Judicial remedy

Action point 2

Prepare a brochure on grievance mechanisms related to public authority

Elaborer une brochure sur les mécanismes de réparation liés à l’autorité publique

This point states that the federal government will engage in a research mission to list all of the different state-based mechanisms (both judicial and non-judicial) that can be used in cases of human rights violations by companies or organizations (Belgian or foreign). The results of this research will be integrated into a readable, comprehensible and practical brochure that will be made available to stakeholders, both online and in print (limited). This brochure will focus on companies, organizations and victims of human rights violations. Both procedural and substantive aspects of these grievance mechanisms will be addressed and will be available in Dutch, French, German and English. Mediation procedures can be accessed through the OECD NCP, and different provisions included in the criminal law can be imposed through the Belgian courts, etc. However, many of these grievance mechanisms are insufficiently known about.

Action point 3

Recommendations for improving the access to a judicial grievance mechanism

Formulation de recommandations en vue d’améliorer l’accès à un mécanisme de reparation judiciaire

This point covers the issue of judicial remedy in a broad manner. Researchers will be asked to conduct an analysis to identify major obstacles and potential gaps and to formulate policy recommendations in a separate report. Competent administrations will analyze this report within the framework of the CIDD Working Group on Social Responsibility. Where appropriate, the Working Group will formulate a number of policy proposals and submit them to the political level. These policy recommendations may support the authority to make access to remedy as effective as possible for victims of human rights violations.

The NAP explains that “despite the existence of these mechanisms, in cases of human rights violations, more or less important obstacles can impede effective access to a grievance mechanism.” In addition to creating a brochure of existing redress mechanisms related to public authority (see Action point 2), the federal government will conduct an analysis that aims at identifying the possible limitations and/or defects of each mechanism, which may constitute an obstacle (legal, financial, procedural, administrative …) for the effective use of remedies. Researchers will be asked to conduct an analysis to identify major obstacles and potential gaps and to formulate policy recommendations in a separate report. Competent administrations will analyze this report within the framework of the CIDD Working Group on Social Responsibility. Where appropriate, the Working Group will formulate a number of policy proposals and submit them to the political level. These policy recommendations may support the authority to make access to remedy as effective as possible for victims of human rights violations.

Action point 5

Ensure the dissemination of the toolbox and brochure on grievance mechanisms among Belgian representatives abroad and raise awareness of the issue

Assurer la diffusion de la boîte à outils et de la brochure sur les mécanismes de réparation parmi les représentants belges à l’étranger et sensibiliser ceux-ci à la question

This pointlinks Action point 2 and 3 together. The action aims at raising awareness among the network of Belgian diplomacy on the issues of companies’ social responsibility, sustainable development and the problematic of human rights violations committed by companies operating abroad. They will receive a practical toolbox (Action point 3) to better inform companies who contact them with a wish to expand their activities abroad. The toolbox will also include elements on grievance mechanisms (based on Action 2), enabling the Belgian diplomatic network to better inform businesses, victims of possible violations and all other interested parties about the access to remedy in Belgium.

Action point 24

Pay special attention to the issue of children’s rights in awareness raising of enterprises

Accorder une attention particulière à la question des droits de l’enfant dans la sensibilisation des entreprises

This point briefly touches upon the issue of judicial remedy in one part of the planned engagements related to the prohibition of forced labour. The government will ratify the Protocol of 2014 to the ILO Convention on Forced Labor, which is a new legally binding instrument requiring States to take preventive, protective, remedial and redress measures by giving effect to the obligation contained in the Convention to suppress forced labour.

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Pillar 3: Access to Redress Mechanisms

Strand 1: State-Based Judicial Mechanisms (page 58-59)

Judicial mechanisms must be accessible, affordable and effective to ensure access to remedy. This requires guaranteeing the availability of the necessary proper resources and information enabling all people and groups to demand the respect for their rights before all existing relevant bodies. The State must have the capacity to fight against human rights violations committed by business enterprises, thus guaranteeing fair and prompt redress under the principles of autonomy, impartiality and independence.

In this context, Principle 26 of the Guiding Principles urges States to adopt the necessary steps to ensure the effectiveness of national judicial mechanisms when addressing the adverse impacts on human rights related with business enterprises, particularly, when taking into consideration the way to avoid legal, practical and other type of obstacles that may lead to deprived access to redress mechanisms.

Action Point 1.1

The Research Division of the Supreme Court will prepare a Legal Collection on Business and Human Rights aimed at analysing the Court’s jurisprudence trends regarding this matter.

Action Point 1.2

The Ministry for the Environment will coordinate joint work with the competent bodies aimed at training Environmental Courts in business and human rights-related aspects.

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II. CHALLENGES

(…)

Another major challenge in the implementation of the Plan has to do with strengthening the institutional offer of judicial and non-judicial, state and non-state reparation mechanisms, and the population’s access to them. It is essential to work hand in hand with the business sector to foster a culture of respect for the rule of law by participating in state reparation mechanisms and promoting, through its activities, the prompt resolution of any claims that may arise.

 

V. INTERNATIONAL NORMATIVE FRAMEWORK

(…)

On the other hand, the Pact for Legality: Effective Security and Transparent Justice seeks to guarantee access to justice for all people in the event of a rights violation. This objective is fundamental in the framework of the National Action Plan (NAP), as it strengthens the Remediation pillar, which will be developed later, but which seeks to strengthen access to justice in business and human rights cases. The national government seeks to strengthen both the judicial system and all non-judicial mechanisms that ensure conflict resolution and guarantee reparations for all victims of human rights violations.

 

VIII. FUNDAMENTAL PILLARS

(…)

iii. Fundamental Pillar 3: Access to remedy mechanisms

Strand 1[Eje nº 1]: Access to judicial remedy mechanisms

• The Presidential Advisory Office for Human Rights and International Affairs will disseminate a map/roadmap of state mechanisms to guide people affected by business activity.
• The Ministry of Justice [Minjusticia] will include in the information system “Suin Juriscol” a space where mention is made of the regulations and jurisprudence of interest in relation to human rights.
• The Ministry of Justice [Minjusticia] will generate justice routes on labour and commercial law disputes on the “Legal APP” website, which will inform how and before which justice operator such disputes can be resolved.
• The Ministry of Justice [Minjusticia] will develop content to be published on the microsite of the Ministry of Justice “Conexión Justicia” related to Title VIII “De la Actividad Económica” and Title XIV “Del Urbanismo” of the Police Code (Law 1080 of 2016) [Código de Policía (Ley 1080 de 2016)].
• The Presidential Advisory Office for Human Rights and International Affairs will disseminate a map/roadmap of state mechanisms to guide people affected by business activity.
• The Ministry of Interior will formulate and socialise the Conflict Resolution Policy through social dialogue.

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Criminal liability of legal persons in the field of human rights [page 11-12]

“Implements Principles 1 and 3a

Modern business is inconceivable without companies and cooperatives. They facilitate the concentration of funds, limit risk, and create opportunities for professional management. They are a means of implementing major business projects. However, like any other such means, companies may be open to abuse. Those who engage in crime can divide up responsibility for decisions and hide behind convoluted management structures. At large corporations, it can often be difficult to find a specific liable person. The Act on the Criminal Liability of Legal Persons resolves this by making it possible to infer that a legal person as a whole is liable.

The most serious human rights abuses can be punished as crimes. According to the case-law of the European Court of Human Rights, too, the state duty to efficiently investigate and ultimately punish infringements is central to human rights protection. However, criminal prosecution is the strongest instrument of power the state can wield, and has repercussions for employees, shareholders, creditors, business partners and others who have nothing to do with criminal activity. In this light, legislation needs to be monitored and evaluated.

While the state carries primary responsibility for human rights protection in its territory, in today’s interconnected age the stringent application of the principle of territoriality is impossible. The Czech Republic has decided that – whether unilaterally or on the strength of an international treaty – it will prosecute certain unlawful conduct by Czech nationals irrespective of where this conduct occurs. As such, it is assuming responsibility for the conduct of its nationals (including businesses) abroad, thus making it possible to fill in the regulatory gap to some extent in those cases where such conduct is not punishable under another country’s law.

Current state of play:

• The criminal liability of legal persons was introduced into Czech law in 2011 and covered and exhaustive set of criminal acts. In 2016, the concept underlying the definition of the criminal liability of legal persons was revised so that a legal person can now be liable for all crimes other than a narrow group of acts expressly precluded by law.
• Czech law allows a Czech citizen or a legal person established in the Czech Republic to be prosecuted even if they committed their crime abroad.
• Foreign nationals and legal persons perpetrating a crime to the benefit of a Czech legal person may also be prosecuted.
• Under Czech law, the most serious human rights violations can be prosecuted regardless of the perpetrator’s nationality or where such violations occurred. [The criminal acts listed in Section 7(1) of Act No 40/2009, the Criminal Code]
• The Czech Republic is party to a number of international treaties on legal assistance and on the prosecution of various types of international criminal activity, including the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Task:

• Evaluate the impacts and practical application of the new text of the Act on the Criminal Liability of Legal Persons. If it transpires that the legislation still has loopholes impeding or preventing the prosecution of serious violations of human rights, propose amendments to the law.
  Coordinator: Ministry of Justice
  Deadline: 31 December 2018”

Disqualification of a member of a body [page 13-14]

“Implements Principles 1 and 3b

If a company executive orders or, due to negligence or connivance, allows the company he or she manages to encroach on human rights, that executive must be found to be liable. It is always more advisable to prosecute specific culprits rather than a whole company. However, a criminal penalty is not always appropriate. Indeed, criminal prosecution appears to be too strict a response to minor or negligent breaches of the law.

One possible solution is disqualification – banning someone from holding corporate directorships. Professionals recommend disqualification as a lighter form of punishment for a number of acts directly associated with business activity. Disqualification is a punishment that is suitably harsh for the perpetrator without carrying the stigma of criminal prosecution, and does not harm the company as a whole. Furthermore, judicial proceedings in such a case are simpler and more economical.

Although current Czech law does accommodate disqualification, this is restricted to a narrow set of offences and the maximum duration is limited. In this respect, we need to explore whether the present wording of constituent elements is sufficient, i.e. whether it is broad enough for the courts to have sufficient opportunity to apply this instrument, while being definitive enough so that members of company bodies know what acts are prohibited. We should also consider what the maximum duration of disqualification ought to be for the various acts.

Current state of play:

• The disqualification of members of governing bodies from holding such office was introduced into Czech law in 2014 by the Business Corporations Act. This makes it possible to punish those who have bankrupted their company or have repeatedly and seriously breached the tenet of due diligence. They may be disqualified for up to 3 years.
• Members of governing bodies, influential persons and controlling entities may be disqualified. [Section 76(2) of Act No 90/2012 on companies and cooperatives]

Task:

• Assess the use and applicability of this concept and consider whether it needs to be revised. In particular, evaluate the breadth of constituent elements, how sufficient the definiteness and precision of the law is, as well as the maximum disqualification period and variations depending on the seriousness of the act, and consider extending this concept to other persons effectively exercising influence over the running of a company. Also consider revising this concept so that it is not limited to companies, but can also be applied to other types of organisation with a different legal form. In these assessments, focus on the punishability of acts where a member of a governing body enables human rights standards to be breached either wilfully or out of gross negligence. If the concept of disqualification proves to be hard to apply in these situations, consider revisiting the constituent elements so that disqualification is easier to impose in such circumstances.
  Coordinator: Ministry of Justice
  Deadline: 31 December 2020”

 Pillar III [page 41-42]

“It is incumbent on states to protect human rights. This duty includes the provision of efficient and effective means of remedy for those whose rights have been infringed. Article 36 of the Charter of Fundamental Rights and Freedoms provides that: “Anyone may claim, in the prescribed manner, their rights in an independent and impartial court and, where so provided, before another authority. “The third pillar of the National Action Plan is designed to ensure that, in the field of business and human rights, this right is genuinely available to everyone without unnecessary obstruction, and that it results in efficient remedies.

