with limited and focused remits. The five proposed types (1. classical ombudsman,
2. hybrid ombudsman, 3. commission, 4. institute
and 5. advisory committee) reflect the institutional frameworks, compositions,
and, partly the core functions of both NHRIs with general competence and
specialised bodies. The proposed classification includes types which are frequent (1-3) and two rather marginal
types (4-5). (For instance, from 37 institutions listed by the UN in the
European region, roughly 15 institutions appear to be ombudsman institutions,
7 are human rights commissions, 5 institutes or centres, 6 specialised bodies
with a mandate to combat discrimination or protect minorities and the remaining
4 present sui generis models, e.g. ”human rights commissioner” in
Kyrgyz Republic.) To some types, representative examples (”archetypes”) are
attached.
Table 2.3 Types of NHRIs
and Similar Bodies
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Some functions of
an NHRI |
Full functions
of an NHRI |
Full functions
of an NHRI |
Full functions
of an NHRI |
Some functions of
an NHRI |
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An NHRI with general
competence |
1. Classical ombudsman |
2. Hybrid ombudsman |
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4.Institute |
5. Advisory Committee |
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Some functions of
an NHRI |
Some functions of
an NHRI |
Some functions of
an NHRIs |
Some functions of
an NHRIs |
Some functions of
an NHRI |
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Specialised institutions
(equality bodies, bodies focused on vulnerable groups or humanitarian law) |
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Specialised commission |
Specialised institute |
Specialised advisory
committee |
The most essential distinctive characteristics
justifying the proposed five institutional types of NHRIs are following:
* A Classical Ombudsman is the oldest
type of institution. The concept of ombudsman can be traced
back to the Ombudsman for Justice of Sweden established in 1809. The institution
did not spread to other countries until the 20th century, when it was first adopted in other Scandinavian countries.
The popularity of the ombudsman office has increased since the early 1960s,
as various Commonwealth and other, mainly European, countries established
ombudsmen offices. Unlike other NHRIs, classical ombudsmen do not have an
explicit human rights mandate. Their principal function is to handle complaints
of individuals and investigate allegations of maladministration by public
bodies.14 Accordingly, the ombudsman often acts
as an impartial mediator between an aggrieved individual and the governmental
agency, with the aim of ensuring fairness and legality in public administration.
The ombudsman, who is usually an individual, is generally
appointed by Parliament acting on constitutional authority or through
special legislation. Traditionally, an ombudsman has a wide range of powers
enabling him to investigate effectively individual complaints (including
to conduct on-site inspections and to compel production of documents). His
independence from the Government is ensured to
a reasonable and adequate degree. Usually, an ombudsman can issue non-binding
decisions. However, classical ombudsmen do not have power to examine complaints
in the private sector. Taking into consideration that ombudsman offices,
in practice, deal with complaints that may involve human rights issues, as
well as the traditional approach by the UN to these institutions, we can
consider - with reservations - the classical ombudsman also as an NHRI sui
generis.
* A Hybrid Ombudsman can be briefly
characterised as ombudsmen whose mandates include human rights responsibilities.
Historically, the adaptation of ombudsman to include new roles is linked to democratization movements since the mid-1970s.
First established in
* A Commission presents the classical,
and at the same time an ideal, model of an NHRI, at least under the standards
established by the Paris Principles, which stress the importance of pluralistic
composition of an NHRI. As described in the UN Fact Sheet, commissions are
generally composed of a variety of members from diverse backgrounds, but each
with a particular interest, expertise or experience in the field of human
rights. While commissions are linked to either
the legislature or the executive, they are autonomous bodies and a constitution
or law secures their independence. Human rights commissions, as reflected
in their name, are concerned primarily with the protection of civil and other
human rights. Their responsibilities usually include examination of existing
laws and bills, conducting public inquiries into situations of human rights
violations and monitoring government compliance with international human
rights norms. Most commissions compile their findings regularly in annual
and other reports, which they submit to Parliament and/or Government bodies.
Additionally, almost all commissions engage in educational and awareness
raising activities.
Unlike ombudsmen, commissions
are not necessarily equipped with the competence to receive, handle and investigate
complaints by individuals and with corresponding entitlements, (although some
of them are).15 A closer examination of the statutes and activities of some
of the leading human rights commissions, such as the Canadian Human Rights
Commission,16 shows that a primary responsibility of the Commission is to
give effect to the antidiscrimination legislation. Accordingly, it is obliged to deal with and to investigate
complaints of alleged discrimination, whereas its competence as regards other
human rights complaints is vague. (The Canadian Commission ”may consider such
recommendations, suggestions and requests concerning human rights and freedoms
as it receives from any source”.17) Although it is risky
to generalize, we may conclude that while some human rights commissions have
a broad mandate to cover human rights issues in their recommendations, suggestions,
reports and other activities, their power to investigate individual complaints
is more narrowly defined and often limited to a specific instances discriminatory
and violative conduct.18 Frequently, the complaint-handling competence reflects
the prevailing human rights abuses in a country. This also indicates,
that the borderline between the NHRIs with general competence and the specialised
national institutions is, in particular as regard equality and discrimination
issues, not clear-cut, but blurred.
* An Institute (or Centre) is a less
common type of NHRI. The world's model institution of this type was for a
long time the Danish Centre for Human Rights.19 An institute's competences
cover primarily education, research and projects. At least initially, the
basis of the institute is not a statute, but it rather operates under a non-binding
instrument (such as parliamentary resolution, e.g.
* An Advisory Committee20 is also a
marginal type of NHRI, the single well known representative
of which is the National Consultative Commission on Human Rights in
* Specialised Institutions may have
in principle the same institutional forms as institutions with general competence.
In practice, specialised ombudsman, such as ombudsman for children, and commissions
seem to be most frequent. From the potentially large number of such institutions
in the world, on which statistical data are not available, the specialised
anti-discrimination bodies commonly referred to as equality bodies, are of
particular importance. These institutions are found mostly in Commonwealth
countries and include UK Commission for Racial Equality (1965),
There are at least two incentives, which support
this modification of NHRI or, viewed from other perspective, allow the equality
bodies to qualify as NHRIs. First, under the Paris Principles, NHRIs should
have particular competence in relation to discrimination. They shall ”publicise
human rights efforts to combat all forms of discrimination, in particular
racial discrimination, by increasing public awareness, especially through
information and education and by making use of all press organs.” Second, as regards the EU member states, the combating of
racial discrimination requests the EU ”Race Directive” of 2000.22 The directive,
inter alia, requires that ”Members States shall designate special body or
bodies for the promotion of equal treatment of persons without discrimination
on the grounds of racial or ethnic origin”; further, the directive specifies,
”these bodies may form part of agencies charged at the national level with
the defence of human rights or the safeguard of individuals' rights”23.
The competence of these bodies shall include providing independent assistance
to victims of discrimination in pursuing their complaints about discrimination,
concluding independent surveys about discrimination, and publishing independent
reports and making recommendations on any issue relating to such discrimination.24
Historically, the source of inspiration for
both developments, within the Commonwealth and the EU, is the UK Commission
for Racial Equality. The overlapping between the human rights commissions
and equality bodies raises a more substantial concern than the categorisation
issue. It seems that most successful national institutions are de facto equality
bodies existing within Commonwealth countries. If the common cause of their
success is not only legal and societal traditions, such as respect for informal
authorities, but also narrowly tailored competence, it has consequences both
for the concept of the NHRIs and the ”best practice” to be followed by other
states.
In reality, there is, of course, not an ideal
type of NHRI, but rather, each of the models is best equipped to fulfil certain
functions, e.g. ombudsman to handle complaints, commission to issue
comprehensive reports and institute to conduct research. If the ”core functions” of one model are extended to an
institution of another type, hybrid institutions arise, which are, in reality,
rather the rule than the exception.
The above overview confirms that as regards
their legal shape, focus and range of responsibilities, the institutions,
traditionally considered NHRIs, differ immensely. Thus, it may be useful to
conclude this section by stressing some of the features that these institutions
have in common, and which justify their definition as a unique category of
institution. As regards their position on the institutional landscape, all
NHRIs clearly differ from human rights NGOs by their very establishment as
quasi-governmental agencies. All NHRIs are state sponsored institutions, operating
within the state structure. The ombudsman model functions as an auxiliary
organ associated with Parliament, while the commission, the institute and
the advisory committee model are linked to the
executive. Yet, they are not part of the traditional executive, judicial or
legislative branches of the government, but they occupy a unique place ”between” the traditional state institutions and
the civil society and maintain close ties with both spheres. Being neither
a replacement for nor an alternative to other state institutions or non-governmental
bodies, NHRIs are complementary institutions. As such, they may fulfil institutional
gaps, in particular as regards the transpositions of international norms onto
the practice at national levels. Their unique position can give specific strength
to their actions. As observed by the Director of the Danish Centre for Human
Rights: ”A typical national institution, whether it is called Commission,
Centre or Public Defender, will combine Government legitimacy and authorisation
with independence and the watch-dog element usually associated with civil
society.” (Koerum, 2002).
2.4. Strengths and Weaknesses of NHRIs:
Preliminary Assessment
The rapidly increasing number of NHRIs and
the international recognition that they are gaining indicate that both the
UN and the states which established such institutions
attach a great importance to the role they play. The establishment and strengthening
of the NHRIs became a key objective of the Office of the Human Rights Commissioner
and a major component of its programme of advisory services and technical
assistance in the field of human rights. Clearly, the UN and its organs view
the creation of NHRIs as a manifest contribution to human rights promotion
and protection, and, in particular, as unique mechanisms for the transposition
of international norms into national jurisdictions.25 However, how do these
institutions carry out their assigned roles in practice? Are they effective?
Do they contribute significantly to the improvement of human rights record?
Their diversity, as well as the range of political contexts in which they
operate, make this question difficult to answer. This sub-section does not
have the ambition to compile a list of existing findings. Nonetheless, it
highlights some of the potential weaknesses and strengths of NHRIs which are of a general nature and have a direct
relevance when contemplating the establishment of a new NHRI.
As UN documents
indicate and recent studies confirm (
Common sense, as well as some empirical evidence,
indicates that national institutions are not likely to fulfil their role,
if they are created by governments who see an NHRI as
a means to improve their image. A striking example from the Central
European region was the case of the Slovak National Centre for Human Rights
in the 1990s. The Slovak Government established the Centre
with the help of the UN in 1993, shortly after the independent Slovak Republic
came into being after the split of Czechoslovakia.29 The two reports on the
human rights situation in the Slovak Republic for 1994 and 1995, produced
by the Centre, were criticised by both media and experts, as they tried to
defend policies by the Slovak nationalist government against critique from
abroad. For this reason, the Centre ceased publishing annual reports.
The UN evaluation mission conducted two years after the creation of the Centre
confirmed the unsatisfactory performance and recommended to the UN not to
provide further funding.30 The reforms of the
Centre started only after the fall of the nationalist and populist Government
in
Some studies (Venice Commission, 1999) also
reveal that the high degree of complexity of human rights protection mechanisms
in a country and the consequent duplication of competences may be detrimental
to the effectiveness of protection.
