The setting up of a National Human Rights Institution

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The setting up of aNATIONAL HUMAN RIGHTS INSTITUTIONin Malta

A proposal byThe Ofce of the Parliamentary Ombudsman

October 2013


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October 2013

Oce of the Ombudsman11, St Paul Street

Vallea, VLT1210Malta

Tel: +356 2248 3200, 2248 3216Fax: +356 2124 7924Email: [email protected]

www.ombudsman.org.mt


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Contents

Foreword 1

Introduction 3

Background 5 Naonal Human Rights Instuon 6The Paris Principles 6The Belgrade Principles 7

Council of Europe Resoluon 1959 of 2013 8The situaon in Malta 9Historical Background 9Protecon through Judicial Procedures 10

Developments 10

Models adopted by other Countries and Institutions 13 The Council of Europe 14The European Union 14Portugal 14Spain 15Poland 16Sweden 16

Objectives 17 The Ombudsman as a NHRI 18Cooperaon with the Commissioner for Human Rights 18Adequate Judicial guarantees 19

A role to play 21Advocang this principle for several years 22

Extension of the mandate 25

Proposed Structure 29 Autonomous Commission headed by the ParliamentaryOmbudsman 30

The Benets of a unied Institution 31

Legal Framework 32

Instuonal Eecveness 32Relaonship with vulnerable groups 32Umbrella Organisaon 33


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Relaonship with the authories 33Public Prole 33

Conclusion 35 The way forward 38Annex 39

1. The Paris Principles 392. Belgrade Principles on the relaonship between Naonal

Human Rights Instuons and Parliaments 403. Parliamentary Assembly Council of Europe Resoluon

No. 1959 (2013) Strengthening the instuon ofombudsman in Europe 47

4. Extract from the European Union Agency for Fundamental

Rights Handbook on the establishment and accreditaonon NHRIs in the EU (Appendices 5 and 6) 51


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Foreword

For years the Oce of the Ombudsman has beenacvely engaged in promong both locally and abroadthe need to set up in Malta a Naonal Human Rights

Instuon (Istuzzjoni Nazzjonali gall-arsiental-Jeddijiet Umani). NHRIs are considered as centralplayers in naonal human rights protecon systems andplay a crucial part to promote and monitor the eecveimplementaon of internaonal human standards atthe naonal level. A role that is increasingly recognisedby the internaonal community.

In fact, the Oce of the Ombudsman in Malta has unocially been recognised

by major European Union and Council of Europe instuons as a NHRI. TheEuropean Commissioner for Human Rights and various delegaons fromthese instuons regularly request to be updated on the state of observanceof human rights in Malta and discuss with him sensive areas that require tobe addressed. This Oce has put forward the proposal to set up a NHRI tothe outgoing administraon that had expressed its readiness to consider itposively. It again raised the issue with the present administraon during thediscussion on this years Ombudsplan and the Government appeared recepveto its proposal.

This document is a further contribuon to raise public awareness of the needto set up the necessary structures for a Naonal Human Rights Instuon thatwould further strengthen and safeguard the rights of the cizen to enjoy fullythe exercise of his fundamental rights. A right that lies at the core of the Statesduty towards the cizen to ensure a good public administraon. Essenally,the State is bound to provide through Parliament the necessary instuons tooversee and ensure not only that all the acts of the public administraon, but

also those outside that area in the private domain, respect fundamental rights.It has the duty to provide adequate means of redress, both judicial and non-

judicial when those rights are violated or threatened.

The NHRI, whether within the ambit of the Oce of the Naonal Ombudsmanor otherwise, is today universally recognised to be the most important,autonomous monitoring mechanism that works within the framework of aninternaonal network, accredited to the United Naons and that aords themaximum protecon to cizens in this vital area. I believe that the seng up

of such a body in Malta is long overdue. Hopefully this document will help theGovernment and its advisers to take wise and appropriate decisions.


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Credit is due to Dr Monica Borg Galea, our Head of Invesgaons and MrJurgen Cassar our newly appointed Research and Communicaons Ocer fortheir sterling help in the compilaon of this report. Credit is also due to MrMichael Sant who was, unl recently, the Manager Corporate Aairs of thisOce and who for the last years closely collaborated with me in the promoon

of the proposal that a NHRI should be set up in Malta and that the Oce of theOmbudsman was ideally suited to carry out that role.

Chief Jusce Emeritus

J Said Pullicino

Parliamentary Ombudsman


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Introduction

Throughout the years both the role and the vision of Ombudsman instuonshave been extended and widened. Originally tasked with the scruny ofadministrave acon by public authories, several Ombudsmen have in

recent years seen their remit extended to cover the protecon, promoonand enhancement of fundamental human rights. This extension of theOmbudsmans scope of acon beyond administrave decisions further servedto bestow upon the Instuon of the Ombudsman a stronger role in theprotecon of fundamental rights.

As a result of these developments, there is now a stronger trend towardsconvergence in most ombudsman instuons. European Ombudsmen areincreasingly fullling their funcons on three overlapping and mutually

supporve elements: legality; principles of good administraon, andhuman rights. In this regard Ombudsmen can play a valuable role in givingempowerment to cizens, raising the quality of the public administraon andserving as an alternave non-judicial avenue of redress when the rights ofindividuals are not respected.

Mindful of this reinforcement of the role of the Ombudsman and of how thisinstuon has developed in recent years, this Oce is in favour of the wideningof its original mandate as laid down in its founding legislaon, Act XXI of 1995,to serve also as Maltas naonal human rights instuon.


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Background


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National Human Rights Institutions

Naonal Human Rights Instuons (NHRIs) are independent bodies establishedby domesc law with the specic role of protecng and promong humanrights in a State. The mandate of NHRIs generally encompasses the full gamut

of human rights, from civil and polical to economic, social and cultural rights.

The normave departure point for discussion of NHRIs is The principlesrelang to the status of naonal instuons known as the Paris Principles,devised in 1991 and adopted by the UN General Assembly in 1993. Theseprinciples recognize that each State is entled to adopt the legal frameworkfor NHRIs that is best suited to its parcular needs to the naonal level1. Informulang a denion, the Principles pay parcular aenon to the followingaributes of a NHRI, that:

it is established in the naonal constuon or by law; it is clearly specied and the mandate is as broad as possible; there is pluralism in governing structures and independence of

appointment procedures; its infrastructure is proporonate with its funcons, with parcular

importance aached to the need for adequate funding; the instuon has the ability:

to perform a monitoring, advisory and recommendaon funcon onvarious maers relang to human rights;

to relate to regional and internaonal organisaons; to promote public awareness, teaching and research on human

rights; and it recognises the possibility of NHRIs possessing quasi-jurisdico

nal funcons e.g. the handling of individual complaints or peonson human rights grounds.

NHRIs should be well known to the public to boost their eciency and credibility.A coherent structure at the naonal level must be established. Moreover theestablishment of a single NHRI in every Member State would make the systemsignicantly more accessible for cizens.2

The Paris Principles UN ICC Accreditation

The Paris Principles are minimum standards that may be widened by the

State to grant addional powers and a wider mandate to the NHRI. In terms

1. UN General Assembly (1193a) part 1. Para. 36.

2. European Union Agency for Fundamental Rights (FRA) MEMO/7 May 2010.


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of these principles NHRIs are required to assume ve principal funcons:(1) to promote human rights; (2) to advise governments on human rightsprotecon; (3) to review human rights legislaon; (4) to prepare human rightsreports; and (5) to receive and invesgate complaints from the public. TheUN-aliated Internaonal Coordinang Commiee of Naonal Instuons

for the Promoon and Protecon of Human Rights (ICC) idenes 119 NHRIsworldwide, with 63 fully accredited in accordance with the Paris Principles.