That is not to say that the third pillar is simply a framework for the improved functioning of the courts. Extrajudicial remedies are also attainable. The third pillar also includes quasi-judicial tribunals, dispute resolution authorities, informal ombudsman-type institutions and mediation institutions (such as the National Contact Point, a Government-devised neutral platform to hear complaints about infringements of the OECD Guidelines for Multinational Enterprises). Ultimately, the ideal dispute is one that never arises in the first place. The third pillar also includes the means to prevent disputes at the businesses themselves.

The primary aim of the third is to find remedies. Remedies may take various forms – an apology, the restoration of what has been damaged to its previous condition, financial or non-financial compensation, or the punishment of the guilty party. The aim is not just to remedy loss or damage, but also to prevent a recurrence by means of enforceable judicial rulings or other less formal guarantees.

Judicial resources: Although there are no fundamental legal obstacles in access to the courts in the Czech Republic, numerous de facto obstructions do exist here. The World Bank’s Doing Business project rates the organisation of the courts and the quality of decision-making in the Czech Republic very highly, but criticises the duration and costs of proceedings for businesses. It takes an average of 611 days to enforce payment under a model contract, and the recovery costs can amount to as much as a third of the claim value. Of that period, enforcement of the judgment per se takes an average of 113 days, with enforcement costs accounting for almost half of costs occasioned by the proceedings as a whole. Overall, the Czech Republic ranked 68th out of the 190 countries assessed. The Government of the Czech Republic systematically analyses the functioning of the judicial system and attempts to reduce the length of judicial proceedings and relieve the courts of unnecessary paperwork in order to streamline the entire judicial architecture. However, this must not be to the detriment of the quality of decision-making and the rights of parties to proceedings. Improvements in law enforcement are addressed by other government strategies, including the International Competitiveness Strategy and the Consumer Policy Priorities 2015-2020.

The following factors have been pinpointed as the main barriers to the prompt and efficient enforcement of the law:

• The courts are overloaded and the administrative work is excessive.
• There is little awareness of the forms and means of alternative dispute resolution.
• Professional legal assistance is very costly.

The Czech Republic views the courts as a fundamental means of redress for those who believe that their rights have been infringed. However, it must not be the only source of recourse. …”

Representation in court, legal assistance [page 44-45]

“Judicial proceedings assessing matters of business and human rights can often be very complex and convoluted. Furthermore, the victims in these disputes tend to be the economically or de facto weaker party (consumers, employees members of minorities, etc.) unable to afford decent legal assistance. The European Court of Human Rights takes the view that effective access to a court, including affordable legal systems, is part and parcel of the protection of human rights. [Judgment of the European Court of Human Rights No 6289/73 of 9 October 1979 in Airey v Ireland] The state, then, should take action to ensure that everyone, without fail, has the opportunity to seek judicial protection efficiently and effectively.

Representation in court is mainly the domain of lawyers, whose activities are regulated and guarantee a certain standard of quality, courtesy (to some degree) of checks conducted by the competent professional organisation, i.e. the bar association. However, for some types of proceedings it is advisable to permit representation by persons who, for example, possess specialised knowledge in a narrowly defined area of law or are willing to systematically provide representation free of charge. Even today, a trade union organisation may represent its members and associations may, in the course of their activities, represent victims of discrimination or foreign nationals in labour cases. It is worth considering expanding opportunities for representation by those organisations in the future. A trade union organisation could also represent other employees at the same employer; consumer protection associations could represent consumers; and associations that have long pushed for environmental protection in a particular place could represent plaintiffs in environmental cases. Other options could also be weighed up. Although these organisations can already provide representation, this is only as general agents (i.e. not systematically across a range of cases). Legislative enshrinement will enable them not only to pursue this activity systematically, but also make it possible to establish their liability more precisely, including, say, compulsory insurance.

Current state of play:

• If a party to judicial proceedings cannot afford a lawyer, the court may waive the court fees and appoint a representative if this is necessary to protect the party’s interests.
• In August 2017, a law entered into force that ensures that low-income groups can receive free legal assistance.
• The law allows certain legal persons (trade unions and associations) to represent parties to certain types of proceedings. [Section 26 of Act No 99/1963, the Code of Civil Procedure]
• Environmental protection associations may enter into certain types of proceedings. [Section 70 of Act No 114/1992 on the protection of nature and the landscape]
• Associations whose members come from a certain place and whose activities depend on the state of the environment are treated as holders of the right to a favourable environment. Consequently, they have the full rights of a party to environmental proceedings and may even claim those rights in court. [Finding of the Constitutional Court I. ÚS 59/14 of 30 May 2014]
• The bar association may assign a low-income applicant a lawyer for the provision of free legal assistance or legal services.

Tasks:

• Analyse issues surrounding an extension to the set of situations where legal persons may represent parties to proceedings.
  Coordinator: Ministry of Justice
  Deadline: 31 December 2020
• Evaluate the way the system of free legal assistance for the poor and needy works, especially the cost to the state, the bar association and applicants, the speed at which lawyers are assigned, and how much paperwork is involved. Evaluate the possibility of adding to the group of those who provide legal assistance.
  Coordinator: Ministry of Justice
  Co-coordinators: Ministry for Human Rights
  Deadline: 31 December 2020”

Access to evidence [page 45-46]

“Disputes deriving from the protection of human rights are complex in terms of their legal classification and from the aspect of precisely defining the action and the claim. Quantifying loss or damage in relation to non-economic rights is difficult, as is determining the extent to which a specific culprit is guilty.

Some of the evidence necessary tends to be in the complete control of the counterparty (e.g. minutes of the meetings of company bodies, internal instructions, and the working correspondence of employees). The Code of Civil Procedure recognises the “duty of release”, where the court, on a motion from the plaintiff, may indicate specific evidence (documentation) in the possession of the counterparty and order it to be released. However, such procedure is possible only after proceedings have been opened (i.e. the action must already have been brought), even though this evidence may be required to formulate the action, its statement of grounds, and the precise definition of the relief sought. The documentation solicited must also be very clearly specified.

Current state of play:

• The bill on compensation in competition includes the new concept of “proceedings to unlock evidence”, making it possible to petition the court for the parties to disclose certain materials necessary to specify a claim before the proceedings have been opened. The bill encompasses not only the disclosure of such evidence (including a fine to penalise non-compliance), but also means of protecting business secrets (the redacting of certain information or the occupation of the impartial person examining the evidence).

Task:

• Conduct a comprehensive analysis of how the existing provisions on the “proceedings to unlock evidence” under the said law function. In this respect, continuously monitor their use and effect by reference to data collected from the courts, with the possibility of drawing on expert assistance from the Office for the Protection of Competition and any experience it might have of this issue, while respecting the business secrets of the entities concerned (especially competitors).
  Coordinator: Ministry of Justice
  Co-coordinator: Office for the Protection of Competition
  Deadline: 31 December 2022
• On the strength of a comprehensive analysis, consider introducing the concept of “proceedings to unlock evidence” in other areas of law, or introducing general provisions in this respect.
  Coordinator: Ministry of Justice
  Deadline: 31 December 2022”

Collective actions [page 46-47]

“Historically (bar the odd specific exception), Czech law has not accommodated collective means for the protection of rights. In disputes where there are a large number of victims, they must all bring their own action and lodge their own claim separately. Actions may be joined, but even so each plaintiff has the status of a separate party. This is particularly problematic in disputes where the overall loss or damage is large, but is fragmented among a large number of people. The costs of judicial proceedings (and the risk of having to pay the counterparty’s costs if the action fails) are disproportionate to the scale of the loss or damage, which deters people from lodging numerous claims that would otherwise be legitimate. This procedure is also expensive for the counterparty, which has to deal with scores – even hundreds – of actions, and even pushes up the cost to the courts in terms of the paperwork, the service of documents, the ruling per se, and the enforcement thereof.

The situation is much the same in the administrative judiciary in cases requiring the judicial review of decisions involving large numbers of parties. Here, too, there may be situations where a large number of persons feel that their rights have been infringed by a particular decision of a public authority, but the Code of Procedure of Administrative Courts does not let them file their claims collectively. Even if cases are joined within the scope of single proceedings, each plaintiff effectively acts independently.

Current state of play:

• The Consumer Protection Act allows consumer associations to seek injunctions. In practice, however, these provisions are not particularly effective and can really only be used in a narrow set of situations.
• The Ministry of Justice is contemplating the introduction of collective actions, but no final decision on the concept of such provisions has been reached. The emphasis is on the efficiency of this scheme and its constitutionality. An explanatory memorandum for this law is to be prepared in 2017.

Tasks:

• Prepare for the introduction of collective actions in civil proceedings before the courts.
  Coordinator: Ministry of Justice
  Deadline: 31 December 2020
• Drawing on the experience of collective actions in civil proceedings before the courts, consider whether to introduce collective actions in the administrative judiciary.
  Coordinator: Ministry of Justice
  Deadline: 31 December 2022”

Accessibility of the courts [page 48-49]

“Judicial proceedings in the Czech Republic are still relatively protracted. Although a lot of headway has been made in reducing the average length of proceedings in recent years, there is still room for improvement. The courts’ main problem is that they are overloaded with a huge number of cases. Judicial proceedings are highly formalised, at great cost to both parties to the dispute and to the court itself. The paperwork associated with the running of the judiciary encumbers not only the judges, but also the courts’ administrative machinery.

Sensitively and coherently used technology could play a major role in freeing the hands of the courts. Just like any other area of human activity, the judiciary could benefit from the advantages delivered by advanced technology. Numerous countries around the world are conducting studies and drawing up strategies on how to use such technology efficiently in the work of the judiciary. These are tools that could be put to good use in the process of adjudication on the one hand (facilitating the taking of evidence, enabling hearings to be held without the physical presence of all persons) and in the paperwork and state administration of the courts on the other (file computerisation and automation). The technology must be used in such a way that it does not place an extra burden on the courts, and must be accompanied by the thorough induction training of court staff. Likewise, it must not reduce in any way the availability of or access to the courts and judicial protection.

Alongside the judges, an indispensable role in the smooth and problem-free functioning of the judiciary is played by judges’ assistants, trainee judges and other employees of the judiciary. These positions need to be filled by highly skilled specialists who are well versed in the law and able to apply it, and they should be rewarded accordingly. The judiciary must offer conditions capable of attracting and retaining top-class lawyers. The Ministry of Justice, aware of this need, is preparing to increase the number of such workers and their pay in 2018. This is a positive trend that should continue in the years to come.

Current state of play:

• The computerisation of the judiciary and the introduction of electronic files has long been discussed in the Czech Republic and is mentioned in many strategies and action plans (e.g. the Strategy for the International Competitiveness of the Czech Republic, and the Ministerial Strategy for the Development of eJustice 2016-2020).