Besides several studies in the nascent academic
literature on the topic, critical evaluation of the NHRIs came, not surprisingly,
mainly from the NGO sector.31 The proliferation
of NHRIs, with many established in repressive states, posed a dilemma for
human rights activists who were more accustomed to challenging the state on
human rights issues than collaborating with it. For them and others, the question
to be considered was "are such state-sponsored
human rights bodies to be regarded with suspicion or distrust or should their
development be encouraged and supported?" (Human Rights Watch, 2002: 1). On the general level, the most interesting
findings made by the NGOs reports and studies undoubtedly are that some
of the NHRIs made little impact although they apply Paris Principles, while
others are widely respected though they appear compromised or constitutionally
defective. NHRIs are successful, if they operate well at several levels: they
are perceived to be legitimate, make themselves
accessible and build good working links with relevant institutions in civil
society and the government (ICHRP, 2000). Another key observation relates
to the ”true role” of NHRIs: they may function
well as a complementary mechanism, but they should never be seen as replacement
or alternative to an independent and impartial judiciary.
3.
As indicated in the opening section, significant
institutional changes having direct impact on how human rights are protected
and promoted in the
3.1. Institutional Landscape and Recent
Changes
The 1989 ”Velvet
Revolution” in the
This understanding of human rights protection
clashed with another vision based on the Charter 77 legacy of broad societal
responsibility for human rights protection, the core elements of which are
the direct involvement of the non-state actors and the existence of intermediary
institutional structures between the private and the public spheres. (For
further details, see also Section 6 below). Although until 1998 this platform
was not clearly articulated in a coherent policy document, it was evident
that civil society human rights advocates (such as Czech Helsinki Committee)
agreed on certain issues (the introduction of the ombudsman institution, for
instance) with the opposition Social Democrats. The victory of the Social
Democrats in 1998 election then opened the way for a new human rights programme,
including changes in the institutional landscape.
Yet, before turning to these changes, let us
briefly mention other public institutions, which in one way or another, were
involved in human rights protection. Within the judicial branch, the new
structure of administrative courts with the
On the parliamentary side, no focused, specific
human rights committee or sub-committee has been established
in either of the two chambers (the Chamber of Deputies and the Senate). Some
human rights issues, in a broader understanding, fall within the remit of
the Chamber of Deputies' Petitions Committee, which also has a special sub-committee
on national minorities. The Senate's Committee on Education,
Science, Culture, Human Rights and Petitions also involves human rights in
its broad mandate.40 Another parliamentary institution, relevant for the human
rights promotion, is the Parliamentary Institute.41 The Parliamentary Institute,
the primary task of which is to provide information and conduct research
for individual MPs and the bodies of both Chambers is, in practice, the only
state policy centre which carries out research on topical human rights issues.
Although the quality of the documents produced by the PI relating to human
rights issues is good, the capacity of PI to conduct systematic research
is limited.42
Before 1998, on the executive side, there was
only one specific unit dealing primarily with the human rights issues: the
Human Rights Department at the Ministry of Foreign Affairs. Being responsible
both for the international and foreign human rights agenda, as well for domestic
implementation of international treaties, the small unit was during the 1990s
unable to act sufficiently as a government agency ensuring communication with
international human rights bodies in a whole range of tasks. In particular,
the unit has not managed to prepare and submit the requested reports to UN
treaty monitoring bodies. This also was one of the causes
which led to the establishment of the new human rights mechanism on
the government side.
3.2. New Non-Judicial Human Rights Bodies:
Establishment and Mandate
After the 1998 election, when the Social Democrats
came to power, the goal of establishing an ”effective human rights protection
machinery” was put on the government agenda. In the late 1990s, speedily,
three relevant institutions were established: Human
Rights Commissioner, Human Rights Council and the Ombudsman. The following
three subsections introduce the three institutions; each subsection concludes
by brief evaluation.
3.2.1 Human
Rights Commissioner
In its Programme Statement of August 1998,
the Social Democratic Government announced new measures in the human rights
area, including ”the better co-ordination of human rights protection”. The
statement was based on the Social Democratic Election
Platform, the relevant section of which was drafted by leftist journalist
and former hard-core dissident Petr Uhl. In October 1998, the Government appointed
Petr Uhl the first Commissioner for Human Rights with a brief to ”co-ordinate Government activities in the field of
human rights”. On the eve of 50th anniversary of the adoption of the Universal
Declaration of Human Rights, a new Government strategy for the improvement
of the human rights protection, prepared by the commissioner, was adopted.43
The document put strong emphasis on international
norms and institutional arrangements and established the Human Rights Council
(see below). The Human Rights Commissioner was assigned specific functions:
to submit to the Government (through the responsible cabinet member) information,
proposals and opinions concerning compliance with the duties and responsibilities
stemming from international human rights treaties, to submit, in co-operation
with the foreign ministry, reports to the international treaty monitoring
bodies44, and to submit to the Government annual human rights reports45.
Originally, the commissioner was also appointed the head of two other councils, the
Council for National Minorities and the Council for Roma Community Affairs.
This changed in 2000. Nonetheless, he remains in a position of executive vice-chair
of the two bodies.
The precarious position of the Commissioner
stems from the fact that his post has no statutory basis. Set up through a
government resolution, the post may be abolished by any single subsequent
resolution.46 This is, however, only a part
of a problem. Another set of difficulties is rooted in the concrete institutional
arrangements under which the Commissioner operates. Institutionally, his post
is that of a high-ranking government official, organisationally affiliated
to the Government Office.47 There are no guarantees of even a narrowly defined
sphere of independence. This is most clearly reflected in the fact that the
Commissioner has no direct access to the Government (Cabinet); he has to submit
all the documents ”through” the responsible member of the cabinet.48 This
arrangement puts him in a weak and somewhat fragile position in two regards.
For one thing, he has to reach a political consensus with the designated cabinet
member on any proposals directed toward the government. This is in particular
problematic, if the Commissioner, acting in his capacity of the chair of
the Human Rights Council, submits to the government opinions and resolutions
of the Human Rights Council.49 For another, his
position vis-a-vis the government is dependent on the position of
the respective member of cabinet. While this is not a major problem in a
single party government, it may undermine his position, if he falls under
the competence of a cabinet member representing, e.g. a junior coalition
party.
The position of the Commissioner is better
as regards individual cabinet members (i.e. ministers) and other heads
of central state offices. Based on Government Rules of Procedures and the
Statute of the Human Rights Council (see below) he may address them directly.
This is in particular important in relation to commenting on draft legislation
and policy papers produced by ministries. If he raises objections of principle,
the Government has to be informed on them.50 In fact, except for the formal
prestige attached to the title, this is the only practical measure which gives
him more power than other officials on the same level (”director of department
post”) enjoy. What is, however, most problematic, is the position of the
Commissioner vis-a-vis the Parliament. Since he is a part of the executive,
he cannot engage in any relations with both chambers, which is the exclusive
domain of the Cabinet.51
The ambiguity of the post of the Commissioner
is reflected very well in relation to the preparation
of the annual human rights reports, which are one of the major and publicly
visible tasks of the Commissioner. These reports are compiled
by the Commissioner and his staff based on information both from ministries
and civil sector actors. They are subject to normal procedures of preparing
government documents, e.g. they are submitted
to comments by all ministries. The final draft is normally a document that
incorporates many compromises. Finally, when a human rights report is submitted to the Government, the Government may
resolve to alter or change it, which it most often does. Only the ”final version”, with all comments incorporated,
represents the human rights report. Although, such an exercise is not without
some benefits, as it requires that all the government departments analyse
and take position on topical human rights issues falling within their competences,
it clearly has drawbacks. Beside the obvious problem, that is the potential
lack of a critical approach, there is also a problem with the types of information
processed. For instance, one of major sources on the state of affairs in human
rights protection are judicial judgements, in particular decisions by the
higher courts. Nevertheless, the human rights reports refer to them at best
marginally, as it is not for the executive (unlike civil society and academics)
to express critical statements on court decisions. Surprisingly, however,
there is little understanding among the relevant actors that governmental
human rights reports cannot replace human rights reports drafted by a fully
informed and qualified, yet independent body. 52
As follows from what has been said, the main
concern that the post of the Commissioner raises is if, and to what extent,
the lack of independence impedes upon the effective carrying out of tasks
assigned to him.
3.2.2 Human Rights Council
The establishment of the Human Rights Council
in 1999 (further Council) is closely linked to the appointment of the first
Human Rights Commissioner and was based, originally, on the above-mentioned
Human Rights Strategy of December 1998. There were two main sources of inspiration
for shaping the Council. The major foreign source of inspiration for the setting
up of the Council was the statute of the French National Consultative Commission
on Human Rights.53 (See also the advisory committee model described in Section
2.3.) Domestically, the establishment of the Council followed the major lines
according to which the two advisory bodies on national minority issues were
structured.54
The Council is under its statute a permanent
consultative body of the Government in the area of the protection of human
rights. It is composed of representatives of the executive, at the deputy
minister level, and representatives of the civil sector (i.e. representatives
of civic associations, personalities of public life and independent experts).
The Council is based on the principle of balance
of interest and powers. The number of the representatives of the executive
is equal to the number of representatives of the civil society. Currently,
it has 20 members.55 The head of the Council is
the Human Rights Commissioner, who is accountable to the Government for its
work. Originally, the Council was assigned two
responsibilities: to monitor compliance with major international human rights
treaties and to submit reports to international monitoring bodies (”through”
its chairperson). Under its new statute adopted in 2001, the Council's general
mandate comprises monitoring compliance of the state with the Constitution,
including the Charter of Fundamental Rights and Liberties, international treaties
on human rights, and other legislation regulating the protection of and respect
for human rights, and acting to increase public awareness of human rights.
More specifically, the status charges the Council with four major particular
tasks:
1. To monitor domestic observance of commitments
under the major UN human rights instruments and those stemming from the ECHR
2. To prepare for the Government proposals of strategies in distinct areas
of human rights, proposals for concrete measures and initiatives aimed at
improving human rights, either at its own initiative or at Government request,
3. To express opinions on measures proposed by the Government, ministries
or on other measures concerning human rights,
4. To participate, jointly with governmental departments and NGOs, in drafting
reports for the international treaty bodies on the implementation of international
instruments.
In carrying out these tasks, the Council shall
co-operate with relevant NGOs and organs of self-governments. As regards the
methods of operation, the Council submits its proposals to the Government
through a member of the government (i.e. Cabinet), within whose competence
the Council falls, or to a responsible member of the Government (Cabinet),
i.e. ministers directly. In fulfilling its tasks, the Council, its
members and its sub-committees can request information and opinions from ministries
and other bodies of the state administration. The Council has no specific
power to investigate individual complaints.
From the organisational point of view, the
Council is, like the Commissioner, affiliated to and served by the Government
Office.56 The expenditures of the Council are covered
from the Government Office budget. The staffs of the Secretariat, as well
as the Human Rights Commissioner and the vice-chair of the Council, are employees
of the Government Office.57 As of
The Council usually meets four times in a year.