There are currently 12 NHRIs in the EU in 10 member states with A status,that is, fully compliant with the Paris Principles. A number of these, performthe funcons of naonal ombudsman. Nomenclatures can be very misleadingbecause of the various models adopted by dierent countries. It is interesngto note that praccally all EU Member countries, except Malta have anaccreditaon to the ICC at level A or B3. There is a growing tendency for

ombudsman instuons to assume the role of defender of all cizens rightsincluding rst and foremost fundamental rights. However, one has to examinethe funcons of the instuon to establish whether the designaon of theinstuon corresponds to the funcons it actually carries out.

In fact and in pracce, NHRIs take a variety of forms and their strict adherenceto the Paris Principles vary considerably, especially in terms of composion andfuncon. This is not surprising given the dierent expectaons and demandsaached to these instuons in a diverse range of polical, instuonal andhistorical context.

The Belgrade Principles

The 2012 Internaonal Seminar on the relaonship between NHRIs andParliaments, organised amongst others by the Oce of the United Naons HighCommissioner for Human Rights and the Internaonal Coordinang Commiee

of Naonal Instuons for the Promoon and Protecon of Human Rights, haveadopted the Belgrade Principles aimed at providing guidance on how theinteracon and cooperaon between NHRIs and Parliament should be developed.

The Belgrade Principles, recognised that the principles relang to the status ofnaonal instuons (the Paris Principles, adopted by United Naons GeneralAssembly Resoluon 48/134) provide that NHRIs shall establish an eecvecooperaon with Parliaments, and noted that NHRIs and Parliaments havemuch to gain from each other in performing their responsibilies for the

3. Reference is made to Annex 4 on NHRIs and their ICC status by EU Member States - aached

with this Report - which was published in the Ocial Handbook on the establishment and

accreditaon of NHRIs in the EU.


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promoon and protecon of human rights. It further recalled the need toidenfy areas for strengthened interacon between NHRIs and Parliamentsbearing in mind that the dierent instuonal models of NHRIs should be respected.

It adopted the following principles as guidelines on how this interacon should

be developed. These state that -

when draing legislaon for the establishment of a NHRI, Parliamentshould consult widely with relevant stakeholders;

Parliament should ensure NHRIs are nancially independent; that there should be a transparent selecon appointment process, as

well as dismissal procedures; the NHRI reports directly to Parliament, on its acvies, and on the

human rights situaon in the country; NHRI and Parliament should agree on forms of cooperaon with

Parliament and any amendments to legislaon where necessary toharmonize local and internaonal human rights standards;

NHRIs should cooperate with Parliament in relaon to legislaon; cooperaon with Parliament should also occur in relaon to

internaonal human rights mechanisms; NHRIs are to cooperate with Parliament in educaon, training and

awareness raising of Human Rights; and they are to monitor the Execuves response to Court and other judicial

and administrave bodies judgements concerning human rights.

The model proposed by the Belgrade Principles is similar to the legislaveframework in which the Maltese Parliamentary Ombudsman funcons.

Council of Europe Resolution 1959 of 2013

The Oce of the Ombudsman has just been noed with a resoluon of theParliamentary Assembly (No 1595/2013) adopted on 4 October 2013 which isbeing reproduced at Annex 3 aached with this document.

In the resoluon the Assembly, inter alia, calls on Member States of the Councilof Europe to ensure that

i) the remit of the Oce of the Ombudsman should cover casesof maladministraon of the execuve branch as well as the

protecon of human rights and fundamental freedoms;ii) refrain from mulplying ombudsman/type instuons if it is

not strictly necessary for the protecon of human rights and


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fundamental freedoms; a proliferaon of such bodies could confuseindividuals understanding of means of redress available to them;

iii) to consider seeking ombudspersons accreditaon at theInternaonal Coordinang Commiee of Naonal Instuons forthe Promoon and Protecon of Human Rights (ICC) in light of the

Paris Principles.

The situation in Malta

It is an undeniable fact that while awareness of fundamental human rights asan essenal component of democracy gained momentum immediately aerthe second world war, the need to establish proper structures both naonallyand internaonally to promote and protect these rights materialised later. This

as a reacon to the excesses of internaonal totalitarian regimes that, by theirvery nature, suppressed them.

It would appear that the reason why no Naonal Commission for HumanRights, or indeed no NHRI, has ever been set up in Malta is essenally historical.These instuons were mainly created and proliferated in the new emergingdemocracies, mostly aer the collapse of Communism.

Historical Background

Historically therefore, the need for seng up NHRIs and Naonal Commissionsfor Human Rights was understandably felt in those countries that had justregained new found freedoms from dictatorship throughout the world andmore markedly in Eastern European Countries. In these countries theseinstuons, that generally funcon as naonal ombudsman, eventuallycreated a formidable internaonal network for the protecon of fundamental

rights. They were seen as the foremost guarantor of these freedoms, evenmore eecve in some countries than the judicial structures themselves. Theirinternaonal dimension meant that they could rely on the backing and supportof internaonal instuons of global width like the United Naons and itsagencies. They have become a very eecve instrument monitoring violaonsof fundamental rights, idenfying potenal threats and ensuring adequateprotecon.

Maltas constuonal development, though not without its negave periods

and dark episodes, was spared the trauma of extreme threats to fundamentalhuman rights generally inherent in totalitarian regimes. Boasng of a rst Billof Rights that goes back to 1802, it has always been aware of the values of


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fundamental freedoms. Successive Constuons emphasise specic protecveprovisions guaranteeing their exercise. The 1964 Independence Constuonprovides for the right of individual peon to Courts with special constuonal

jurisdicon that ensure redress against actual or threatened violaons offundamental rights as set out in the Constuon itself. In 1987, this judicial

protecon was further strengthened when Malta raed the EuropeanConvenon of Human Rights and extended the right of individual peon tothe European Court of Human Rights and later to the judicial organs of theEuropean Union following accession in 2004.

Protection through Judicial Procedures

Against this background, it would appear that successive administraons were

of the opinion that the human rights scenario in Malta was such as to suggestthat the interest of society would be beer served by ensuring their proteconthrough eecve judicial procedures, directly accessible to cizens, rather thanthrough the seng up of NHRIs which, though eecve, are essenally non

judicial and cannot therefore aord the same level of execuve protecon.

Moreover, it was felt that it was perhaps wiser to limit the interpretaon ofdelicate issues of fundamental rights and their limitaons to specialised judicialorgans. That system sll obtains today. It aims at uniformity of interpretaonof convenons and human rights statutes to the extent that, other judicialorgans which have a jurisdicon to idenfy actual or potenal violaons ofhuman rights, are bound by the Constuon to refer them for decision to theappropriate constuonal judicial court.

Developments

This modus operandi has up to now worked relavely well. However,developments in this eld, both naonally and internaonally, require a radicalrethinking not only on how to raise the awareness of society on the relevanceof fundamental human rights, but also on the widening of ways and meansto be adopted in their defence. It is today widely accepted that human rightsshould be the concern of every administrave and execuve organ of society.

