Fact Sheet 7: Responsibilities and functions of NHRIs: Complaint handling

Many – but not all – national human rights institutions (NHRIs) have complaint handling responsibilities. This function is "quasi-judicial"; that is, it is similar to the function of courts.

Courts receive and determine complaints, making binding, enforceable orders. They proceed by way of a judicial process. It is important to recognise that NHRIs are not courts. They do not generally make binding, enforceable decisions, although some may have a limited jurisdiction to make some orders.

However, like courts, they can receive complaints. They may seek evidence and also receive whatever evidence the parties to a complaint can produce.

Many NHRIs are required by law to attempt to resolve disputes by conciliation or mediation. If a dispute is not resolved, NHRIs can generally refer the complaint to a court for trial and final determination. Sometimes the referral is accompanied by the NHRI's own findings of fact and recommendations as to remedy.

NHRIs are required to apply the rules of natural justice when handling complaints. They may be advocates for human rights but they must be impartial in their complaint handling.

WHAT COMPLAINTS CAN NHRIs ACCEPT?

The ability of an NHRI to accept and deal with complaints will depend on what human rights issue the complaint raises, who makes the complaint, against whom the complaint is made, and other jurisdictional matters.

The subject matter of the complaint

An NHRI is a State institution established by law. That founding law will usually identify those human rights recognised by the State and that will govern what complaints are within the NHRI's jurisdiction and what are not.

Human rights recognised by the State are set out in the national constitution and in national laws. They can also be identified by reference to international human rights law.

The Paris Principles require that the human rights mandate of NHRIs be as broad as possible and related to the breadth of international human rights law.

Who may complain?

In most cases, the law establishing an NHRI will also define who may make a complaint of a human rights violation.

Any person harmed because of a human rights violation is entitled in international law to a remedy. However, the domestic law establishing an NHRI may not be so broad and some laws may permit only specific categories of victims to lodge complaints.

The Paris Principles provide that NHRIs with quasi-judicial functions should be able to receive cases brought by individuals, their representatives, third parties, NGOs, associations of trade unions or any other representative organisations.

Who responds to a complaint?

NHRIs may be limited by their establishing laws to act only on complaints against some categories of respondent. Most commonly they may only be able to act on complaints against the State or its agents, such as civil servants, the police and the military. They may not be permitted to act on complaints against private individuals or corporations.

Some States can go further by restricting the jurisdiction of NHRIs to exclude some categories of State agents from the scope of the NHRI's complaint handling role; for example, the military and security services.

Other requirements related to jurisdiction

NHRI legislation often imposes other requirements or restrictions on the complaints that NHRIs can receive and act on. Most commonly, there is a time restriction or a restriction preventing the NHRI from accepting a complaint relating to a matter that is subject to court proceedings. There may also be a geographical limitation.

STEPS IN COMPLAINT HANDLING

The process by which complaints are handled will vary considerably between NHRIs. Some NHRIs follow a formal procedure, while others are very informal and adapted based on the nature of the complaint and the needs of the parties to that complaint.

The basic outline of the complaint handling procedure is similar in most NHRIs, however, and includes the following steps:

• Receipt
• Investigation
• Conciliation
• Report or referral.

POWERS OF INVESTIGATION

NHRIs need adequate powers to undertake investigations successfully, including to:

• Take evidence from victims and witnesses
• Compel the attendance of a witness for questioning, even if in custody
• Obtain documents and information
• Enter premises and conduct inspections.

NHRIs should be able to issue orders under their investigative powers and have courts enforce those orders and penalise those who do not comply. The powers of investigation must also include protection of those who cooperate with or contribute, whether voluntarily or compulsorily, to an investigation.

CONCILIATION (OR MEDIATION)

Some NHRIs are required by their establishing law to attempt to resolve complaints by agreement between the complainant and the respondent. They seek to do this by conciliating (or mediating) between the parties.

The Paris Principles provide that NHRIs with complaint handling functions should "seek… an amicable settlement through conciliation".

Not every complaint of human rights violation lends itself to conciliation or is appropriate for conciliation. This is a most important consideration in deciding whether to commence or continue conciliation, even where the NHRI's legislation requires conciliation to be attempted.

NHRIs should ensure that conciliation is not pursued without considering the nature and context of the violation and the situation of the victim. The well-being and needs of the victim should be the priority concern of the NHRI. A guiding principle should be to "do no harm".

REFERRAL TO COURT OR GOVERNMENT

NHRI complaint handling generally does not conclude with a binding judgement and enforceable orders for remedies. More commonly, the legislation establishing the NHRI may also establish a court or tribunal to take and judge cases arising from NHRI complaints.

Alternatively, those cases may be referred by the NHRI to the ordinary courts for hearing and determination. These procedures represent a proper separation of powers between judicial bodies, such as courts, and quasi-judicial bodies, such as NHRIs.

When referring a case, NHRIs may be able or even required to prepare a report and submit it to the court or tribunal. The report usually sets out the nature of the complaint, the NHRI's handling of the complaint, and the process and results of the investigation. It may also include the NHRI's findings and proposed recommendations.

In addition, the NHRI may be able to play a role in the court proceedings. Some NHRIs are able to assist the complainant to take the case to court, while other NHRIs can seek leave to intervene in the case as a 'friend of the court'.

Some NHRIs may report unresolved complaints to parliament. These reports would include a similar body of information as that which would be presented to a court, including recommendations for action to provide appropriate accountability of the perpetrator and reparations for the victim. This report will generally be tabled in parliament and become a public document. It may also be debated in parliament or in a parliamentary committee.

INVESTIGATION ON THE NHRI's OWN INITIATIVE

Many NHRIs can also undertake investigations of human rights violations on their own initiative (suo motu). Information concerning human rights violations can come to the attention of the NHRI through NGOs, communities, the media or other sources.

There may not be a formal complaint or even anyone who is able or willing to make a formal complaint. The NHRI's law may enable it to commence an investigation in the absence of a formal complaint.

The procedure will be similar to that used for a formal complaint except that there is no complainant who can be involved. Nonetheless, the NHRI should engage with victims and their families as much as possible during the course of investigation and in making findings and recommendations.

SUPPORTING COMPLAINTS STAFF

NHRIs require expert, suitably trained staff to handle cases of human rights violation. They need to build a cadre of complaint handling experts. They also need to be experts in human rights law so that they are able to understand the nature of the allegations being made and of the violations and form an opinion on whether the facts constitute a human rights violation.

Investigation and conciliation are different processes and require different skills. Recognising this, some NHRIs separate the investigation and conciliation functions and have specialist investigators and specialist conciliators. Staff are required to have been trained and developed expertise in the area in which they work.

GOOD PRACTICE

NHRIs should have jurisdiction to accept, investigate and attempt to resolve complaints of human rights violation and to refer to the government, the parliament or the courts complaints that they are unable to resolve.

They should also have power to reject complaints that are frivolous or trivial in order to give appropriate attention and priority to complaints of serious human rights violations.

The complaint jurisdiction should be broad, covering violations of any of the human rights recognised in domestic or international law. It should not be limited to particular rights or particular categories of complainant or particular categories of alleged violator.

Each NHRI should adopt complaint handling procedures that are appropriate to its legal context and should make the procedures publicly available.

FIND OUT MORE

Chapter 15, A Manual on National Human Rights Institutions (APF, revised 2018)

Undertaking Effective Investigations: A Guide for National Human Rights Institutions (APF, revised 2018)