“In 2012, the SCA noted that the Act is silent in granting immunity to the members for legal liability for actions taken in their official capacity.
External parties may seek to influence the independent operation of an NHRI by initiating, or by threatening to initiate, legal proceedings against a member. For this reason, NHRI legislation or applicable national law should include provisions to protect members from legal liability for acts undertaken in good faith in their official capacity. Such a provision promotes:
– security of tenure
– the NHRI’s ability to engage in critical analysis and commentary on human rights issues free from interference;
– the independence of senior leadership; and
– public confidence in the NHRI.
It is acknowledged that no office holder should be beyond the reach of the law and, thus, in certain exceptional circumstances, it may be necessary to lift immunity. However, the decision to do so should not be exercised by an individual, but rather by an appropriately constituted body such as the superior court or by a special majority of parliament. It is recommended that national law provide for well-defined circumstances in which the functional immunity of the decision-making body may be lifted in accordance with fair and transparent procedures.
The SCA notes that the DIHR considers such provision as not relevant in the context of Denmark. However, the SCA is of the view that the DIHR failed to provide sufficient explanations to justify the reason why such a provision is neither relevant nor appropriate, given the specific context where it operates.
It is recognised that in some national contexts, functional immunity is not part of the legal tradition and it may therefore be unrealistic or inappropriate for the NHRI to request that formal legal provisions be adopted. In such exceptional circumstances, the NHRI under review should provide sufficient information to explain why it would be both unnecessary and inappropriate to introduce such provisions given its particular national context. This information will be reviewed in line with other guarantees provided at the national level to ensure independence, security of tenure and the ability to engage in critical analysis on human rights issues.
Therefore, the SCA encourages the DIHR to either advocate for provisions to protect members of the governing body from legal liability for actions undertaken in their official capacity, or to provide sufficient information to explain why it would be both unnecessary and inappropriate to introduce such provisions given its particular national context.”