Since 2003, the Council has been obliged to submit to the Government annual
reports on its activities.58
The position of the Council, like that of the
Commissioner, is not free of ambiguities. There are at least three categories
of inconsistencies in its statute and position. The first follows from the
fact that the Council is declared an ”advisory
body to the government”, but de facto it operates as an advisory body to the
Human Rights Commissioner. Second, the division of the roles between the
Council and the Commissioner is imprecise, with many overlapping and indistinct
competencies. Finally, the Council, though defined as an advisory body, is
assigned some tasks of the Executive, e.g. to prepare strategies and
concrete measures.
Another problem is the overrepresentation and
the status of the public officials in the Council, who participate in the
meetings on an equal footing and enjoy voting rights. Even if we forget about
Paris Principles, it is not clear, what kind of ”added value” should stem
for the Government from being ”advised” by public officials. While we can
explain these defects in the statute by a mixture of tradition and coincidence,
it can hardly be sustained.59
3.2.3
Public Defender of Rights
The institution of the Public Defender of Rights
(further Ombudsman) is a child of civil society. In particular, the major
and for a long time ”the” human right NGO in the Czech Republic - the Czech
Helsinki Committee – has campaigned vigorously since early 1990s for the
establishment of the ombudsman office.60 Originally, the ombudsman was conceived
as a defender of fundamental rights and freedoms. Nonetheless, later an opinion
prevailed that defining the Ombudsman's mandate specifically in terms of
human rights would rather weaken his position and limit his competences than
make him stronger, since ”normal” violations of rights and misconduct of
state bodies would be beyond the scope of his mandate.
In 1990s, several private bills regarding the
setting-up an Ombudsman office were introduced
in the Parliament, but they failed. The opponents of the Ombudsman considered
the institution redundant, as they believed that the judicial protection is
sufficient; a liberal mood prevailing in the society nourished the popular
opposition to building any new ”bureaucratic” institution, which could interfere
with citizens' lives. A progress on this issue was brought
about only with the change in government in 1998.
As the creating of the Ombudsman institution
was part of the 1998 Government programme, the law was drafted swiftly (based
on the previous ”private bills”), and subsequently
adopted by the Parliament in December 1999; it came into force in February
2000.
The Czech Defender is modelled
on the British and Swedish predecessors (i.e. classical ombudsman
model). In spite of that, the institution exhibits some features of the hybrid ”human rights ombudsman” (indirect reference
to human rights in his mandate, power to bring cases to
The ombudsman can act on a motion by a physical
or legal person seeking protection, if a case is referred
to him by an MP, by a Chamber of Parliament and on its own initiative.
The ombudsman has far reaching powers to investigate complaints (to enter
premises, have access to all files, etc.). The offices have corresponding
duties to co-operate. If he finds a violation of legal rules or other shortcomings,
he acts toward eliminating them through conciliation. The procedure has several
stages. In all stages of the procedure, the ombudsman makes recommendations
only; he has no power to enforce his recommendations. If institutions concerned
do not respect the Ombudsman's recommendation, he ”complains”
with hierarchically higher institutions or the government. If his complaint
does not result in a positive response, he may inform Parliament. In addition,
the Ombudsman has the power to recommend the adoption, change, or annulment
of a legal or internal rule. In relation to the Chamber
of Deputies62, the Ombudsman has a set of reporting duties: to submit information
on his activities every three months, to inform on cases in which a superior
institution or the Government have not taken the remedial action requested,
and to report on all recommendations concerning the adoption, change, or abolition
of legal rules.63 He also submits to the Chamber of Deputies annual reports
on his activities.
The ombudsman has specific entitlements in
relation to the
As of
Although the Ombudsman is not charged with human rights protection directly,
his position – as foreseen in the law – provides him with a unique opportunity
to identify human rights violations or inadequacies in human rights protection
standards. From the 5422 individual complaints received in 2001 and in 2002,
approximately half of which fell within the ambit of ombudsman powers, we
can classify only a few as true human rights cases. Nevertheless, some of
the cases brought to the attention of the Government65 and some of those
in which the Ombudsman started investigation of its own initiative (e.g.
situation in detention centres for foreigners, maltreatment in special foster
homes for delinquent children), may surely be regarded major human rights
cases. For instance, the surveys conducted in detention centres and in foster
homes revealed that certain practices are unacceptable from the point of
view of respect for rights of the persons in custody, such as rights to privacy
or human dignity, though they may appear effective. (The review of some of
most significant ombudsman ”human rights cases”
appears in Section 5.2.) The role of the ombudsman in human rights protection
is, however, not only a logical consequence of his competences as described
in the law. Rather, as the category of cases in which the Ombudsman initiated
the investigation indicates, it is the outcome of his activist approach, and,
in particular, that of his deputy.66 In line with this approach, the Ombudsman
comments on draft legislation prepared by ministries, in spite of the fact,
that this competence is not specifically mentioned in the law. The Ombudsman
also reaffirmed his advocate approach when he decided on
3.3 Non-Judicial Bodies: Some Preliminary
Observations
No systematic attempt has
so far been made, either on the policy or on the academic level, to
examine the role and performance of the new non-judicial human rights institutions.
This sub-section contributes to filling the gap by summing up against the
background of the Paris Principles the mission and functions assigned to the
above-introduced bodies. It opens with an overview of some external observations
related to their performance. It continues with its own assessment, based
on a comparison of the normative requirements, as expressed in Paris Principles,
with the institutional and functional features of the triplet of the non-judicial
human rights institutions. Finally, it concludes with observations related
to the EU requirement of setting up an equality body. This exercise has two
aims. First, it should assist in understanding the true role of the examined
bodies. Second, it intends to identify the structural inadequacies and functional
gaps. The effectiveness with which these bodies fulfil the tasks which constitute their briefs is then examined
in Section 5.
The already introduced documents (”Concluding
observations”) produced by the treaty monitoring bodies, the Human Rights
Committee (2001)68 and the Committee on Economic, Social and Cultural Rights
(2002),69 express concern about the lack of independent mechanisms for monitoring
practical implementation of the respective rights. The
former document notes that the Ombudsman's powers are limited to recommendations
covering the public sector; furthermore, it points out that the Commissioner
on Human Rights is a government official and the Council for Human Rights
an advisory body; they have no mandate to deal with individual complaints
relating to human rights.70 The latter document then urges explicitly that
the Czech Republic should establish a national institution complying with
the Paris Principles.
On the other hand, Alvaro
Gil-Robles, the Council of Europe Commissioner for Human Rights, in his Report
on a visit to the Czech Republic in February 2003,71 takes a more sympathetic
position: by establishing the post of the Human Rights Commissioner, the Czech
authorities gained a unique collaborator, who thanks to the accuracy of the
diagnosis and the appropriateness of the proposed solutions became indispensable. Therefore, Gil-Robles urges
the Government to provide the Commissioner with more resources. The Report
also notes that the setting up of the Ombudsman office met the pressing needs
of the society. The report then concludes by recommending that the government
should pay more attention to the complementary recommendations of these two
institutions.
Domestically, knowledge and reflections related
to the performance of these bodies are limited. The only research-based evaluation
relates to the Human Rights Council. In 2000-2002, the
then head of the Government Office, to which most of the advisory bodies of
the Government are attached, commissioned several analyses of the functioning
of these bodies.72 The purposes of the analyses and evaluations were to stop
the mushrooming of these bodies, reduce their number and to provide a uniform
structure for those, which will survive the planned reforms. On a general
level, the main report (Gallup Organisation, December 2001) argued that the
21 advisory bodies analysed are by their nature a non-systematic element
of the state administration; as far as possible they
should be replaced by the standard units of the bureaucracy, save exceptional
cases, that is if they fulfil true cross-departmental tasks. As regards
the Human Rights Council specifically, the analysis noted that it is one
of the two advisory bodies which do not have a
direct link to the Government. Although the predetermined results of the
research cast some doubt on the general validity of the final reform proposals,73 the study plainly revealed many existing structural
and procedural shortcomings in functioning of the advisory and working bodies.
They consist, in particular, in the lack of clearly defined mandates, procedures,
responsibilities and accountability.
Let us turn now to the proposed examination
of the non-judicial bodies against the Paris Principles. Annex A provides
an overview of the comparison.
Interestingly, as regards the overall competence
and mandate, the remits of the Commissioner and the Council seemingly mirror
fully the Paris Principles standards, including the emphasis attached to international
norms. From the institutional point of view, however, only two of the triplet
of the human rights bodies, namely the Council and the Ombudsman, would deserve
a closer examination. As regards the Commissioner, he clearly forms a part
of the executive, lacking any degree of the independence requested for any body to qualify as an NHRI. This, of course,
also holds true to a large extent for the Human Rights Council. Yet, there
is a difference between the two institutions: while the Commissioner is a
Government official, a part of the hierarchical structure of central state
administration, directly subordinated and accountable to the Government, the
Council's relation to the Government is lineal. While it is only an advisory
body, whose opinion the Government may respect or neglect, the Government
cannot alter the Council's opinion. This is mainly due to the collective nature
of the body and the civic element present in it.
To complete the institutional perspective,
we can have a look at the classification of the types of the NHRIs developed
in Section 2.2. Evidently, we can classify the Ombudsman as a classical ombudsman,
with some features of the hybrid ombudsman (indirect human rights mandate,
relation to
The Ombudsman, as regards the institutional
aspects, seemingly also deviates from standards set out in the Paris Principles
in two main regards. First, his mandate involves human rights issues just
marginally. Second, the ombudsman is not in any sense a body with a pluralistic
composition. Yet, as also follows from the classification developed in section
2.2, these are characteristic features of any classical ombudsman office.
Thus, from the institutional point of view, the ombudsman deviates from the
Let us shift now to what we may call functional
analysis. As indicated in the introduction, and described in detail above
(Subsections 3.2.1-3.2.3), the triplet of examined non-judicial bodies are
assigned under their statutes or carry out in practice, many of the responsibilities
of an NHRI. The overview (Appendix A, point 3: Responsibilities) reveals several
noteworthy particulars. First, it shows that there is no ”wholly blank box”. This means all the responsibilities
listed in the Paris Principles are, at least partly, assigned
to, or carried out in practice by, one or more of the existing bodies.
Second, it indicates that some of the tasks and roles are assigned to or carried
out in practice largely by the two ”defect” bodies, that is, the Commissioner
and the Council. Third, it reveals that some of the responsibilities are carried out without being entrenched in any official
statutory document and on an occasional basis.
More concretely, the core functions of monitoring,
reporting, submitting opinions, recommendations and proposing changes are partly carried out by all three bodies. Yet, the
Commissioner and the Council have competences to submit opinions and recommendations
only in relation to the executive, more precisely to the central bodies of
state administration. Moreover, exactly in relation to the executive they
lack the dimension of independence, and consequently,
also authority. (A proposal by the Commissioner and the Council may, however, gain authority, if endorsed by the Government.)
The Ombudsman can address almost all relevant bodies, including those on the
legislative side,74 but only in relation to his
activities, which cover marginally, or at best partly, the full range of
internationally recognised human rights norms. In particular, the ombudsman
has neither mandate nor capacity to prepare reports on the national situation
with regard to human rights. Nevertheless, he can effectively draw the attention
of the government to particular situations when human rights are violated or where there is a danger that they will
be violated. If we imagine the mandates of the existing bodies as circles,
then they would overlap in relation to the spheres of competencies of state
bodies, while some areas, such as the areas coming within the competence of
self-governing bodies (e.g. municipalities) and the private sector
sphere would remain blank.