They should not be exclusively the concern of the judicial organs of the Statethat can only be seized of a human right issue if there is an allegaon of an

actual or potenal threat. Prevenon is beer than cure. The aim should beto pre-empt any situaon that could endanger the enjoyment of fundamentalfreedoms. This is precisely where NHRIs are useful in countries like Malta


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where judicial protecon is substanally adequate. It is recognised today thatevery eort should be made to ensure the observance of fundamental rightson all aspects of administrave acon and that consequently there is a needfor a watchdog to oversee that this duty is duly observed by all.


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Models adopted

by other Countriesand Institutions


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The Council of Europe

The Council of Europe Commissioner for Human Rights stated that theexistence of specialized instuons might weaken the general ombudsmanand public cause confusion. It was also observed that: In a period of transion

and nancial insecurity, it would be more raonal to concentrate all availableresources on the oce of the exisng naonal ombudsman and, whereappropriate, appoint depues to deal with specic issues.4

The European Union

In European Union (EU) Member States there has been considerablemovement in recent years on the queson of whether issues of discriminaon

and equality are best addressed through a single body addressing all groundsfor discriminaon, or mulple specialised bodies. EU direcves are agnosc onthis issue and, indeed, some do not even require the creaon of an equalitybody.

The exisng NHRIs in EU Member States have varying organisaonal structures.There is neither a universally accepted ideal model of a NHRI nor a recognisedstandard structure. Indeed, the Paris Principles do not dictate any parcularmodel or structure for a NHRI, with the result that NHRIs vary depending onthe legal and polical tradions.

The main models of NHRIs, typically used to depict the wide spectrum ofexisng bodies, include: commissions, ombudspersons instuons andinstutes or centres.

The Racial Equality Direcve (2000/43/EC) requires Member States todesignate an independent body or bodies for the promoon of equal

treatment of all persons without discriminaon on the grounds of racial orethnic origin. This body may form part of agencies charged at naonallevel with the defence of human rights or the safeguarding of individualrights. Direcve 2006/54/EC on gender equality contains a similarly wordedrequirement. The Framework Direcve on discriminaon on the groundsof religion or belief, age, disability, or sexual orientaon does not requireMember States to establish an equality body for monitoring and implemenngnon-discriminaon on these various grounds.

4. Council of Europe, Oce of the Commissioner for Human Rights. 2000. Conclusions of the

meeng between the Ombudsmen of Central and East Europe and Mr Alvaro Gil-Robles,

Commissioner for Human Rights, Budapest 2324 June 2000.


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A recent report of the EUs Fundamental Rights Agency (FRA) strongly favoursa single instuon:

The existence in many Member States of several dierent independent publicbodies with human rights remits contributes to a diusion of resources and

gaps in mandates. In some cases it also results in overlapping mandates. As aresult, it is more dicult for those seeking redress to be sure where to turn.5

Portugal

When invesgang an issue, the Portuguese Ombudsperson Instuon hassignicant powers. It can, for example, carry out inspecons without priornoce and pursue any line of invesgaon or inquiry deemed necessary or

convenient, using all reasonable means for collecng and producing evidence,provided those means do not collide or conict with the rights and legimateinterests of cizens.

Civil and military public enes have a duty to cooperate fully withOmbudsperson requests for documents and les and to allow Ombudspersoninspecons. To ensure cooperaon with its requests, the OmbudspersonInstuon is empowered to compel the presence of any cizen, civil servantor ocial. Unjused non-compliance with the duty to cooperate constutesa crime of disobedience.

Should the Ombudsperson Instuon nd illegality or unfairness, it can issuea suggeson, a crical remark or a formal recommendaon for the relevantbody to address6.

Spain

The United Naons High Commissioner for Human Rights renewed theaccreditaon of Spains Naonal Ombudsman in December 2012 as the naonalinstuon for the defence of these rights. Spains Naonal OmbudsmanInstuon has its independence guaranteed in constuonal provisions andspecialised legislaon. It enjoys parliamentary immunity and may be dismissedonly in certain circumstances spulated by law7.

5. European Union Agency for Fundamental Rights (FRA) MEMO/7 May 2010

6. Portuguese Ombudsman Report to Parliament

7. Annex to the Handbook on the establishment and accreditaon of NHRIs in the EU


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Poland

The Defender for Human Rights (Ombudsman) possesses a wide range ofpowers in relaon to individual complaints and ligaon involving infringementof public freedoms and liberes including arbitrary exercise of powers or

inacon by public bodies which oen overlap with human rights violaons. Suchpowers include: invesgatory powers and the right to demand the cooperaonof the bodies, concerned, the power to take acon against authories/ocialsor intervene in legal proceedings, and, in the case of the Polish instuon, theright to lodge a moon to punish8.

Sweden

In 2008, aer a two-year consultaon, the Swedish Parliament passed theDiscriminaon Act. The new Act replaced four specialized ombudsmaninstuons with a single Equality Ombudsman. The Equal OpportuniesOmbudsman, the Ombudsman against Ethnic Discriminaon, the DisabilityOmbudsman and the Ombudsman against Discriminaon because of SexualOrientaon were all dissolved. The new instuon was created as part of newlegislaon that harmonized the substanve protecons against discriminaonamong the dierent groups9.

The model adopted by Portugal, Spain and Poland is considered as an exampleof good pracce by the European Union Agency for Fundamental Rights (FRA)10.

8. Annex to the Handbook on the establishment and accreditaon of NHRIs in the EU

9. Annex to the Handbook on the establishment and accreditaon of NHRIs in the EU10.Naonal Human Rights Instuons in the EU Member States, Strengthening the fundamental

rights architecture in the EU, May 2010


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Objectives


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The Ombudsman as a NHRI

A broad interpretaon of NHRIs includes human rights commissions, hybrid orhuman rights ombudsmen, classical ombudsmen who perform a human rightsfuncon, and advisory commiees.

Ombudsmen oces exist within a spectrum, with some closer to the classicalmandate of administrave fairness and legality at one end and others whichuse human rights as explicit standards of control at the other end of thespectrum. Similarly, human rights commissions can also be said to have varyingpowers from, at one end, those that enjoy strong remedial powers and addressindividual complaints, to others that act as governmental advisory bodies oreducaonal research instutes and do not receive and invesgate cizensgrievances. The delineaon of basic types of NHRIs raises a number of dilemmas

as the lines between models become increasingly blurred. This is especiallytrue of hybrid instuons found predominantly in Central and Eastern Europeand Lan America. Beyond instuonal design, the litmus test of any NHRI is itscontribuon to human rights protecon and promoon in pracce.

Cooperation with the Commissioner for Human Rights

In recent years cooperaon between the Council of Europes Commissioner forHuman Rights, Ombudsman oces and naonal instuons that uphold thepromoon and protecon of human rights in Member States of the Council ofEurope has been enhanced. The Commissioner has put on record his wishto work in associaon and to develop closer es with his natural partners

Ombudsmen and Naonal Human Rights Instuons to strengthen theprotecon of human rights at naonal level. Indeed, in line with his objecveto foster the eecve observance and full enjoyment of human rights inCouncil of Europe Member States, the Commissioner for Human Rights

is mandated, among other things, to facilitate the acvies of naonalombudsmen or similar instuons in the eld of human rights. In this contextthe Commissioner regards Ombudsman instuons as important componentsof the human rights structures in Member States that can play a crucial rolein monitoring the extent of the respect for human rights shown by naonalauthories towards their people.