Tasks:

• Continue introducing electronic court files.
  Coordinator: Ministry of Justice
  Deadline: Running, with an assessment as at 31 December 2020
• In the periodic and ongoing evaluation of the state of play and functioning of the judiciary, pay more attention to how accessible the judiciary is for laypersons and to user-friendliness for clients. Where possible, when evaluating these criteria, draw on the guidelines devised for this purpose by the OECD and/or other generally acknowledged and respected international guidelines so that the data collected can be compared in an international context.
  Coordinator: Ministry of Justice
  Deadline: Running
• Map out the latest trends and opportunities in the modernisation of the way the judiciary works, e.g. the use of modern technology in the judiciary and improvements in access to the judiciary, according to the observations and recommendations of the OECD. Evaluate whether these observations can be put to practical use and applied in the Czech Republic.
  Coordinator: Ministry of Justice
  Co-coordinator: Ministry for Human Rights
  Deadline: 31 December 2020”

 Alternative and online dispute resolution [page 49-51]

“Judicial proceedings are inherently formalised and costly affairs. The calling of a judge is mainly to handle complex legal issues. Yet much of the agenda at the courts is filled with disputes that are legally and factually simple and could be dealt with by extrajudicial means. Ministry of Justice statistics indicate that half of the disputes that pass through the courts have a claim value of less than CZK 10,000. In other words, these are petty disputes. While it would be wrong to automatically dismiss petty disputes as simple in their facts, we can assume that this is the case in many instances. It may be more effective, in some cases, for these types of factually simpler disputes to be handled in certain special procedural regimes (e.g. by simplifying judicial hearings or restricting appeals), or a solution to them could be found out of court. If the courts no longer have to grapple with a surfeit of such disputes, they will have more capacity to address complex and fundamental legal issues.

However, it is difficult to estimate the actual number of such simplified disputes. Numerous low-value disputes do not even make it into court because the costs of proceedings would dwarf the claim value. Even plaintiffs who are sure of the legitimacy of their claim will not bring an action in a situation where the loss of the case and reimbursement of costs to the counterparty would make them destitute. Consequently, many such disputes are “latent”, though that is not to say that they are non-existent.

In this light, the state needs to offer a functioning, effective and efficient alternative running parallel to the judicial system. This alternative system could take over some of the agenda handled by the courts, thereby making it possible to speed up and streamline the judiciary. This system, in a way, can already be found, e.g. in the extrajudicial resolution of consumer disputes [See Parts Three and Four (Section 20d et seq.) of Act No 634/1992 on consumer protection]. However, it could also be developed in other areas (labour law and small claims).

Notwithstanding the above, any alternative dispute resolution system must be viewed genuinely as an alternative and must not hobble any party’s access to the courts. In this regard, when parties opt for alternative dispute resolution, this choice must primarily be based on their express, free and knowing consent, and also with consideration for the possible weaker position that either of them may be faced with (e.g. consumers). This should never hamstring judicial protection and the right to a fair trial.

The modernisation of the judiciary, the development of alternative dispute resolution methods and the adaptation of the existing system to the requirements of the modern age are topics being addressed by most countries around the world. The Czech Republic has a solid foundation on which to build, but the existing systems need to be carefully assessed and the best foreign examples need to serve as inspiration.

The Government of the Czech Republic recommends that businesses make use of vehicles for the alternative amicable resolution of disputes, support the formation and development of such vehicles, and offer them to their partners and customers as an option.

Current state of play:

• The Czech Trade Inspection Authority, the Energy Regulatory Office, the Czech Telecommunication Office, the Financial Arbitrator and certain other authorised entities [Only two at the time this Plan was drawn up: the Czech Bar Association and the Czech Consumer Association] form a state-guaranteed system of extrajudicial consumer dispute resolution.
• The Ministry of Industry and Trade may authorise further entities to engage in the extrajudicial resolution of consumer disputes should they so request and comply with statutory conditions.
• By law, vendors are required to inform consumers of the possibility of making use of alternative dispute resolution for consumer disputes. [Section 14 of Act No 634/1992 on consumer protection]
• Legislation on alternative and extrajudicial consumer dispute resolution, as coordinated by the Ministry of Industry and Trade, is monitored and will be evaluated within two years after it has taken effect (i.e. in 2018).
• Czech law covers mediation [Act No 202/2012 on mediation and amending certain acts (the Mediation Act)], arbitration [Act No 216/1994 on arbitration and the enforcement of arbitral awards] and the possibility of the judicial resolution of disputes in certain specific areas.
• Individual businesses may set up their own systems to settle disputes with customers.
• The Code of Civil Procedure already requires courts to attempt to find an amicable solution to disputes, and lets them recommend or order mediation. However, these concepts remain little used and have not been that successful. In 2016, a mere 2.4% of disputes ended with conciliation, and mediation was ordered in just 0.15% of disputes.
• The Ministry of Labour and Social Affairs is considering introducing vehicles for the extrajudicial and alternative resolution of disputes in labour-law cases.

Tasks:

• Raise awareness among consumers of the possibility of resolving consumer disputes extrajudicially.
  Coordinator: Ministry of Trade and Industry
  Deadline: Running
• Evaluate judicial and extrajudicial means of enforcing the law in the Czech Republic in cooperation with the representatives of businesses and other relevant stakeholders and, where appropriate, propose changes.
  Coordinator: Ministry for Human Rights
  Co-coordinators: Ministry of Justice, Ministry of Industry and Trade
  Deadline: 31 December 2020”

 Administrative courts and their opportunities to review and annul follow-up decisions [page 51-52]

“It is often the case that complex authorisation proceedings do not take place as a whole, but comprise a many sub-proceedings and decisions that follow up on each other and are intertwined. If one decision is annulled by a special remedy (review proceedings or an administrative action), the downstream decisions formally remain in force even though they have been robbed of their basis. One example is building permit proceedings, where the issuance of a building permit hinges on the existence of a valid zoning decision. If a court annuls the zoning decision (or even part of the land-use plan forming the basis for the issuance of the zoning decision), the building permit remains in force. This falls foul of the principle of procedural economy (the annulment must take place in a separate process, even though this is a pure formality in the overwhelming majority of cases). It is also contrary to the requirement of legal certainty (the decision remains in force and enjoys the presumption of correctness, even though it obviously needs to be annulled), and is at odds with the principle of legality (because a decision that is clearly not legal remains in force).

Task:

• Analyse the finality and annulment of administrative decisions that are deprived of their legal basis in the form of the preceding decisions underlying their force. Evaluate how frequent such situations are and what the economic ramifications might be.
  Coordinator: Ministry for Human Rights
  Co-coordinators: Ministry of Regional Development, Ministry of Agriculture, Ministry of the Environment
  Deadline: 31 December 2019
• Depending on the result of the analysis, add provisions to the Code of Procedure of Administrative Courts so that when a court annuls an administrative decision, it also automatically annuls, with no need for any motion, downstream decisions that cannot stand on their own (without the underlying decision), or propose another solution to the problem.
  Coordinator: Ministry of Justice
  Deadline: 31 December 2021”

Integration of authorisation proceedings [page 53]

“The lack of uniformity of provisions in administrative law is reflected negatively in the issuance of permits and opinions in particular. An investor intending to implement a large-scale plan affecting multiple areas requires numerous individual permits and opinions from various bodies. In this respect, the Czech legal system is highly fragmented. Permits are issued in accordance with laws on building, the protection of nature and the landscape, water, clean air and others.

This fragmentation logically also has a bearing on rules for the participation of the relevant public in individual proceedings. Conditions for the participation of the relevant public are subject to special provisions set out in a separate law, and, at the same time, the relevant public abides by general rules in accordance with the Code of Administrative Procedure. In this respect, it can be difficult for the general public to navigate their way round individual processes, no matter how long the proceedings themselves are.

Integration should be aimed at faster proceedings, coordination, reduced red tape, and a uniform vision for the engagement of the relevant public. The integration of multiple proceedings into one, or the greater coherence of individual proceedings, will yield numerous benefits – the parties and the relevant public will find the proceedings clearer, the proceedings will be faster, and there will be less of an administrative burden. On the flip side, there will be risks, too. For example, the annulment of a decision by a court could have repercussions for those areas that are otherwise free of defects. These aspects need to be carefully balanced and the risks need to be mitigated, for instance by setting appropriate rules on judicial review.

Current state of play:

• An amendment to the Building Act adopted in 2017 led to the partial interconnection of zoning proceedings, building permit proceedings, EIA procedure and several other necessary authorisation proceedings.

Task:

• Chart the authorisation proceedings coordinated by a particular ministry and assess whether they can be merged with the authorisation processes of other ministries, or whether procedural rules can be unified.
  Coordinators: Ministry of Regional Development, Ministry of the Environment, Ministry of Industry and Trade, Ministry of Transport, Ministry of Agriculture
  Deadline: 31 December 2020
• Actively cooperate with other authorities on the integration of authorisation proceedings coordinated by various different ministries.
  Coordinators: Ministry of Regional Development, Ministry of the Environment, Ministry of Industry and Trade, Ministry of Transport, Ministry of Agriculture
  Deadline: Running”

Read more about Czechia

2. The state duty to protect human rights

2.3 Actions taken

Protection of human rights in the business sphere in Danish legislation [page 12]

“Protection of human rights in the business sphere in Danish legislation General Danish law contributes to fulfilling Denmark’s duty under human rights treaties to which it is a  party against human rights abuses by private actors, including businesses. For example, the Danish parliamentary act prohibits differential treatment in the labour market from 1996 protecting against discrimination based on race, gender, skin colour, religion, political opinion, sexual orientation or national, social or ethnic origin. It is also an offense to refuse to serve a person on the same terms as others involved in commercial or non-profit company because of his/hers race, colour, national or ethnic origin, religion or sexual orientation. The Working Environment Act of 2005 and the Act on the Work of Young Persons from 2005 implement the EU Directive 94/33/EC from 1994 on the protection of young workers, and the 1956 Constitutional Act of Denmark covers freedom of association and assembly.

Similarly, the Danish Data Protection Act helps to uphold the right to respect for private life; the Working Environment Act contributes to protecting the right to a safe and healthy working environment, the act protects, among other things, individuals against adverse impacts on health due to environmental pollution from business sources and contributes to protecting the right to the highest attainable standard of health through regulating access to health services. Denmark’s Criminal Code protects the right to life and human rights against torture, slavery, while proscribing a range of activities connected with human trafficking, for example. The Criminal Code further provides that companies and company representatives can be punished under the Act while other criminal laws contain provisions in similar terms.”

2.4 Planned actions

Extraterritorial legislation [page 16]

“To further engage in the issue of extraterritorial legislation, the Danish Government has planned the following initiative:

At national level the Government will put together an inter-ministerial working group which will discuss the need for and feasibility of legislation with extraterritorial effect in areas of particular relevance … the group will examine the need for judicial prosecution of severe human rights impacts as recommended by the Danish Council for CSR.”

4. Access to remedy

4.1 UNGPs on access to remedy [page 19]

“As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy (GP 25).

This includes providing effective and appropriate judicial and non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive Statebased system for the remedy of business-related human rights abuse.”

4.2 Recommendations from the Council for CSR on access to judicial and non-judicial remedy [page 20]

“In November 2010, the Council for CSR established a working group who would be able to work intensively on the recommendations for implementing remedy as described in the UN Protect, Respect, and Remedy-framework. The working group was composed by a representative from the Confederation of Danish Industry, the Danish Confederation of Trade Unions, the Danish 92 Group, the Danish Shipowners’ Association and the chair of the Council.

The working group followed closely the final work of the SRSG John Ruggie on the development of the Guiding Principles for the implementation of the Protect, Respect and Remedy framework as well as the work of the OECD Investment Committee on the revision of the OECD guidelines for multinational enterprises.”

Recommendations on judicial remedy

“The Danish Council for CSR acknowledges that this is an extremely difficult issue that is best handled at an international level. The Council therefore recommended that the Danish Government works to find a solution to gross violations covered by the revised OECD guidelines at an international level (under the EU umbrella), for example via a UN agency.

