Independent national human rights institutions are the bedrock for human rights protection and advancement in any country. Each of the Western Balkan states have established an ombudsperson as the main national human rights institution as well as specialised human right bodies that deal with non-discrimination/equality (EBs), data protection (SADP) and free access to information (FAI). See here a full list of NHRIs including their mandate and year of establishment.
Assessing effectiveness of National Human Rights Institutions (NHRIs) in Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia is a research project which evaluates the capability of the NHRIs to independently perform their mandate and powers, with the aim to make a significant impact on the achievement of human rights. It is an index measurement based on a comprehensive methodology which includes a previously defined set of indicators derived from relevant international standards.
The research, including data collection, analysis and ranking was conducted by independent experts for each of the countries. It was first conducted in 2019 in Montenegro, North Macedonia and Serbia and then expanded to Albania, Bosnia and Herzegovina and Kosovo in 2020. Research results per country were synthesized and based on them this comparative overview of NHRIs was developed.
Effectiveness was assessed in four domains: 1) Independence and ability to work without pressure; 2) Availability of resources and capacities; 3) Information, accessibility and cooperation with other relevant actors; and 4) Mandate and powers.
The findings from the study “What is Behind and Beyond the Average” are presented comparatively per each domain. This approach was taken because it enables comparative analysis of the subject matters, resulting in a more comprehensive presentation of the status quo, while also providing and discussing the results per country within the domain.
The general scores per institution per country are within the range from the highest 5.49 (Equality Body – Serbia) to lowest 2.95 (Commission for Protection against Discrimination – MKD).
|People’s Advocate||4.68||The Institution of Human Rights Ombudsman of BiH||4.29 (NHRI 4.33; EB 5.04; FAI 3.49)||Ombudsperson Institution||5.33 (NHRI 5.80; EB 5.59; FAI 4.59)||Ombudsperson||4.71||Ombudsperson||5.24 (NHRI 5.20; EB 5.28)||Protector of Citizens||4.99|
|Commissioner for Protection against Discrimination||5.08||Personal Data Protection Agency||4.18||National Agency for Protection of Personal Data||3.32||Commission for Protection against Discrimination||2.95||Agency for Personal Data Protection and Free Access to Information||4.25 (SADP 4.22; FAI 4.28)||Commissioner for Protection of Equality||5.49|
|Information and Data Protection Commissioner||4.60 (SADP 4.54; FAI 4.66)||Commission for Protection of the Right to Free Access to Public Information||3.71||Commissioner for Information of Public Importance and Personal Data Protection||4.38 (SADP 4.42; FAI 4.34)|
|Data Protection Directorate||5.25|
Most of the bodies across the countries (six out of eight) have scored within the range 4.18-5.49, only two falling below 4.00 and 3.00 points. The average score of all institutions in the region is 4.54, illustrating that they have scored slightly above the average of scores (4.00).
The average score per country ranges from 4.95 in Serbia to 4.16 in North Macedonia. The lower score for MKD is due to the weak legislative framework and inactivity of the Commission for Protection against Discrimination, as well as lack of effectiveness of the Commission for Protection of the Right to Free Access to Public Information, which was practically non-operational in 2018.
The scores for multi-mandate bodies per each mandate are very similar, almost identical in Serbia, Montenegro and Albania (the cases of the Ombudsperson and the Agency for Personal Data Protection and Free Access to Information in MNE and the Commissioner for Information of Public Importance and Personal Data Protection in Serbia, the Information and Data Commissioner in Albania). However, the Kosovan Ombudsperson Institution demonstrates a great difference in the performance of its mandates – 1.36 and a lower score for access to public information than for the ombudsperson mandate, which is relatively high. Moreover, the allocation of mandates to separate bodies – such as the case of North Macedonia does not seem to lead to more effective institutions performing those mandates. On the contrary, the difference in effectiveness per mandate in North Macedonia is high (1.76). The difference per mandate is only higher in Kosovo (2.07 points), where the Ombudsperson has significantly higher scores than the National Agency for the Protection of Personal Data. Differences between mandates can be considered medium in Serbia (1.11) Montenegro (0.99) and Albania (0.79). The institutions of Ombudsperson and SADP in Bosnia and Herzegovina scored almost evenly, with a negligible difference of 0.11 points.
The results indicate that the effectiveness of the institutions does not correlate to the years of existence of the institution. This (non)correlation leads to the conclusion that other factors, rather than the years of existence, are prevailing for the effectiveness of the institution.
Presented by rank, the scores of institutions are as follows:
min: 0; max: 8;
|Commissioner for Protection of Equality – SRB||5.49|
|Ombudsperson Institution – KOS||5.33|
|Data Protection Agency – MKD||5.25|
|Ombudsperson – MNE||5.24|
|Commissioner for Protection Against Discrimination – ALB||5.08|
|Protector of Citizens – SRB||4.99|
|Ombudsperson – MKD||4.71|
|People’s Advocate – ALB||4.68|
|Information and Data Protection Commissioner – ALB||4.60|
|Commissioner for Information of Public Importance and Personal Data Protection – SRB||4.38|
|The Institution of Human Rights of Ombudsman of BiH||4.29|
|Agency for Personal Data Protection and Free Access to Information - MNE||4.25|
|Personal Data Protection Agency – BiH||4.18|
|Commission for Protection of the Right to Free Access to Public Information- MKD||3.71|
|National Agency for the Protection of Personal Data – KOS||3.32|
|Commission for Protection against Discrimination – MKD||2.95|
The ranking demonstrates the highest convergence in scores of the Ombudsperson, ranging from 5.39 in Kosovo to 4.29 in Bosnia and Herzegovina (difference of 1.11 points). In contrast, the highest variances are observed in the effectiveness of the equality body – highest in Serbia (5.49) and lowest in North Macedonia (2.95 points) – 2.53 points. The divergence is also high (1.93) in the bodies for free access to public information and data protection – between the highest score of 5.25 for the Data Protection Agency in North Macedonia and the 3.32 points scored by the National Agency for Protection of Personal Data of Kosovo.
As to the lowest-ranked institution – the Commission for Protection against Discrimination in North Macedonia, it should be noted that the new 2019 anti-discrimination law brought many improvements to the legal framework, but since this research is a snapshot of 2018, these are not taken into regard.1
We have presented here the comparative findings for all the mandates of the NHRIs for the six countries in each domain.
The table below shows the average scores per domain.
Min: 0; Max: 2
|(1) Independence and ability to work without pressure||1.33|
|(2) Availability of resources and capacities||1.04|
|(3) Information, accessibility and cooperation with other relevant actors||1.01|
|(4) Mandate and powers||1.22|
It is evident that the average scores are higher for independence and ability to work without pressure, as well as mandate and powers. It might be partly due to the more structural character of the indicators under these domains, as more indicators in these domains are defined based on legal provisions, and not actual compliance/performance.
At the beginning of each section, the scores per mandate per country are presented. In the discussion that follows, the scores and findings for each indicator are elaborated. At the end of each section, the main conclusions are extrapolated.
The average value per institution for this domain is 1.33.
The Ombudspersons scored highest in this domain: 1.20 to 1.70. The Kosovo Ombudsperson scored highest at 1.70 and the Albanian Ombudsperson – lowest at 1.20. The equality bodies cut between 1.00 and 1.70. The data protection supervisory authorities scored between 0.89 and 1.33, whereas the institutions for free access to information between 1.22 and 1.67. The relatively high scores in this domain are because many of the indicators set for this domain are based on legal provisions, which, in fact, are based on relevant international standards.
The NHRIs in the six countries have an independent statutory basis, which granted them all the highest score on this indicator (2), except for the three data protection authorities in Albania, Bosnia and Herzegovina and Kosovo which scored 1. The ombudspersons in all the countries are based on the constitutions, while all other NHRIs are established by Law. The data protection authorities in Albania, Bosnia and Herzegovina and Kosovo, while established under law, do not contain all provisions required in the GDPR, thus scoring 1.
The situation is somewhat different concerning the appointment process. Only in Montenegro, the Ombudsperson satisfies the highest standard – appointment “by the Legislature after public nomination, in participatory and transparent procedure”. The Montenegrin practice established since the Law on 2014, which foresees the participation of civil society, requires parliamentary approval and a public nomination by the President, so from the herein analysed institutions it can be emphasised as a best practice in the region. In all other countries, when the appointment procedure for the ombudspersons and the equality bodies comes to the responsible committee in the parliament, it is very much closed and non-transparent, so they scored 1. The SADP and FAI bodies all scored generally high (2), except for the Kosovan SADP and the Albanian SADP and FAI which scored zero (0) due to lack of a transparent procedure and overly decisive role of the governments in the appointment. The SADP and FAI bodies are generally appointed by an independent body (parliament), through a transparent procedure, but the standards are not explicitly set as requiring a “participatory” approach.
On clear criteria for membership, all Ombudspersons scored highest (2), except for Serbia. The highest score is due to the law requiring specific human rights expertise. In contrast, the Serbian law resorts to a more general provision of experience on legal affairs “within the competence of the PC” and consequently scored medium (1) in this indicator. Specific human rights expertise is required for all equality bodies in all of the countries, resulting in high scores (2). North Macedonia scored only 1 since the provision is watered down by the ‘or social sciences’ education part,2 which made the criteria porous to unqualified persons.3 The data protection supervisory authorities in all countries received a medium score (1), as none of the relevant laws requires a more specialised experience in data protection. The Macedonian Commission for Free Access to Public Information is the only FAI body that scored high (2) since the legal requirements are explicit as to the relevant experience in freedom of expression or public information.
The term of office for the Ombudsperson in North Macedonia (8 years) exceeds the recommendation by GAHNRI (5-7 years), unlike all five other countries, which scored 2 as their ombudsperson have mandates of 6 and 5 years, respectively. All the other NHRIs are also within the range for the highest score on this indicator and have mandates of either 5 and 6 years. For all the institutions, the term of office may be renewed once, which is also in accordance with the highest standards.
On avoidance of conflict of interest, the ombudspersons in Bosnia and Herzegovina, Kosovo and Serbia received the highest score, as they have specific provisions regulating the avoiding of conflict of interest. All other institutions scored medium (1), due to the vague legal requirements. The Bosnia and Herzegovinian SADP scored the lowest score (0) since the law provides no provision regarding conflict of interest. Specific legal guarantees for extending the conflict of interest provision beyond the term of office for SADP and the FAI are provided for FAI in Bosnia and Herzegovina and Kosovo, whereas for the other institutions, such guarantees are lacking.
Related to immunities, only the Kosovan Ombudsperson and the Albanian EB scored the highest (2) since they have both functional immunity and protection against threat and coercion. All other institutions of ombudspersons and EBs (for which the international standard for immunity has been established) scored medium (1) since they lack protection against threat and coercion in the relevant laws.
Regarding the criterion ‘no instruction from government’, the ombudspersons in Bosnia and Herzegovina, Kosovo, North Macedonia and Serbia, the EB in Albania and the SADP in Serbia received the highest score attainable (2) because of explicit provisions on the prohibition of interference, albeit not explicitly quoting “the Government”, but rather stating that “no one has the right to influence his/her work…”4 All other institutions got a medium score (1), as the laws contain only general legal provisions on independence.
