1. History of the initiative [page 4]:
It is essential that states ensure the effective judicial and extrajudicial enforcement of mechanisms for the handling of complaints on human rights violations in connection with economic activity. According to the Guiding Principles, victims should be given access to remedies and the possibility of redress for any harm incurred.
Pillar I: The state’s duty to protect human rights
1. Regulations relating to business and human rights under Polish law
Freedom of association [page 13]:
In accordance with Article 35(1)(c) of the Act on Trade Unions, discrimination against an employee because of his or her membership in a trade union, non-membership in a trade union, or the holding of a trade union function may result in criminal liability.
Pillar III: Access to remedies
1. Current Situation Regarding Access to Legal Remedies
Protection under civil law [page 38]:
The civil-law instruments that make it possible to seek judicial protection of claims by those affected by the activities of enterprises include:
- lawsuits: Article 187 et. seq. Code of Civil Procedure;
- class-action lawsuits under the Act of 17 December 2009 on Collective Redress Litigation (Journal of Laws, 2010, Item 44).
By applying these civil-law instruments, those affected can seek judicial protection of their personal interests, as well as claims for damages (personal or property).
According to Article 23 of the Civil Code (CC), the personal interests of a human being, in particular their health, freedom, dignity, freedom of conscience, name or pseudonym, image, privacy of correspondence, inviolability of home, and scientific, artistic, inventive, or improvement achievements are protected by civil law, independent of protection under other regulations. Article 24 § 1 and 2 CC stipulates that any person whose personal interests are threatened by another person’s actions may demand that the actions be ceased unless they are not unlawful. In the case of infringement, they may also demand that the person committing the infringement perform the actions necessary to remove its effects, in particular that the person make a declaration of the appropriate form and substance. Under the terms of the Civil Code, one can also claim monetary recompense or payment of an appropriate amount of money for the social cause indicated (Article 448 CC). If damage has been caused due to an infringement of a personal interest, the injured party may demand a remedy in accordance with general principles (Article 415 et seq. CC). The prerequisites for protecting personal interests that must be met together are: the existence of a personal interest, the threat or violation of that interest, and the unlawfulness of the threat or the violation.
The first two premises must be proven by the plaintiff seeking protection, while the defendant can defend themselves, demonstrating that they did not act unlawfully. The distribution of the burden of proof is therefore favourable to the plaintiff.
The legislator introduced the presumption of unlawfulness of the infringement of personal interests (Article 24 § 1 CC). However, claims cannot be made if the perpetrator demonstrates that the occurrence of one of the circumstances rules out the unlawfulness of the action, and they thus indicate the circumstances that justified the infringement of a particular personal interest.
The provisions of Articles 23 and 24 CC suggest that the protection of personal interests is comprehensive. Its exercise may take on a different character and be pursued through various measures, which may be both non-financial and financial in nature.
Non-financial protection measures include:
a) – claim for cessation;
b) – claim for removal of the effects of an infringement;
c) – Assertion lawsuit;
Financial protection measures include:
d) – claim for redressing non-financial damage;
e) – claim for recompense for property damage;
f) – claim for restitution of unjust enrichment;
g) – claim for non-performance of an agreement;
h) – claim for non-performance of an agreement (contractual liability).
Re: a). Claim for cessation
This claim, provided for in the first sentence of Article 24 § 1 CC, has a broad application. The premise is that somebody’s personal interests are threatened by another person’s unlawful actions. The eligible party may only demand that the actions be ceased.
The claim for cessation may be made primarily in the case of an infringement of personal interests, but there is a risk of further infringements in the future. In such a case, it will usually accompany claims for removal of the effects of an infringement or for redress. This measure can also be used in situations where there is only a risk of an infringement occurring in the future.
Re: b). Claim for removal of the effects of an infringement
The catalogue of measures to remove the effects of an infringement of personal interests is not exhaustive. When choosing the measures to remove the effects of an infringement of personal interests, account should also be taken of all circumstances, such as the behaviour of the person whose interests have been infringed, and, in particular, whether they provoked the incident. Issuing a statement is the most common measure of removing the effects of an infringement of dignity, privacy, or bodily integrity, whereas the content and form of the statement depends on the circumstances of the case. The option includes a withdrawal, an apology, a regret, a rectification, or an explanation of certain facts. An appropriate form is understood to be the manner in which the statement is communicated to third parties or the general public.