In view of the ongoing structured dialogue between Ombudsmen, HumanRights Instuons and the Commissioner for Human Rights, Ombudsman

oces can acquire a deeper and stronger edge to stamp out and correctbreaches of human rights. This is parcularly relevant in individual cases whichmight only come to light by way of the non-judicial nature and the conciliatory


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thrust of the intervenons of Ombudsmen as laid out in their mandates. Theseinstances might otherwise not even surface at all if dierent rules of procedure,such as resort to judicial proceedings, are the only alternave available tocomplaints. This dialogue is backed by the Commissioners iniave to widenhis current cooperaon with Ombudsmen and NHRIs by means of an acve

network of these instuons that would provide informaon on human rightsand take appropriate acon that is allowed by their respecve mandates onalleged violaons of human rights.

Adequate judicial guarantees

Respect for fundamental human rights in Malta is already adequatelyguaranteed and is enshrined in the Constuon which contains entrenched

provisions with regard to respect for the basic individual rights and liberes.Individuals who allege that they have been denied their human rights andfundamental freedoms or who consider that these rights and freedoms areunder threat can submit their grievances to the First Hall of the Civil Courtwhich has jurisdicon to consider applicaons of this type. It has the powerto provide remedial measures that are considered necessary for the purposeof enforcing, or securing the enforcement of human rights and fundamentalfreedoms of the person concerned. The Constuon also makes due provisionfor the right of appeal to the Constuonal Court from a judgement deliveredby the First Hall of the Civil Court.

Furthermore, the European Convenon Act (Act XIV of 1987) makes provisionfor the substanve arcles of the European Convenon for the Proteconof Human Rights and Fundamental Freedoms, and subsequent protocols tothe Convenon, to be enforceable as part of Maltese law. In addion, theEuropean Convenon Act states that where any ordinary law is inconsistentwith these human rights and fundamental freedoms, these rights and freedoms

shall prevail and any such ordinary law shall, to the extent of the inconsistency,be void.


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A Role to Play


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Despite the strong legal fabric that sustains the naonal commitment in favourof human rights and the fact that the countrys polical, legal and administraveenvironment is consonant with that prevailing in other EU Member States, theOce of the Parliamentary Ombudsman feels that it can sll play an importantrole to promote human rights in the country. Indeed, although no such new

and specic mandate in the furtherance of human rights was introduced in theconstuonal amendment of 2007 regarding the Oce of the Ombudsman, itis felt that now is the me to extend the role of the Parliamentary Ombudsmanby a wider mandate that would enshrine fundamental human rights as a vitalcomponent in the concept of good administraon to which all are entled.

Such a step would be parcularly signicant especially since no naonalinstuon exists in Malta that is entrusted with the specic responsibility topromote and safeguard the fundamental rights of cizens. Moreover, it is felt

that rather than creang yet another instuon to act as a watchdog in thisvital area, the funcon of a human rights instuon could naturally be assignedto the Parliamentary Ombudsman who can adequately absorb it within hispresent sphere of acvity. Such a development has been experienced in asignicant number of European countries.

In this regard it is important to point out that the intrinsic signicance thatwould be derived from an express recognion of the Ombudsmans rolein human rights protecon would be the fact that acon by the instuoncould serve to idenfy in the bud any situaons that are likely to give rise toviolaon of a cizens fundamental rights. In this way any possible loss ofhuman dignity and damage to a persons aspiraons would be pre-empted.By means of prevenve acon the Ombudsman can signal to the authories apotenal threat to cizens interests and can also, in the event that any suchinfringement has already occurred, contribute towards a resoluon of thesituaon and avert resort to judicial proceedings on the basis of a just andeecve selement including, where appropriate, the implementaon of the

necessary sancons and redress measures.

Advocating this principle for several years

The Parliamentary Ombudsman has for years been advocang that his Oceshould act as a catalyst and focal point for other naonal instuons andauthories, both public and private, having a specic human rights mandate,to coordinate and converge their acvies from a naonal perspecve.

The rst contribuon by the Parliamentary Ombudsman on the subject datesback to December 2006. In a leer to the Speaker of the House, before


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the debate which entrenched the Oce of the Ombudsman in the MalteseConstuon the Ombudsman highlighted that Both the Commissioner forHuman Rights of the European Union and of the Council of Europe are acvely

promong the noon that naonal and regional Ombudsmen should take on aposive human rights dimension.

Subsequently, in September 2008, the Ombudsman was requested by theMinistry of Jusce and Home Aairs to make a contribuon to the compilaonof an inter-ministerial UN Report (Universal Periodic Review UPR).

In 2009, the Ministry of Jusce and Home Aairs, sought the advice of theOmbudsman about the reasons why Malta had unl then not established aNaonal Human Rights Instuon.

In 2010, the Ombudsman had formally submied to Government, a proposalthat, rather than seng up a new administrave structure, that the size ofthe country could not aord, the Ombudsmans original mandate should bewidened to allow the Oce the Ombudsman to serve and act as Maltas NHRI.This proposal was accepted in principle by the previous administraon that hadsuggested that the Ombudsman submits a working paper for its consideraon.

The proposal was once again made in June 2013, when the Ombudsplan wasbeing discussed in the House Business Commiee.

The Oce of the Ombudsman, has also been, for years informally consideredto be Maltas NHRI by internaonal authories, including the EuropeanOmbudsman, the Commissioner for Human Rights of the European Unionand the Commissioner for Human Rights of the Council of Europe, the UNHCRand others. They regularly seek his opinion on the level of observance offundamental human rights in Malta.


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Extensionof the Mandate


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Extension of the Mandate

As stated the Oce of the Parliamentary Ombudsman, has proposed to

the Government, the establishment of a Maltese naonal human rights

instuon. This proposal envisages the designaon of the Oce of the

Ombudsman as the Maltese NHRI that would encompass and be requiredto work in consultaon with other local authories, enes, instuons and

NGOs with a human rights component in their funcons.

This mechanism would need to operate fully in accordance with the Paris

Principles and on the model outlined in the Belgrade Principles, and also seek

accreditaon with the Internaonal Coordinaon Commiee of Naonal

Instuons for the Promoon and Protecon of Human Rights (ICC) of the Oce

of the United Naons High Commissioner for Human Rights. Among its main

tasks the Maltese naonal human rights instuon would be expected to: promote understanding and awareness of and, protect the basic

values and principles of human rights of persons in Malta including

the rights, liberes and freedoms that are guaranteed under the

Constuon of Malta and under the European Convenon for the

protecon of Human Rights and Fundamental Freedoms;

act as a source of informaon and provide advice to enable individuals

to stand up for their fundamental rights in cooperaon with other

bodies who already perform other specialised limited funcons in

relaon to individual rights;

ensure that human rights legislaon in areas such as work,

educaon, health and social care service provision is applied fairly

and without any improper discriminaon and that exisng naonal

and internaonal obligaons and responsibilies in these elds are

duly enforced;

collaborate with the government so that human rights issues are

given due importance in the legislave process and that human rights

standards and norms are adequately upheld in Maltese legislaon,

policy and pracce;

in the event of evidence that human rights are not being upheld or

not properly respected or are being threatened, to take appropriate

acon, including conducng own iniave enquiries or invesgaons,and the publicaon of reports to recommend to the Government

necessary remedial acon; and


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issue regular reports about the human rights situaon in Malta and

disseminate knowledge and assist public opinion on human rights

issues by means of studies and the organisaon of public seminars,

discussions and educaonal programmes.


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ProposedStructure


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Autonomous Commission headed by the ParliamentaryOmbudsman

The Oce of the Ombudsman is proposing an autonomous Commission headedby the Parliamentary Ombudsman. The Commission would be composed of

naonal bodies and representaves of non- governmental organisaons havinga strong human rights content in their funcons.