As regards awareness raising activities, these
are, in general wording, assigned to the Human Rights Commission, which, under
its Statute shall act to increase public awareness of human rights. However,
the statute does not equip the Commission in this regard with any specific
means, powers or financial resources. Thus, the awareness raising in practice does not play a major role of the
Commission's activities. The only exception is organisation of the annual
anti-discrimination campaigns, which are however, not prepared by the Commission,
but by the Human Rights Commissioner.75
The situation is even worse as regards involvement
of the bodies in education and research. Not only are
research and educational activities not specifically mentioned in any
statute, but also the exiting institutions are not equipped materially to
carry out research in any reasonable extent or manner. This is particularly
alarming; the understanding of human rights evolves constantly through various
means, such as the jurisprudence of international and domestic courts or
the adoption of new international and ”supranational” instruments and standards,
which often reflect societal changes. The lack of research into human rights
issues also appears striking, if compared to recent efforts related to the
establishing or restructuring of human rights bodies in European countries,
such as
In relation to the international
dimension, which involves, inter alia, the harmonisation of Czech legislation
with international standards and the encouragement of the ratification of
the international treaties, the Commissioner and the Council do fulfil a role,
in spite of their institutional defects.76 Nevertheless, these two institutions
cannot, due to their institutional deficiencies, be involved in the international
networks and co-operate effectively with other national institutions and
the UN. Their involvement to the
communication with the treaty monitoring bodies; in this case, the Commissioner
plays the role of a government representative. This is not just a marginal
issue, as it might appear. The Council and the Commissioner are thus not
only cut off from potential channels of influence, but more importantly,
from the channels of information and communication. As regard the ombudsman,
his office became recently involved in the universal and regional ombudsmen
organisations; also visits to and from abroad are frequent.
Section 2.3 of the paper discussed at length
the relations and overlaps between the concept of NHRI and that of an equality
body, and introduced the institutional implications of the EU Race Directive.
As the directive requests that States designate special bodies for the promotion
of equal treatment of persons and suggests that these bodies may form part
of agencies charged at the national level with the defence of human rights
or the safeguard of individuals' rights, it is necessary to examine briefly
the position of the discussed bodies also from this perspective. The overview
of the responsibilities of the equality body and those carried out by the
non-judicial bodies for human rights protection appear in Appendix B. It shows
that the existing institutions cover none of the four main responsibilities
of the equality body (i.e. provision of assistance to victims, conducting
surveys, publishing reports and making recommendations) adequately. While
this paper does not intend to provide a solution to this challenge, it is
necessary to take into account that any solution will involve some changes
on the institutional landscape, most likely the establishment of a new anti-discrimination
body.77
In conclusion, we can sum up that while the
examined non-judicial bodies to a considerable extend carry out functions
of an NHRI, they do not meet the standards fully. The main gaps and shortcomings
relate to the lack of systematic, independent monitoring of the human rights
situation and the absence of systematic research into human rights issues.
4 Civil Society Actors and Human Rights Protection
One of the astonishing developments in recent
decades is the extent to which non-governmental organisations (NGOs) have
come to play an increasingly important role in making human rights law, monitoring
its implementation and campaigning for improved human rights performance by
governments. The activities of many non-governmental organisations, charities,
churches, civic movements and media touch directly on human rights issues
in virtually all sectors of the society. This development
is in particular striking on the international level, where the development
of international human rights instruments and institutions has been matched
by a corresponding growth in the number of NGOs.78 The 1993 Vienna World Conference
on Human Rights, in its Final Declaration and Programme of Action, recognised
the important role which NGOs play in the promotion of human rights.
More recently, on the 50th anniversary of the adoption of the Universal Declaration
of Human Rights, the UN reaffirmed this role in the declaration on human rights
defenders.79
Also in the Czech context, civil society actors
play a unique and indispensable role in the human rights protection and promotion.
Without considering the activities of these actors, we can neither fully grasp
the scene on which the non-judicial institutions operate, nor design effective
measures for human rights promotion. This section, therefore, introduces briefly
the involvement of the civil society actors in the human rights protection
in the
4.1 From 1989 to Present: The Changing Role of the Civil
Society
In many communist countries, the opposition
to the regime used human rights rhetoric. However, in
no other country was the main opposition grouping so explicitly based on the
public, open and legal defence of international human rights norms, as was
the case of the Charter 77 in Czechoslovakia.80 When, after November 1989,
former dissidents represented, most notably, by Václav Havel, became
”rulers”, the distance between ”civil society” and ”the state” diminished
and borders between both spheres blurred. Consequently, the first ”revolutionary”
period of the state – civil society relations (1989-1992) was characterised
by direct involvement of human rights activists in implementing major institutional
changes.
The situation changed when, in 1992, the liberals
came to power. The liberals, represented by then Prime Minister (and today
Czech President) Václav Klaus, had a lukewarm attitude toward the concepts
of civil society (of which the independent advocacy groups were the core)
and of human rights. They believed that in a rule-of law state, traditional
institutions, such as responsible government or independent courts, and
individuals alone should take care of their rights. In this vision, there
was no space for civil society groups, except for some charitable work for
the poor.
This dramatically changed the situation of
those who decided to continue their involvement as human rights activists.
They were pushed to establish a new independent platform. Institutionally,
the Czech Helsinki Committee took the leading role in this process. (The Czech Helsinki Committee was established in 1987 by a group
of dissidents, mostly from Charter 77. The aim was to monitor implementation
of international human rights norms.81) The authority which the Committee
had due to its pre-1989 roots and personal affiliations was reinforced by
money flows from foreign donors, for which the Committee was the most credible
receiver of support. Gradually, the activities of the civil society in the
human rights area became strongly dominated by
the Helsinki Committee. The Helsinki Committee played a threefold role. First,
it carried forth the legacy of Charter 77, namely the belief that the civil
society should be a key human rights actor, not just a ”watchdog”, but also
a partner of state bodies. Second, through organisations affiliated to it,
the Helsinki Committee implemented most of the major human rights programmes.
Thirdly, and perhaps most importantly, the Committee acted as civil society's
official spokesperson on human rights issues. This role of the Helsinki Committee
also manifested itself in the production of annual human rights reports,
which were widely publicised.82 Nonetheless, in spite of its ”opposition”
role, the period dominated by the Helsinki Committee (1993-1999) was a period
of ”search for consensus” with power.83
The situation changed in the late 1990s. The
change was prompted from several directions, but
two are most important. One source of changes was the increasing influence
of the transnational human rights advocacy networks. They brought about not
only more radical views, but also new, adversarial and litigious methods of
work, such as bringing lawsuits in public interests (so called ”strategic litigation”) and advocacy before international
organisations. Such activities went beyond the traditional concept of ”dialogue”, adhered to by the Helsinki Committee.
The second major impetus for changes was the new situation after the Social
Democrats came to power: the creation of the new institutions for human rights
protection and the invitation to co-operate with the government.
These two developments resulted in a number
of changes, which characterize the current period (since 1999 to the present)
as period of ”pluralistic dialogue” between the state and the civil society
on human rights issues. The position of the Helsinki Committee as a single
authority on human rights issues was diluted. Some
of the organisations working under the umbrella of the Committee cut their
ties and became independent, and new NGOs were established. The NGO scene
became more pluralistic. With help and resources from the transnational human
rights networks, some NGOs became more professional and self-confident. As
a result, some NGOs are increasingly prone to design alternative policies.
Because of the new approach by the state administration, the dialogue between
public bodies and the civil society strengthened.
4.2 Components
of the Human Rights Non-Profit Sector
At present, more entities of the civil society
are engaged in human rights protection in the Czech Republic than ever before.84
While no scheme can fully capture this colourful part of the non-profit sector,
the structural-operational definition (Salmon and Anheimer: 1997)85 permits
the range of entities it embraces to be spelt out more concretely. Using an
adaptation of the definition, the ”human rights non-profit sub sector” can
be defined as collection of entities which are private, organised, non-profit
distributing, self-governing, involving some meaningful degree of voluntary
participation and which are engaged in activities having an impact on human
rights protection and promotion.
The entities embraced in this definition can be grouped into three categories, according to their
remit and mission. The first category involves entities
which can be called humanitarian and relief agencies. These are relatively
strong organisations, frequently affiliated with churches (e.g. Catholic
Charita, ADRA). In such cases, they are often a part of a larger, transnational
structure. Another example, not affiliated with any church, is the People
in Need foundation. These agencies are typically not limited in their activities
to the Czech territory, but often operate abroad. Their mission is not defined in the terms of human rights protection,
but in a much broader humanitarian and charitable language. Nonetheless, at
least part of their project-based activities aimed at the protecting and serving
underprivileged and neglected populations (e.g. ethnic minorities,
asylum-seekers and migrants) have direct impact on human rights protection.
In addition to providing services, these agencies play an important role in
awareness raising.
The second category is
constituted by human rights advocacy groups. Human rights advocacy groups define their mission
in terms of human rights protection and promotion, either
in general terms or focusing on particular human rights issues, such
as combating discrimination. The activities of the human rights advocacy groups
typically involve human rights monitoring, advocacy, awareness
raising and educational activities. Well-known representatives of these
groupings are the Czech Helsinki Committee; the Counselling Centre for Citizenship,
Civil, and Human Rights; and the League for Human Rights.
Finally, the third category embraces specialised
(or one issue) human rights organisations. Such entities focus on a particular
societal problem or group of population (e.g. children, crime victims,
asylum-seekers, the homeless, or cases of suspect improper functioning of
the judiciary). Since the core activities of these organisations consist often
in providing social services to needy or vulnerable groups or individuals,
a substantial part of their income often comes from public budgets. While
this does not necessarily undermine the independence of the organisations,
it may be sometimes difficult to draw a dividing line between these specialised
human rights organisations and a broader spectrum of charities and other organisations
providing social services.86
As regards their legal
form, all the above entities are, by definition private or civil law organisations:
civic associations, public benefit organisations, foundations, church-affiliated
organisations or ”organisations with a foreign element”.87 The particular
legal form, however, is not very significant for activities, as sometimes
even the same grouping may operate as either civic association or a foundation,
whatever suits better the purpose.
Many of the civil society actors have links
to the public sector, either financial88 or institutional and personal. From
the perspective of this paper, the institutional and personal links are of
particular interest. As have been said already, the main institutional channel
of communication is the participation of representatives of the major human
rights advocacy groups in the Human Rights Council and its sub-committees.89
The relatively strong and well-established
human rights non-governmental sector is undoubtedly one of the pre-existing
conditions that any future reform of the state human rights protection mechanisms
shall take into consideration. While the state cannot dispose of its obligations
to protect and promote human rights by pointing to the voluntary activities
of the NGOs, it can effectively fulfil some of them either through sponsoring
NGOs activities or thorough making use of co-operation with NGOs. An example
of the former is the participation of the NGOs in carrying out state sponsored
public awareness and educational campaigns; examples of the latter, even if
more controversial, are commissioned studies related to particular situations
of human rights violations or the involvement of NGOs in monitoring and the
drafting of reports. The potential benefits for the state of making adequate
use of input from NGOs are manifold. They involve, inter alia, a reduction
of bureaucracy and direct access to information
otherwise difficult to obtain.