All institutions, except for the Montenegrin and the Kosovan ombudsperson and the Albanian EB and FAI received a medium score on removal from office, sincethe legal provisions are not assessed as clear enough to avoid arbitrariness in removal. In practice, the national authorities do not resort to removal, but rather to direct or indirect pressure, as shown by the scores on the indicator submission/agreement to pressure. The ombudspersons in all countries except Albania, the EBs in all countries except North Macedonia, the SADP in Albania, Bosnia and Herzegovina, Kosovo and North Macedonia and the FAI in Albania, Bosnia and Herzegovina and Kosovo showed no submission/agreement to pressure in 20185. The Ombudsperson of Albania, the EB and the FAI institution in North Macedonia, as well as the SPDP-FAI in Montenegro and Serbia, were all subject to pressure in 2018, thus leading to the medium score for the Albanian Ombudsperson and the Montenegrin SADP-FAI (1) and lowest scores (0) for the other institutions. All cases deserve specific attention and further analysis. In Albania, the score was brought down by prolonged appointment procedures, which can be considered as a form of pressure.6 In Montenegro, the case referred to rejection of 90 requests for free access to information on finances of political parties submitted by NGO MANS, which occurred two days after the Special prosecutor for anti-corruption initiated an investigation on donations to the ruling Democratic Party of Socialists (DPS). The NGO maintained that free access to information had been politicised, given the upcoming local elections (May 2018).7 In the case of the equality body in North Macedonia, the most contested case was the Opinion the CPAD adopted in the case of the runaway former Prime Minister – Nikola Gruevski. The opinion, which was later used as one of the critical proofs by Gruevski in his asylum claim in Hungary, the CPAD found that Gruevski was subjected to direct discrimination on the grounds of personal and social status in the area of justice and administration.8 In the case of the FAI in North Macedonia, the lack of appointment of commissioners practically resulted in blocking the functioning of the institution for more than six months during 2018. By refusing to cooperate, the competent or controlled authorities often made it difficult or even impossible for the SADP – FAI in Serbia to take legal action, or the measures taken had no effect.9
Finally, on the indicator of public opinion on independence, none of the institutions managed to reach 50%, which was the set minimum, so all scored 0. The Montenegrin Ombudsperson is the closest to this minimum, as 48% of the respondents consider the institution to be independent, whereas in the other countries the situation is as follows: Albania – 33%, Bosnia and Herzegovina – 38%, Kosovo – 47%, North Macedonia – 33%, and Serbia – 31%.10 The Balkan Barometer of the Regional Cooperation Council survey is the only public opinion poll available for the six countries, measuring public opinion on independence and trust in the Ombudspersons. No public opinion polls measuring opinion on independence or trust in the other NHRIs in the region are publicly available. It seems the NHRIs themselves have not taken any actions to measure the attitudes of citizens towards them.
While the scores show little variance, it can be observed that this small variance refers to the score on the domain in general, not to all or majority of the indicators, as differences and nuances in separate criteria and for specific institutions are evident. This is mainly observed with the indicators on critical issues regarding independence – clear criteria for membership, the appointment process, no instruction from the government, removal from office, avoidance of conflict of interest. In all these indicators, which are based on legal provisions, there are significant differences between countries and between bodies. Only specific provisions on individual bodies can be extrapolated as best practices, but this cannot be generalised for any of the countries, or type of bodies. Such a situation points out to a lack of a systematic approach towards the NHRIs in the region.
The comparative analysis leads to the conclusion that the statutory framework in the Western Balkan countries has established the basis for independence, which is above the minimum. However, key challenges still pertain in the appointment process and the appointment criteria, leaving room for arbitrariness and influence. Challenges also remain regarding specific safeguard mechanisms for independence – such as the absence of protection from threat or coercion, lack of explicit ban on instruction from the government, or not sufficiently precise definition of conflict of interests.
The practice shows that authorities would rather resort to explicit or implicit pressure than to removal, thus avoiding the international criticism of direct interference in the independence of the NHRIs, but still effectively and essentially harming independence. This can be illustrated by the cases of the Serbian Protector of Citizens, who resigned following constant pressures in 2017 and the institutions’ persisting uncertainty as regards financial resources11, blockage of the institution by non-appointment of members as in the case of the Macedonian FAI12, etc.
Finally, little attention is paid to the legitimacy of the NHRIs. The public opinion on the independence of the ombudspersons has still not reached 50% in any of the countries, while polls are lacking for all other NHRIs. However, it should be noted that slightly below half of the Montenegrin and Kosovan respondents consider their ombudsperson independent (48% and 47% respectively), while in all the other countries this % is below 40%.13 It could be stated that the citizens’ opinion corresponds to the ranking in this domain.
The average score per institution in this domain is 1.04, which is 0.29 points lower than for domain 1.
The Ombudspersons scored very similarly to each other also in this domain: from 1.00 (Albania and Bosnia and Herzegovina) to 1.35 (Kosovo).
The variances are broadest for equality bodies. While the Serbian EB has the highest score in this domain – 1.35, it is closely followed by the Albanian EB and the Kosovan ombudsperson in its mandate as an EB (both scoring 1.25). The Montenegrin Ombudsperson scored the same for this mandate – 1.15. The EB in North Macedonia has scored the absolute minimum of 0.30 (also from all domains). The score of the EB in North Macedonia is due to two main factors: (1) the EB is, under law, not allowed to employ people14 and, basically, functions with the help of volunteers and “borrowed staff” from the Ministry of Labour and Social Policy; (2) the EB has a meagre budget (almost three times lower than the other lowest budget of an NHRI in the country – the budget of the FAI authority), which prevents this body from exercising most of its mandate.15
The scores for data protection supervisory authorities and institutions for free access to information are within the range from 0.67 to 1.17, except for the Kosovan ombudsperson in its mandate as an FAI, scoring 1.36. SADPs have the lowest average.
Regarding the indicator separate and independent budget, three aspects were taken into account: whether the NHRI has a separate budget line; whether the budget is decided by parliament (not government); and whether the NHRI is involved in budgetary preparations. The parliament decides on the budget for all NHRIs in the six countries. However, their involvement in budgetary preparation is mainly assessed as inadequate. In Serbia, all NHRIs have a separate budget line, which is not the case in North Macedonia, as only the Ombudsperson has it. All NHRIs have scored medium related to this criterion, except for the EB in Albania, which scored 2 and the EB in North Macedonia which got the score 0. The Albania report states that all national NHRIs “have a say on the drafting of budget requests, regardless of the fact their request could be dismissed or pending for years“.16 However, reports also indicate to underspending of the budget resources, as was the case with the Ombudsperson in Montenegro.17 In addition, the vast part of the budget is spent on salaries, as also shown in the country report for Montenegro.
The Kosovan ombudsperson is the only NHRI, which got the highest score on the indicator of adequate financial resources. Medium grade (1), which meant that the institution “had enough financial resources for some parts of its mandate, but not for all” was assigned to all other ombudspersons, as well as to all other equality bodies, except for the Macedonian one, which scored 0. All SADPs received a medium score, while the situation is more diverse in the case of the FAI, which in the cases of Montenegro, Albania and BiH are medium, maximum for Kosovo, and minimum for North Macedonia. SADP- FAI in Serbia and the SADP and FAI in North Macedonia scored the lowest (0), which means that they do not have enough financial resources to fulfil their legal mandate. The case of the SADP – FAI explained in the country report on Serbia is illustrative: according to the Commissioner, the funds in the Budget for 2018 were not sufficient even for the salaries of the existing number of employees, despite the fact that in all the programming documents of the Government and the National Assembly, as well as in the Action Plan for the Chapter 23 it is stipulated that one of the goals is to strengthen the institution’s staff resources. Funds were secured last-minute from budgetary reserves before payments were due.18 However, the example of the Kosovan law on the ombudsperson might be interesting in terms of safeguarding NHRI’s financial independence: the Ombudsperson prepares its budget and presents it to the Assembly for approval; it may be less than the last years’ budget only if approved by the Ombudsperson; if the Ombudsperson’s responsibilities increase, then its budget should increase.19
In the table below, the budgets of all NHRIs in the six countries are presented for 2018, as a sum (in EUR) and as a percentage of the national budget.
|in EUR||The budget of the NHRI||% of the National Budget||The budget of the NHRI||% of the National Budget||The budget of the NHRI||% of the National Budget||The budget of the NHRI||% of the National Budget||The budget of the NHRI||% of the National Budget21||The budget of the NHRI||% of the National Budget|
The total percentage of each national budget spent for the NHRIs in the country ranges from 0.04% in Serbia to 0.07% in Montenegro and Kosovo and is in the middle for North Macedonia – 0.05%. The differences seem logical, taking into account the size of the countries and the size of their national budgets. However, no proportionality can be observed in the individual allocations to the NHRIs in each country, except in the case of Montenegro, where both NHRIs (which have double mandates) have been allocated almost equal funds.
In some cases, there is little correlation between the amount allocated to the NHRI and the effectiveness as assessed by this research. Such is the case, e.g. with the EB in Serbia, which scored highest as an individual body, as well as the SADP in North Macedonia, which scored second high, although these institutions have received relatively lower funds from the national budgets than the other NHRIs. In North Macedonia, the discrepancy in this correlation is high between the SADP and FAI – they both received almost equal funds, but the FAI has scored much lower in this research. The data protection authority in Kosovo received the least amount of funds and has low effectiveness – the same correlation is valid for the EB in North Macedonia, which received the least amount of funds in the country and is the least effective.
While it is challenging to set a quantitative standard for sufficiency of the allocated funds to the NHRIs, the presented data and the evident discrepancies demonstrate the need for introducing more objective and measurable indicators for funding the functioning of the NHRIs.
On the indicator transparent and meritocratic recruitment procedures, none of theNHRIs scored maximum 2, as none was assessed as recruiting staff independently, in a transparent and meritocratic manner. MostNHRIsare ranked medium (1), meaning that the NHRIs recruits its staff, but there are modes for transfer of staff by the government or other forms of influence on staff recruitment exerted by the government. The Data ProtectionDirectorate of Kosovo also scored 0, as well as theOmbudsman in Albania,in the latterrecruitments are subject to the procedure by the Law on Civil Servants. The score for the EB in North Macedonia is also 0, as it simply did not have any staff, only commissioners were appointed. As noted in the Albania Country Report, although the procedure seems de jure transparent, there is always the possibility of the technical staff to be appointed based on political affinity.20 This observation is also valid for the other NHRIs in the region.
The Kosovan Ombudsperson and the Albanian EB had the highest score on the sub-indicator sufficient human resources, signifying thatthe institutionhas enough staff to carry out its mandate fully. The most frequent is the medium score (1), meaning that the NHRIs have a sufficient number of staff for some parts of their mandate, but not for all. Such is the case with ombudspersons in all countries, except for Kosovo; with EBs in Montenegro, Serbia and Bosnia and Herzegovina, as well as with SADP-FAI in Montenegro, Albania, Bosnia and Herzegovina and North Macedonia. The EB in North Macedonia, the SADP-FAI in Serbia and SADP in Kosovo do not have enough staff to carry out their mandates fully and are consequently assigned 0. As stated previously, the EB in North Macedonia did not have any staff.