The proposed Commission should be autonomous and not part of government.The Commission would carry out its dues in full independence and would beaccountable to Parliament. To ensure eecveness and to maximize accessibilityto individuals, the Commission would operate in the already exisng set upof the Oce of the Parliamentary Ombudsman and would ulise the sameadministrave resources and infrastructure. It would also have a separate

legal personality from the Oce of the Ombudsman but it would ulize theadministrave and invesgave services of this oce.

This Commission would serve as a hybrid oce with the aim of strengtheningthe countrys human rights structures.

The Parliamentary Ombudsman, tradionally concentrates on monitoring thelegality and fairness of the public administraon, but his remit includes theinvesgaon of complaints also from a human rights perspecve. He thereforeoen movates his nal opinions in the light of constuonal and convenonalprovisions that guarantee the protecon of fundamental rights. The proposedCommission, on the other hand, would have an explicit mandate to promoteand protect human rights. As a rule, its mandate should not only be limited tothe public sector.

The proposed model, would focus on the invesgaon of complaints lodgedwith the oce, own iniave invesgaon and surveillance of the observance

of human rights at dierent levels, both naonally and internaonally.

It is proposed that the Commission would also be authorised to makerecommendaons and proposals and issue opinions and statements ongovernment policies and legislaon related to, or aecng fundamental humanrights.

The new human rights Commission would also engage in educaonal andtraining acvies similar to those undertaken by human rights commissions.


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The Benetsof a unied institution


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The arguments favouring a single instuon, as is being proposed, fall into sixdisnct areas: legal framework, instuonal eecveness, relaonship withvulnerable groups, relaonship with the authories and public prole.

1. Legal FrameworkA single NHRI with a single founding statute, applies a consistent standard to therights of all groups and individuals. This consideraon is parcularly relevantwhere the work of the instuon focuses on an-discriminaon. States thathave accumulated an-discriminaon legislaon over the years, incrementallyadding new vulnerable groups, are likely to nd considerable inconsistencies inthe standards applied to dierent groups.

2. Instuonal Eecveness

There are broadly three arguments for the creaon of a single NHRI that arecommonly advanced in the area of instuonal eecveness. It is arguedthat diversity within the instuon can lead to a producve cross ferlizaonbetween individuals, teams or departments working on dierent issues.Secondly, just as a single instuon can work to a single legal standard, it canalso oer a consistent service to anyone who approaches it, regardless of thehuman rights issue involved or the origin of the individual or group. Thirdly,a single human rights instuon is able to make economies that allow it tobe considerably more cost-eecve than mulple instuons. Such a policyof convergence of instuons having analogous purposes has been promotedby the Ombudsmans Oce and has been successfully implemented in recentyears through the appointment of Commissioners.

3. Relaonship with Vulnerable Groups

Several of the arguments for mulple specialised instuons relate to the

capacity of these bodies to provide expert and empathec service to vulnerablegroups in society. Such bodies are most likely to be vicms of human rightsviolaons or to be clients of the NHRI in some way or another. Essenally theywould represent their rights and interests beer. Yet, it can also be argued thata single NHRI has certain advantages since it relates with vulnerable groupsthat may not be available to mulple specialized bodies. A single instuonmakes it easier to idenfy the correct instuon to approach. It is more likelyto be physically accessible, provides a beer service to its clients, and givesmore equal coverage to all vulnerable groups.


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4. Umbrella OrganisaonIt is not proposed that the NHRI should substute those specialised authoriesand organisaons or hinder them in the proper exercise of their funcons. Itis intended to act as an umbrella organisaon keeping them together with

the common purpose to oversee the level of human rights observance in acomprehensive and holisc manner.

To further elaborate:

a) Easier idencaon: The clear advantage of a single instuon is that itpresents one unambiguous public prole on human rights issues;b)Accessibility: There is a common argument that a specialised instuon willbe more accessible to vulnerable groups wishing to use it;

c) Beer service: The greater cost-eecveness of a single instuon shouldcreate several ways in which the NHRI would provide a beer service forvulnerable groups; andd) Equal coverage: Advocates of the mulple-instuon model usually arguethat the shortcoming of a single instuon is that certain vulnerable groups,for instance women, children, and ethnic minories, would be downgradedin importance. No doubt this is a danger that should be guarded against,but actually there is a greater risk, within a mulple-instuon set-up,that parcular vulnerable groups who do not have their own human rightsinstuon would be neglected.

5. Relaonship with the Authories

One of the strongest arguments in favour of a single instuon is the greaterease and authority with which the NHRI will be able to relate to governmentand, as relevant, to other bodies over which it has jurisdicon. This improvedrelaonship works both ways. Government authories and other bodies will

be able to relate more easily to a single instuon charged with human rightsand an-discriminaon.

6. Public Prole

The public culture of human rights, as well as the public legimacy of theinstuon, may be an important factor in increasing the social weight andeecveness of a NHRI. A single instuon may be more eecve than mulpleinstuons in generang both awareness of the instuon itself and broad

knowledge and support for human rights.


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Conclusion


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Conclusion

Why is the Oce of the Parliamentary Ombudsman ideally suited to act as aNHRI?

1. The Parliamentary Ombudsman has for the last een years focused on thestate of observance of fundamental rights in Malta. It has regularly invesgatedcomplaints with a strong human rights content, idenfying violaons andrecommending appropriate redress.

2. The Ombudsman enjoys a wide jurisdicon on all aspects of human rightsviolaons. It is not focused on specic rights, nor is it limited to overseeparcular aspects of these rights. The Ombudsman invesgates all complaintsthat allege violaons of fundamental human rights or a threat to these rights.

He invesgates all such complaints against the public administraon and allother bodies that fall under his jurisdicon.

3. The legal structure of the Oce fully conforms to the Paris Principles, theBelgrade Principles and the recently approved resoluon of the ParliamentaryAssembly of the Council of Europe regarding the Strengthening of theinstuon of Ombudsmen in Europe (Resoluon 1959 of 2013). The Ocehas the required legal invesgave experse and legal support to enable it toprovide the necessary human resources back up for the instuon to funconeecvely.

4. The Ombudsman Act lays down precise provisions regarding the conductof invesgaons that have withstood the test of me since they started beingadopted in 1995. They ensure that the rules of due process are adequatelyobserved.

5. The system of convergence of dierent authories within the structure of

the Oce of the Parliamentary Ombudsman has been successfully experiencedand well-tried following the appointment of Commissioners for AdministraveInvesgaons in specialised areas. That development has led to a uniedstructure for administrave review that could easily be extended to includethe funcon of a NHRI.

6. Rather than seng up a new authority that the country can ill-aord, theOmbudsman has repeatedly recommended that his Oce could provide thestructure for the NHRI that would, under his Chairmanship act as an umbrella

instuon. It is proposed that the instuon would be an autonomous bodymade up of the Ombudsman and the various Commissioners and Chairmen ofnaonal authories and instuons that have a strong human rights content


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in their funcons, together with a number of representaves from non-governmental organisaons (NGOs) dedicated to human rights protecon. Theinstuon would funcon independently and autonomously beneng fromthe authoritave experience and experse of its members in their respecveelds of operaon.

7. Such an instuon, would also benet from the constuonal status to whichthe Oce of the Ombudsman was elevated in 2007. It should be stressed thatinternaonal convenons not only insist that Ombudsmen should be appointedby Parliament and report to it, but also that the independence and imparalityof their Oce should be enshrined in law and, if possible, in the Constuon.