In terms of legislation with extraterritorial effect, the Council recommended that the Danish government, in addition to the international work, consider introducing relevant national legislation for particularly gross violations. A balance should be established between, on the one hand, the need to prosecute particularly gross violations and maintain an overwhelming sense of justice, and, on the other, the possibilities of examinating violations in practice.

In addition to criminal law consequences, the Council recommended that the government consider the possibilities of civil law measures against companies committing gross human rights violations abroad, cf. UNGPs.”

4.3 Actions taken [page 20]

Access to judicial remedy 

“The provisions laid down in the Danish Administration of Justice Act (Consolidation Act 2012-10-24 No. 1008) form an essential and important part of the framework on access to judicial remedies in cases regarding human rights issues in business. Denmark keeps these provisions under constant review in order to fulfill international obligations and to ensure that the provisions are adequately applied.”

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Introduction [page 11]

“The third important element [of the UNGPs] is the access of victims of human rights violations to effective legal and non-legal remedies.”

1 The state obligation to protect human rights

1.1 Human rights in Finnish legislation [page 13]

“Fundamental rights (such as equality, freedom of movement, protection of privacy, freedom of association, freedom of speech and the right to social security and judicial protection) have been included in the Constitution.”

4 Access of victims of human rights violations to legal remedies [page 30-31]

“The realisation of human rights requires that the victims of human rights violations may have their situation assessed and remedied. For this reason, the existence of sufficient legal remedies or other settlement or compensation proceedings is crucial. These procedures may be legally binding or optional.

The starting point is that the activities of the state and the national control of business activities are in harmony with international conventions and national legislation.

The autonomy of Finnish tribunals is guaranteed, legal expenses are small, and those without sufficient financial means for legal aid are entitled to free counselling. However, in order for the victims of human rights violations to have access to legal remedies, they must be aware of their rights. In addition to the authorities, labour market organisations and non-governmental organisations have been assigned the important task of helping employees – particularly employees in a vulnerable position – in defending their rights and using legal remedies. The organisations also distribute information on rights and provide counselling. Finland has a strong tradition of cooperation between the authorities, labour market organisations and non-governmental organisations. These strengths can also be used in activities carried on outside Finland’s borders.

Finland is actively involved in reinforcing the development of the rule of law on an international level and supports the development of the legal sector in developing countries. It is also involved in the cooperation for promoting international human rights obligations and the control of fundamental rights in working life.

It is important to emphasise the use of preventive measures (such as consultations and settlement proceedings) at a sufficiently early stage to prevent or decrease the adverse impacts on human rights that may be related to business activities. Companies are encouraged to increasingly use non-binding complaint mechanisms related to human rights and to cooperate with non-governmental organisations.

Trade unions and non-governmental organisations play an important role in securing human rights and rights at work. Finland cooperates in various ways with human rights defenders and non-governmental organisations exposing corruption. Mainly within the framework of EU cooperation, Finnish representatives are involved in the monitoring of legal processes on a case-by-case basis when monitoring is believed to have a positive impact on the protection of the rule of law.

As a follow-up measure, the working group proposes that

• Finland participate in the discussion on developing legal remedies carried out in the Office of the High Commissioner for Human Rights and the Human Rights Council.
• Finland support non-governmental organisations, which follow human rights issues related to business activities and support the victims of human rights violations.
  Principal responsible party: Ministry for Foreign Affairs, continuous activities.”

Read more about Finland

III- Access to Remedy

1. Judicial Mechanisms – At the International Level

1.1 The Protocol to the ILO Forced Labour Convention (No.29) [page 47]

France ratified the Protocol to the 1930 ILO Forced Labour Convention (no.29) on 7 June 2016. France was the fifth country to ratify the Protocol.

This Protocol was adopted at the ILO International Labour Conference on 11 June 2014 in Geneva. It supplements the convention, which is one of ILO’s most ratified instruments, by dealing with new forms of forced labour.

The Protocol provides for access to appropriate and effective remedies such as compensation. It also reinforces international cooperation in the fight against forced and compulsory labour. It highlights the important role played by employers and workers in tackling this issue.

This ratification is evidence of France’s commitment to fighting all forms of forced labour and promoting the universal ratification of ILO’s fundamental conventions.

 

At the European Level

1.2 The European Court of Human Rights

Any individual can lodge an application with the European Court of Human Rights, provided that they have exhausted all domestic remedies and the case falls under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Once the European Court of Human Rights has delivered a judgment, the State is required to implement all necessary enforcement measures to ensure the violation is not repeated. The enforcement of the judgment is monitored by the Committee of Ministers of the Council of Europe. States must report on the solutions implemented (this covers individual measures such as financial compensation, and general measures such as the revision of legislation).

 

At the National Level

1.3 Civil and Criminal Liability [page 48]

The right to effective remedy is enshrined in several European and international texts to which France adheres. It is mentioned in Article 8 of the Universal Declaration of Human Rights, Article 47 of the Charter of Fundamental Rights of the European Union (concerning the “rights and freedoms guaranteed by the law of the Union”), and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (concerning the “rights and freedoms […] set forth in this Convention”).

Since the French Constitutional Council’s decision of 9 April 1996 (DC 96-373), the right to effective remedy has been protected by the French Constitution. However, the Council also acknowledged that this right did have limits and lawmakers could restrict its scope, provided they did not impose “substantial constraints” (recital 83). In a further decision dated 23 July 1999 (DC 99-416), the Constitutional Council discussed the consequences of this decision, particularly by linking the right to effective remedy to respect for defence rights, which it considered were one of the fundamental principles recognized in French legislation.

To ensure that the constitutional right to effective remedy is recognized as a real and tangible right in France, the State has taken theoretical and practical steps to enable individuals, especially victims of human rights abuses by businesses, to lodge complaints with judges and obtain appropriate reparation.

Under the rules of French civil procedure, the party applying to enforce the rule of law must prove the facts necessary for the success of their claim (Article 9 of the French Code of Civil Procedure).

Pursuant to French civil law, individuals and companies must remedy the harm they cause to others. Under Articles 1382 and 1383 of the Civil Code (Articles 1240 and 1241 as of 1 October 2016), they must remedy the consequences of their fault, even if this was committed through imprudence. The burden of proving the fault, damage and causal link between the two falls on the party requesting remedy.

Other legal texts establish liability in other circumstances. Specifically, Article 1384 of the Civil Code (Article 1242 as of 1 October 2016) deals with vicarious liability for acts committed by people under one’s responsibility or by things in one’s custody. When this text applies, the burden of proof is lighter for plaintiffs. Thus, when a “thing” commits an “act”, its custodian is considered liable, unless they can prove an exonerating cause such as force majeure.

In addition, under Act 2016-1087 of 8 August 2016 on the reclaiming of biodiversity, nature and landscapes, new articles on remedying ecological damage have been incorporated into the Civil Code.

1.4 Proceedings

The Jurisdiction of French Courts to Hear Civil Matters [page 49]

The rules determining whether French courts have the international jurisdiction to hear non-contractual civil liability cases against companies or other legal entities differ depending on the State in which this entity is domiciled.

If a company or legal entity has their statutory seat, central administration or principal place of business in an EU Member State, they are considered to be domiciled there under Article 63 of the European Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Pursuant to Article 4 of the Regulation, entities domiciled in an EU Member State shall be sued in the courts of that Member State. Consequently, any person suffering harm caused by a company domiciled in France can lodge a request for remedy with the French courts, regardless of the victim’s nationality and State of residence, and regardless of where the harm occurred.

When the company or legal entity that caused the harm is domiciled in another EU Member State or in Switzerland, Norway or Iceland, the victim can lodge a case with the French courts if the harmful event (the harm or the act causing the harm) occurred in France, pursuant to Article 7(2) of the Brussels I Regulation (recast) and Article 5(3) of the Lugano II Convention of 7 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

If the entity that caused the harm is domiciled outside the EU and the European Economic Area (EEA), the victim can still file proceedings with the French courts if the harmful event (the harm or the act causing the harm) occurred in France, pursuant to Article 46 of the French Code of Civil Procedure. Furthermore, if the harmful event occurred outside the EU and the EEA, victims domiciled in France can file proceedings with the French courts on a subsidiary basis, regardless of their nationality, pursuant to Article 14 of the French Civil Code.

Finally, even when the company and the harmful event are both based outside the EU and the EEA, and victims are not French citizens and not domiciled in France, proceedings can be filed with French courts on the independent jurisdictional grounds of a “denial of justice”. In this case, victims must prove that they are de jure or de facto unable to file proceedings with foreign courts.

However, in practice, it is very difficult and sometimes impossible to establish a chain of liability.

The Jurisdiction of French Courts to Hear Criminal Matters [pages 49-50]

Generally speaking, unless otherwise stipulated in legislation, companies and legal entities are liable for the criminal offences they commit, provided that these offences can be attributed to one of the company’s “organs” or representatives, and the offences were committed on their behalf.

More specifically, French legislation is strict in combating human rights violations by legal entities. Under French law, it is a criminal offence for companies to engage in activities that breach people’s rights (violations of human dignity, working conditions that violate human dignity, forced labour), equality laws (gender discrimination, anti-union discrimination, denying the freedom to work, corruption), environmental laws (pollution), or social, health and safety laws (hindering organizations representing employees, concealed work, involuntary injuries or death due to workplace accidents).

Companies found guilty of these offences must pay fines equal to a maximum of five times the amount payable by individuals under the law punishing the offence. If the law does not specify fines for individuals who commit these crimes, the fine for companies is set at €1 million.

In addition, victims can sue companies for civil injury and request remedy for harm arising as a result of offences. Specifically, under French law, parent companies can be found criminally liable for acts committed by their subsidiaries, including acts committed abroad, if it can be established that they committed or were complicit in the offence. It should be noted that French law stipulates that those complicit in offences are subject to the same criminal sanctions as those who commit the offence. However, when the main offence is committed in another country, two conditions must be met before this complicity can be established (the offence must be considered a criminal act in both countries, and a definitive judgment must have been obtained in the country where the offence was committed). These conditions make these provisions difficult to apply.

Parent companies can be found criminally liable in other situations, for example when they hide or whitewash offences committed by foreign subsidiaries.

Although French criminal law provides for the criminal liability of legal entities and sets out specific offences and sanctions for companies, victims still face obstacles when seeking judgments and effective remedies, especially when a business’s international operations are concerned. These obstacles are considered by some to be guarantees of legal certainty, and include provisions in Articles 113-5 and 113-8 of the Criminal Code.

Under these provisions, parent companies can only be found complicit in a subsidiary’s offence abroad if two conditions are met. Firstly, the offence must be considered a criminal act in the State where it was committed and in France (the principle of double criminality). Secondly, a final foreign judgment must have been obtained (Article 113-5 of the Criminal Code). This second condition requires victims to have the offence acknowledged by a foreign court.

Article 113-8 of the Criminal Code concerning infractions is another obstacle that prevents victims from seeking remedy or, more commonly, attempting to sue a company for civil injury. This article effectively gives the public prosecutor a monopoly in terms of filing proceedings for crimes committed by French entities abroad and crimes suffered by French victims abroad.

Collective Actions [page 51]

In its opinion dated 24 October 2013, the CNCDH recommended “extending collective action, to matters relating to the environment and health in particular. It is also essential that any French or foreign individual or legal entity residing in France or abroad be able to get involved in any collective action initiated against a French company.”