The Ombudsperson in Montenegro and the EB in Serbia got the maximum value (2) for the sub-indicator adequate human resources, as it was assessed thatthey hadrecruited sufficiently qualified staff members, from a variety of fields, providing expertise in all aspects of their work. The EB and the FAI in North Macedonia, as well as the SADP in Kosovo, are graded with a minimum (0), meaning that the current staff does not have the expertise for all aspects of the institution’s mandate. All other NHRIs were graded medium (1), meaning that current staff has the expertise for carrying out the basic mandate, but the institution lacks specialised staff. The growing requirements for expertise in data protection in the relevant NHRI pose an additional challenge, especially that the needs of the private sector have also increased.
The issue of pluralism, which is a specific indicator for the ombudspersons and the EBs, based on defined international standards, is the most unified for the countries, as they were all assessed with the medium score of 1, meaning that the composition of (members and) staff reflects the diversity in society to some extent and not fully. As illustrative we present here the Macedonian case of the Ombudsperson.21 There is diversity concerning gender, although women are somewhat overrepresented; as for ethnicity, Albanians are overrepresented, whereas some of the other ethnicities (such as the Turks) are underrepresented.22 In Bosnia and Herzegovina, the structure of employees follows the “national key” logic.23 It is indicative that all the countries lack information as to other diversity – such as disability, sexual orientation or age.
As for training, most NHRIs in the region were graded medium. As indicated in the Montenegro country report, the funds allocated for training in the budget are scarce. The situation in Serbia seems to be different, as all institutions have received the maximum score (2), meaning that the NHRI has a training programme including the NHRI members and staff and key target groups. The Ombudsperson in BiH and the EB in North Macedonia got the minimum score (0).
The specific indicator Internal structure enables the focus on each part of the mandate for Ombudsperson and EB is satisfied highly by ombudspersons in four countries (2). At the same time, in two (Bosnia and Herzegovina and Kosovo) it is medium, meaning that the internal structure and distribution of responsibilities of the NHRI units cover all parts of the mandate, but do not enable the appropriate focus to each part of the mandate. Such as the Ombudsperson in Kosovo did not have a dedicated unit for its access to information mandate. The EBs show more variances, as Montenegro and Serbia have scored maximum, while Albania, Bosnia and Herzegovina and Kosovo have scored medium. The EB in North Macedonia scored the minimum 0.
On another specific criterion for ombudspersons and EBs regional offices/outreach, the ombudsperson in North Macedonia and Kosovo scored the maximum 2, as the Macedonian Ombudsman has six and the Kosovan – even eight regional offices spread throughout the territory of the country. In Serbia and Albania, both the ombudsperson and EB have some regional offices, but they do not cover the whole territory of the Republic of Serbia or Albania. In Montenegro, the situation is specific due to its small size. Although the institution does not have offices outside of the capital city, it has “postal boxes” and has organised the “Days of the Ombudsperson” in several Montenegrin municipalities.24 In Bosnia and Herzegovina, the plans to establish three additional offices (adding to the three existing regional and one local offices) were never realised, but “office days” in six locations are periodically held.25
Learning and change were also assigned with an indicator. The scores are diverse and do not seem to correlate to the other indicators in this domain. The EB in Serbia, the SADP and FAI in North Macedonia and SADP in Bosnia and Herzegovina scored highest (2), meaning that these NHRIs have an established system of regular strategic planning, with output and impact indicators and an evaluation system. The medium score was assigned to both NHRIs in Montenegro and the Ombudsperson and EB in North Macedonia for not carrying out the strategic planning regularly. The Ombudsperson in Serbia and the SADP in Kosovo scored lowest (0) due to lack of strategic planning overall and/or an evaluation framework.
There is few public information on financial control, mainly from the state audit office reports. Most NHRIs were rated medium (1) as their state audit offices perform audit once in several years, depending on their plans, or do not have established internal control. In Bosnia and Herzegovina and Kosovo, the state audit institution is obliged to audit the annual financial statements of the NHRIs, and they have established internal control, which in the case of Bosnia and Herzegovina is done by the internal audit unit of the Parliamentary Assembly. Therefore, the NHRIs in these two countries scored the maximum. The EB in North Macedonia scored 0 since it lacks both external and internal control. Although internal control is established in most NHRIs in the region, it seems to be weak. Тhe SAPD-FAI in Serbia is a positive example, having adopted several documents related to internal financial control.26
In sum, Domain 2 ‘Availability of Resources and Capacities’ presents some of the key challenges for the effectiveness of the NHRI. The insufficiency of financial, including human resources is a serious issue, which can also indicate the lack of political will to increase the effectiveness of the NHRI. However, the scores in this domain also point to the insufficient capacity of most NHRIs in the region to further improve their effectiveness by themselves, illustrated by the lack of strategic vision, low capacity for appropriate spending of the available funds, insufficient capacity building and professionalism, inadequate internal organisation and distribution of resources, etc. Furthermore, politicisation in the recruitment process in the NHRIs in the region and lack of pluralism of employees on all grounds are also of concern.
While the average scores of indicators in this domain (1.02) is very close to that of Domain 2, the single scores vary much more significantly both in terms of NHRI mandate, as well as in terms of countries.
The Montenegrin Ombudsperson has scored best among ombudspersons (1.37), followed by the Albanian, Kosovan (1.33) and Serbian Ombudsperson (1.13). The Ombudsperson of North Macedonia and Bosnia and Herzegovina scored significantly lower than their peers – only 0.90 and 0.77 respectively, which are by far the lowest grades per domain for both institutions. The equality bodies/mandates in Albania, Kosovo, Serbia and Montenegro are almost at the same level of effectiveness for this domain: 1.20, 1.30, 1.35 and 1.30. The Bosnian and Herzegovinian and Macedonian EBs scored the lowest also in this domain – 0.85 and 0.55 respectively. On the contrary, the Macedonian SADP has a maximum score – 1.50, in advance of Albania – 1.17, and well in advance of the SADPs of all other countries – Bosnia and Herzegovina – 0.78, Kosovo – 0.89, Montenegro – 1.00, and Serbia – 0.94. FAI scores are relatively even and low on average: 1.06 for Albania, 0.31 for Bosnia and Herzegovina, 0.88 for Kosovo, 0.81 for Montenegro and 0.69 for North Macedonia and Serbia.
The indicator on parliamentary scrutiny was based on the deliberation of the NHRI reports in the parliaments – in parliamentary bodies or plenary session. Some NHRIs have not even met this rather formal criterion. Without debate in the Parliament, neither in plenary session nor in the parliamentary bodies, has resulted in the lowest score (0) for the Ombudsperson and the SADP in Bosnia and Herzegovina and the SADP-FAI in Serbia. The EB Report in North Macedonia and the SADP report in Albania were only debated in parliamentary bodies (thus receiving the score 1). The reports of the Serbian Ombudsperson and EB were debated only in the parliamentary bodies and not in plenary session not only in 2018, but three years before and thus scored 1 on this indicator. All other NHRI reports were subject to parliamentary plenary debate (hence, the value 2 was assigned). However, as the Montenegrin report points out, “even if the reports of the NHRI are commonly on the agenda of the plenary sessions of the national Parliament, in most cases such plenary debates tantamount to the presentation of the institution’s activities, rather than true scrutiny of its activities”. Hence the high score (2) “may reflect the adequate legislative framework rather than a substantial mechanism of checks and balances”.27
On cooperation with Government, we looked at the issue of consultation of NHRI on government policy proposals related to human rights. In Montenegro and North Macedonia there is no obligation by the Government to consult the NHRIs, although the specific laws may provide the opportunity for NHRIs to contribute to laws and policy proposals, as is the case in Montenegro. Consequently, the ombudspersons and EB in Montenegro and North Macedonia received a minimum score (0). In Serbia, the Government has an obligation to receive an opinion from bodies on the draft laws and strategies within their jurisdiction, according to special laws,28 but there is no obligation to provide feedback on the provided proposals due to which all NHRIs got the middle score (1). The situation is similar in Albania, so the Albanian Ombudsperson also scored 1 on this indicator. The indicator was set slightly lower for SADPs and FAIs, due to the less explicit requirements in international standards. The SADP and FAI all received the middle score, except for the SADP in Kosovo, which scored 2 and the FAI in North Macedonia, which scored 0.
The specific indicator set for ombudspersons and EBs providing information to NHRI refers to the obligation to provide data to the NHRI – in general, or related to specific cases. All ombudspersons, as well as EB in all countries, scored highest (2) as the executive and other branches/bodies have an obligation to provide relevant data to the NHRI, as well as data for evidence on specific cases. The score assigned to the EB in North Macedonia was 1, as there is an only general obligation to provide relevant data, but not data for evidence on specific cases.
Cooperation with other NHRIs is existing, but mainly not in a structured manner. The indicator itself was not set as a formal requirement for memoranda of understanding or other signed documents but looked into actual proof of such cooperation. On this indicator, only the Montenegrin Ombudsperson scored 2. The Serbian NHRIs cut medium (1), as the cooperation usually means participation in conferences, round tables, meetings and expert meetings in the organization of NHRIs or other organisations,29 referral to reports of other NHRIs,30 rejection of complaints if citizens did not use the opportunity to address specialized NHRIs first,31 joint initiatives, etc. Unstructured cooperation was also the reason for a medium score (1) for all NHRIs in Kosovo, as well as in Albania. In North Macedonia,theOmbudsperson and the EB scored 1, whilethe SADP and FAI scored 0. In Bosnia and Herzegovina, there is an absence of cooperation between the NHRIs in general, so all institutions scored 0. Thisis assessed as “one of the weakest elements for all NHRIs in this domain is their mutual cooperation”, as the only sign of cooperation is the memorandum for understanding signed by the Ombudsperson and the CPAD, as well as forwarding cases which do not fall within Ombudsperson’s competence to the CPAD.32
The scores on cooperation with NGOs vary across countries and HNRIs, depending on whether the cooperation in fact existed at all, and whether it was well structured or not. While the Montenegrin Ombudsperson scored highest (2), the Macedonian scored lowest (0), and all other countries received a middle score (1). The high score of the Montenegrin Ombudsperson is due to having “actively and frequently teamed up with NGOs and the media, thus promoting its activities, especially as regards the rights of the child”.33 The Macedonian EB score is explained by the very superficial and sporadic cooperation with NGOs and deliberate acts of exclusion.34 The other lowest score – the FAI in North Macedonia is due to the fact that even though this institution had cooperated more with NGOs in the previous years, in 2018 this cooperation was lacking. All other NHRIs scored 1, as cooperation existed, but it was not pursued in a structured manner.
The indicator providing information on rights was based on the standard on publishing information on rights in an easy-to-read language, as well as the provision of translation into “all languages commonly used in the country” for the ombudspersons and EBs, as the latter is an explicit standard for them. The Albanian, Bosnian and Montenegrin ombudspersons scored middle (1), since information is not in all languages commonly used in the country. The Serbian Ombudsperson, the Kosovan Ombudsperson and SADP, and the Macedonian Ombudsperson and EB scored 0, as the information is not in an easy-to-read language, but rather formal. Except for Kosovo and Albania, all SADPs and FAIs scored 1, as they published information on rights, but they are not in an easy-to-read language. Upon the specific sub-indicator for SAPD providing information for data subjects, the Macedonian SADP scored highest (2), the Kosovan SADP lowest (1) compared to the other SADPs, which cut middle (1), which means that Macedonian SA has publicised the rights of data subjects contained in the Modernised Convention 108, as well as the manner of assisting non-residents.