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The way forward

As stated, there are various models of Naonal Human Rights Instuonsin Europe and elsewhere. It is the governments prerogave to choose themodel best suited to Maltas needs. In making its choice the government

should endeavour not only to provide the individual with opmum proteconfor the enjoyment of his fundamental human rights, and this without undulyburdening the country with unnecessary addional expense, but also and moreimportantly, it should ensure that the model chosen would merit and receivethe maximum level of accreditaon an A status with the ICC.

As a member of the European Union that should pride itself on the level ofrespect of fundamental rights and their observance, Malta deserves nothingless.

Chief Jusce Emeritus

J Said Pullicino

Parliamentary Ombudsman


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ANNEX 1

Paris Principles United Naons www.un.org


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ANNEX 2

BELGRADE PRINCIPLES ON THE RELATIONSHIP BETWEEN NATIONALHUMAN RIGHTS INSTITUTIONS AND PARLIAMENTS

(Belgrade, Serbia 22-23 February 2012)


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BELGRADE PRINCIPLES ON THE RELATIONSHIPBETWEEN NATIONAL HUMAN RIGHTS INSTITUTIONSAND PARLIAMENTS

(Belgrade, Serbia 22-23 February 2012)

The 2012 Internaonal Seminar on the relaonship between Naonal HumanRights Instuons (NHRIs) and Parliaments11, organised by the Oce of theUnited Naons High Commissioner for Human Rights, the InternaonalCoordinang Commiee of Naonal Instuons for the promoon and

protecon of human rights, the Naonal Assembly and the Protector of Cizensof the Republic of Serbia, with the support of the United Naons Country Teamin the Republic of Serbia,

In accordance with the Charter of the United Naons, the Universal Declaraonof Human Rights, the United Naons General Assembly Resoluons 63/169 and65/207 on the role of the Ombudsman, mediator and other naonal humansrights instuons in the promoon and protecon of humans rights, 63/172and 64/161 on Naonal Human Rights Instuons for the promoon and

protecon of human rights and the Human Rights Council Resoluon 17/9 onNaonal Human Rights Instuons for the promoon and protecon of humanrights.

Recognising that the principles relang to the status of naonal instuons(the Paris Principles, adopted by United Naons General Assembly Resoluon48/134) state that NHRIs shall establish an eecve cooperaon with theParliaments,

Nong that NHRIs and Parliaments have much to gain from each other inperforming their responsibilies for the promoon and protecon of human

rights,

And recalling the need to idenfy areas for strengthened interacon betweenNHRIs and Parliaments bearing in mind that the dierent instuonal modelsof NHRIs should be respected,

Adopts the following principles aimed at providing guidance on how theinteraction and cooperation between NHRIs and Parliament should bedeveloped:

11. The Conference was aended by experts from NHRIs, Parliaments and Universies from

Ecuador, Ghana, India, Jordan, Kenya, Mexico, New Zealand, Portugal, Serbia and the United

Kingdom


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I. Parliaments role in establishing a National HumanRights Institution (NHRI) and securing its functioning,independence and accountability

A) Founding Law

1) Parliaments while deliberang the dra legislaon for the establishmentof a naonal human rights instuon should consult widely with relevantstakeholders.

2) Parliaments should develop a legal framework for the NHRI which secures itsindependence and its direct accountability to Parliament, in compliance with

the Principles related to naonal instuons (Paris Principles) and taking intoaccount the General Observaons of the Internaonal Coordinang Commieeof naonal instuons for the promoon and protecon of human rights (ICC)and best pracces.

3) Parliaments should have the exclusive competence to legislate for theestablishment of a NHRI and for any amendments to the founding law.

4) Parliaments, during the consideraon and adopon of possible amendmentsto the founding law of a NHRI, should scrunise such proposed amendmentswith a view to ensuring the independence and eecve funconing of suchinstuon, and carry out consultaon with the members of NHRIs and withother stakeholders such as civil society organisaons.

5) Parliaments should keep the implementaon of the founding law under review.

B) Financial independence

6) Parliaments should ensure the nancial independence of NHRIs by includingin the founding law the relevant provisions.

7) NHRIs should submit to Parliaments a Strategic Plan and/or an AnnualProgramme of acvies. Parliaments should take into account the Strategic Planand/or Annual Programme of acvies submied by the NHRI while discussingbudget proposals to ensure nancial independence of the instuon.

8) Parliaments should invite the members of NHRIs to debate the Strategic Planand/or its annual programme of acvies in relaon to the annual budget.


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9) Parliaments should ensure that NHRIs have sucient resources to perform

the funcons assigned to them by the founding law.

C) Appointment and dismissal process10) Parliaments should clearly lay down in the founding law a transparent

selecon and appointment process, as well as for the dismissal of the members

of NHRIs in case of such an eventuality, involving civil society where appropriate.

11) Parliaments should ensure the openness and transparency of the

appointment process.

12) Parliaments should secure the independence of a NHRI by incorporang in

the founding law a provision on immunity for acons taken in an ocial capacity.

13) Parliaments should clearly lay down in the founding law that where there is

a vacancy in the composion of the membership of a NHRI, that vacancy must

be lled within a reasonable me. Aer expiraon of the tenure of oce of a

member of a NHRI, such member should connue in oce unl the successor

takes oce.

D) Reporting14) NHRIs should report directly to Parliament.

15) NHRIs should submit to Parliament an annual report on acvies, along

with a summary of its accounts, and also report on the human rights situaon

in the country and on any other issue that is related to human rights.

16) Parliaments should receive, review and respond to NHRI reports and ensure

that they debate the priories of the NHRI and should seek opportunies to

debate the most signicant reports of the NHRI promptly.

17) Parliaments should develop a principled framework for debang the

acvies of NHRIs consistent with respect for their independence.

18) Parliaments should hold open discussions on the recommendaons issued

by NHRIs.

19) Parliaments should seek informaon from the relevant public authories

on the extent to which the relevant public authories have considered and

responded to NHRIs recommendaons.


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II. Forms of co-operation between Parliaments andNHRIs

20) NHRIs and Parliaments should agree the basis for cooperaon, includingby establishing a formal framework to discuss human rights issues of common

interest.

21) Parliaments should idenfy or establish an appropriate parliamentarycommiee which will be the NHRIs main point of contact within Parliament.

22) NHRIs should develop a strong working relaonship with the relevantspecialised Parliamentary commiee including, if appropriate, through amemorandum of understanding. NHRIs and parliamentary commiees shouldalso develop formalized relaonships where relevant to their work.

23) Members of the relevant specialised parliamentary commiee and the NHRIshould meet regularly and maintain a constant dialogue, in order to strengthenthe interchange of informaon and idenfy areas of possible collaboraon inthe protecon and promoon of human rights.

24) Parliaments should ensure parcipaon of NHRIs and seek their expertadvice in relaon to human rights during meengs and proceedings of variousparliamentary commiees.

25) NHRIs should advise and/or make recommendaons to Parliaments onissues related to human rights, including the States internaonal human rightsobligaons.

26) NHRIs may provide informaon and advice to Parliaments to assist in theexercise of their oversight and scruny funcons.

III. Cooperation between Parliaments and NHRIs inrelation to legislation

27) NHRIs should be consulted by Parliaments on the content and applicabilityof a proposed new law with respect to ensuring human rights norms andprinciples are reected therein.

28) Parliaments should involve NHRIs in the legislave processes, including byinving them to give evidence and advice about the human rights compabilityof proposed laws and policies.


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29) NHRIs should make proposals of amendments to legislaon wherenecessary, in order to harmonize domesc legislaon with both naonal andinternaonal human rights standards.