Collective action, which initially only applied to consumption and competition disputes, was extended to cover health disputes on 1 July 2016, pursuant to the provisions of the Act of 26 January 2016 on the modernization of the health system. Act 2016-1547 of 18 November 2016 on the modernization of the 21st century justice system widened the scope of collective action provisions. Articles 60 to 84 of this Act define a common procedural framework for collective actions and pave the way for their use in a large number of areas.

Under this common framework, a group of plaintiffs can launch a collective action when they experience a similar situation and suffer harm caused by the same person’s breach of a contractual or statutory obligation. Plaintiffs can request a stop to the breach or a remedy for the harm caused. It should be underlined that collective actions do not exclude plaintiffs on the basis of their nationality or place of residence provided they experience a similar situation, as described above.

Given the different fields of application mentioned in the bill, collective actions will become a tool allowing plaintiffs to stop or remedy discrimination in the labour field and elsewhere, including with respect to the provision of services, accommodation, transport, etc. Collective actions will also be possible in the environmental, health, and personal data protection fields.

1.5 The Denial of Justice [page 52]

As underlined by the National CSR Platform in 2014, it is important to find practical solutions to flagrant and serious denials of justice in the event of major events. According to the platform, this was especially true given the fact that access to courts likely to deal fairly and equitably with complaints concerning fundamental rights violations by companies was difficult in many countries.

The platform therefore recommended that the French Government launch an international debate on finding legal solutions to the problem of the denial of justice. A denial of justice occurred when plaintiffs attempted to take legal action against groups domiciled in States subject to the rule of law to obtain remedies for harm caused by subsidiaries operating in countries where courts did not have the necessary independence to deliver justice, or where plaintiffs were threatened. These legal solutions should not challenge the general principle of territorial jurisdiction. According to the platform, this initiative, supported by France, could aim in particular to launch a European movement. By situating this initiative within a European or wider framework (OECD), the risk of French businesses facing an uneven playing field would be minimized.

The French administration is aware of these issues. During negotiations to update the Brussels I Regulation and widen its scope to cover defendants based in countries outside the EU, France suggested giving plaintiffs attacking European companies the option to go before a European judge on the basis of the forum necessitatis principle.

In its 2013 opinion, the CNCDH stated that “it would be desirable for subsidiary jurisdiction based on the denial of justice to be granted in civil matters in the event that the State competent for recognising detrimental acts on the part of the subsidiary is deemed unable or does not want to initiate and see through to their conclusion legal proceedings.”

 

Appendix

The Positions Adopted by the Different Groups of the National CSR Platform

Proposals by the civil society and trade union groups

• Civil (and possibly criminal) liability and a duty of vigilance should be introduced for French parent companies and outsourcing companies that commit human rights violations in France or abroad over the course of their activities or those of their subsidiaries or subcontractors. Under this regime, the burden of proof would be on companies, enabling victims to trace the abuse to the highest level of the chain of responsibility.

…

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Objective 25.26.1: Raise awareness for the staff of judicial authority and investigative structures concerning human rights.

Objective indicator: Number of conducted trainings.

Activity: Defining target groups for trainings and conducting respective trainings.

No responsible agency.

Partnership agency: High Council of Justice; Office of Public Defender.

Objective 25.28.1: Ensure strengthening high standard issues containing mechanism, including out-of-court appeal.

Objective indicator: Defined responsible person.

Activity: Working on the issue of defining responsible person with the aim to strengthen high standards containing mechanism, including out-of-court appeal.

Responsible agency: Human Rights Secretariat of the Administration of the Government.

No partnership agency.

Read more about Georgia

1. Key areas for action [page 13]

In relation to the three pillars of the UN Guiding Principles, the following are the primary areas for action: …

• access to grievance and remedy mechanisms.”

1.1 Basic rules of economic policy

Protection within states’ own territory – challenges within Germany

Measures [page 16]

• “To supplement the existing structures, the Federal Government has shifted the focal point of its efforts towards the fight against human trafficking for the purpose of exploitative employment. A joint federal level-state level working group is currently developing a strategic approach designed to reinforce prevention, establish advisory structures and improve criminal prosecution and the data situation.”

4.1 Access to justice and the courts for injured parties [page 36-38]

Civil remedies in Germany

“Germany’s judiciary works independently and efficiently. Anyone who considers that his or her rights have been infringed in Germany by the actions of an enterprise can make claims before the civil courts. Anyone, moreover, who considers that his or her rights have been infringed abroad by the actions of a German enterprise, can bring an action in Germany, normally at the court with local jurisdiction for the registered office of the enterprise. Germany’s international civil procedure law also contains additional provisions whereby the German courts may be seized of matters relating to certain offences committed abroad, provided that a sufficient domestic connection can be demonstrated (e.g. specific jurisdiction for tort under section 32 of the German Code of Civil Procedure).

German civil procedure law contains mechanisms that facilitate access to German civil courts. Litigants of limited means, for example, can obtain legal aid. Following a means test and an assessment of the prospects for a successful action, beneficiaries have their court costs and their own lawyer’s fees paid in full or in part, depending on their degree of need. Litigants who are not German nationals can also receive legal aid for German court proceedings. All legal entities based in the European Economic Area – victims’ associations, for example – can also receive legal aid if they fulfil the conditions set out in the German Code of Civil Procedure. The German Code of Civil Procedure also provides for collective remedies in the form of joinder of parties and consolidation of claims.”

Scope for penalising enterprises under the law governing regulatory offences

“Enterprises, moreover, may be held liable under the Regulatory Offences Act for conduct in breach of criminal law on the part of their management, including company-related violations of human rights, for which they may be fined up to €10 million. Higher fines may be imposed if, in addition, the economic benefit derived from the offence is being disgorged.”

Support for remedy mechanisms in third countries

With regard to potential human rights violations within supply chains, great importance attaches to reinforcement of the rule of law and democracy in the relevant third countries, because that will create conditions for the introduction of effective redress mechanisms in those countries.

One contribution to the achievement of this objective is made by the German Foundation for International Legal Cooperation (IRZ), which was established by the Federal Government in 1992. The IRZ is now operating in almost 30 partner countries, providing advice when they reform their legal system and their judiciary. In this context, it also advises partner states seeking to reform their entire system of procedural law, providing advice not only on civil, including commercial, procedural law but also on the law governing criminal procedure, on administrative procedural law, including the creation of an administrative jurisdiction, and on the law relating to the enforcement of judgments. The IRZ also deals at various levels with the question of the best way to structure a system of legal aid so that it will be effective in guaranteeing access to justice. Alternative means of dispute settlement such as arbitration tribunals and mediation also feature in the work of the IRZ.

As its name indicates, the IRZ not only provides advice on procedural law but also provides consultancy in the various areas of substantive law, advising on matters of civil and commercial law such as civil codes, intellectual property rights and insolvency provisions as well as on matters of criminal law and more besides.

This consultancy is accompanied by numerous in-service training courses for those who apply the law, designed to help ensure that the reformed legislation is actually implemented in everyday practice too. The purpose of this training is to make court judgments more transparent through trackability of judicial activity and through statements of reasons, measures designed to contribute in the long run to greater legal certainty and to more reliability and predictability and hence to greater public confidence in the judiciary.”

Measures

• “Those who are affected by human rights violations cannot use the existing remedy mechanisms unless they are sufficiently well informed about them. To this end, the Federal Government will produce a multilingual information brochure on access to justice and the courts for injured parties, which gives potentially affected persons an easy-to-follow summary of the remedies available to them under German civil procedural law.
• The Federal Government is currently preparing the introduction of compensation for surviving dependants, as envisaged in the coalition agreement. In the event of a close relative being killed, the new provision would enable the surviving dependants to make a pecuniary claim against the party responsible for the fatality as a token of reparation for the survivors’ grief and as a gesture of sympathy, respect, and solidarity.
• The existing rules for the imposition of sanctions on enterprises for conduct in breach of criminal law will be expanded, as envisaged in the coalition agreement. Specific and coherent sanctioning principles will be created for corporate fines.
• The IRZ Foundation established by the Federal Government will include in its consultancy programmes advice for partner states on the areas of procedural and substantive law with a significant bearing on business and human rights, focusing on the need to ensure access to justice. At the Fifth International Conference of the Parliamentary Committees on Legal Affairs of IRZ partner states, held in October 2016, issues of CSR and anti-corruption efforts were among the subjects discussed under the Conference theme of “Politics, business and human rights”.”

Read more about Germany

Section 1: International Context and Domestic Consultative Process

Other international initiatives [page 10]

“In March 2016, the Council of Europe adopted a Recommendation to assist Member States in preventing and remedying human rights violations by business enterprises. The Recommendation elaborates on access to judicial remedy, drawing on Council of Europe expertise and legal standards and puts special emphasis on the additional protection needs of workers, children, indigenous people and human rights defenders.”

Section 2: Current legislative and Regulatory Framework

Environment [page 14]

“Ireland has transposed key EU directives, such as EU Directive 2004/35/EC which deals with environmental liability with regard to the prevention and remedying of environmental damage.”

Section 3: Actions

II. Initial priorities for the Business and Human Rights Implementation Group [page 19]

“xiii. Engage with business representative bodies to promote and strengthen mediation as a viable option when businesses and their stakeholders are engaged in disputes.

xiv. Introduce a standing agenda item to explore international best practice and principles governing the development of operational level grievance mechanisms for individuals and communities who may be adversely impacted to make it possible for grievances to be addressed early and remediated directly.

xii. Create a fact sheet on the OECD anti-Bribery Convention, the criminal offences in Irish law on bribery, the reporting systems in place for reporting suspicions of foreign corruption and the protections provided by the Protected disclosures act to be distributed by enterprise Ireland to all Irish companies engaged in trade missions.

xv. Review how best to ensure remedy for potential victims overseas of human rights abuses by Irish companies, with a focus on barriers to justice, including legal, procedural or financial barriers.”

Annex 1 – List of additional and ongoing actions to be carried out across Government

Domestic Framework [page 20]

“2. Enact the Mediation Bill.”

Read more about Ireland

IV. Italian ongoing activities and future commitments

Administrative liability of companies

“Twenty years after the approval of Legislative Decree No. 231 of 2001, which governs the administrative liability of companies and entities, the Ministry of Justice has recently set up a working group with the CNPDS (National Centre for Prevention and Social Defence Foundation), Confindustria and Assonime. The aim is to measure the effectiveness and consistency of regulations on administrative liability for crimes of collective entities within the country. and to assess the appropriateness of any reforming measures. In particular, the working group intends to propose solutions to remedy the following critical aspects of the current legislation:

– insufficient focus on the size and organizational complexity of companies covered by Legislative Decree No. 231/2001, with particular reference to small and medium-sized companies, as well as public bodies;

– heterogeneous nature of the catalogue of offences;

– difficult adaptability of criteria such as interest and advantage to cases when the offence upon the company makes it directly responsible;

– lack of clarity regarding the composition and powers of the Supervisory Board;

– requirement of fraudulent avoidance in cases where the offence is committed by a senior officer/manager;

– low appreciation of national and international standards incorporated in organizational business models;

– impact on judicial (un)assessment over business models;

– lack of legislative recognition about procedural collaboration from companies (e.g. probation as for US DPA and NPA), against the introduction of non-accountability of physical persons (e.g. in tax crimes and crimes against the public administration);

– evaluation of the potential impact of precautionary measures, both of a real and prohibitory nature, also by virtue of the correlation between precautionary measures and definitive sanctions as governed by Legislative Decree No. 231/2001;

– complexity of the sanctioning system, having regard to limited pecuniary sanctions, complex nature of confiscation, possible impact of prohibitory sanctions, absence of sanctions expressly aimed at favouring a compliant re-organization of the entity.” (p. 17)