Re: c). Assertion lawsuit
Apart from the measures of non-financial protection of personal interests explicitly listed in Article 24 CC, the eligible party may also file a lawsuit to assert that it is entitled to a certain personal interest or that the interest has been infringed or threatened—the claim will be based here on Article 189 of the Code of Civil Procedure.
Re: d). Claim for monetary recompense
According to Article 24 § 1, in the case of an infringement of personal interests in accordance with the terms laid down in the Civil Code, the eligible party may demand monetary recompense or that an appropriate amount of money be paid to a specific public cause.
The provisions in question include:
- Article 445 CC, providing the possibility of awarding redress in the event of injury, induced health disorder, deprivation of freedom and inducement using deceit, violence or abuse of a dependence relationship to submit to an illicit sexual act. The act of harm must be an act of tort, but the principle of responsibility (fault, risk, equitability) is indifferent.
- Article 448 CC, according to which, in the event of infringement of one’s personal interests, the court may award to the person whose interests have been infringed an appropriate amount as monetary recompense for the harm suffered or may, upon their request, award an appropriate amount of money to be paid to a social cause chosen by them, irrespective of other means necessary to remove the effects of the infringement. In this case, the act of harm may be an act of tort, but the provision covers events of infringement of personal interests other than those referred to in Article 445 CC. The liability principle will manifest itself as fault only in the case of liability for one’s own act (Article 415 CC), but if the infringement of personal interests results, e.g., from an action on the part of an enterprise (Article 435 CC), establishing fault will not be required.
- Article 446 § 4 CC, according to which the court may also award an appropriate sum to the closest members of the deceased’s family as monetary recompense for the harm suffered. The principle of liability (fault, risk) will also depend on the basis of liability in this case.
Re: e). Claim for recompense for financial damage (personal injury)— ‘tort liability’.
Recompense for financial harm (personal injury) may be awarded in accordance with general principles, e.g., Article 415 et. seq. CC. In the case of an infringement of certain personal interests (health), the principle will apply to both financial and non-financial damage.
Re: f). Claim for restitution of unjust enrichment
An infringement of certain personal interests may lead to unjust enrichment of the perpetrator. This applies to incidents of financial exploitation of certain personal interests (image, name, right to privacy). It should be noted that the commercial use of personal interests, by concluding relevant agreements (e.g., to use an image or name in an advertisement, write a biography) may be the source of significant benefits.
Gaining benefits at the expense of another person without concluding a relevant agreement creates an obligation to return those benefits to the eligible party (Article 405 CC). Enrichment in this context means the expenditure saved against the conclusion of the relevant agreement. The entitled party will be impoverished by the same amount: due remuneration has not been included in his or her property. The party using the personal interests of another person for commercial purposes benefits unjustly at the expense of the entitled party. For such a claim, it is not important whether the eligible person was able to or wanted to use their interests commercially. In spite of the lack of harm, the entitled party may claim for restitution of enrichment.
Moreover, apart from the above-mentioned claims for damages in case of personal injury, individuals are entitled to adequate compensation claims in the event of financial harm. With regard to personal injury, these claims are based on the provisions of Article 415 et. seq. CC, including Article 435 CC referred to above.
According to Article 415 CC, anyone who, through their own fault, causes damage to another person is obliged to remedy it. This provision lays down general rules for liability for damage (to property and personal) caused by events called acts of tort, constituting so-called tort liability. Events causing damage (act of tort), the occurrence of damage itself, and the causal link between the incident and the damage are the premises of tort liability based on the perpetrator’s fault.
A person obliged to pay compensation is liable only for the normal consequences of the actions or omissions from which the damage arises (Article 361 § 1 CC). As a rule, the principle of full indemnity applies; thus, the remedy for damage covers the losses that the aggrieved party suffered and the benefits that it could have obtained had it not suffered the damage (Article 361 § 2 CC).