The indicator on accessibility was broken down to sub-indicators for different NHRIs, to reflect the more precise requirements in international standards for specific categories. The general accessibility of the institution was measured through easily accessible premises (as physical positioning), online, email and telephone services. According to this indicator, all NHRIs in Serbia, the ombudspersons of Kosovo, Montenegro and North Macedonia and the SADP of Albania scored high (2). The Montenegrin EB and SADP-FAI, the SADP in North Macedonia, the ombudspersons and EBs of Albania and Bosnia and Herzegovina scored 1. The EB and FAI in North Macedonia scored the lowest (0). Accessibility for persons with disabilities remains an issue. Most NHRIs are accessible to persons with physical disabilities, but not other types of disabilities, such as sensory disabilities, resulting in a middle score (1) for the ombudspersons of Albania, Montenegro, North Macedonia and Serbia, EB in Albania and Serbia and all SADP FAI except for Kosovo. The ombudspersons of Bosnia and Herzegovina and Kosovo, the EB in North Macedonia and the SADP of Kosovo are inaccessible for physical disability, as well. It is worth mentioning that some NHRIs make serious efforts to increase accessibility for persons with disabilities, such as the EB and the SADP-FAI in Serbia, “as their websites are accessible for persons with disabilities, the latter also having a listening option”.35 On accessibility for children, as a specific sub-indicator for ombudspersons, all ombudspersons scored differently – Albania, Kosovo and Montenegro the highest (2), Bosnia and Herzegovina and Serbia in the middle (1) and North Macedonia – lowest (0).
Most NHRIs are active in international networks and activities. All of the NHRIs received a high score on membership in relevant international organisations/networks (2), except for the Montenegrin SADP-FAI, and Kosovan SADP which scored low (0) since they are members in less than two relevant international organisations or bodies. Concerning participation in international activities, all ombudspersons and EBs scored high (2), while EB in North Macedonia scored medium (1). The SADPs in Bosnia and Herzegovina, North Macedonia and Serbia scored high (2), and the SADP in Albania and Kosovo cut middle (1). Having participated in less than five international events, the SADP in Montenegro scored low (0). All countries scored low in international activities concerning the mandate of FAI, which apart from their low activity in this field, could also reflect the fact that official international activities are much less frequent than in the other areas. As the indicators on international activities were set as quantitative, generally based on the number of relevant organisations in which the NHRI is a member/observer or the number of relevant international events in which it has participated, it does not provide an insight in the quality and actual contribution and achievements from the membership/participation. Such assessment cannot be derived from the reports and public information of the NHRIs in the region, as they mainly list the activities, but do not assess the substance of their contribution or achievements from the international activities. Consequently, additional research is needed to evaluate the level of socialization of the NHRIs from the region in the international human rights sphere. Under the specific indicator for transnational cooperation on specific cases for the SADPs, which was quantitatively set based on the number of cases, ranked the Macedonian SADP highest (2), the Albanian, Serbian and Montenegrin SADP scored middle and the Bosnian and Herzegovinian and Kosovan SADP scored zero.
None of the ombudspersons and none of the EBs except for the Ombudsperson of Kosovo and the EB of Serbia (scoring highest – 2) has a communication strategy. None of the SADPs and FAIs, except for the Macedonian ones has a communication strategy (SADP was assigned 2 and FAI 1, since its communication strategy did not have a reference period). It also has to be noted that the indicator was set in such a way not to insist on a separate document, but rather practically on a strategy, regardless in what form/which document it is presented. This situation is worrying, as one of the key mandates of NHRIs is the promotion of human rights and therefore, the NHRIs need to approach their target groups and the broader public in a well-planned manner.
On confidentiality/protection with the Ombudspersons and EBs,it was checked whether and to what extent confidentiality to witnesses and whistle-blowers is provided. Half of the ombudspersons (Bosnia and Herzegovina, Montenegro and North Macedonia) and all of the EB scored middle (1), as they ensure confidentiality to a limited extent, mainly referring to the general legal framework. The Albanian, the Kosovan and the Serbian ombudspersons scored highest (2), as they have a prescribed obligation to protect whistle-blowers. The SADPs have the obligation for safeguarding professional secrecy with and after the term of office, which is sufficiently guaranteed in all countries (2), and to a limited extent in Serbia, which scored middle – 1.
While the status and challenges in this domain somewhat vary per country and per body, some common issues can be extrapolated.
Challenges in the region are still pertaining even to a basic standard as debating the reports of NHRIs in parliament, while substantial parliamentary scrutiny is missing. Cooperation with government through contribution to policy and law proposals is ongoing. Still, in many cases, there is no formal requirement for the governments to request an opinion from NHRI and no obligation for feedback. Structured cooperation with other NHRIs and with NGO is generally lacking. While international cooperation is rather vivid, NHRIs do not provide information on the substance of their contributions and achievements of the international socialisation. Although NHRIs provide information on the rights, they are mostly in a formal, rather than easy-to-read language. Accessibility for persons with disabilities, primarily sensory disabilities is an issue for all NHRIs. Only three NHRIs (and no ombudsperson) in the region have established a communication strategy, which points out to a low level of capacity of NHRIs to approach their target groups and citizens. The protection of witnesses and whistle-blowers, as well as professional secrecy rules for SADP in most cases, need to be strengthened.
The average score of indicators in this domain is 1.22. The maximum score is 1.52, while the minimum 0.63, thus a difference of 0.89 points can be observed.
The ombudspersons score within a range 0.96-1.52, the Kosovan scoring highest (1.52), and the Albanian– lowest 0.96. Variances are smaller with the EBs, the EB in Serbia scoring highest – 1.49 and the EB of North Macedonia scoring the lowest 0.95. The SADP mandate and powers are more robust in North Macedonia and Serbia – 1.50 versus the lowest 0.88 in Kosovo. The FAI mandate in Serbia and Albania is scoring the same (1.50), followed by 1.19 of Montenegro and the low 0.88, 0.69 and 0.63 of the Macedonian, Kosovan and BiH FAI, respectively.
The indicators in this domain are more diversified, as the mandates and powers are specific for each body. Consequently, we present the findings for each body/mandate, comparatively for all the countries.
All ombudspersons, except for the Albanian, have a broad mandate on human rights promotion in line with the Paris principles: competence to freely address public opinion, raise public awareness on human rights issues, carry out education and training programs and making use of the press.
The ombudspersons of Montenegro, North Macedonia, Serbia and Kosovo havean explicit mandate to promote and ensure ratification and harmonization of national legislation, regulations and practices with the international human rights instrumentsand to promote and ensure their effective implementation, but not an explicit obligation to contribute to the reports which states are required to submit to international bodies and institutions and express an opinion on the subject, with due respect for their independence. Thus they all scored medium (1). The ombudspersons of Albania and BiH scored 0, as they do not have an explicit mandate for these actions.
On the indicator coverage of sectors, ombudspersons in Albania, Bosnia and Herzegovina and Kosovo scored high 2, as they cover both the public authorities and the private sector performing public functions. Ombudspersons in Montenegro, North Macedonia and Serbia cut medium as they cover the public authorities, without significant exceptions, but do not cover the private sector performing public functions.
Regarding powers for human rights protection, in all the countries the ombudsperson has both the power to obtain statements to assess situations raising human rights issues and the authority to compel witnesses, thus scoring 2 on the sub-indicator investigation. Allombudspersons have the power of unannounced and free access to inspect and examine any public premises, documents, equipment and assets, resulting in the score 2 to each of them. While equipped with other relevant powers for complaints, none of the Ombudspersons in the region has the ability to settle complaints through a binding determination, does scoring medium (1) on the powers on complaints. The ombudspersons in North Macedonia and Bosnia and Herzegovina have an unlimited authority to join or initiate action in court, achieving2 on this sub-indicator, as opposed to Serbia, Montenegro and Kosovo, which do not have this authority and scored the minimum. The Kosovan ombudsperson can only act as an amicus curiae in courts but does have standing before the Constitutional Court on constitutionality issues.36
An important indicator for ombudspersons is the follow-up of its recommendations. The reports of the Ombudsperson in North Macedonia and Bosnia and Herzegovina do not reveal this data and were therefore assigned the minimum 0. The Serbian Ombudsperson scored 2, as 93,15 % of his recommendations were accepted by public bodies in 2018.37 The Montenegrin, Albanian and the Kosovan Ombudsperson scored 1 (meaning that less than 90% of its recommendations were followed). The Montenegrin Ombudsperson highlighted that one of the key challenges the institution faces is the ‘attitude towards the unfollowed recommendation of the Ombudsperson’.38
Concerning initiatives to national authorities, halfof the ombudspersonsin the regionscored high, being very active in submitting initiatives and proposals (Serbia, Bosnia and Herzegovina and Kosovo), while the ombudspersons from Montenegro, North Macedonia and Albania scored medium.They all scored high (2)in submitting special reports, in addition to the annual report.
The mandate and powers of the ombudspersons as a national prevention mechanism in all the countries, except for Bosnia and Herzegovina, are entirely in line with the OP-CAT, resulting in the maximum grade of 2 for the three institutions. The ombudsperson institution of Bosnia and Herzegovina does not have a basis for this mandate in law.
Concerning the mandate on the rights of the child, the Macedonian Ombudsperson has scored highest (2), as it also has the authority to bring cases to court, which is not the case in Montenegro, Serbia, Albania and Kosovo, which have scored medium (1), since they have the mandate for prevention, promotion and protection of children’s rights, but not to bring cases to court. The ombudsperson institution in Bosnia and Herzegovina has a very vague mandate regarding children’s rights.39
The assessment of progress in the EC annual report in 2018 was graded as maximum 2 in North Macedonia and Kosovo, medium 1 in Montenegro, Serbia and Bosnia and Herzegovina and 0 for Albania.
According to the RCC Balkan Barometer survey, only the Montenegrin Ombudsperson passed the threshold of more than 50% having trust in the institution – 58%. The Kosovan Ombudsperson is on the margin – 50% trust, while the others lag behind – Bosnia and Herzegovina, North Macedonia, Serbia and Albania with 40%, 38%, 36%, and 34 % respectively.40 However, what is interesting about the results of this survey is that the ombudspersons in Montenegro and Kosovo had the highest trust compared to other institutions (courts, parliament, government, audit institution). This is the case also with Serbia, although the level of trust is significantly lower. In Albania and Bosnia and Herzegovina, the level of trust was about equal with the audit institution and higher than in the other institutions, while in Montenegro and North Macedonia the scores compete with those of the Government. In North Macedonia, the share of respondents, who do not have a position on the trust to the Ombudsman (have opted for the “I do not know” answer) is the highest – 23%.
There are no public opinion surveys for the other NHRIs.
All EBs have scored high – 2 on the indicators coverage of grounds. The same is for the status on the specific standards on equal treatment of all persons without discrimination on the grounds of sex. As to the areas/fields of discrimination, all EB except for Kosovoscored 2, as they cover a wide range of issues, still leaving the list open, as well as all areas noted in the ECRI GPR. The Kosovan mandate of EB does not cover hate speech; hence it has scored medium 1.