5. Protection Mechanisms in Action
The (final) research paper will contain
a section involving several case studies (i.e. 5-7 major human rights cases),
in which the non-judicial human rights institutions played a major role, aimed
at evaluating the effectiveness of the respective protection mechanisms. The
elements of effectiveness, such as length of procedures, achieving concrete
results and broader outcomes will be assessed on
a comparative basis.
6. Enhancing Effectiveness of Human Rights
Protection Mechanisms: Options for Reform
The institutional and functional examination
of the non-judicial bodies for human rights protection (Section 3) and that
of the non-governmental sector (Section 4) as well as the findings on how
these protection mechanism function in practice (Section 5) suggest that there
is a need for enhancing the effectiveness of these mechanisms. This section
outlines three options for reform of the existing institutions; as well as
the fourth alternative, that is continuing existing arrangements without
changes. It discusses the proposed options from several perspectives, including
the extent to which they respond to international concerns, their political
feasibility (e.g. consistency with government priorities, both in the human
rights area and in general), and their administrative feasibility, in particular
the extent of required legislative and administrative changes.
6.1.
Policy Options
* A: Establishing an Independent, Statutory
NHRI
* B: Continuing the Existing Arrangements
* C: Increasing the Competence of Ombudsman in Human Rights Issues
* D: Strengthening the Functional Model of Non-judicial Mechanisms to
Promote Human Rights
A: Establishing an Independent, Statutory
NHRI
Establishing a new, statutory body would
be the most straightforward response to the international and domestic concerns
related to the lack of independent non-judicial mechanism for human rights
protection and promotion. Ideally, a new NHRI should be established by an
Act of Parliament, should be accountable to the Parliament and its budget
should be determined by the Parliament (the Chamber of Deputies) as well.
A new statutory body, whose financial and institutional independence will
be thus reasonably secured, could be composed of a small number of full-time
commissioners, perhaps 3 or 4, including the
chief commissioner. This option seems to be preferable to an ombudsman type
of institution. It can allow for taking into consideration the diversity
of the Czech society, as requested by the
As regards the election or appointment of
the commissioners, either the model for the election of the ombudsman (i.e.
election by Parliament from a group of candidates proposed by the president
and the Senate) or, preferably, that for the appointment of judges of the
Constitutional Court (appointment by the President with the consent of Senate)
can be used.
The chief commissioner may appoint commissioners
to cover specific rights areas or to ensure a good coverage of key issues.
(This model turned out to function very well with the Ombudsman and his deputy.)
In keeping with the procedure followed by the Ombudsman (and many NHRIs in
the world), the Commission should have the authority to appoint its own staff.
In order to reduce the personnel and administrative costs, as well as to secure
expertise in diverse areas, the Commission shall be empowered by law to buy
in legal and other expert services.
As regards the remit and the responsibilities
of the Commission, these have to be construed very
carefully, bearing in mind that the commission would appear in an already
cluttered institutional landscape (which is likely to encompass not only the
ombudsman institution, but also a new equality body). Some countries, such
as
The competencies of the Commission should
be broad-based, covering full spectrum of human rights. Existing non-judicial
bodies shall, however, retain specific functions,
in particular complaint handling. Consequently, the core functions of the
new institutions should consist in independent monitoring, research and educational
activities. Obviously, the debates of jurisdiction and institutional overlap
must be taken and resolved seriously, so as to
clarify not only for experts, but also for the general public, the extent
to which the country needs yet another national human rights institution.
Nevertheless, it is not very likely that
the expert arguments, even if supported by international non-binding norms,
will be strong enough to overcome the low political and administrative feasibility
of this option. First, the creation of a new, independent, statutory body
with its financial implications (premises, infrastructure, and highly qualified
staff) clashes with the current government top priority, namely ”healthier
finances”, which involves a commitment to reduce budget spending in the forthcoming
years. In this regard, it is in particular important that, in summer 2003,
the Government decided to reduce the number of civil servants. Second, it
would coincide with the establishment of the EU equality body, which, due
to the binding nature of the EU obligation, has a higher priority. Thirdly,
it might be difficult to show how the establishment of the NHRI could contribute
to addressing the most urgent problems concerning fundamental rights, such
as the duration of judicial proceedings.90 Finally, it might be difficult
to find enough support for the solution, in the early stages, within the state
administration.
In conclusion, this option could only be
acceptable as a long-term solution, after the basic preconditions of political
feasibility have been met. These include at minimum
eliminating a direct clash with government top priorities and adopting a final
decision on the equality body. In addition, an increased awareness of the
existence of the problem related to NHRIs among the relevant parts of the
administration and civil society is essential.
B: Continuing the Existing Arrangements
The greatest danger of this ”zero reform
option” consists not in prolonging the situation, unsatisfactory in many regards,
yet not critical, and better than a couple of years ago, but in a piecemeal
erosion of what has been achieved since 1998. This, of course, concerns the
Commissioner and the Council, not the Ombudsman. As have been explained,
the role of both the bodies is extremely fragile, as they have no statutory
basis. Their position can be shattered by any
political change. There are certain signals that
even since the 2002 change in government, the position of the Commissioner
has weakened, as he no longer has the (indirect) support of a major political
party. Since human rights are not ”above politics”
but are implemented as a part of the political processes, deciding for the
”zero reform option” is a haphazard approach.
C: Extending the Competence of Ombudsman
to Cover Human Rights Issues
As the institution of ombudsman turned out
to be a great success, it might seem to be natural to try to write more
human rights issues into his mandate or in other words, to shift his position
from a classical ombudsman to a position of a ”hybrid ombudsman”. Indeed,
this idea would not even be a new one. As mentioned already, the original
intention supported by the civic sector in early 1990s, was to have ”a human rights ombudsman”.
There are, however, several weighty arguments
against modifying now the remit of the ombudsman to cover the full range of
human rights issues. The considerations are both legal and practical.
We can start with an observation that, although
the various hybrid bodies are very often created in areas of transition to
democracy and may even be sponsored by international forces (e.g. peace agreements),
there is no evidence, at least in the existing literature, that their performance
is better than that of classical institutions.91
Entrusting the Ombudsman
with a cluster of diverse responsibilities and tasks, stemming from the Paris
Principles, would, in combination with his current mandate, result in an incoherent,
overbroad, and diverse jurisdiction of a single body.92 However, if his powers
to investigate remained limited to maladministration by public bodies, while
the reporting and other obligations covered a broadly defined human rights
area, the means in different areas of his jurisdiction would be relatively
imbalanced. In addition,
combining two distinct roles - that of enhancing good governance and that
of promoting human rights - is also likely to have the unintended side effect
of confusing the public, rather than raising awareness on human rights issues.
(Unintentionally, such a harmful effect has already existed in relation to
the double function of the Commissioner, who was head of both the Human Rights
Council and the Roma Community Affairs Council.)
Extending the mandate of the Ombudsman would
not be possible without legislative changes; this indicates that the administrative
feasibility of this solution is rather low. Still more importantly, any shifts
and changes in the role of the Ombudsman would divide up, and potentially
weaken and undermine, his position, which is still in the process of consolidation.
Finally, it should also not be overlooked that
since the Ombudsman was established as an independent body with distinct functions,
it would not be politically proper to change his role without his consent.
As the current discussions on the establishment of the equality body indicate
– such a consent or approval is not likely.93
To sum-up, extending the ombudsman jurisdiction
is only seemingly an easy solution. In reality, the problems that it is likely
to create may outweigh the potential benefits. Unlike option A, discussed
above, this alternative is not to be recommended
even as a vision for the future.
D: Strengthening a Decentralised, Functional
Model of Non-Judicial Mechanisms to Promote Human Rights
The proposed solution of ”strengthening a decentralised, functional model
of non-judicial mechanism to promote human rights” is based on three assumptions.
The first assumption is that distinct bodies can effectively carry out the
various functions assigned to a NHRI. At least indirectly, this hypothesis
is supported by the existing arrangements in some
countries, such as
Based on these three assumptions, step-by-step reforms are proposed. The reform proposal
concerns, primarily, the existing institutions, that are the Human Rights
Commissioner and the Human Rights Commission. It is not
proposed that these bodies are turned into independent bodies. (Such
a profound transformation would equal the establishment of an NHRI, which
is another story, described as option A). However, they should make all efforts
to gain more visibility and authority. Further, they should clarify their
respective roles and relations vis-a-vis each other. The Commissioner as a
government official responsible for human rights should re-formulate his tasks
in the terms of co-coordinating the activities within the Executive, while
the Council should play an advisory role. This necessary conceptual distinction
would amount to a number of small, yet significant changes. For instance,
the statute of the Council should change to withdraw full membership with
voting rights away from the government officials.94 The Council should also
use the right of publishing its proposals extensively before they are submitted
to the Government. The Council should also try to gain a statutory basis,
which does not necessarily involve adopting a new law. The model role here
would be that of a governmental Legislative Council, which is entrenched in
the ”Competence law”. It is also desirable that
the Council establishes a direct contact to the government. One of the options
to be considered is appointing a Cabinet member
as the chair of the Council. When contributing to Government reports, the
Council should make sure that its position is clearly
spelled out.95
As regards the Commissioner, he should try
to clarify and re-establish his roles vis-a-vis governmental departments and
to strengthen his co-ordination role. This can be done
either by a government resolution, or more preferably, by concluding memoranda
of understanding with all relevant departments.
As one of the most pressing problems identified
is the lack of research into human rights, which has a detrimental effect
on how effectively the Council and the Commissioner carry out their assigned
tasks, effort aimed at establishing a research centre is essential. While
the establishment of a research centre as an independent statutory entity
would be an ideal solution, it may also take the form, common in the Czech
Republic, of a research institute affiliated directly to a governmental department.96
Another option to consider in this regard is creating a human rights centre
within the Parliamentary Institute. Other options, such as combining finances
from governmental, international, and private sources should also be considered.
Although putting forward any institutional
proposal having an impact on public resources has a low degree of political
feasibility, this option is still relatively more politically viable than
the other proposals. Its political feasibility is also
enhanced by the fact that the reforms can be taken gradually. Moreover,
the option also has a somewhat higher administrative feasibility, as the changes
can be proposed and carried out by the existing bodies and have no direct
impact on other parts of the executive (as the options A and C would have).
In conclusion, the strengthening of existing
mechanisms is the only realistic option for the near future.
6.2 Preferred Approach
Based on what has been
said above, it seems most reasonable to distinguish between short-term
and long-term policy reforms. While the preferable long-term goal should be
establishing an independent, statutory human rights commission (A), the short-term
solution consists in strengthening the functional model of non-judicial mechanisms
to promote human rights (D). The two policy options are not exclusive. Rather,
the proposed short-term measures should pave the way for a more radical policy
reform which would require a long preparatory phase, the mobilisation of
political support, and would only be feasible, after certain conditions, as
specified above, have been met.