Gender dimension

“Equally relevant is the recent legislative reform on class actions with respect to entrepreneurial plaintiffs, which took place with Law No. 31 of 12 April 2019, entered into force on 19 May 2021. In its executive dimension, this measure provides for the possibility for the competent court to impose on the company concerned the obligation to disclose relevant documents in case claimants demonstrate that such documentation was necessary for the decision on the case.” (p. 34)

ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP

“2. Update the implementation assessment information of Legislative Decree No. 231/2001 in order to evaluate its extension in terms of objectives and application of the administrative liability of legal persons, and to pursue the following objectives in this area: – efficient asset management and economic qualification of assets by treating them as a source of wealth for the community; – the fight against the crisis and the rate of unemployment suffered by economic sectors most affected by measures to counter the epidemic emergency (catering and the gastronomic sector; tourism/hotel sector; small businesses/individuals in the craft and retail sectors of Made in Italy); – the prevention of the social fallout related to the confiscation of business and, in particular, the disaffection of the citizenry towards criminal justice operators; – the promotion of a culture of sustainability in its dimensions (economic-social-environmental), through the careful and accompanied reuse of the confiscated business assets; – the implementation of inclusion policies that enhance the value of the human being coming from the most socially fragile contexts, with particular reference to the contribution offered by female population, through its full involvement in management and in social recovery of the assets in question; – the assistance to companies towards a successful restructuring that makes them fully autonomous, capable of being self-sustaining and supportive for their own community, thanks to the sustenance provided by virtuous operators – public and private; – the assistance to young people towards self-entrepreneurship, with the aim of forming generations with a critical spirit capable of grasping the needs of their own context and of approaching problems posed by the current economic model in a constructive manner, encouraging a sustainable transition and, above all, making them learn and, by learning, do.” (p. 61)

“51. In the framework of the monitoring action foreseen in the present NAP, the following priorities are established: (i) undertake an up-to-date mapping of the national legal framework on corporate responsibility for human rights, any available remedies, and subsequently develop practical guidance; (ii) identify any gaps or barriers that prevent or render less than fully effective access to judicial remedies for victims of business-related abuse, especially with respect to extra-territorial violations, including on the basis of the relationship between primary and subsidiary companies; (iii) reconsider the introduction of legislative measures or the reform of those currently in force to strengthen access to an effective remedy in the fields of civil, criminal and administrative law.” (p. 68)

“52. As part of the overall reform of the judicial system, raise awareness of: (i) remedies against the excessive length of civil proceedings; (ii) measures to strengthen specialized courts for companies, including by extending their jurisdiction to actions for consumer protection, unfair competition, misleading advertising; (iii) introduction of criminal law provisions against economic crimes, including those committed abroad.” (p. 68)

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Chapter 2. Action Plan

1. Fundamental Principles of the NAP

(…)

• Remedial procedures (judicial and non-judicial remedies) have been established to address human rights violations in business activities. The Government intends to continue to assure access to judicial remedies and make improvements where necessary. It also utilizes multiple efforts regarding non-judicial remedies, including consulting services based on specific laws and regulations (e.g., workers, persons with disabilities, and consumers) as well as remedial procedures. These include the Japan Bank for International Cooperation (JBIC) Guidelines for Confirmation of Environmental and Social Considerations, the Japan International Cooperation Agency (JICA) Guidelines for Environmental and Social Considerations, the Nippon Export and Investment Insurance (NEXI) Guidelines on Environmental and Social Considerations in Trade Insurance, and the Japanese National Contact Point (NCP) under the OECD Guidelines for Multinational Enterprises (the Japanese NCP). The Government intends to secure access to these nonjudicial remedies and make improvements where necessary.

 

2. Areas of the NAP

(4) Measures regarding Access to Remedy

Judicial and Non-Judicial Remedy

（ Existing framework/Measures taken）

As a remedy for human rights violations by business enterprises, the Government intends to ensure accountability and remedies through the pursuit of criminal responsibility, damage claims, and administrative measures undertaken based on relevant laws, including the Penal Code (Act No.45 of 1907), the Civil Code (Act No.89 of 1896), the Product Liability Act (Act No. 85 of 1994), and the Labor Tribunal Act (Act No. 45 of 2004).

In relation to access to these remedies, the Japan Legal Support Center (the JLSC) makes efforts to ensure access to judicial remedies by providing legal aid services, such as free legal consultations for Japanese nationals and foreign nationals lawfully residing in Japan who have no financial means.

As measures based on specific legislation, frameworks have been established in specific areas, including for workers and persons with disabilities.

Consultations involving consumer complaints and mediation for the settlement of consumer complaints are also being provided under the Consumer Safety Act (Act No. 50 of 2009).

 

(Future measures planned)

(a) Digitalize civil proceedings

• Make efforts to realize online submission of complaints, digitalization of litigation records, arrangement of issues, and examination of evidence using online meetings without personal appearance of the parties concerned. Revise the Code of Civil Procedure in accordance with the review and deliberation by the Legislative Council of the Ministry of Justice to improve access to the legal system by the public. [Ministry of Justice]

(b) Conduct training on human rights for police officers, public prosecutors, and other relevant officials

• Continue to provide training on various human rights issues, including international trends in the area of human rights, to newly recruited and promoted police officers at the police academies nationwide. [National Police Agency]
• Continue to make efforts to increase broad understanding of human rights by means, including providing lectures on topics such as human rights treaties and crime victims at various trainings organized for prosecutors in accordance with their respective numbers of years of experience. [Ministry of Justice]
• Continue to offer lectures for Immigration Services Agency employees on human rights related legislation, the current status of protection of human rights, and trafficking in persons at trainings held in accordance with years of service. In addition, continue efforts to develop personnel who contribute to appropriate handling of work by providing lectures, including on human rights treaties and measures against trafficking in persons, at training sessions to deepen knowledge on human rights issues of employees that are central to the Agency’s operations and engaged in practical operations. [Ministry of Justice]
• Offer lectures on the topic of trafficking in persons at annual training sessions for Labour Standards Inspectors around the fifth year of appointment. Continue to promote understanding of the role of Labour Standards Inspection Agencies in promoting measures against trafficking in persons. [Ministry of Health, Labour and Welfare]

(…)

(e) Prevent human rights violations and remedy damages

• Conduct necessary investigations if a suspected case of human rights violations is recognized through human rights counseling, and provide remedy and prevention by implementing appropriate measures for the case under investigation in cooperation with the relevant agencies. [Ministry of Justice]

(f) Continue and reinforce measures, including those based on specific legislation (for workers, persons with disabilities, and foreign workers, including technical intern trainees, and for whistleblower protection)

• In accordance with the Technical Intern Training Act, continue to report to the Commissioner of the Immigration Services Agency and the Minister of Health, Labour and Welfare. Provide counseling by the Organization for Technical Intern Training to technical intern trainees in their native languages, and support transfer of workplace when human rights violations occur and technical intern trainees find it difficult to undertake training. [Ministry of Justice, Ministry of Health, Labour and Welfare]
• The Whistleblower Protection Act (Act No. 122 of 2004) has been enacted for protecting whistleblowers who meet certain requirements, and promoting compliance with the laws and regulations concerning the protection of life, body, and property, and other interests of nationals. Continue to promote the establishment of whistleblowing systems at businesses and government agencies (including local governments) taking into account the G20 Osaka Leaders’ Declaration and the G20 High-Level Principles for the Effective Protection of Whistleblowers. [Consumer Affairs Agency]

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CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS 2.6 Labour [Page 13] During the stakeholders’ consultations the following concerns were identified: 6)    Lack of effective remedies for victims of labour-related grievances resulting in high prevalence of unresolved labour-related grievances. A weak enforcement mechanism, in particular inadequate number of state labour inspectors and the lack of effective operational level grievance mechanisms were also cited as contributing factors.   2.7 Access to Remedy [Page 14] The Constitution of Kenya, 2010 adopts international law as part of the domestic law. In international human rights law, Kenya is obligated to protect those under its jurisdiction against human rights violations, including by third parties such as businesses. SDG 16.3 urges states to ‘promote the rule of law at the national and international levels and ensure equal access to justice for all’. Additionally, SDG 16.6 calls for the development of ‘effective, accountable and transparent institutions at all levels’. Article 20(1) of the Constitution provides that the Bill of Rights binds all persons, including businesses. Indeed, since the promulgation of the Constitution in 2010, courts have adjudged several businesses to be in violation of human rights and awarded victims varying remedies. Furthermore, there are a number of legislative provisions regulating business conduct to protect those within Kenya’s jurisdiction from business-related human rights violations. Protection against discrimination on the ground of HIV/AIDS status, for example, covers those in employment. The same applies to the protection of discrimination against persons with disabilities, women and marginalised groups. The breach of these and other relevant laws may result in administrative and judicial sanctions. Judicial avenues include the Human Rights Division of the High Court, the Environment and Land Court and the Employment and Labour Relations Court. Those dissatisfied with the decisions of these courts may appeal to the Court of Appeal with a limited right of further appeal to the Supreme Court. Administrative avenues include tribunals such as, National Environment Tribunal (adjudicates environmental cases including grievances against businesses) and the Rent Restriction Tribunal (adjudicates disputes between tenants and landlords). One may appeal the decisions of these tribunals to the High Court. One example of an avenue to access remedy is Section 3 of the Environmental Management and Co-ordination Act which provides that a person may apply to the Environment and Land Court for redress for any denial, violation, infringement of or threat to the person’s right to a clean and healthy environment on the person’s own behalf or on behalf of a group of persons or in the public interest. If the Court finds such a denial, violation, infringement or threat to have occurred, it may make any order it considers appropriate to prevent or stop any act or omission that is deleterious to the environment, compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment, require that any on- going activity be subject to an environment audit, compel the persons responsible for environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage, or provide compensation for any victim of pollution. Despite these legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including:   Limited physical access to courts for people living in rural and remote areas that do not have specialized courts in nearby towns. This limitation increases the cost of accessing justice for local communities; Despite the possibility of criminal sanctions against directors and managers of companies that may be involved in specific human rights violations that also invite penal sanctions, it was felt that there is a low rate of prosecution and hence the justice system fails to act as a deterrent to such violations; The cost of litigation is still high for significant sections of individuals and communities. In some lawsuits, for example, it may be necessary to summon experts such as environmental experts to testify on specific issues. Such expertise may be unavailable for the community or where available, may be very expensive for the community to secure; There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation which they hardly report to authorities. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses; and The capacity of the administrative tribunals to offer non-judicial remedies is often limited by lack of personnel to conduct proper outreach outside of urban centres and the technical capacity to understand emerging and complex issues. Most businesses have a relatively low understanding of their human rights responsibilities resulting in lack of engagement with employees, local communities and other stakeholders on how to ensure that they respect human rights and provide a remedy for violations. Business associations stated that they lack proper guidance on establishing credible operational-level grievance handling mechanisms.   CHAPTER THREE: POLICY ACTIONS 3.3. Pillar 3: Access to Remedy [Page 19] Access to an effective remedy guarantees victims of business-related human rights abuse with predictable avenues for complaints, adjudication of their grievances, an opportunity for the other party to present its case and a fair remedy based on the merits of the case. Additionally, it ensures that remedies are relevant and proportionate to the abuses, including orders to cease ongoing abuses. According to the UNGPs, State-based judicial and non-judicial mechanisms should be the primary avenue for accessing remedies by victims of corporate abuses. However, victims should also have access to operational-level grievance handling mechanisms established by businesses, where workers, local communities and civil society advocates acting on behalf of individuals and communities negatively impacted by businesses may lodge their complaints and receive a just outcome such as compensation, guarantee of non-repetition by the offender, apology, restitution and rehabilitation.   Policy Actions  A) State-based judicial and non-judicial remedies [Page 20] The Government will: iii. Provide training and support to the judicial, administrative and oversight organs on business obligations in respect of human rights. Priority will be given to the following institutions: the Judicial Training Institute; relevant parliamentary oversight committees; relevant regulatory bodies; Constitutional bodies including the KNCHR Nairobi Center for International Arbitration; and the Law Society of Kenya; iv.      Improving access to information on available judicial and non-judicial mechanisms involved in the resolution of business-related abuses as a measure of promoting access to justice. Such information should be made available in all counties and provided in a manner accessible to vulnerable groups; v.       Prioritise access to legal aid for victims of business-related human rights abuses, consistent with the Legal Aid Act, 2016 and the National Action Plan on Legal Aid; vi.      Improve access to the Human Rights Division of the High Court, Employment and Labour Relations Court and the Environment and Land Court to ensure that they vi.      Increase the capacity of the labour inspection department to handle labour-related grievances, including through: Increasing the number of labour inspectors to monitor and enforce compliance with labour standards by businesses, with particular attention to the implementation of mandatory policies to prevent and address sexual harrassment [sic.] and violence, payment of minimum wages, equal pay for work of equal value, prohibition of child labour and non- discrimination against women, marginalised groups and minority groups; and, Taking measures to guarantee the independence of labour inspectors and to ensure that their duties are undertaken with integrity and in a transparent and accountable manner.   CHAPTER FOUR: IMPLEMENTATION AND MONITORING ANNEX 1: SUMMARY OF POLICY ACTIONS [Page 25] Strategic Objective Policy Actions Key Actors Strategic objective 2: Enhance understanding of the obligation of business to respect human rights Businesses to adopt human rights policies, including taking measures to ensure their operations respect human rights, including by providing access to a remedy for human rights violations. All businesses operating in Kenya Enforce compliance with human rights standards by State owned enterprises and other businesses that receive export credit and state support, including by providing access to a remedy for human rights violations. State Corporations Advisory Committee, KNCHR Businesses to cooperate with government agencies and other stakeholders in facilitating remedies for business-related human rights violations. All businesses in Kenya, Strategic Objective 3: Enhance access to justice for victims of business-related human rights abuses Enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition and natural resource management. Judiciary, OAG&DOJ, Administrative Tribunals   Promote the use of Alternative Dispute Resolution mechanisms in dealing with disputes between businesses and those harmed by their operations. Judiciary, NCAJ, NCIA, Administrative Tribunals   Provide training and support to the judicial, administrative and oversight organs on business obligations in respect of human rights. Judiciary, JTI, KNCHR   Improving access to information on available judicial and non-judicial mechanisms involved in the resolution of business-related abuses as a measure to promote access to justice. Judiciary, CAJ, KNCHR, KAM, KEPSA, Kenya Chamber of Commerce   Improve access to the Human Rights Division of the High Court, Employment and Labour Relations Court and the Environment and Land Court to ensure that they are accessible avenues for remedying business-related human rights abuses. Judiciary