30) NHRIs should work with Parliaments to promote human rights by legislang

to implement human rights obligaons, recommendaons of treaty bodiesand human rights judgments of courts.

31) NHRIs should work with Parliaments to develop eecve human rightsimpact assessment processes of proposed laws and policies.

IV. Co-operation between NHRIs and Parliaments inrelation to International human rights mechanisms

32) Parliaments should seek to be involved in the process of racaon ofinternaonal human rights treaes and should consult NHRIs in this process ofracaon, and in monitoring the States compliance with all of its internaonalhuman rights obligaons.

33) NHRIs should give opinions to Parliaments on proposed reservaons orinterpretave declaraons, on the adequacy of the States implementaon ofhuman rights obligaons and on its compliance with those obligaons.

34) Parliaments and NHRIs should co-operate to ensure that the internaonaltreaty bodies are provided with all relevant informaon about the Statescompliance with those obligaons and to follow up recommendaons of thetreaty bodies.

35) NHRIs should regularly inform Parliaments about the various

recommendaons made to the State by regional and internaonal human rightsmechanisms, including the Universal Periodic Review, the treaty bodies and theSpecial Procedure mandate holders.

36) Parliaments and NHRIs should jointly develop a strategy to follow upsystemacally the recommendaons made by regional and internaonalhuman rights mechanisms.


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V. Co-operation between NHRIs and Parliaments in theeducation, training and awareness raising of humanrights12

37) NHRIs and Parliaments should work together to encourage the development

of a culture of respect for human rights.

38) NHRIs and Parliaments should work together to encourage that educaonand training about human rights is suciently incorporated in schools,universies and other relevant contexts including vocaonal, professional and

judicial training in accordance with relevant internaonal standards.

39) NHRIs and Parliaments should work together to improve their mutualcapacity on human rights and parliamentary processes.

40) NHRIs, Parliaments and all Parliamentarians should seek to work togetherin public awareness, educaon campaigns and encourage mutual parcipaonin conferences, events and acvies organized for the promoon of humanrights.

VI. Monitoring the Executives response to Court andother judicial and administrative bodies judgementsconcerning human rights

41) Parliaments and NHRIs as appropriate should co-operate in monitoring theExecuves response to Judgments of Courts (naonal and, where appropriate,regional and internaonal) and other administrave tribunals or bodiesregarding issues related to human rights.

42) NHRIs should monitor judgements against the state concerning humanrights, by domesc, regional or internaonal courts, and where necessary,make recommendaons to Parliament about the appropriate changes to lawor policy.

43) Parliaments should give proper consideraon to NHRIs recommendaonsabout the response to human rights judgements.

44) Parliaments and NHRIs as appropriate should encourage the Execuve to

respond to human rights judgements expediously and eecvely, so as toachieve full compliance with human rights standards.

12. In relaon to the United Naons Declaraon on Human Rights Educaon and Training


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ANNEX 3

Parliamentary Assembly Council of Europe Resoluon No. 1959(2013) Strengthening the instuon of ombudsman in Europe


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ANNEX 4

Extract from the European Union Agency for Fundamental Rights Handbookon the establishment and accreditaon on NHRIs in the EU(Appendices 5 and 6)


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Ap

pendix5:NHRIs

andtheirICC-sta

tusbyEUMemb

erState

TableA1:NHRIsandtheirICCstatus,

byEUMemberState

EU

Member

S

tate

Status

NH

RI(inEnglish)

NHRI(inlanguage

ofEUMemberState)

Website

AT

B

Ombuds

manBoard

Volk

sanwaltschaft

www.v

olksanw.gv.at

BE

B

Centref

orEqual

Opportu

nitiesand

OppositiontoRacism

(CEOOR)

Centrumv

oorGelijkheid

van

Kansenenvoor

Racismebestrijding/Centrepou

r

lgalitdeschancesetlalutte

contreleracisme

www.d

iversiteit.b

e

BG

B

Commis

sionforprotection

against

Discriminationof

theRepublicofBulgaria

www.kzd-nondiscrim

ination.

com

B

TheOmbudsmanofthe

RepublicofBulgaria

www.o

mbudsman.bg

DE

A

German

InstituteforHuman

Rights(GIHR)

Deu

tschesInstitutfr

Men

schenrechte(DIMR)

www.i

nstitut-fuer-

menschenrechte.d

e

DK

A

DanishInstituteforHuman

Rights(DIHR)

InstitutforMenneskerettigheder

www.humanrights.dk

EL

A

NationalCommissionfor

HumanRights(GNCHR)

(

)

www.n

chr.gr

ES

A

Ombuds

man

DefensordelPuebloEspaol

www.d

efensordelpue

blo.e

s

FR

A

NationalConsultative

HumanRightsCommission

(NCHRC)

Com

missionNationale

ConsultativedesDroitsde

lHomme(CNCDH)

www.c

ncdh.f

r

HU

B

Commis

sionerfor

Fundam

entalRights

Alap

vetJogokBiztosa

www.o

bh.hu


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Ap

pendix6:Numberofmembersa

ndmethodsofappointmentofthe

governingbodyofEUNHRIs

TableA2:Numberofmembersandmethodsofappointm

entofthegoverningbodyofEUNHRIs

EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

AT

Ombu

dsman

Board

B

3

Oneactsinturna

s

chairman

TheNationalCou

ncil

(Parliament)elects

Ombu

dsmanboardme

mbers

onthebasisofajoint

recommendationdraw

nu

p

by

theMainCommitteein

thepresenceofatleas

thalf

itsmembers

.Eachofthe

threepartiesw

iththelargest

nu

mberofv

otesinthe

National

Cou

ncilisentitledtonominate

onememberforthisjo

int

recommendation

.

Article148g(1)

and(2)

oftheAu

strian

Constitu

tion

BE

Centre

forEqu

al

Opportu

nities

andOpposition

toRacism

B

21

19Commissioners

,

1Presidentand

1Vice-C

hairman

Theboardofdirectors

is

appointedby

theKing

,by

DecreeoftheCou

ncilof

Ministersu

ponthepro

posalof

thePrimeMinister.

Article5ofthe

Act

(15February1993);

Article1(2)an

d(4)

oftheRoy

alDecree

(28February1

993)

establishingth

e

OrganicStatus

of

theCentrefor

Equ

al

Opportu

nitiesand

OppositiontoRacism


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EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

BG

Ombu

dsman

oftheRepu

blic

ofBu

lgaria

B

1Ombu

dsperson

and

1Vice

Ombu

dsperson

TheNationalAssembly

elects

theOmbu

dsman

,byse

cret

ballot,foraterm

offiv

ey

ears

.

He/shemay

bere-e

lected

onetimeonly

.Thewin

neris

thecandidatew

horeceives

amajorityofv

otesfrom

the

MembersofParliamen

tw

ho

participateinthev

otin

g.

BasedontheOmbu

dsmans

recommendation

,theNational

AssemblyelectstheDepu

ty

Ombu

dsmanw

ithinon

emonth

oftheOmbu

dsmanse

lection

andfortheterm

underArticle

8.

Articles8

,10(2)

and11(1)ofth

e

Ombu

dsmanA

ct

Commission

forprotection

against

Discrimination

oftheRepu

blic

ofBu

lgaria

B

9Commissioners

including

1Chairmanand

1Vice-C

hairman

Accordingtothefound

inglaw,

theCommissionshallc

onsistof

ninemembers

,atleastfou

rof

whom

shou

ldbelawy

ers

.The

NationalAssemblyelectsfiv

e

oftheCommissioners,

including

theChairpersonandVice

Chairperson

,andtheP

resident

oftheRepu

blicofBulg

aria

appointstheotherfour.