7. Conclusion
In times of democratic revolutions, human
right issues rank high on societal and government agendas. The speedy and
profound changes undertaken in the time of transition are, however, not usually followed by the same dynamics
once the transitional period is over. Reforms and changes in the field of
human rights in stabilised societies, in particular if they concern institutions,
which not only consume scarce resources, but also threaten to further bureaucratise society, are subject to fierce
political scrutiny. They are likely to be adopted
only if society is persuaded that the potential benefits would outweigh the
new burdens.
This paper discussed
”post-transitional” proposals for the enhancement of the non-judicial
human rights protection mechanism in the
APPENDIX A
Comparative Overview:
|
|
|
|
|
HUMAN RIGHTS COUNCIL |
COMMISSIONER |
OMBUDSMAN |
|
1 |
Overall competence |
|
to promote and
protect human rights |
Yes |
Yes |
Indirectly: The Ombudsman
should ”contribute” to the protection of fundamental rights through carrying
out other activities |
|
2 |
Mandate |
Scope |
”as broad as possible” |
Yes |
Yes |
Not specified with
regard to international treaties; mandate is limited with regard to the
administrative bodies. |
|
|
|
Statute |
set forth in a
constitutional or legislative text |
No - set up by Government resolution |
No - set up by
Government resolution |
Yes – established by Act of Parliament. |
|
3 |
Responsibilities |
General |
submitting to
the Government, Parliament and any other competent body opinions, recommendations
etc. on any matter concerning human rights, on an advisory basis or at request
of the authorities |
Opinions, recommendations
submitted only to the Government and governmental bodies, not to the Parliament. |
Opinions, recommendations
submitted only to Government and governmental bodies, not to the Parliament. |
Yes, in relation
to Ombudsman's investigations. The Ombudsman does not comment on bills,
but he is authorised to participate in parliamentary meetings, should a matter that falls within his competence be dealt with. |
|
|
|
|
exercise of power
to hear a matter without higher referral |
No |
No |
Yes, within his mandate,
that is in relation to public administration. |
|
|
|
|
competence to
publicise reports |
Not, only after
they are approved by the Government. |
Not, only after
they are approved by the Government. |
Yes |
|
|
|
Specific-national
level |
submitting proposals
in relation to legislative and administrative measures - examining legislative
and administrative provisions ( in force, bills and proposals) and recommending
adoption or amendment |
|
Yes, but the Commissioner
submits proposals only to the Government and governmental bodies. |
Yes. The Ombudsman
is authorised to recommend the issuing of, an amendment or the annulment
of legal regulation or internal order |
|
|
|
|
submitting proposals
in relation to situations of human right violations |
Yes – makes proposals
in this regard to the Government. |
No, only after they are approved by the Government. |
Not specified. In practice,
some proposals concern human rights. |
|
|
|
|
preparation of
general reports on national human rights situation or reports on specific
matter |
Yes - for Government
and government bodies, the annual reports are then submitted to the parliament
for information |
Yes - for Government
and government bodies, the annual reports are then submitted to the Parliament
for information |
Partly. The Ombudsman
submits general reports on his activities and specific reports relating
to his activities. |
|
|
|
|
drawing attention
of Government to any part of the country where human rights are violated |
Yes |
Yes |
Yes, but not explicitly
mentioned in law. |
|
|
|
Specific - with
relation to international sphere |
to promote and
ensure harmonisation of legislation and practice with international human
rights instruments, and their effective implementation |
Yes – makes proposals
in this regard to the Government and other government bodies. |
Yes – makes proposals
in this regard to the Government and other government bodies. |
No |
|
|
|
|
encourage ratification
of international instruments |
Yes - makes proposals
in this regard to the Government. |
Yes - makes proposals
in this regard to the Government. |
No |
|
|
|
|
contribute to
reports submitted to the UN bodies and regional institutions, when necessary,
to express independent opinions |
The Council is involved
in drafting, yet it cannot express an independent opinion on reports once
they are ready. |
Commissioner himself
drafts the reports for the Government |
This function is not mentioned in law. At present, there is lack
of practice in this regard. |
|
|
|
|
to co-operate
with UN, regional institutions, and national institutions in other countries |
No, only indirectly through contributing to reports and on informal
basis. |
In a specific role:
Commissioner usually defends the Reports submitted to the treaty monitoring
bodies |
The Ombudsman is
increasingly involved in ”ombudsmen” global and regional networks |
|
|
|
Specific - education,
research |
to assist in the
formulation of programmes for teaching of and research into human rights
and to take part in their execution in schools, universities and professional
circles |
Not explicitly mentioned. In practice exercised occasionally, in a limited scope and manner. |
Not explicitly mentioned. In practice exercised occasionally, in a limited scope and manner. |
No |
|
|
|
Specific - awareness
raising, combating racial discrimination |
publicise human
rights efforts, efforts to combat all forms of racial discrimination by
increasing public awareness, through information, education, press |
Yes |
Yes |
Not mentioned in
law, but he has duty to inform public on his activities and findings resulting
from his activities |
|
4. |
Composition |
general requirements |
pluralist representation
of broad range of social group/civil society |
Yes, incorporated
in the statute |
Not applicable |
Not applicable. The Ombudsman
is an autocratic institution. Neither is there any provision made in
this regard for his deputy. |
|
|
|
general requirement
- procedural guarantee |
pluralistic composition
shall be guaranteed by procedures |
In practice observed,
but not guaranteed by any procedural arrangements as regards appointment
of members. |
Not applicable |
Not applicable |
|
|
|
pluralistic composition
- elements |
representatives
of NGOs, professional organisations |
Yes |
Not applicable |
Not applicable |
|
|
|
|
representatives
of trends in philosophical and religious thought |
Yes, civil society
actors with different backgrounds (e.g. religious) |
Not applicable |
Not applicable |
|
|
|
|
representatives
of universities and experts |
Yes |
Not applicable |
Not applicable |
|
|
|
|
Parliament |
No |
Not applicable |
Not applicable |
|
|
|
Limitation |
Representatives
of Government departments shall participate in advisory capacity only. |
No, representatives
of Government departments are full members. |
Not applicable |
Not applicable |
|
|
|
Duration of mandate |
appointment shall
be effected by an official act which shall establish the specific duration
of the mandate |
No, the term of the
Council expires with the term of the Government |
No |
Yes, established
by law (six year term, renewable once). |
|
5 |
Institutional arrangements |
General |
adequate
funding and infrastructure |
No |
No |
Yes |
|
|
|
Particular |
own staff and
premises |
No |
No |
Yes |
|
|
|
|
not subject to
financial control that might effect independence |
No, is subject. |
No, is subject. |
No, is not subject. |
|
6 |
Methods of operation |
|
freely consider
any questions falling within its competence, whether they are submitted
by the Government or taken up by it without referral to a higher authority,
on the proposal of its members or of any petitioner |
Yes, but may not
have access to information as it does not have powers to investigate. |
Yes, but may not
have access to information as it does not have any powers to investigate |
Yes |
|
|
|
|
hear any person
and obtain any information and any documents necessary for assessing situations
falling within its competence |
No |
No |
Yes (within the limits
of his power, e.g. Ombudsman cannot request information
from private persons). |
|
|
|
|
address public
opinion directly or through any press organ |
Not regulated. |
Not regulated. In practice,
the Commissioner often addresses public opinion through media |
Yes. |
|
|
|
|
meet on a regular
basis and whenever necessary |
Yes |
Not applicable |
Not applicable |
|
|
|
|
establish working
groups, and set up local or regional sections to assist it in discharging
its functions |
Yes |
Not applicable |
Yes |
|
|
|
|
maintain consultation
with the other bodies, in particular ombudsmen |
Yes |
Yes |
Not regulated by law,
but the Ombusman tries to develop such relations in practice. |
|
|
|
|
develop relations
with the NGOs devoted to protecting and promoting human rights |
Yes |
Yes |
Yes |
|
|
|
|
hear and consider
complaints and petitions concerning individual situations |
No |
No |
Yes |
APPENDIX B
Comparative Overview: EU Equality body and Czech Non-Judicial Bodies
for Protection of Human Rights
|
|
EQUALITY BODY |
|
HUMAN RIGHTS COUNCIL |
COMMISSIONER |
OMBUDSMAN |
|
1 |
Overall comptetence/Mandate |
the promotion
of equal treatment of persons without discrimination on the grounds of racial
or ethnic origin |
Partly |
Partly |
Not specifically mentioned in the law. |
|
2 |
Responsibilities |
providing independent
assistance to victims of discrimination in pursuing their complaints about
discrimination |
No |
No |
Yes. However, the
competence is limited. The Ombudsman can only handle complaints of alleged
discriminatory conduct by public authorities. |
|
|
|
conducting independent
surveys about discrimination |
|
No |
Yes |
|
|
|
publishing independent
reports |
No |
No. While the Commissioner
compiles reports, they lack independence. |
Yes |
|
|
|
making recommendations
on any issue relating to such discrimination |
Yes, but only in
relation to the executive. |
Yes, but only in
relation to the executive. |
Yes, based on his activities. |
References
Books, Articles
Freeman, M. (2002). Human Rights. An Interdisciplinary Approach.
Fric, P., Goulli, F., Toepler,
S., Salamon. M. L. 1999. The
Gallagher, A. (2000). Making
Human Rights Obligations a Reality. Working with
New Actors and Partners. In: Alston, P. and Crawford J. (Eds.) The Future of UN Human Rights Treaty Monitoring.
Gibney, M. J. (2003). Globalising
Rights. The
Human Rights Watch. (2002). Protectors or Pretenders?
Government Human Rights Commissions in
International Council on
Human Rights Policy. (2000) Performance and Legitimacy: National Human Rights Institutions.
Versoix: Author
Keck, M. and Sikking, K.
(ed.) Activists Beyond Borders.
Advocacy Networks in International Politics.
Kjoerum, M. 2002. The Role
of National Human Rights Institutions in Implementing Economic, Social and
Cultural Rights. EU-China Dialogue on Human Rights,
Mendelson, S.E. and Glenn,
J. K. (Eds). 2002. The Power and Limits of NGOs. A Critical Look at Building Democracy in
Reif. L. (2000). Building Democratic Institutions: The Role of National Human
Rights Institutions and in Good Governance and Human Rights Protection.
Harvard Human Rights Journal 13 (Spring 2000), 1-69
Rekosh, E., Buchko, K.
A., and Terzieva, V. (2001). Pursuing the Public Interest. A
Handbook for Legal Professionals and Activists.
Richtrova, M. (2002). Obcanske poradenstvi. (Citizenship Advice Bureaus.) Praha: Socioklub
Salamon, L.M. and Anheier,
H. K. (Eds.) 1997. Defining the non-profit sector. A cross-national analysis.
Sevcik, V. 2002 Pravo a
ustavnost v Ceske republice. (Law and Constitutionalism in the
Skilling, G. (1981). Charta
77 and Human Rights in
Sladecek, V. (1997) Ombudsman, ochrance prav
ve verejne sprave?. (Ombudsman, the Defender of
Rights in Public Administration.) Praha: Univerzita Karlova.
Uhl, P. (1998). Pravo a
nespravedlnost ocima Petra Uhla. Praha: C.H. Beck.
