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”1.
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 1996-2013.2 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.3
|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.4
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.5
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”.6 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 fading7; 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.8
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.9
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.10
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,11 and a 2019 report presented findings on institutions in combating discrimination in BiH in 2018.12 The Centre for Social Research Analitika looked at the Ombudsman in the system of protection against discrimination13 and published a brief regarding its mandate on FAI.14
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.15 The equality mandate by the Ombudsperson was discussed in an Advocacy Centre for Democratic Culture brief.16 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.17
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.18 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.19 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 Discrimination20, while the Helsinki Committee for Human Rights published an annual information bulletin on discrimination.21 The think-tank Analytica has set out a framework for monitoring the Commission on Free Access to Public Information and the Data Protection Directorate.22
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.23 In addition, an annual shadow report on the state of democracy in Serbia is published, which includes findings on the NHRIs.24 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).25 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.26 However, the academic research literature on NHRI’s is limited, having only one comprehensive study on independent institutions in Serbia.27
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.28
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.29
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.30 However, with donor support, some research has resulted in relevant comparative studies, such as a regional study on non-discrimination in 2016.31
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 rights32 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.33
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. 34
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.” 35
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 NHRIs40. 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”.41 However, studies have confirmed that “formal institutional safeguards influence human rights outcomes, in part because formal institutional design remains relatively stable over time.”42
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”.43
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
|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.44
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.45
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”.46
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 globe47 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”.48
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).49
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”.50
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”.51 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)).52 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.53
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.54 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)55, 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”56, 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.57
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.”59
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.60 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.”61 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.62 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”.63
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.64 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”.65
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.66
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.67
An independent supervisory authority for data protection was introduced with the Data Protection Directive from 199568 and wider elaborated in the new 2016 EU Regulation (General Data Protection Regulation – GDPR).69
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).70 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 201871 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.72
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 Rights73 (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”.74
The UN Human Rights Committee General Comment No. 34 adopted in 201175, 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.76 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.”77
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”.78
The CoE Convention on free access to information does not entail an obligation to establish an independent body.79 Implicitly, it notes that the review procedure could be “before a court or another independent and impartial body established by law”.80
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 Convention81, 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:84
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.85 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|