Protectionaga

inst

Discrimination

Act,

Article41


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EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

DE

German

Institutefor

HumanRights

A

20

18(Boardof

Trusteesand

1Chairpersonand

2Deputy

Chairpersons),

and

2(Boardof

Directors)

TheBoardofTrustees

has18

members.

TheGovernment

delegatesfivenon-voting

members;theParliaments

HumanRightsCommittee

appointstwo,

andthe

Federal

CommissionerforMigration,

RefugeesandIntegration,

one.

TheForumH

umanRights

(amajornetworkofhuman

rightsNGOsinGerman

y)elects

threepersons;theGer

man

DisabilityCouncil(umb

rella

organisationofDisability

Organisations)delegat

esone.

TheGeneralAssembly

ofthe

GermanInstituteforHuman

Rightselectssixmemb

ers.

TheBoardofTrustees

elects

aChairpersonandtwo

Deputy

Chairpersons,

aswella

s,

after

apubliccallforapplica

tions,

theBoardofDirectors.

The

BoardofDirectorsconsists

ofaDirectorandaDep

uty

Director.

Paragraph24and25

oftheStatutes

ofthe

GermanInstitu

tefor

HumanRights


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EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

DK

Danish

Institutefor

HumanRights

A

13

(The

Institute

Board)

TheBoardoftheDanis

h

InstituteforHumanRig

hts

isresponsibleforallm

atters

relatingtosubstancea

nd

professionalissues,

inc

luding

researchandstrategy.

The

Boardconsistsof13m

embers,

servingintheirperson

al

capacity.

Only12ofthemh

ave

votingrights.

TheCoun

cilfor

HumanRightsappointssix

members;theRectoro

fthe

UniversityofCopenhagen,

two;

theRectoroftheUniversity

ofAarhus,

anothertwo

;the

DanishRectorsConfer

ence,

afurthertwo;andthe

Institutesstaffselects

one

member.Ofthesixme

mbers

appointedbytheCoun

cilfor

HumanRights,

atleast

two

shouldhaveaconnect

ion

withethnicminoritiesor

ahumanitarianorganis

ation

engagedinissuesrelatedto

ethnicminorities(Subs

ection

2).TheCouncil,

inits

composition,

isalsoto

reflect

thecompositionofsoc

iety

(Subsection5).

Chapter2,

Section5,

Subsection2o

f

theActNo.

411

on6June2002

establishingth

e

DanishCentre

for

InternationalS

tudies

andHumanRights


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58

EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

EL

National

Commission

forHuman

Rights

A

31

1Presidentand

2Vice-Presidents

Themembersofthe

Commissionandtheir

alternatesshallbeapp

ointed

byadecisionofthePrime

Ministerforatermofofficeof

threeyears.Fortheelection

ofthePresidentandth

e

Vice-Presidents,theab

solute

majorityofthemembe

rsofthe

Commissionpresentw

hohave

avoteisrequired.

SectionA,Article

2(2),(3)and(

4)of

LawNo.2667/1998

ES

Ombudsman

A

3

Ombudsman,

FirstDeputy

Ombudsmanand

SecondDeputy

Ombudsman

TheParliamentappoints

aJointCongress-Senat

e

Committeewhichisch

arged

withtherelationshipw

ith

theOmbudsmanand

whichproposesinasimple

majorityvotethecand

idate

orcandidatestothepo

stof

SpanishOmbudsman.The

PlenumofbothChamb

ersof

theParliamentvoteso

nthe

candidatesproposed.The

candidatethatobtains

atleast

athree-fifthsmajority

ofthe

membersofeachHouseis

elected.

Part1,Chapter

1,

Articles2and5,

OrganicAct3/1981


64/69

59

EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

FR

National

Consultative

HumanRights

Commission

A

64

60Commissioners,

1President,

2Vice-Presidents

,

1Secretary-

General

ThePrimeMinister,after

consultingacommittee

comprisingtheVice-Ch

airman

oftheStateCouncilan

dformer

presidentsoftheCourtof

CassationandCourtof

Auditors

ontheorganslikelyto

make

nominations,appoints

the

MembersoftheComm

ittee

andtheiralternatesby

decree.

ThePrimeMinistercho

osesthe

PresidentoftheComm

ission.

Theplenaryassembly

elects

twoVice-presidents.The

PrimeMinisterfurther

appoints

aSecretarygeneralba

sedthe

PresidentoftheComm

issions

proposal.

Articles5,13and16

oftheDecree

No.2007-1137

of26July2007


65/69

60

EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

HU

Commissioner

forFundamental

Rights

B

1Ombu

dsman

ThePresidentoftheRepu

blic

shallproposeaperson

for

theroleofCommission

erfor

Fu

ndamentalRightsbe

tween

theninetiethday

andthe

forty-fi

fthday

preceding

theex

piry

ofthemand

ate

oftheCommissionerfor

Fu

ndamentalRights

.

TheCommissionerise

lected

by

atwo-t

hirdsmajorityofthe

votesforasix-y

earterm

.If

Parliamentdoesnotelectthe

personproposed

,thePresident

oftheRepu

blicshallm

ake

anew

proposalw

ithin

,atthe

most,thirtyday

s.

ThecompetentParliam

ent

committeew

illholdahearing

withthepersonproposed

forthepostofCommissioner

forFu

ndamentalRights

.The

CommissionerforFund

amental

Rightsmay

bere-e

lectedonce

.

Paragraph5ofthe

ActCXIof2011

on

theCommissio

nerfor

Fu

ndamentalR

ights

IE

A

15

1Presidentand

14Commissioner

s

TheGov

ernmentappo

intsthe

membersoftheComm

ission

.

Section5(10)o

f

theHu

manRig

hts

CommissionAct2000


66/69

61

EU

Me

mber

S

tate

NHRI

Status

Numberof

membersofthe

GoverningBody

Methodofappointme

ntofthe

GoverningBod

y

Legalprovision

LU

Consultative

Commissionon

HumanRights

A

21

1President,

2Vice-Presidents

and18Members

TheGovernmentappointsthe

membersoftheComm

ission.

Thepresidentandthetwovice-

presidentsoftheCommission

areappointedbyama

jorityof

themembersvoting.

Chapter4,Article4(1)

andArticle5(1)ofthe

Lawno.A-No.180

establishingth

e

Consultative

Commissionon

HumanRights

in

theGrandDuchyof

Luxemburg

NL

Equal

Treatment

Commission

B

9

1Chairman,

2DeputyChairmen,

6Commissiners

Themembersandalternate

membersareappointe

dby

theMinisterofJustice,

in

consultationwiththeM

inister

oftheInterior,theMin

isterof

SocialAffairsandEmployment,

theMinisterofEducationand

ScienceandtheMinisterof

Welfare,HealthandCu

ltural

Affairs.

Article16(3)o

fthe

EqualTreatmentAct

of2March199

4

PL

Commissioner

forCivilRights

Protection

A

1Commissioner

(HumanRights

Defender)

andDeputy

Commissioners

TheHumanRightsDefender

shallbenominatedby

the

lowerhouseofparliam

ent

upontheapprovalofthe

Senateorbyagroupo

f

35deputies.

Article209ofthe

Constitution,

Article3the

OmbudsmanA

ct


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Documents

The setting up of a National Human Rights Institution