Articles & conference papers published
exclusively on Internet
Nuscheler, F. NGOs in Weltgesellschaft und
Weltpolitik: Menschenrechtsorganisationen als Sauerteig
einer besseren Welt?
http://www.oneworld.at/ngo-conference/discussion/Nuscheler.htm
Svetlik,
http://www.oneworld.at/ngo-conference/discussion/svetlik1.html
Selected documents
Alvaro Gil-Robles, Commissioner
for Human Rights of the Council of
Amnesty International. (2001, October). National Human Rights Institutions. Amnesty International's Recommendations for Effective Protection
and Promotion of Human Rights. Author.
Chair of the Government
Council for NGOs. (1999, May, 21st) Zprava o spolupraci ustrednich
organu statni spravy s nestatnimi neziskovymi organizacemi, ktere sleduji
situaci v oblasti lidskych prav. (Report on co-operation between central
administrative bodies and NGOs active in the field of human rights.) The
Government took note of the Report on
Czech
Deputy Prime Minster for
Research and Development, Human Rights and Human Resources. (2003, June). Navrh vecneho
zameru zakona o rovnem zachazeni a ochrane pred
diskriminaci. Draft law concerning the provision of equal treatment and protection
against discrimination. Outline of the draft new Law.
Government Human Rights
Council. (2003, May) Zprava o cinnosti Rady vlady Ceske republiky pro lidska prava
v roce 2002. (Report on the Activities of the Government Human Rights
Council in 2002.)
Human Rights Commissioner. (1999) Zprava o stavu lidskych
prav v Ceske republice v roce 1998. Report on Human Rights in the
Human Rights Commissioner. (2000) Zprava o stavu lidskych
prav v roce 1999. (Report on Human Rights in the
Czech Republic in 1999). Endorsed by Government
Resolution No. by Government Resolution No 385/2000.
Human Rights Commissioner. (2001) Zprava o stavu lidskych
prav v roce 2000. (Report on Human Rights in the
Human Rights Commissioner. (2002) Zprava o stavu lidskych
prav v roce 2001. (Report on Human Rights in the
Human Rights Commissioner. (2003) Zprava o stavu lidskych
prav v roce 2002. Report on Human Rights in the
Ministry of Justice. (2000, June). Zprava za
obdobi od 1. cervna
1999 do 31. kvetna 2000 o stavu vyrizovani stiznosti podanych u Evropskeho
soudu pro lidska prava proti¡CR. Report on cases against the Czech Republic
lodged at the European Court on Human Rights: 1 July 1999 – 31 May 2000.
(Endorsed by Government Resolution No. 735/2000)
Ministry of Justice. (2000, June). Zprava za
obdobi od 1. cervna
2000 do 31. kvetna 2001 o stavu vyrizovani stiznosti podanych u Evropskeho
soudu pro lidska prava proti CR. Report on cases against the Czech Republic
lodged at the European Court on Human Rights: 1 July 2000 – 31 May 2001. (Minutes
of the Government meeting of
Ministry of Justice. (2000, June). Zprava za
obdobi od 1. cervna
2001 do 31. kvetna 2002 o stavu vyrizovani stiznosti podanych u Evropskeho
soudu pro lidska práva proti CR. Report on cases against the Czech
Republic lodged at the European Court on Human Rights: 1 July 20001 – 31 May
2003. (Endorsed Government resolution No. 717/2002)
Open Society Institute
EU Accession Monitoring Program. (2002). Monitoring the EU Accession Process: Judicial Capacity.
Judicial Capacity in the
Public Defender of Rights. (2002, March). Souhrnna zprava
o cinnosti Verejneho ochrance prav za rok 2001. (First annual Report on the Activities of the Ombudsman in
2001.)
Public Defender of Rights. (2003, March). Souhrnna zprava
o cinnosti Verejneho ochrance prav za rok 2002. (Second Annual Report on the Activities of the Ombudsman in
2002.)
Public Defender of Rights. (2003, March, June). Activity
reports submitted to the Chamber of Deputies (1st and 2nd quarter 2003).
Scottish Executive. (2003) The Scottish Human
Rights Commission. Consultation paper.
UN Centre for Human Rights. (1995). A Handbook on the Establishment
and Strengthening of National Institutions for the Promotion and Protection
of Human Rights.
UN General Assembly. (1999)
National Institutions for the Promotion and Protection of Human Rights.
Report by the Secretary General submitted on
UN General Assembly. (2001).
National Institutions for the Promotion and Protection of Human Rights.
Report by the Secretary General submitted on
Selected newspaper articles and interviews
Navara, L and Blazkova, J. (2003, June 25).
J. Motejl uz zacal desit statni uredniky. (Ombudsman Starts to Scare Bureaucrats).
MF DNES, p. A/5
Ombudsman v Ceske republice. (Ombudsman in the
Manuscripts
Aichele, V. (2003). Nationale Menschenrechtsinstitutionen: ein Beitrag
zur nationalen Implementierung von Menschenrechten. Dissertation.
Executive Summary. In English.
1 UN General Assembly Resolution 48/134 of
20 December 1993, National institutions for the promotion and protection of
human rights, A/RES/48/134; UN General Assembly Resolution 50/176 of 22 December
1995, A/RES/50/176, UN General Assembly Resolution 54/176 of 17 December
1999, A/RES/54/176.
2 Concluding Observations of the Human Rights Committee:
3 Concluding Observations of the Committee on Economic,
Social and Cultural Rights:
4 The most important scholarly studies include
works by Sonia Cardenas (2001, 2003), Linda Reif (2000), and Anne Gallagher
(2000). Policy papers, published by NGOs, include documents by the International
Council on Human Rights Policy (2000), Human Rights Watch (2001) and Amnesty
International (2001). For full references see ”References”
section at the end of the paper. I thank Valentin
Aichele from the
5 A brief official overview
of the history of the NHRIs is provided by UN Fact Sheet No. 19: National Institutions for the Promotion and Protection
of Human Rights (not dated, but issued later then 1993).
6 For details, see Fact Sheet No. 19. The 1978
rules differ from the 1991 Paris Principles in several aspects. For instance,
they did not lay emphasis on the independence of an NHRI.
7 Article 36 of the Vienna Declaration states,
”The World Conference on Human Rights reaffirms the important and constructive
role played by national institutions for the promotion and protection of human
rights, in particular in their advisory capacity to the competent authorities;
their role in remedying violations; in the dissemination of human rights and
education in human rights. The Worlds Conference encourages the establishment
and strengthening of national institutions having regard to the ‘Principles
relating to the Status of National Institutions’ and recognising that it is
the right of each state to choose the framework which is best suited to its
needs at the national level.”
8 The first seven "Round tables with the European
Ombudsmen", held every two years further to a 1985 resolution, were organised
until 2001 by the Council of Europe's Directorate General of Human Rights.
This task has now been transferred to the Office
of the Commissioner for Human Rights, which will organise the eighth Round
Table in
9 Originally, the post was known as the ”Coordinator for National Institutions.” The position is held by Brian Burdekin, a former New Zealand
Human Rights Commissioner.
10 ICC Rules of Procedures. Adopted on
11 List of National
Human Rights Institutions, High Commissioner for Human Rights, United Nations.
(The list is available on request.) The list says in the footnote, ”the fact that an institution appears on the list
does not indicate in any sense that it necessarily complies with the relevant
United Nations principles relating to the status of National Institutions
(Paris Principles)”. The distribution of the listed NHRIs is the following:
23 – African region, 25 –
12 United Centre
for Human Rights. (1995). A Handbook on the Establishment
and Strengthening of National Institutions for the Promotion and Protection
of Human Rights.
13 See UN Fact Sheet No. 19.
14 The web site of the International Ombudsman
Institute describes the role of ombudsman as follows. ”The role of the ombudsman
is to protect the people against violation of rights, abuse of powers, errors,
negligence, unfair decisions and misadministration in order to improve public
administration and make government action more open and the government and
its servants more accountable to the members of the public”.
15 At The Sixth
International Conference for National Human Rights Institutions, held in
16 Canadian Human Rights Act (R.S. 1985, c. H-6)
17 Canadian Human Rights
Act, Subsection 27(1), e.
18 Another example is the Australian Human
Rights and Equal Opportunity Commission, established in 1986, particular focus
of which is on sex, race and disability discrimination and the protection
of rights of Indigenous Australians. Similarly, the
19 Human right centres having the task of researching
into and informing on human rights exist, for instance, in Nordic countries.
The Danish Centre was a model for the German Institute for Human Rights, the
Norwegian Centre for Human Rights and, likely, also for the Slovak Centre
for Human Rights.
20 As mentioned, this type of NHRI has been proposed
by Aichele (Aichele, 2003). It seems desirable to include this type as it
has a specific relevance for Czech developments, as will be discussed in Section
3.
21 At present, the Commission has 70 members.
22 Council Directive 2000/43/EC of
23 Article 13(1).
24 Article 13(2).
25 As expressed by UN Human Rights Commissioner
M. Robinson, ”National human rights institutions
are by their very nature well placed to transform the rhetoric of international
instruments into practical reality at the local level. Because they are national
– they can accommodate the challenges posed by local conditions and cultures,
respecting ethnic, cultural, religious and linguistic diversity in implementing
internationally agreed human rights principles. And national institution can
provide constructive, well informed criticism from within – a source of advice
and warning which is often more easily accepted than criticism form outside
sources.”
26 There is, however, some evidence that particular reports
drafted by the UN evaluation missions, in the case of UN sponsored creation
of the NHRIs, are more critical.
27 See e.g. Reports of the Secretary General to
G.A. of
28
29 The Slovak National Centre for Human Rights
was created by Act No. 308/1993 Coll., on the Establishment
of the Slovak National Centre for Human Rights, according to the treaty between
the UN and the Government of the
30 Government of the
31 E.g. the documents by the International
Council on Human Rights Policy (2000), Human Rights Watch (2001) and Amnesty
International (2001). For full references see section
”References”.
32 For authentic description of the Charter
77, see Skilling, G. (1981). Charta 77 and Human Rights
in
33 Constitutional law No. 2/1993 Coll., which introduces
the Charter of Fundamental Rights and Liberties. The Czechoslovak Federal
Assembly originally adopted the Charter on
34 Article 4 of the Czech Constitutions stipulates, ”Fundamental rights and liberties are under the protection
of the judiciary”.
35 Under Article 87(1) d) of the Constitution, a physical
or legal person may lodge a constitutional complaint, if he claims violation
of his fundamental rights or freedoms by a judicial or administrative decision,
or by any measure or other act by a public authority.
36 Article 10 of the Constitution (in its wording
valid till 31 May 2002) stipulated that all ratified and published international
treaties on human rights and fundamental freedoms, to which Czech Republic
has acceded, are immediately binding and take precedence over the law. The
amendment to the Constitution (Constitutional Law No. 395/2001 Coll.) stretched
the supremacy over the domestic legislation to all international treaties
ratified by the Parliament.
37 Thus, for instance, in mid-1990s, the Government
reacted to increase of racially motivated violence and adopted a set of legislative
and police measure to combat this phenomenon, including the adoption of annual
reports on extremism and racially motivated violence.
38 Law No. 150/2002 Coll., on Judicial Review of Administrative
Acts. The Law came into force on
39 The Supreme Administrative Court is anchored in the Constitution. Its creation and the
establishment of the system of judicial review of administrative acts was,
however, introduced only after the Constitutional Court declared the limited
provisions on judicial review, which allowed only for the review of ”legality”
of administrative acts, not to be in compliance with the Constitution.