The legislative framework ensures a full mandate on promotion and prevention to all EBs asit includes promotion and achievement of equality, prevention and elimination of discrimination and intolerance, including structural discrimination and hate speech and promotion of diversity and good relations between persons belonging to all the different groups in society. In addition, the EBs have an obligation to promote equality through training, raising awareness and developing standards. Consequently, all institutions/mandates scored high (2), except for Albania, which scored medium.
However, there are differences in how EBs perform in practice. The Serbian, Albanian, Kosovan and the EB of Bosnia and Herzegovina were pro-active and thus scored high (2) on initiatives to national authorities, while both institutions in Montenegro and North Macedonia, scored low – 0, with no initiatives submitted.
When it comes to responsibilities for independent assistance of the EB, in Montenegro and Albania they include all relevant responsibilities: receiving and handling individual or collective complaints; providing legal advice to victims, including in pursuing their complaints; engaging in activities of mediation and conciliation; representing complainants in court, and acting as amicus curiae or expert where required and scored the maximum (2). In the other countries, the EB has an only limited mandate to act as amicus curiae or expert and scored 1. The Serbian EB has actually engaged in cases of strategic litigation, thus scoring 2. One case was initiated in 2018, and several were ongoing.41 All the other EBs achieved medium score (1) as strategic litigation is provided in the legal framework, but their bodies did not engage in such a case. The Macedonian EB did not have the right to issue recommendations, nor legally binding decisions on specific cases, thus scoring the lowest (0). In contrast, the EBs in Montenegro, Serbia, Albania and Kosovo have the right to issue recommendations, but not legally binding decisions on specific cases (achieved middle mark – 1). Only the Ombudsperson in BiH in its mandate as an EB has the right to issue recommendations and legally binding decisions on specific cases, subject to judicial review. On the actual follow-up of recommendations, the Serbian and the BiH EB scored highest (2) as more than 90% were followed, while the Montenegrin, Macedonian and Albanian score is medium (1), due to less than 90% recommendations followed. The Kosovan Ombudsperson in its mandate as an EB scored lowest (0), as no public data are available on the follow-up, despite the legal obligation for its monitoring.42
All EBs allow all manners of submission of complaints: orally, in written form or online and have achieved the highest grade. However, in Montenegro and Serbia, complaints can be submitted “in a language of the complainant’s choosing which is common in the country where the equality body is located” (maximum 2 points assigned). Albania and BiH also scored the maximum 2, while in the Macedonian and Kosovan case this is not ensured for all such languages (thus, 1 was assigned). All EBs scored maximum on the sub-indicator free of charge since the procedure of submission does not impose any costs.
The mandate of the EB in North Macedonia does not explicitly include regular independent surveys, so it got the lowest grade (0). In all the other countries, they are included in the EB mandate but were not performed in 2018, resulting in a medium score (1). In Serbia they are conducted each third year, the last being conducted in 2016.43 In Montenegro, Serbia, North Macedonia and Kosovo, findings from independent research were included in the reports, while in BiH and Albania they were not included.
The EBs in Albania and Kosovo submitted more than two submissions as a contribution to an international body thus scoring maximum 2 on this indicator, while the BiH institution submitted two, this scoring the medium 1. EBs in Montenegro, North Macedonia and Serbia did not submit such contributionsin 2018, so they all scored 0.
No public polls are available on public trust specifically for EBs – only for ombudspersons, which have a mandate as an EB.
Only the Kosovan Ombudsperson, which is also acting as an EB, got a high score on the indicator assessment in the EC annual report. All other EBs got the medium score (1), as little or some progress was observed.
Supervisory authorities on data protection
Supervisory authorities on data protection in Montenegro and Serbia have full mandate and powers for monitoring and enforcement of the Data Protection Law and all relevant developments for data protection, so they scored 2. All other SADPs were marked medium (1), as they do not encompass all the powers enlisted under the GDPR.
The Macedonian, Serbian, Albanian and BiH SADPs carried out promotional activities for both the general public and for data controllers and processors, getting the highest mark 2. Montenegro and Kosovo scored 1, as in Montenegro only trainings were organised, and no other activities of promotion, while the Kosovan SADP organised limited promotional activities.
The Serbian SADP- FAI performs a strong advisory role, as it submitted 59 opinions on draft-laws and four initiatives to challenge constitutionality (for the two mandates).44 The SADPs of North Macedonia and Albania also scored high, having submitted more than five initiatives, while Montenegro had less and scored medium (1). The SADP in BiH submitted only one initiative, while the Kosovan institution did not provide a breakdown of data in its report, so it is not clear whether it took the initiative itself; hence, they scored lowest – 0.
All SADPs have full mandate and powers for investigations, in line with the GDPR.AllSADPs in the region, except for Montenegro, have the full mandate and powers to handle complaints by data subjects, issue binding decisions, as well as the obligation to inform the data subject on the progress and outcome of the complaint. In Montenegro, there is no power to issue a binding decision, which is resulting in a middle score (1).
On the regulatory functions/authorisations, theSADPs mainly scored medium (North Macedonia, Albania, BiH and Kosovo), meaning that they have some, but not all the functions and authorisations requires by the GDPR. The SADP in Serbia scores high (2), as it has full mandate and powers for authorisations of codes of conduct, certifications, standard, authorisation of contractual clauses and administrative arrangements and approval of binding corporate rules. Montenegro scored low (0), as the mandate of its SADP does not include such powers.
Good progress in the EC report was observed for SADP in North Macedonia, which scored high (2), Montenegro, Serbia and Albania scored medium (1), while the Serbian and Kosovo institutions scored low (0).
No survey on public trust in the SADP was carried out in any of the countries in the region.
Institution for free access to information
FAIs in Montenegro, Serbia, Albania and Kosovo (marked 2) have the full mandate for monitoring and oversight, meaning that they “can process requests for information, assist applicants, ensure the proactive dissemination of information by public bodies, monitor compliance with the law and present recommendations to ensure adherence to the right to access information”. The FAI of North Macedonia seems to be missing the mandate for assistance to applicants and proactive dissemination. According to the laws, the BiH institution does have a full mandate. However, in practice, this cannot be realized because public institutions do not fulfil their obligation to deliver data to the Ombudsman, and there are no sanctions.45 Thus, North Macedonia and Bosnia and Herzegovina have been graded medium (1) regarding this indicator.
The Serbian, Macedonian and Albanian FAI have carried out promotional activities for both the general public and public information holders and scored 2, while in Montenegro only trainings were organised, and in Bosnia and Herzegovina and Kosovo, only some public awareness activities were organised, resulting in the medium score (1).
The FAIs in Serbia and Albania were pro-active in submitting their initiatives to national authorities and thus scored 2 on the indicator advisory role, while the score for the other countries is 0.
The scores are relatively high concerning the procedures for complaints handling in Montenegro, North Macedonia and Serbia. In all countries, they are free of charge. FAIs in Montenegro, Serbia and North Macedonia have the right to issue binding decisions. They have scored high on this indicator (2), while Albania, Bosnia and Herzegovina and Kosovo scored medium as their FAIs cannot issue binding decisions. However, the FAI of Montenegro also scored medium on the manner of submission, unlike the FAIs other two countries, which scored high.
The assessments in the EC annual report were relatively low, resulting in the score 0 for North Macedonia, Serbia, Bosnia and Herzegovina and Kosovo and medium score for Montenegro and Albania.
In sum, the main legislative framework for the mandates and powers of NHRIs in the six countries is established, but there are variances, even more so in their performance. Complaints handling seems to be already an established practice, but key issues relate to the follow-up of recommendations. There is room for more pro-activeness of NHRIs on promotion, submission of initiatives to the government, special reports and strategic litigation.
The conclusions and recommendations in this report do not repeat the recommendations from the country reports, addressed to the national authorities, national NHRIs and NGOs. They exclusively focus on issues within the regional, European or global scope and further research.
Consequently, the following recommendations should be considered:
National human rights institutions in the Western Balkans were established in the context of transition to pluralist democracy. Human rights were the flagship of transition to pluralist democracy and have been at the core of the transition process. The start of the democratic transition processes in the Western Balkans coincided with the major efforts in the international community to strengthen the protection of human rights at the global level. In the early 1990s, the United Nations started promoting National Human Rights Institutions (NHRIs), independent national agencies specifically designed to protect and promote human rights, in order to “bridge the gulf between international law and domestic practices”46.
However, these global trends did not have an immediate impact in the Western Balkans, as most countries in the region were part of the dissolution process of former Yugoslavia, accompanied by war, violence and massive infringements of human rights. All of the countries covered by this research, except North Macedonia, were involved in the Yugoslav dissolution wars. North Macedonia managed to avoid the wars that followed the Yugoslav break-up. Still, it experienced an inter-ethnic conflict in 2001, which had a significant impact on the exercise of human rights in the country.
Only after the conflicts ended – in the late nineties and the beginning of the new millennium – the focus in the WB turned to establishment/re-establishment of the institutions, including the NHRIs.
The Ombudspersons as bodies protecting human rights in the WB countries were established in the period 1996-2013.47 All the WB countries adopted the Ombudsperson institution as a main national human rights body.
The following table presents the human rights institutions in all the WB countries, their year of establishment, the accreditation status with the Global Alliance for National Human Rights Institutions (GAHNRI) and the year of its achievement/confirmation.48
|Country||Title of the body||Year of establishment||Accreditation|
|Albania||Republic of Albania People’s Advocate||2000||A||2003; 2014|
|Bosnia and Herzegovina||The Institution of Human Rights’ Ombudsperson of BiH||1996||A||2001; 2017|
|Kosovo||The Ombudsperson Institution of Kosovo||2000||Observer|
|Montenegro||Protector of Human Rights and Freedoms – Ombudsperson||2013||B||2016|
|Serbia||Protector of Citizens – Ombudsperson||2007||A||2010; 2015|
Since then, the establishment and functioning of NHRIs in the Western Balkans had been mainly under the influence of the European integration process, which includes the assessment of the NHRIs in its political conditionality.
Moreover, the EU conditionality has directly triggered the creation of specific human right bodies – for data protection, free access to public information, non-discrimination, etc. While the countries had some autonomy in the manner of organising these functions and structuring the bodies, they had no choice in introducing them.
All the NHRIs became subject to rigorous monitoring and assessment by the European Commission – through their monitoring and reporting mechanism (findings presented in the annual report). Moreover, they are subject to the benchmarking mechanism, in which, in addition to the European Commission, the Member States have an increased role. Since 2013, the EU established the “fundamentals first” approach, focusing on democracy and the rule of law, consequently, more rigorous conditionality was introduced for the functioning of the NHRIs, which are all part of the “fundamentals first” approach.49
The political landscape in the region is rather complex, and all the countries included in this research are experiencing backsliding in the state of democracy.50
This trend is not specific to the WB, but rather a global movement, as illustrated by Freedom in the World, which “has recorded global declines in political rights and civil liberties for an alarming 13 consecutive years, from 2005 to 2018”.51 The Report has recorded a decline of the share of “free countries” to 44,1% in 2018 from 46,1% in 2008 and increase of “non-free” countries to 25,6% in 2018 from 21,8% in 2008. All countries subject to this research are in the group of “partly free” countries.