It is important to note that the above-mentioned general principles are modified when damage is caused by an action taken by an enterprise or establishment. In this regard, Article 435 CC provides that a person who runs their own business or an establishment set in motion by natural forces is liable for any personal or property damage caused by the operation of the enterprise or the establishment unless the damage is due to force majeure or solely to a fault on the part of the aggrieved party or a third party for whom they are not responsible.
[There is no paragraph g) contained within the NAP]
Re: h). Claim for non-performance of an agreement (contractual liability)
Protection under the law is also based on the disposition resulting from the content of Article 471 CC. According to this provision, a debtor is obliged to remedy any damage arising from non-performance or improper performance of an obligation unless the non-performance or improper performance is due to circumstances for which the debtor is not liable. The recompense for non-performance of an agreement under Article 471 CC is performance aimed at compensating for the damage caused by an unlawful action or omission on the part of the debtor. It has a different character than a claim for performance of an agreement, as its purpose is to compensate for the damage caused by the improper behaviour of the contractor, rather than to force the contractor to fulfil the obligation under the agreement. On the other hand, if the performance of a service is inconsistent with the content of the obligation, the creditor is entitled to claim recompense for the damage resulting from improper performance of the obligation.
Contractual liability covers any—even the slightest—infringement of an obligation. This refers both to instances of non-performance or improper performance of an obligation indicated in the provisions of Article 475 and Articles 476-482 CC (performance impossibility, delay default) and to any other discrepancy between the correct performance of a contractual obligation and the actual behaviour of the debtor.
According to Article 471 of the Civil Code, the debtor’s contractual liability arises if the following conditions are met:
1) damage to the creditor occurs in the form of financial damage;
2) the damage was caused by the debtor’s non-performance or improper performance;
3) there is a causal link between the fact of improper performance or non-performance of an obligation and the damage suffered (Article 361 et seq. CC).
The burden of proving the above conditions rests, in light of Article 6 CC, on the creditor, as the person who derives the legal consequences from these facts.
The debtor’s liability for non-performance or inadequate performance of an obligation has been formulated in accordance with the principle of fault. However, Article 471 CC contains a presumption that non-performance or improper performance of an obligation has been caused by the circumstances for which the debtor is liable. Acceptance of the debtor’s liability is not therefore conditional on the creditor’s proving that non-performance (or improper performance) of the obligation is a consequence of the circumstances for which the debtor is liable (Supreme Court judgment of 19 January 2002, V CKN 630/00).
The Provisions of the Penal Code [page 42]:
Under the Penal Code (PC), there are a number of provisions that can cover violations of human rights in connection with business activities. According to Article 53 § 2 of the Penal Code, in imposing a penalty, the court must, above all, take into account the motivation of the perpetrator, which may be, e.g., desire for personal gain. It is important to note that this provision applies to all crimes listed in the Penal Code. Provisions of substantive law should also be noted here, such as those concerning crimes against the rights of individuals performing paid work provided for in Chapter XXVIII (Articles 218-221 PC). In this context, it is worth mentioning the amendment to the Penal Code that introduced a definition of slavery (Article 115 § 23 PC) and a definition of trafficking in human beings (Article 115 § 22 PC) modelled on the standards set by the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings. Penalisation was provided not only for the act itself, but also for the preparatory stage for its execution (Article 189a PC). In connection with Council Decision (EU) 2015/2071 and Poland’s ratification of the Protocol of 2014 to Convention No 29 on Forced Labor of 1930, it is advisable to continue the work on verifying whether the provisions related to forced labor under Article 115 § 22 PC are sufficient to penalise the phenomenon of trafficking in human beings for forced labor.