40 The committees are composed exclusively
of MPs and reflect the political composition of the respective Chamber. Human
rights issues do not seem to be a dominant preoccupation in either of the
two committees.
41 The Parliamentary Institute is an institution
affiliated to the Parliament of the
42 From the 16 full-time researchers employed
by the Institute, only one covers human rights.
43 Government Resolution
no. 809 of
44 Since his establishment, the Human Rights
Commissioner has managed to prepare and submit all the
”delayed” reports to the treaty monitoring bodies. At present, the
drafting of the reports has became a ”routine”
work of the Commissioner and his staff.
45 The first annual report (for 1998) on human
rights in the
46 Although such a development is not normally
very likely because of political considerations, including international aspects,
it not to be excluded in case of major political earthquakes. Up to now,
there is, however, no precedent by which to judge the future developments.
The first Human Rights Commissioner resigned in 2000, because of a conflict
of interests, after his wife Anna Sabatova had been elected
the deputy ombudsperson. His successor, Jan Jarab, survived the 2002 election,
but there was just a minor change in Government. (A coalition government formed
by Social Democrats with the support of two minor centrist parties replaced
the minority Social Democratic government).
47 Within the structure of the Government Office,
the Commissioner is a director of the Office's Human Rights Department. The
location of the Human Rights Department and his director within the structure
of the Government Office is dependent on the ”Organisational
structure of the office”, which is a scheme, issued at own discretion by the
head of the Office. This also means that the Commissioner is dependent on
the head and managers of the Government Office as regards premises, staff
and finances.
48 Government Rules of Procedures.
49 On the one hand, the Commissioner cannot
alter the opinion of the Human Rights Council, once it has been adopted. On the other hand, there is no provision
for the responsible cabinet member to act in these cases as a ”post-master” only and to submit a proposal which
he does not endorse. In practice, the frequently applied solution to this
dilemma is that the Commissioner submits to Government
”through” the cabinet member proposals which are less radical than
the opinion of the Council and informs the Government of the Council's opinion.
50 Otherwise, this rule applies in the formal consultation
procedure only to objections raised and supported by the ministers.
51 For example, the Commissioner cannot lobby
openly against a governmental bill, once it has been approved
by the Cabinet and submitted to the Parliament.
52 The
53 The former Commissioner Petr Uhl confirmed
personally this observation.
54 The Council for National
Minorities, which has its roots in 1970, the Commission for Roma Community
Affairs, which was set up in 1997. In these advisory bodies to the Government, the representatives
of national minorities sit with the government officials.
55 In June 2003, the Council was composed of
20 members, plus a chair and a vice-chair (22 persons). The 10 representatives
of civil society involved 6 human rights activists - representatives of major
human rights NGOs, 2 experts (a judge and a university professor), the deputy
ombudsman and a representative of the President’s Chancellery (the last two
appointed in their personal capacity).
56 The Government Office is defined by the Law No. 2/1969 Coll., on ministries
and other central organs of state administration, as a central body central
of state administration. The Government Office is charged
to fulfil tasks related to the expert, organisational and technical aspects
of the operation of the Government and its organs.
57 The Secretariat of the Council is a sub-unit
of the Human Rights Department of the Government Office, which involves two
other secretariats of advisory bodies, those of the Council for National Minorities
and of the Council for Roma Community Affairs. The director of the whole
department, as explained, is the Human Rights Commissioner.
58 The Government took the decision to ask
its advisory bodies to submit annual reports in February 2002 as a part of
an effort to ”rationalise” the functioning of these bodies. The Council submitted
its first annual report on its activities in June 2003 (No. 748/03).
59 Most of the ”advisory
bodies” of the Government include public officials as full members. It is
likely that this tradition stems from pre-1989 period. In addition, the model
for the Human Rights Council - the French Advisory Commission on Human Rights
- also involves public officials, but they do not have voting rights.
60 The Czech
61 Law No. 349/1999 Coll. of
62 The responsible Committee is the Petitions
Committee.
63 In practice, if the Chamber of Deputies
agrees with the legislative proposals, it informs in writing the prime minister
on such proposals, thus giving more authority to the recommendations.
64 Law No. 182/1993 Coll. on the
65 E.g. the Stojkovic case, dealing with the right
of the relatives of persons who died in custody (described in Section 5),
or cases dealing with access to information.
66 Another manifestation of the activist approach
was the involvement of the ombudsman in the ”Lower
Hrušov Case”. In this case, the municipal authority in
67 His protest, however, was not successful.
68 Concluding Observations of the Human Rights Committee:
69 Concluding Observations of the Committee on Economic,
Social and Cultural Rights:
70 Point 7 of the Concluding
Observations of the Human Rights Committee:
71 Alvaro Gil-Robles, Human Rights Commissioner of the
Council of Europe: Report from visit to the
72 An important aspect of the endeavour was
to enquire into the efficiency of these bodies in financial terms. At the
time when the research was carried out, there were
around two dozens advisory bodies to the Government. Only o few of them had
statutory basis (e.g. Security Council of the Government, Legislative
Council of the Government). Most of them, like the Human Rights Council, were established by a mere Government resolution. At
present, there are 24 advisory and working organs of the Government.
73 The analysis focused more on formal elements
and did not go into the real ”raison de etre” of
the advisory bodies. In particular, it neglected the difference between bodies
that provide government with additional expertise: those that co-ordinate
activities of government departments (”working organs”) and those which incorporate
a representative element to ensure consulting with key stakeholders (often
labelled ”advisory organs”). Examples, beside the
Human Rights Council, include the Government Committee for Disabled, the
Government Council for National Minorities or the Government Council for
Roma Community Affairs.
74 Some issues of the scope of competencies
of ombudsman may arise in relation to the exclusion clause (Section 1(3) of
the Law on Public Defender of Rights). The clause stipulates that the scope
of activities does not encompass Parliament, the President, the Government, the Supreme Audit Office, intelligence
services, Police investigators, state prosecutors and courts, with the exception
of the state administration of courts.
75 The campaigns have been organised since
1999. The amount of contracted money ranges between CZK 4 and 10 mil. The accountability and responsibility
for the money spent rests with the head of the Government Office.
76 The annual human rights reports prepared
by the Commissioner include, in the introductory chapters, an overview of
the accession to new international instruments by the
77 The Draft law concerning the provision of
equal treatment and the protection against discrimination, which was submitted to the Government in June 2003, proposes
the establishment of an Equal Treatment Centre. The Centre shall be a statutory
and independent body. Stretching the competencies of the Centre well beyond
the requirement of the Race Directive, the draft law proposes that the Centre
shall promote equal treatment of persons irrespective of not only racial
and ethnic origin, but also sex, sexual orientation, age, disability, religion
and faith. To this end, the Centre shall provide mediation, arrange legal
assistance, issue recommendations and opinions, carry out independent research
and provide information to public. The explanatory memorandum discusses
in detail why these competencies cannot be assigned
to any existing body.
78 The number of the transnational human rights
NGOs, that is those operating on the global level,
is estimated to amount to 300. Of them, 46% operate from
79 Declaration on the Right and Responsibility
of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognised Human Rights and Fundamental Freedoms, adopted in 1998, General
Assembly resolution 53/144, A/RES/53/144 A/RES/53/144, 8 March 1999.
80 The founding declaration of Charter77 from
January 1977, which started with the announcement that in the Czechoslovak
Collection of laws, texts were published of the
International Covenant on Civil and Political rights and of the international
Covenant on Economic, Social and Cultural Rights, illustrates this approach.
81 Originally, a group of 30 persons formed the Czech
Helsinki Committee. In late 80s, it co-operated closely with other dissident
groupings, the Charter 77 speakers and The Committee for the Protection of
Unjustly Prosecuted Persons. After November 1989, the grouping registered
as an ”organisation with an international element”.
The Committee is a member of the Helsinki Federation, which associates
82 Czech
83 We can explain the ”conciliatory”
approach of the Helsinki Committee by several factors, including the generational
aspect. Ideologically, the leaders around the Helsinki Committee believed
that if proper persons were in power (or if the persons in power understand
the right ideas), it is possible to work together on common solutions in
harmony. There was little understanding of the inherently differing perspectives
of the government and civil society: while the government must act according
to a ”principle of responsibility”, civil society
actors can act ”on principle” only. Example are
attitudes towards refugees. While NGOs advocate for the acceptance of refugees
on humanitarian grounds, (all) governments care, first, for the consequences
of such decisions for the receiving society.
84 This empirical observation is indirectly
supported by the relatively high percentage (14%) of non-profit employment
in the field of development, advocacy and environmental protection, which
exceeds the average 9% of the 22 countries examined by a group of researchers
within the project ”Global Civil Society. Dimensions of
the Non-profit Sector” (Salamon, L.M. and others. 1999). The authors
of the study suggest that this perhaps reflects the civic activities that
produced the Czech Republic's ”Velvet Revolution” of 1989. (Ibid: p. 294).
85 The structural-operational definition of
the non-profit sector utilised here was developed by the
John Hopkins Comparative Non-profit Sector Project and published in Salamon,
L.M. and Anheier, H. K. (Eds.) 1997. Defining the
non-profit sector. A cross-national analysis.
86 Three criteria can be used to distinguish
between ”one issue human rights organisations” and other charities or simila
organisations providing social services. They are the presence of some voluntary
input, nature of the problem addressed and the presence of some advocacy aspects.
87 All these particular
forms are regulated by distinct laws. For details see: Fristenska, H. (1999).
Podminky rozvoje obcanskeho sektoru. (Conditions for the Development of the Non-Profit Sector).
In Czech
88 The financial support from public budgets
to these entities may take the form of subsidies (grants) or public tenders.
In particular, in the latter case, used for financing major projects (e.g. awareness raising campaigns), the contracting
organisation is often the co-author of the project. Thus, behind ”financial links” a more substantive and active
partnership between the private and public sector is often hiding. These
relations and their impact on the formulation of human rights policies would
definitely deserve a more thorough analysis.
89 Through their participation in the Committees
of the Council for Human Rights, several dozens of activists are involved
in the co-operation.
90 This problem is not unique to the
91 An extreme case is the situation in
92 This issue has been discussed in-depth in
relation to the establishing of an independent ”Centre for Equal Treatment”,
designed to fulfil functions according to Article 13 of the EU race Directive.
See Framework Bill on Equal Treatment and Protection against Discrimination,
Explanatory Memorandum, Part II.B.
93 It goes without saying that this position
reflects, primarily, the concerns of the Ombudsman that new, extended responsibilities
may have a negative impact on the effective management of his current tasks,
that is, primarily, handling complaints without delay.
94 Ideally, such a measure shall also include the Commissioner.
The side effects of such a step have yet to be considered
carefully.
95 Examples to follow are the annual reports concerning
the situation of national minorities, produced by the Council for National
Minorities. These reports include sections which
articulate the position of the particular minorities.
96 Such institutes are
attached, for instance, to the Ministry of Foreign Affairs (The Institute
of International Relations), the Ministry of Labor and Social Affairs (Research
Institute of the Ministry of Labor and Social Affairs).