While the EU conditionality has been strengthened, the perspectives of EU membership for the WB countries are weakening, and the credibility of the EU commitment is fading52; consequently, the external impetus for democratic reforms is waning, which can also have a direct impact on the performance of the NHRIs.
The EU conditionality is the main “umbrella” for the development of NHRI’s in the WB. However, it serves as a “prism” through which the global standards are incorporated and embedded. Consequently, the functioning of the NHRIs is generally assessed in the context of the international framework under the UN, EU and CoE.
The economic context is also highly relevant for the effectiveness of the NHRIs, which need resources to fulfil their mandate. The lack of resources in general on the national level can be an excuse for not equipping the NHRI with the necessary resources, which is essential for their capacity. While the WB countries are experiencing growth in GDP (3,8% in 2018), this growth is not sufficient to ensure fast catching up with the EU average. Moreover, with the new enlargement methodology, democracy and the rule of law belong to the Cluster 1 “Fundamentals” which must now be opened first in the negotiations.53
Systematic monitoring of NHRIs is a part of the already established comprehensive monitoring system by civil society organisations (CSOs) of the state of human rights in the WB. It has also become a part of the established system of independent civil society monitoring of the EU accession process, mainly through regular shadow reporting, as NHRIs are part of the EU conditionality. In recent years CSOs in the WB have begun to turn focus specifically to issues related to the effectiveness of independent bodies in the area of democracy and the rule of law, seeing them as a potential stronger pillar and ally against authoritarian tendencies.54
The most relevant sources of independent monitoring are presented below, with a focus on the newest publications.
In Albania, the monitoring of NHRIs is done almost exclusively by CSOs. However, this monitoring is mainly focused on the right to information. There are several CSOs monitoring this right and the work of the Commissioner, such as Respublika.55
There is very little research on NHRIs and their effectiveness in Bosnia and Herzegovina as well. Most of it is done by international organisations, think-tanks and CSOs. A Council of Europe’s 2018 report discussed the efficiency of the Ombudsperson,56 and a 2019 report presented findings on institutions in combating discrimination in BiH in 2018.57 The Centre for Social Research Analitika looked at the Ombudsman in the system of protection against discrimination58 and published a brief regarding its mandate on FAI.59
In Kosovo, the research on NHRI effectiveness is mainly conducted by CSOs. Substantial work was done around the “human rights package”. For example, the Youth Initiative for Human Rights researched the work of the Ombudsperson.60 The equality mandate by the Ombudsperson was discussed in an Advocacy Centre for Democratic Culture brief.61 Regarding the NAPPD, no research was identified.
In Montenegro, research on the NHRIs is scarce. The NGO Network for the Affirmation of NGO Sector (MANS) recently published a report on the role and capacity of the Agency for Free Access to Information and Data Protection.62
In North Macedonia, the European Policy Institute – Skopje has been publishing regular annual monitoring reports of the Network 23 on Chapter 23 Judiciary and Fundamental Rights, including the NHRI’s role in the protection of fundamental rights.63 A specific monitoring report on the Ombudsperson by NGO Infocentar from 2018 covered several aspects relevant for the institution’s effectiveness – legal framework, regional offices, as well as communication and cooperation with NGOs and media.64 The Non-discrimination Network has been monitoring the implementation of the Anti-discrimination Law since 2011, including the operation of the Commission for Prevention and Protection of Discrimination65, while the Helsinki Committee for Human Rights published an annual information bulletin on discrimination.66 The think-tank Analytica has set out a framework for monitoring the Commission on Free Access to Public Information and the Data Protection Directorate.67
In Serbia, a regular annual report on the state of human rights is published by the Centre for Human Rights, which includes observations and assessments on the NHRIs.68 In addition, an annual shadow report on the state of democracy in Serbia is published, which includes findings on the NHRIs.69 There is also a comprehensive study on the effectiveness of anti-discrimination legal framework, including the work of the Commissioner for Protection of Equality (CPE).70 The Coalition prEUgovor has been regularly monitoring progress in Chapters 23 and 24 of the EU accession process, through structured monitoring of the implementation of the Action Plans for fulfilling the EU interim benchmarks, resulting in Alarm reports. The rising interest for issues relevant to the effectiveness of NHRI is evident in the recent Working report on the role and status of Ombudsperson and Commissioner for the protection of equality.71 However, the academic research literature on NHRI’s is limited, having only one comprehensive study on independent institutions in Serbia.72
The European Network of Legal Experts in the Non-discrimination field annual reports on non-discrimination inspect the compliance of the equality body with EU directives’ standards. It has published reports on all Albania, Montenegro, North Macedonia and Serbia.73
A valuable source on the public opinion on the ombudsperson institution in the WB countries – on the level of public trust and independence – is the annual public opinion survey of the Regional Cooperation Council.74
International donors fund all monitoring efforts; consequently, sustainability is questionable, as we have not recorded any systematic monitoring effort funded by national institutions.
Relevant global and regional reviews of literature do not record regional studies pertinent to the six countries. Two papers relevant for Bosnia and Herzegovina are included.75 However, with donor support, some research has resulted in relevant comparative studies, such as a regional study on non-discrimination in 2016.76
This research aims to assess the effectiveness of the human rights institutions in Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, and Serbia, based on a pre-defined set of indicators.
The definition of NHRI is based on global standards. The definition has been developed within the UN system, where an NHRI is defined as “a body which is established by a Government under the constitution, or by law or decree, the functions of which are specifically designed in terms of the promotion and protection of human rights77 or as “state bodies with a constitutional and/or legislative mandate to protect and promote human rights, that are part of the State apparatus and are funded by the State.78
Two elements of the definition can be distinguished:
The NHRIs are neither judicial nor law-making, rather – administrative in nature.
The second element of the definition is their mandate – to protect and promote human rights. The mandate can be determined either in Constitution or in Law.
Consequently, in this research, we apply the following definition of an NHRI:
A National Human Rights Institution is a body established by the state with the mandate to protect and promote human rights.
At the global level, six structural models of NHRIs can be distinguished: commissions; ombudsperson institutes; hybrid institutions; consultative and advisory bodies; research institutes and centres; civil rights protectors; public defenders; and parliamentary advocates.
The organisational theory provides different approaches to the definition of “effectiveness” – the goal approach, the resources approach, the internal process approach, and the strategic constituencies approach. The analysis of the current standards for NHRIs indicates that a combined approach has been applied in setting the framework for assessing the effectiveness of NHRIs.
Determinants and definitions of effectiveness are found both in international standards, as well as in academic literature.
ECRI defines that “effectiveness means that the equality body implements its functions and competences in a way and to a scale and standard that make a significant impact on the achievement of equality and the elimination of discrimination and intolerance. 79
Similar is the definition by the CoE Commissioner for human rights on national structures for promoting equality, which states that “ Effectiveness requires that such structures are able to deploy all of their functions and powers to a scale and a standard that ensures impact and the full realisation of their potential.” 80
The Report on Assessing the Effectiveness of National Human Rights Institutions identified the factors of effectiveness of NHRI’s. The NHRIs tend to be more effective if they:
The most recent trends in standards, as well as academic literature, tend to emphasise the impact of NHRIs and, in this line, determine the factors for effectiveness.
The CoE Commissioner for human rights classifies the main factors for the effectiveness of equality bodies in the following manner:
In the evaluation of the effectiveness of NHRI, three approaches can be distinguished:
The structural approach, which dominated in the early years – in the 90s – focuses on the compliance of NHRI with the main legal norms – the Paris Principles. Academic research, on the one hand, points out to the importance of the institutional design for the effectiveness of NHRIs85. At the same time, it concludes that while the current standards (such as the Paris Principles) “provide a yardstick against which to measure compliance, the criteria by which performance should be assessed are less clear”.86 However, studies have confirmed that “formal institutional safeguards influence human rights outcomes, in part because formal institutional design remains relatively stable over time.”87
The mandate-based approaches are performance-based and focus on the success in performing the mandate of the NHRI.
Impact-based approaches focus on what effect an NHRI has in improving respect for human rights. While recent definitions of effectiveness emphasise impact, this approach has most practical obstacles, as it is challenging to isolate the factor of NHRI effectiveness as a determinant for a situation of the human rights and “the lack of a general measure of respect for human rights means that determining the impact of an NHRI across the board is impossible at the present time”.88
Consequently, measuring effectiveness that combines the structural and the mandate-based approach is the only feasible for the NHRI institutions in the given context and current state of development of and research on NHRIs in the Western Balkans.
By taking into account the context, the scope and the aim of our research, we define the effectiveness of the NHRI as “the capability of the NHRI to independently perform its mandate and powers, with the aim to make a significant impact on the achievement of human rights”.
The following institutions in Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia were included in this research:
Bosnia and Herzegovina
In the following table, the bodies are presented per mandate for each country and year of establishment/awarding the mandate:
|NHRI||People’s Advocate [Avokati i Popullit]||1999||The Institution of Human Rights Ombudsman of BiH [Institucija ombudsmena/ombudsmana za ljudska prava|
Bosne i Hercegovine]
[Institucioni i Avokatit të Popullit; Institucija
|2000||Ombudsperson [Zaštitnik/ca ljudskih prava i sloboda Crne Gore]||2003||Ombudsperson [Народен правобранител]||1997||Protector of Citizens [Zaštitnik građana]||2007|
|Equality body||Commissioner for Protection against Discrimination [Komisioneri për Mbrojtjen nga Diskriminimi]||2010||The Institution of Human Rights Ombudsman of BiH [Institucija ombudsmena/ombudsmana za ljudska prava|
Bosne i Hercegovine]
[Institucioni i Avokatit të Popullit; Institucija
|2004||Ombudsperson [Zaštitnik/ca ljudskih prava i sloboda Crne Gore]||2014||Commission for Protection against Discrimination [Комисија за заштита од дискриминација]||2010||Commissioner for Protection of Equality [Poverenik za zaštitu ravnopravnosti]||2011|
|Data protection supervisory authority||Information and Data Protection Commissioner [Komisioneri për të Drejtën e Informimit dhe Mbrojtjen e të|
|2008||Personal Data Protection Agency|
in Bosnia and Herzegovina [Agencija za zaštitu ličnih podataka u
Bosni i Hercegovini]
|2006||National Agency for the Protection of Personal Data|
[Agjencia Shtetërore për Mbrojtjen e të Dhënave
Personale; Državna agencija za zaštitu ličnih
|2010||Agency for Personal Data Protection and Free Access to Information [Agencija za zaštitu ličnih podataka|
i slobodan pristup informacijama]
|2009||Data Protection Directorate [Дирекција за заштита на личните податоци]||2005||Commissioner for Information of Public Importance and Personal Dana Protection [Poverenik za informacije|
od javnog značaja i zaštitu podataka o ličnosti]
|Institution for free access to information||Information and Data Protection Commissioner [Komisioneri për të Drejtën e Informimit dhe Mbrojtjen e të|
|2014||The Institution of Human Rights Ombudsman of BiH [Institucija ombudsmena/ombudsmana za ljudska prava|
Bosne i Hercegovine]
[Institucioni i Avokatit të Popullit; Institucija Ombudsmana]
|2010||Agency for Personal Data Protection and Free Access to Information [Agencija za zaštitu ličnih podataka|
i slobodan pristup informacijama]
|2012||Commission of Protection of the Right to Free Access to Public Information [Комисија за заштита на|
правото на слободен пристап до информациите од јавен карактер]
|2006||Commissioner for Information of Public Importance and Personal Dana Protection [Poverenik za informacije|
od javnog značaja i zaštitu podataka o ličnosti]
The international standards and their interpretations are the basis for developing the indicators for the evaluation of the effectiveness of the NHRI. In this section, an overview of the relevant standards is presented.