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Objective 3: ensuring access to effective remedy [page 8-11]

Understanding the importance of the protection of human rights and freedoms, the Government aims for effective protection of human rights and freedoms, and effective reaction regarding offences by the law-enforcement authorities. It also aims at establishing a legal framework that would help in ensuring effective ways for defending human rights, providing different possibilities for interested parties to solve disputes and, in certain circumstances, a provision of an effective state-guaranteed legal aid in judicial proceedings.

To achieve this goal, the Government is implementing the following measures:

A. Implemented measures [page 9]

1. “Improvement of procedures for providing state-guaranteed legal aid. The aim is to improve the procedures for providing state-guaranteed legal aid: to guarantee that legal regulation of state-guaranteed legal aid is carried out with respect to principles of equality, priority of peaceful settlement of disputes, quality and availability.

Measures and results of their implementation: on 1 January 2014, the new Law on State­Guaranteed Legal Aid of the Republic of Lithuania came into force. It grants broader possibilities to choose a lawyer to provide secondary state-guaranteed legal aid; assures a better control of the selected services; implements the ‘one stop’ principle for persons seeking secondary state-guaranteed legal aid; and foresees to ensure conciliatory mediation.”

2. “Improvement of civil proceedings. Continuous analyses and evaluations of the civil procedure aim at creating conditions for an easier and more effective process of settling disputes and implementing EU legal acts.

The provision of the Code of Civil Procedure (hereinafter referred to as the CCP) of the Republic of Lithuania regulating the practice of videoconferencing and teleconferencing in the civil procedure (Article 1752 of the CCP) came into force on l March 2013.

Provisions of the CCP allowing persons to submit procedural documents to court using electronic means of communication (Article 175 1 of the CCP) came into force on 1 July 2013.”

3. “Promotion of mediation system development and effectiveness. The aim is to develop the mediation process and promote peaceful settlement of disputes.

An order No lR-263 On Mediation System Development was adopted by the Minister of Justice on 12 November, 2013. Working groups were created to prepare the concept of the mediation system development and to improve the mediation system in civil, administrative and criminal procedures.”

4. “Introduction of class action institution in civil procedure. The aim is to create conditions to bring and hear class actions in Lithuania thus enforcing the right to judicial protection, providing protection for the weaker party, shortening procedures of civil cases, reducing the costs of civil procedures and ensuring uniform case law with respect to identical or similar cases. It would increase public trust in the judicial system, enhance legal certainty and legitimate expectations.

On 13 March 2014, relevant amendments of the CCP provisions were adopted; following their entry into force, starting from 1 January 2015, the possibility of bringing class actions in civil cases shall be ensured.”

5. “Improvement of collective dispute regulation. The aims is to held discussions with social partners to determine the need for revision of provisions regulating collective bargaining and to encourage parties to establish a mechanism for settling disputes at company level.

An amendment to the Labour Code of the Republic of Lithum1ia was adopted on 15 May 2014 and came into force on 1 July 2014. Labour Code provisions were set in accordance with conclusions provided by the International Labour Organisation’s (hereinafter referred to as ILO) Committee on Freedom of Association on strike regulation with regard to practical problems of dispute settlement. Labour Code provisions regulating suspension of strike action were revised, rules of interpretation of collective agreements were foreseen and strike legitimacy issues were clearly regulated in cases with a collective agreement in action.”

B. Planned measures

1. “Introduction of class action institution in administrative procedure. The aim is to create conditions to bring and hear class actions in Lithuania thus enforcing the right to judicial protection, providing protection for the weaker party, shortening procedures of administrative cases, reducing the costs of administrative procedures aid ensuring uniform case law with respect to identical or similar cases. It would increase public trust in the judicial system, enhance legal certainty and legitimate expectations.

Regarding the adoptions of the CCP amendments on 13 March 2014 that provide for a class action institution in civil procedure, a draft amendment of the Republic of Lithuania Law on Administrative Proceedings (hereinafter referred to as LAP) that introduces the class action institution in administrative procedure is being prepared. It is planned that the LAP draft amendment shall be submitted to the Government of the Republic of Lithuania in the fourth quarter of 2014.”

2. “Evaluation of legal regulation of the institute of pre-trial administrative dispute resolution. The aim is to establish a more explicit and definitive regulation of pre-trial complaint examination process carried out by the Chief Administrative Disputes Commission and public administrative disputes commissions in municipalities by transferring valid regulation from disputes commissions’ work regulations to the Law on Administrative Disputes Commissions.” …

5. “Introduction of the jury institute in courts. The aim is to restore public trust in the legal system.

On 20 June 2012, the Government in principle agreed on the objective to establish on a constitutional level the participation of the jury in the proceedings. Before relevant laws are drawn or amended, the concept of the jury institute in courts is going to be prepared and presented for the public assessment; the concept shall, inter alia, include the basic principles of the legal status of the jury members, the guarantees they would be provided with, responsibilities, procedural rights of the members of jury, their duties. etc.”

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Part II: Specific objectives of the National Action Plan 2020-2022

(…)

3. The need to define remedies for victims of human rights abuses

3.1. Mapping of judicial and non-judicial, public and private remedies for human rights violations

 

Context

This includes, among other things and beyond judicial remedies, taking stock of non-judicial public and corporate remedies, strengthening OECD-NCP relations with civil society and providing appropriate training on available remedies to corporate human rights focal points.

Objectively verifiable indicators	×        Benchmark: NAP 1, National Baseline Assessment (NBA) [Etude de base]
Verification sources	–        Laws and regulations –        Recommended practices –        Exchanges with the NCP –        Identification of good practices and possible gaps
Expected results	×        Increasing the number and adapting to the needs of the remedies ×        Information on the remedies available ×        Discussion on the usefulness of class actions for the implementation of the Guidelines, especially in view of the provisions of the Coalition Agreement in this context
Implementation timeline	Duration of NAP 2
Means of implementation	–       MAEE (Ministry of Foreign and European Affairs) –       Ministry of Justice –       Public and private mediation bodies –       Business and Human Rights Working Group

 

The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.

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CHAPTER FOUR. Actions to provide remedy for human rights violations, enhance the legal framework for compensation, and improve their effectiveness

4. Improve the dispute resolution system of the courts.

Actions and measures to be implemented:

Take measures to establish a legal framework for conducting court hearings in a digital environment and for evaluating digital evidence

• Time frame: 2023-2024
• Criteria: The relevant procedural legislations will be amended accordingly.
• Implementing organisations: MoJHA [Ministry of Justice and Home Affairs].
• Jointly implementing organisations: Judicial General Council of Mongolia (JGCM]

Prepare a technical and economic feasibility study and conduct an initial assessment to establish the court infrastructure for the digital receipt of lawsuits and claims, evaluate evidence, establish court procedures and cases in a digital environment.

• Time frame: 2023-2024
• Criteria: The technical and economic feasibility study will be approved.
• Implementing organisations: MoJHA
• Jointly implementing organisations: JGCM

Establish the digital environment for court proceedings in phases.

• Time frame: 2023-2024
• Criteria: 20 percent of all court proceeding will be conducted in digital environment.
• Implementing organisations: JGCM
• Jointly implementing organisations: MoJHA

Create a digital environment that allows court participants to access digital court case materials and records and participate in court hearings in digital form

• Time frame: 2025
• Criteria: The digital environment will be assessed whether it allows court participants to monitor the court proceedings and process. /Yes – 1, No – 0/
• Implementing organisations: JGCM
• Jointly implementing organisations: MoJHA

Improve the environment that allows participants to attend court proceedings remotely.

• Time frame: 2024-2025
• Criteria: Percentage of court proceedings in which participants can take part in the court hearing virtually /aim to reach 90 percent/
• Implementing organisations: JGCM
• Jointly implementing organisations: MoJHA

Improve the legal provisions of state registration of citizens and business enterprises to eliminate the cases of returning claims from the courts and improve address registration.

• Time frame: 2023-2024
• Criteria: The draft law will be developed and submitted for approval.
• Implementing organisations: MoJHA
• Jointly implementing organisations: JGCM

Create the legal environment for filing claims on matters affecting the public interest and class action claims by several participants.

• Time frame: 2023-2024
• Criteria: A study will be conducted, and conclusions and proposals will be made. The draft law will be prepared and submitted for approval.
• Implementing organisations: MoJHA

Research the practise of settling disputes related to the protection of the public interest before the administrative courts and take the research findings into account when improving legislation.

• Time frame: 2023-2025
• Criteria: A study will be conducted, and conclusions and proposals will be advanced.

