Responsibilities and functions of NHRIs: Complaint handling

National human rights institutions (NHRIs) are commonly given a mandate to accept, investigate and attempt to resolve complaints of human rights violations.

The Paris Principles require that the human rights mandate of NHRIs be as broad as possible, drawing on international human rights law. They also provide that NHRIs with complaint handling functions should be able to receive cases brought by individuals, their representatives, third parties, NGOs, associations of trade unions or any other representative organisations.

A key aspect of an NHRI’s complaint handling function is that it be accessible to all people. This is especially important for those groups that can be more vulnerable to human rights violations, including, among others, women, children, indigenous peoples, persons with disabilities, human rights defenders, migrants, refugees and asylum seekers.

Scope

An NHRI’s complaint handling function is detailed in its founding legislation, including:

• The scope of human rights issues that can be addressed
• Who can bring a complaint
• Who can be a respondent to a complaint
• How the complaint is to be resolved
• Other jurisdictional matters, such as time restrictions or restrictions related to matters subject to court proceedings.

In some cases, NHRIs may only be able to act on complaints against certain respondents. In some cases, they may be prevented from accepting complaints against certain respondents, for example, the military or security services.

There are a number of examples where NHRIs have applied a broad interpretation of their complaint handling mandate in order to address pressing or systemic issues; for example, in relation to the human rights impacts of business and transnational corporations.

NHRIs should have the power to reject complaints that are frivolous or trivial. This ensures they can use their resources to address complaints that raise legitimate human rights issues.

Powers

NHRIs need adequate powers to undertake investigations, including to:

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

NHRIs should be able to issue orders and have courts enforce those orders and penalise those who do not comply. These powers of investigation must also include protection of those who cooperate with or contribute to an NHRI’s investigation.

Resolution

Unlike courts, NHRIs cannot make binding decisions in relation to a particular matter. The Paris Principles set out that NHRIs with complaint handling functions should “seek… an amicable settlement through conciliation”. Many NHRIs have a conciliation (or mediation) function included in their founding legislation.

It is important to recognise that conciliation will not be appropriate for every complaint. The well-being and needs of the victim should be the primary concern of the NHRI. ‘Do no harm’ must be the principle in determining the most appropriate way to resolve a complaint.

The NHRI’s founding legislation may also allow it to:

• Refer a case to the courts for hearing and determination
• Assist the complainant to take the case to court
• Seek leave to intervene in the case as amicus curiae (‘friend of the court’)
• Report unresolved complaints to the government or parliament, including recommendations for action.

NHRI-initiated investigation

Many NHRIs can also undertake investigations of human rights violations on their own initiative (suo motu), without a formal complaint being made. Information about these violations may come to the attention of the NHRI through NGOs, community consultations, the media or other sources. The process for investigation will be similar to that used for a formal complaint, including collecting evidence sought from victims. The investigation will generally result in a report and recommendations made to the government or parliament.