The UN standards on national human right bodies have been developed against the perceived need to develop instruments for effective implementation of the UN general framework for the protection of human rights.
The main document, setting the standards is the General Assembly Resolution 48/134 of 20 December 1993 – Principles relating to the Status of National Institutions, widely known as the Paris Principles.89
The Paris principles set up the following main criteria that NHRIs should fulfil:
These criteria have been the primary basis for defining and further developing the domains of the effectiveness of NHRIs.
The Paris Principles are an important example of UN normative influence – as “In developing the Paris Principles, the UN General Assembly used its principle leverage tool—normative influence—with far more specificity than is typical. In so doing, it triggered global diffusion of administrative agencies with highly specific safeguards.90
Furthermore, the Paris Principle had an additional high impact on the functioning of the NHRIs around the world through the fact that “The UN system has strongly promoted the role of the SCA as a third-party monitor of NHRI design integrity and performance. Delegation of monitoring duties to a third party can enhance compliance, especially where—as is the case of the SCA—a central body collects information from diverse sources and issues particular assessments in the form of letter grades to individual NHRIs”.91
The Global Alliance for National Human Rights Institutions (GAHNRI), set up in 1993 as an international association of national human rights institutions (NHRIs) from all parts of the globe92 has developed a system of accreditation of national human right bodies, through its Sub-Committee on Accreditation, granting A or B status to the applicants. The Sub-committee issues general observations, which are considered an “interpretative tools of the Paris Principle”.93
General Observations are structured into two categories: 1. Essential requirements of the Paris Principles and 2. Practices that directly promote Paris Principles compliance.
1. “Observations on essential requirements of the Paris Principles” include the following issues: 1.1 The establishment of NHRIs; 1.2 Human rights mandate; 1.3 Encouraging ratification or accession to international human rights instruments; 1.4 Interaction with the international human rights system; 1.5 Cooperation with other human rights bodies; 1.6 Recommendations by NHRIs; 1.7 Ensuring pluralism of the NHRI 1.8 Selection and appointment of the decision-making body of NHRIs; 1.9 Political representatives on NHRIs; 1.10 Adequate funding of NHRIs; 1.11 Annual reports of NHRIs.
2. “Practices that directly promote Paris Principles compliance” are identified relating to the following issues: 2.1 Guarantee of tenure for members of the NHRI decision-making body; 2.2 Full-time members of an NHRI; 2.3 Protection from criminal and civil liability for official actions and decisions undertaken in good faith; 2.4 Recruitment and retention of NHRI staff; 2.5 NHRIs during the situation of a coup d’état or a state of emergency; 2.6 Limitation of power of NHRIs due to national security; 2.7 Administrative regulation of NHRIs; 2.8 Assessing NHRIs as National Preventive and National Monitoring Mechanisms; 2.9 The quasi-judicial competency of NHRIs (complaints-handling).94
Within the UN system, specific recommendations/interpretations have been issued for implementation of the UN human rights conventions that have a direct impact on creating specific NHRIs or broadening the mandate of the existing NHRIs.
The Committee on Economic, Social and Cultural Rights has concluded that the role in promoting and ensuring the indivisibility and interdependence of all human rights “has too often either not been accorded to the institution or has been neglected or given a low priority by it” and therefore recommended that “full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions”.95
The Committee on the Rights of the Child, with responsibilities related to the implementation of the Convention on the Rights of the Child (CRC) stated that “every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights’, which should be able “independently and effectively, to monitor, promote and protect children’s rights”.96 Furthermore, it advised on the basic standards to be fulfilled by the NHRI (which are largely in line with the Paris Principles) and the activities it should pursue in the implementation of the rights of the child. The growing international commitments and activities in the area of the rights of the child resulted in creating specific institutions or yet broadening the mandate and creating particular units with the already existing NHRI (“general NHRI”).
The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT), adopted in 2002, obliges State Parties to designate or establish an “independent national preventive mechanism” to prevent torture and stipulates that this shall be done with “due consideration” to the Paris Principles (Article 18 (4)).97 In the WB countries, this obligation was implemented mainly through incorporating this responsibility within the NHRI and establishing a national preventive mechanism within the Institution.
The Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, obliges State Parties in Article 33 (2) to take the Paris Principles into account when designating or establishing an “independent mechanism” to promote, protect and monitor the implementation of the Convention.98
The CoE encouraged the application of the Paris Principles in the CoE Member States through the Recommendation of the Committee of Ministers on the establishment of independent national institutions for the promotion and protection of human rights.99 This brief document is not setting or interpreting standards, but rather inviting the Member States to draw on the experience of human right commissions and the ombudsmen.
The Paris Principles or more precisely, the GAHNRI General Observations are taken as a basis for the matrix of indicators in this Methodology, as the most recognised and highest global standard for NHRIs.
In addition to the general framework on NHRIs, the UN bodies have recommended the establishment of “national commissions or other bodies” charged with the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)100, which resulted in the creation of particular commissions/bodies more specifically designated as “equality bodies” or incorporating this responsibility within the NHRI.
In the European context, the equality bodies were created to respond to the more elaborated requirements for the implementation of the EU acquis related to non-discrimination – widely referred to as the “equal treatment directives”101, as well as the implementation of the European Convention on Human Rights (ECHR). In most European countries, new bodies have been created to deal with equal treatment – multi-ground or single-ground. In some countries, the national human rights institutions took over the mandate for promotion of equal treatment, thus becoming “multi-mandate” bodies.102
The following equal treatment directives, which are obligatory for the EU Member States, constitute provisions on equality bodies:
Each of the directives contains an identical provision “1. Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of ……”. The directives explicitly allow 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”.
In addition to the general requirement for an establishment or mandating a body, the directives set out the following mandatory responsibilities of these bodies:
As obligatory EU law, the directives set out only minimum requirements for equality bodies, and they do not “guarantee complete independence, effectiveness, sufficient powers and adequate resources for equality bodies.”104
Comprehensive standards related to equality bodies are set out in the Commission Recommendation of 22 June 2018 on standards for equality bodies, which stipulates that the equality bodies established in the MS in line with the equality directives should carry out their functions in an independent and effective way.105 The document, which is of non-obligatory nature, “goes further in recommending a mandate that encompasses the grounds of gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation, in the areas of employment and occupation, access to and supply of goods and services, education, social protection and social advantages. This is in line with the pending proposal of 2 July 2008 for a Council Directive on implementing the principle of equal treatment between persons, which covers all these grounds and it also reflects the situation already established for equality bodies in most Member States.”106 These standards were developed following the observations provided by the EC in its reports on the implementation of the equality directives, as well as the European Parliament resolution of 2015, which called on the EC “to introduce common standards and checks to ensure the independence and effectiveness of national equality bodies”.
The Recommendation includes standards in the areas of mandate, independence, effectiveness, accessibility and coordination, categorised by domains as follows:
Comprehensive and elaborate standards on equality bodies are contained in the Opinion on equality bodies of 2011 of the Human Rights Commissioner of the Council of Europe.107 In addition to the implementation of functions and powers, the standards are accorded in line with legislation, and the Opinion puts focus on the advancement of their mandate and especially on the potential of the equality bodies for broader impact in society and encouraging social change. The document has a unique approach since it examines the two key indicators of independence and effectiveness “in relation to the conditions created for such structures by external actors and in relation to the operation of the structures and the factors which lie within the control of these bodies”.108
The Revised General Policy Recommendation No. 2 of 2017 on equality bodies to combat racism and intolerance of ECRI of the CoE contains elaborate standards on NHRIs.109 Along with the EC Recommendation of 2018, these standards “have created a new context full of potential for equality bodies” and “valuably address equality bodies as institutions with a necessary role to play in the creation of more equal, inclusive, cohesive, and democratic societies”.110
The most recent trends in developing the standards for NHRIs undoubtedly demonstrate the striving to create the potential of the NHRIs for broader impact in society and encouraging social change.
The standards set in the EU soft law (Commission Recommendation of 22 June 2018) and the Opinion on equality bodies of 2011 of the Human Rights Commissioner of the CoE, as well as the Revised General Policy Recommendation No. 2 of 2017 on equality bodies to combat racism and intolerance of ECRI of the CoE are taken as a basis for the matrix of indicators in this Methodology, as the most elaborate and highest standards for equality bodies. In addition, the explanations provided by FRA and CoE have been taken into account.111
General Data Protection Standards, including standards for Data Protection Authorities, are primarily developed at the level of the EU.
The principle of independence of the supervisory data authority is enshrined in the Charter of Fundamental Rights of the European Union – Article 8(3), which sets out that compliance with data protection shall be subject to control by an independent authority.112
An independent supervisory authority for data protection was introduced with the Data Protection Directive from 1995113 and wider elaborated in the new 2016 EU Regulation (General Data Protection Regulation – GDPR).114
The elaborated GDPR rules on the Supervisory Authority (SA) are classified into two categories: 1) independent status and 2) mandates, tasks and powers. The set standards relate to:
Independence is defined in terms of the Supervisory Authority and its Members. The Supervisory Authority’s independence should be “complete” in performing its tasks and exercising its powers”. (Article 52, para. 1.). The notion of “complete independence” incorporates the previous judgements of the Court of Justice of the European Union (CJEU).115 Its members should “remain free from external influence, whether direct or indirect and shall neither seek nor take instructions from anybody” (Article 52, para. 2.). Incompatibility of actions and occupations for members is also prescribed (Article 52, para. 3.). The other provisions on independence are obligations of the Member State to ensure that the supervisory authority:
Strict conditions are set out for the members of the SA:
A member shall be dismissed only in cases of serious misconduct or if the member no longer fulfils the conditions required for the performance of the duties.
In line with the GDPR, the MS must regulate by Law:
(a) the establishment of each supervisory authority;
(b) the qualifications and eligibility conditions for appointment of member/s
(c) the rules and procedures for the appointment of the member/s
(d) the duration of the term of the member/s, which could be no less than four years, except for the first appointment after the entry into force of the Regulation,
(e) whether and, if so, for how many terms the member or members of each supervisory authority is eligible for reappointment;
f) the conditions governing the obligations of the member or members and staff of each supervisory authority, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office and rules governing the cessation of employment.
The most elaborate provisions of the GDPR refer to the tasks and powers of the Supervisory Authority. The tasks could be classified in the following categories:
Information and cooperation
The SA powers precisely defined in the GDPR correspond to the tasks and are classified into three categories – a) investigative, b) corrective and c) authorisation and advisory powers.
The EU further “exports” the standards set in through its bilateral agreements with third countries, and in the framework of the conditionality policy in general.
In the Council of Europe context, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) itself did not initially provide for the setting up of national supervisory authorities. The 2001 Additional Protocol to Convention 108, however, enhanced the data protection guarantees by setting up supervisory authorities that “shall exercise their functions in complete independence”. Finally, the Modernised Convention 108+ from 2018116 includes a chapter on supervisory authorities, which proclaims the principle of complete independence and sets out the mandate and powers these institutions should have. Its provisions, although less elaborated and more generalised, essentially correspond to the EU GDPR.