Liability of collective entities [pages 42-43]:
According to the law, the liability of collective entities refers to prohibited acts that are offences (including fiscal offences) within the meaning of relevant substantive law. The exhaustive catalogue of punishable acts is broad and refers to a number of offences that are relevant for the protection of human rights, including prohibited acts against economic relations, sexual and moral rights, humanity, the environment, property, or related to terrorism. In order to secure the proper course of proceedings, even before they are initiated, it is possible to apply to the competent court to issue an order freezing the property of the collective entity for imminent penalty or forfeiture (Article 26 of the Act). In addition, the court may apply a preventive measure in the form of a prohibition of merger, division, or transformation of the collective entity while conducting proceedings against it, and also of encumbering its estate at that time or disposing of property without the consent of the court. Proceedings are initiated at the request of a prosecutor or the aggrieved party, and in cases concerning prohibited acts recognised by the law as acts of unfair competition, the proceedings may also be initiated at the request of the President of the Office of Competition and Consumer Protection. Under the law, the court may impose a financial penalty of between PLN 1,000 and PLN 5,000,000 against a collective entity, but not more than 3 per cent of its revenue generated in the financial year in which the offence constituting the basis of the collective entity’s liability was committed. In addition, the court may apply several other sanctions against a collective entity. To enforce a financial penalty, forfeiture, prohibitions, and to make the judgment public under Article 42 of the aforementioned law, the provisions of the Executive Penal Code are applicable, respectively, regarding the enforcement of a fine, forfeiture, prohibitions, and publication of the judgment, with the penalty being payable from the revenue of the collective entity. Furthermore, the determination or absence of the liability of a collective entity under the provisions of the law in question does not exclude the possibility of determining civil liability for the damage caused, administrative liability, or individual criminal liability of the perpetrator of the offence.
Legislative work is currently under way at the Ministry of Justice to change the provisions of the law. It will aim to increase the effectiveness of the collective liability system, especially with regard to combating serious economic and fiscal crimes. As practice shows, there is a need for significant improvements in the effectiveness of the existing mechanisms, as evidenced by the small number of cases against collective entities. In 2015, 14 cases were submitted before the courts; in 2014, 31 cases; in 2013, 26 cases. Analyses also indicate an insignificant amount of fines imposed under the law, which may indicate that it is used mainly for small collective entities. This leads to the conclusion that the model adopted in Poland requires substantial changes. The planned amendment is at the stage of preliminary analytical work.
Access to pre-trial assistance [page 43]:
In this context, it is also necessary to mention legal assistance at the pre-trial stage, which is a new mechanism under Polish law, facilitating access to the protective measures described above. The system of gratuitous legal assistance was launched on 1 January 2016, and is accessible from 1524 locations throughout Poland. These centres were established as a result of cooperation between the central administration and local governments. Some of the existing centres were entrusted to specialised nongovernmental organisations. Advice is given primarily by lawyers and legal advisors, and relates to cases at the pre-trial stage. Free legal services can be used by, among others, social assistance beneficiaries, Large Family Card holders, veterans, or individuals under the age of 26 or older than 65. Assistance is offered in the form of, e.g., advice about legal status, rights or obligations, presentation of a solution to a case, or preparation of necessary letters and documents.
Planned and ongoing activities a [page 52]:
Continuation of activities to ensure access to court and out-of-court remedies.
International Legal Framework in Force in Poland [page 56]:
In international law, there are no treaty provisions that impose obligations on international enterprises to respect human rights and make them liable for human rights infringement. Nevertheless, in certain multilateral conventions, states undertake to establish their jurisdiction over the extraterritorial activities of legal entities falling within the scope of the convention in question. Treaties of this kind provide for the obligation to introduce criminal liability for legal entities in national legislation. The agreements of this type to which Poland is a party include:
- Council of Europe Criminal Law Convention on Corruption of 27 January 1999 (Journal of Laws of 2005, Item 249);
- OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1999 (Journal of Laws of 2001, Item 264);
- Council of Europe Convention on Cybercrime of 23 November 2001 (Journal of Laws of 2015, Item 728)
- Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005. (Journal of Laws of 2009, Item 107);
- Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse of 25 October 2007 (Journal of Laws of 2015, Item 608).
- Directive 2014/95/EU on disclosure of non-financial and diversity information by certain large undertakings and groups.