As this Convention is open for accession by non-Contracting Parties of the CoE, it’s the only legally binding international instrument on data protection and is assessed as a potential for a universal standard.117
In this Methodology, the GDPR and the Convention 108+ are taken as primary standards for setting the indicators for data protection supervisory authorities.
From NHRIs whose performance has been assessed in this research, the international legal framework on free access to public information is the least developed one regarding independent authorities.
The primary source of the right to free access to public information is the International Covenant on Civil and Political Rights118 (ICCPR) which provides that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.119
The UN Human Rights Committee General Comment No. 34 adopted in 2011120, which is an authoritative interpretation on the scope and limits of the right to information under Article 19 of the ICCPR further elaborated the free access to information, but still did not include any recommendation on the independent body for free access to information.
The Special Rapporteur has further developed the standards set out by the Committee on the promotion and protection of the right to freedom of opinion and expression in his 2013 Report to the General Assembly on the right to access information and its relationship with the right to truth.121 In this Report, the Special Rapporteur recommended that:
“101. National laws should establish the right to lodge complaints or appeals to independent bodies in cases in which requests for information have not been dealt with properly or have been refused” and
“103. States should, in particular, consider the appointment of a focal point, such as an information commissioner, to assist in the implementation of national norms on access to information or the creation of a State institution responsible for access to information. Such mechanisms could be mandated to process requests for information, assist applicants, ensure the proactive dissemination of information by public bodies, monitor compliance with the law and present recommendations to ensure adherence to the right to access information.”122
The joint declaration by the international freedom of expression rapporteurs from the UN, OAS, AU and OSCE on access to information and secrecy legislation declared that “Those requesting information should have the possibility to appeal any refusals to disclose to an independent body with full powers to investigate and resolve such complaints”.123
The CoE Convention on free access to information does not entail an obligation to establish an independent body.124 Implicitly, it notes that the review procedure could be “before a court or another independent and impartial body established by law”.125
An essential document for free access to information is the UNECE Convention on Access to Information, Public Participation, and Access to Justice in Environmental Matters (The Aarhus Convention), which is detailed in terms of the rights and procedures for access to environmental information. However, just as the CoE Convention, it neither recommends nor comprises standards of an independent body. As the European Community has acceded to the Convention126, the EU Member States are obliged to implement it.
The EU, through its conditionality policy, has favoured the creation of independent bodies for free access to public information and includes an assessment on their functioning in the annual report on the Western Balkan countries.
As there are no explicit international standards for the independent bodies on free access to information, in this Methodology, the general standards for NHRI are adapted for the matrix of indicators in this case. In terms of powers and mandate – they have been derived from the content of the right for free access to information, as described in the standards above, focusing on:
Existing literature provides a variety of approaches to the classification of domains/dimensions of the effectiveness of NHRI.
The Report on Assessing the Effectiveness of National Human Rights Institutions has determined the following domains:
Richard Carver, at the same time, develops a slightly distinct approach that measures the effectiveness of NHRIs, classifying the following dimensions:129
The latter approach is most similar to the classification of domains provided in the call for experts for this research, which is the basis for the established classification:
(1) Independence and ability to work without pressure,
(2) Availability of resources and capacities,
(3) Information, accessibility and cooperation with other relevant actors, and
(4) Mandate and powers.
The third domain has been slightly modified – information and accessibility have been added to the title. This “broadening” of the domain enabled us to capture essential aspects of the work of NHRI’s – such as to standards on providing public information to citizens, accessibility to specific target groups, etc.
The matrix of indicators has been designed for each of the NHRIs.
The matrix of indicators includes:
The indicators have been defined based on the approach to the evaluation of effectiveness, which is a combined structural and mandate-based approach. The specific indicators per domain are constructed from the standards referring to the relevant bodies, which are elaborated under the Subtitle of the Methodology: International standards related to NHRIs.
While many indicators are identical for some of the bodies, or similar, they still are nuanced, as the standards are different – especially related to the mandate and powers they have.
Both quantitative and qualitative indicators are applied in this research.
All indicators refer to the year 2018, which is taken as baseline. The only exceptions are indicators on public opinion polls, which can be from the last three years, as it was recognised that such polls are generally lacking in the region.
Indicators are presented in Attachment 1.
Coding values and scoring
The coding methodology draws on the methodology established by Carver.130 Consequently, the coding values have been set from 0-2. This approach was considered most applicable and relevant, as it provides a limited, but still sufficient range of options for the definition of the indicators.
All scores feed into a scale which shows a measurement of each separate indicator per country, as well as per domain. The values of indicators are weighed, depending on the number of indicators per domain. In addition, some indicators have been broken down to sub-indicators, to capture the specifics of a particular issue.
The indicator per domain is estimated as a sum of the values of indicators in the domain. Finally, an overall indicator is estimated and an overall score of the effectiveness for each national human rights body in each country, which is a sum of the indicators per domain. Each domain participates equally in the final score – 25%, as all domains are considered equally important for the effectiveness of the NHRI. Consequently, the scale of indicators per country per body is 0-8.
Suppose an NHRI body is a multi-mandate body than it was scored both in terms of each mandate it has and as an institution. The score of a multi-mandate body as an institution is based on the average of the total sum of indicators per each mandate.
Relevant studies on the international level, including developed methodologies with specific indicators, are available, but similar research for the Western Balkans is lacking.
The standards taken as a basis for the indicators are the highest standards available at global or European level. Some of them are relatively new, and their application has been taking up at European level very recently – such as the GDPR. Consequently, comparability with other research at the global level will be limited to the indicators which are based on similar standards.
For qualitative indicators, an objective assessment by the national experts was needed, as well as consistency to be ensured across the country assessments. As standard in the use of such methods, the personal positioning of the expert may have influenced the assessment. In the future, a panel of experts or peer review could contribute to alleviating these factors.
The selected indicators depended on the nature of the domain, but also on the availability of data and resources, such as time and researchers. Consequently, in domains 1. Independence and ability to work without pressure and 4. Mandate and powers, more indicators are connected to the structural nature of these domains. They are based on fulfilling standards that are legislative requirements, which, in the regional context, seem easier to fulfil. This means that full proportionality in types of indicators between domains could not be ensured. Proportionally, inclusion of more performance indicators or qualitative indicators would probably change the final scores per domains.
The results of the research provide a snapshot for 2018, which was set as a baseline year. While this approach provides comparability between the countries and NHRIs, it could not fully take into account the complexity and dynamics of development of NHRIs in the WB since their establishment. However, it presents a sound basis for further national in-depth and/or comparative research.
The fact that the research for three countries – Albania, Bosnia and Herzegovina and Kosovo was done additionally in 2020, while the national and regional reports were already published for the first three countries in 2019, could also have an impact on the results of the research, even though the research was done for the same year – 2018.
Domain 1: Independence and the ability to work without pressures
|Independent statutory basis||Independent statutory basis||Independent statutory basis||Independent statutory basis|
|Appointment process||Appointment process||Appointment process||Appointment process|
|Clear criteria for membership||Clear criteria for membership||Clear criteria for membership||Clear criteria for membership|
|Term of office||Term of office||Term of office||Term of office|
|Avoidance of conflict of interest||Avoidance of conflict of interest||Avoidance of conflict of interest||Avoidance of conflict of interest|
|No instruction from the government||No instruction from the government||No instruction from the government||No instruction from the government|
|Submission/agreement to pressure||Submission/agreement to pressure||Submission/agreement to pressure||Submission/agreement to pressure|
|Public opinion on independence of NHRI||Public opinion on independence of NHRI||Public opinion on independence of NHRI||Public opinion on independence of NHRI|
Domain 2. Availability of resources and capacities
|A separate and independent budget||A separate and independent budget||A separate and independent budget||A separate and independent budget|
|Adequate financial resources||Adequate financial resources||Adequate financial resources||Adequate financial resources|
|Transparent and meritocratic recruitment procedures||Transparent and meritocratic recruitment procedures||Transparent and meritocratic recruitment procedures||Transparent and meritocratic recruitment procedures|
|Sufficient human resources||Sufficient human resources||Sufficient human resources||Sufficient human resources|
|Adequate human resources||Adequate human resources||Adequate human resources||Adequate human resources|
|Financial control||Financial control||Financial control||Financial control|
|Internal structure enables the focus on each part of the mandate||Internal structure enables the focus on each part of the mandate|
|Regional offices/outreach||Regional outreach/offices|
|Learning and change||Learning and change||Learning and change||Learning and change|
Domain 3. Information, accessibility and cooperation with other relevant actors
|Parliament's scrutiny||Parliament's scrutiny||Parliament's scrutiny||Parliament's scrutiny|
|Providing information to the NHRI||Providing information to the NHRI|
|Cooperation with government||Cooperation with government||Cooperation with government||Cooperation with government|
|Cooperation with other NHRIs||Cooperation with other NHRIs||Cooperation with other NHRI||Cooperation with other NHRI|
|Cooperation with NGOs||Cooperation with relevant bodies and NGOs||Trans-national cooperation with other SAs||Cooperation with NGOs|
|Providing information on rights||Providing information on rights||Providing information on rights||Providing information on rights|
|Information on rights and assistance to data subjects|
|Accessibility to children|
|Accessibility to persons with disabilities||Accessibility to persons with disabilities||Accessibility to persons with disabilities||Accessibility to persons with disabilities|
|Membership in international networks||Membership in international networks||Membership in international networks|
|Participation in international activities||Participation in international activities||Participation in international activities||Participation in international activities|
|Communication strategy||Communication strategy||Communication strategy||Communication strategy|
|Confidentiality and protection||Confidentiality and protection||Professional secrecy|
Domain 4: Mandate and powers
|Monitoring and enforcement||Monitoring and oversight|
|Human rights promotion||Promotion and prevention||Promotion||Promotion|
|Promotion of harmonisation with international HR instruments and implementation||Promotion of pro-active dissemination|
|Mandate - coverage of sectors||Coverage of grounds of discrimination|
|Coverage - area|
|Equal treatment of all persons without discrimination on the grounds of sex|
|Human rights protection- powers - investigation||Independent assistance - mandate||Investigations|
|Human rights protection- powers - access||Independent assistance - strategic litigation|
|Human rights protection- powers - complaints||Independent assistance - issuing recommendations and legally binding decisions|
|Human rights protection- powers - courts|
|Follow-up of recommendations||Follow-up on recommendations|
|Initiatives to national authorities||Initiatives to national authorities||Advisory Role||Advisory Role|
|Complaints submission||Complaints handling||Complaints handling|
|Complaints submission - language||Complaints submission|
|Complaints submission - free of charge||Complaints submission - free of charge|
|Independent surveys||Regulatory functions/authorisations|
|Submission of contributions to international bodies||Submission of contributions to international bodies|
|National prevention mechanism|
|Rights of the child|
|Public opinion on public trust in NHRI institution||Public opinion on public trust in NHRI institution||Public opinion on public trust in SA institution||Public opinion on public trust in SA institution|
|Assessment of the EC in the last report||Assessment of the EC in the last report||Assessment of the EC in the last report||Assessment of the EC in the last report|