Improve procedures for the provision of legal assistance in the resolution of cases and disputes concerning human rights violations caused by the activities of companies in the mining, infrastructure and agricultural sectors.

• Time frame: 2023-2025
• Criteria: The study will be conducted and the procedures related to providing legal assistance will be revised.
• Implementing organisations: MoJHA
• Jointly implementing organisations: Relevant Ministries and organisations, Governors of aimags and the capital city, MBA [Mongolian Bar Association], NGOs.

Organise events to raise awareness and understanding of business and human rights issues among judges, prosecutors and law enforcement officials.

• Time frame: 2023-2027
• Criteria: Needs will be identified and capacity building training and events are organised in phases.
• Implementing organisations: MoJHA, state General Prosecutor’s office (SGPO), NHRCM [National Human Rights Committee of Mongolia].
• Jointly implementing organisations: Relevant ministries and organisations, Secretariat of NCGE [National Committee on gender Equality], MBA, NGOs, IOs.

Conduct training and build the capacity of court forensic experts.

• Time frame: 2023-2027
• Criteria: The need for staff improvement and capacity building is identified and appropriate measures are implemented.
• Implementing organisations: MoJHA, JGCM
• Jointly implementing organisations: Relevant ministries and organisations, MBA, IOs.

Diversify and develop court-based mediation activities, conduct research and draw conclusions on creating legal conditions for enforcing decisions, and create capacity-building and incentive systems for mediators.

• Time frame: 2023-2027
• Criteria: Discussions and research will be conducted and conclusions and proposals will be developed. As a result, a draft law will be developed and submitted for approval.
• Implementing organisations: MoJHA, JGCM
• Jointly implementing organisations: MBA, AMA.

7 Raise citizens’ awareness and understanding on remedy of human rights violations

Actions and measures to be implemented:

Promote information on mechanisms for receiving and resolving complaints related to human rights violations as stipulated in international treaties signed by Mongolia and raise awareness among citizens and the public.

• Time frame: 2023-2024
• Criteria: Information, guidelines, and manuals will be developed and distributed.
• Implementing organisations: MFA, MoJHA, MLSP
• Jointly implementing organisations : Relevant ministries and organisations, CMTU, IOs.

(…)

Conduct legal education programmes for citizens on their right to effective remedies and compensation. Ensure that such education programmes are conducted regularly and involve civil society organisations and local organisations in the education programmes.

• Time frame: 2023-2027
• Criteria: The legal education program will be carried out. Local governing bodies will be obliged to dutifully participate.
• Implementing organisations: MoJHA, MLSP, governors of all levels, NGOs.
• Jointly implementing organisations: Relevant ministries and organisations, secretariat of the NCHR, NHRCM, CMTU, IOs.

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Pillar III

Improving the provision of information to affected parties

“Ideally, human rights abuses, including violations of labour rights, should be addressed where they take place and effective remedy is offered locally. Yet in some circumstances a mechanism in the Netherlands may be the best recourse, for example if there is no effective local mechanism or if a Dutch enterprise is involved in the violation. However, victims and their representatives may not always have a clear picture of the possibilities for remedy in the Netherlands. Consultations with civil society organisations on the revision of the NAP made it clear, for example, that affected parties were not always aware of the possibility of accessing regular legal aid in cases of international liability. The government will produce an accessible digital guide describing the judicial and non-judicial remedies available to parties abroad who have been affected by Dutch companies (through their international supply chains). This guide will clearly describe the possibilities for initiating a judicial or non-judicial process and what support, such as legal aid, is available. The guide can follow Germany’s example. In response to consultations, the guide will where possible take account of the additional hurdles faced by marginalised groups and unequal power relationships. This will include a gender perspective.” p. 63.

ACTION POINTS PILLAR I	Aim	Responsible party	Timeline
Improving information provision to affected parties
Develop and actively disseminate an accessible digital guide for rightsholders, in several languages	Improve information on the options for access to remedy in the Netherlands.	BZ	2022-2023

 p. 64

Pillar III

Improving access to judicial mechanisms

Criminal law “Criminal law includes penal provisions for the violations of specific RBC norms such as corruption, soil pollution, human trafficking and money laundering, as well as specific penalties for infringements of environmental legislation. In all cases the company’s duty of care is relevant to determining whether criminal liability has been incurred. In the Netherlands the initiative in launching criminal proceedings lies with the Public Prosecution Service. However, the NBA concluded that there are few criminal proceedings against Dutch businesses in cross-border cases.68 The Public Prosecution Service did recently start criminal proceedings under the EU’s Timber Regulation after a Dutch company evaded enforcement under administrative law.

Legal aid

Access to the Dutch legal system depends partly on the costs to the affected parties of starting civil proceedings. Discussions with human rights lawyers and NGOs representing victims have made it clear that they know little or nothing about existing legal aid opportunities. Regular legal aid can help with legal costs. Non-Dutch victims can also have recourse to it when claiming damages against parent companies in the Netherlands. The government will pursue efforts to increase knowledge of and access to current legal aid options, and will monitor how often requests for legal aid in international liability cases are rejected and on what grounds. An evaluation in 2025 will thus be able to state whether the current legal aid options form an obstacle for rightsholders.

Access to civil law

The Class Action (Financial Settlement) Act (WCAM) entered into force on 1 January 2020.70 This Act makes it possible to settle damages collectively in joint proceedings. Groups of victims of human rights violations caused by Dutch businesses can use this law, making it unnecessary to litigate individually to claim damages. An evaluation of the WCAM is planned for 2025. Until then the law will be monitored annually and discussed with stakeholders including representatives of affected parties involved in international liability cases. The annual monitoring process will start looking at international liability cases which were declared inadmissible. The 2025 evaluation will also consider whether access to Dutch law has changed for the worse for organisations supporting victims of human rights abuses.

Applicable law: Rome II

If a court considers itself competent to rule on a case of international civil law, the question arises which law is to be applied. The Rome II Regulation states that the applicable law is determined on the basis of where the damage has occurred. In cases of human rights violations abroad the applicable law is thus the law of the country concerned. The NBA expressed concern that if foreign law applies in a dispute, victims may have recourse to fewer remedies than under Dutch law. The European Parliament has also called for Rome II to be amended to address this problem. A study commissioned by the European Commission into experiences, problems and the application of the Rome II Regulation was published in October 2021.74 It is up to the European Commission to review the Regulation. The government would support a broad review of Rome II, which should include discussions on the applicable law in cases of human rights violations in international value chains.

Grounds for jurisdiction of Dutch courts

The law of international jurisdiction often takes as its point of reference the jurisdiction of the court in the defendant’s country of domicile. This is also the case for Dutch and European rules on international jurisdiction. Another point of reference for Dutch and European rules on international jurisdiction is the place where the human rights violation took place or where the immediate damage occurred. Therefore, if a company established in the Netherlands is named in a case pertaining to a human rights violation the Dutch courts are competent to hear the claim. This is also the case if the violation took place outside of the Netherlands. The Dutch court is not necessarily competent to hear the complaint if the violation concerns a company established outside the Netherlands and if the violation took place and damage occurred outside the Netherlands. Some countries, however, do not have an accessible or adequately functioning legal system and victims thus risk being deprived of legal remedy. The government is actively pursuing this concern in international bodies such as the Hague Conference on Private International Law. The NBA also notes that in cross-border civil proceedings that have thus far been pursued in the Netherlands, the defendants included Dutch partners as well as subsidiaries based in other countries. As far as is known no legal proceedings have as yet been conducted in the Netherlands involving damage caused by partners in the value chain of Dutch companies other than foreign subsidiaries, that is, non-group company liability. In this connection the Council of Europe has made recommendations about the grounds for jurisdiction of national courts, and these have been enshrined in Dutch law. The fact that no proceedings have taken place may indicate that the rules surrounding this are unclear and that claimants do not consider such cases to be winnable. In line with the NBA, the government is planning to review how these grounds of jurisdiction are applied and whether it would be appropriate to tighten them up in instructions, for example.

Amending the law of evidence

The NBA also notes a number of practical obstacles to legal access to remedy. One such potential obstacle is the parties’ possible unequal access to information, with victims requiring access to internal corporate information as a prerequisite to taking legal action. Related to this is the burden of proof in liability cases, in which victims may find it difficult to obtain the evidence necessary for their case. The NBA also notes that the high costs associated with complex international cases may form an obstacle to starting proceeding. The House of Representatives is debating a bill that proposes simplifying and modernising the law of evidence. The bill aims to improve access to justice by removing, where possible, the obstacles caused by limited information and lack of evidence in establishing and proving the relevant facts, to enable litigants to properly substantiate their legal claims. To this end both parties will be required to collect and share all relevant information as much a possible before the start of proceedings. If one of the parties does not have access to documents that are significant for its case, it can request access to them, if necessary through the court, from opposing or third parties. This improved right of inspection is an important part of the bill. Clarifying access to information which falls under the right of inspection should remove any disparity between parties in access to information concerning relevant facts which infringe on the principle of a fair trial. At the same time the government is wary of documents being shared under the auspices of the right of inspection which are not relevant to the proceedings or in which the requesting party does not have a clear interest. The right of inspection is therefore necessarily bound by conditions which primarily serve to prevent ‘fishing expeditions’ for information in which there is no clear interest or whose existence is unknown. The requesting party will therefore have to clearly substantiate its request to inspect. This requirement ensures that there is an appropriate balance between the interests of the party requesting the information and those of the party in possession of it. The bill does not introduce any amendments to provisions relating to the law of evidence on the burden of proof or on the division of the burden of proof. Currently the burden of proof (and the risk that the court will not accept the facts as true) lies with party stating the facts. The court, however, already has several means at its disposal to take into account the parties’ unequal access to information, for example by imposing more stringent demands on the party with greater access to knowledge or by proceeding from a factual presumption that the stronger party must then refute rather than one that the party with a knowledge deficit has to assert and prove. By customising this process the government feels that it has addressed the concern expressed in the NBA and the UNGPs that the burden of proof is a potential hurdle to accessing remedy.” pp. 73-77.

ACTION POINTS PILLAR III	Aim	Responsible party	Timeline
Expanding Access to Judicial Mechanisms
Conduct annual monitoring of the WCAM and carry out an evaluation in 2025 looking specifically at access to Dutch courts by foreign rightsholders.	Monitor access to Dutch law by foreign rightsholders	J&V	From 2020-2025
Make efforts at European level to have human rights included as a ground for exception to the Rome II Regulation.	In due course revise the Rome II Regulation to include human rights as a ground for an exception with the aim of establishing the law of the European member state involved as the applicable law	J&V	2022-2030
Investigate how grounds for jurisdiction are applied.	Create clarity about grounds of jurisdiction based on forum necessitatis.	J&V, BZ	2022-2023
Improve the provision of information regarding opportunities and monitor the number of applications in international liability cases with a human rights component	Raise awareness of regular legal aid options and get a clear picture of the current use of such aid.	J&V, BZ, Legal Aid Council	2022-2025

p. 77

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3. The Corporate responsibility to respect human rights

3.5 Compliance with legislation [page 36]:

In some geographical areas, such as conflict-affected areas, a company may unintentionally enter into a business relationship with an enterprise, such as a security company, that is guilty of gross human rights abuses. In such a situation the Norwegian company should be aware that this may have legal consequences such as liability. The Norwegian Penal Code of 2005, which entered into force on 1 October 2015, also applies to certain punishable offences committed on behalf of an enterprise registered in Norway when the offence is also punishable under the law of the country where it has been committed.

Norwegian companies that are faced with demands from the authorities in the host country that appear to be in conflict with international guidelines are encouraged to contact either the nearest Norwegian mission or the Ministry of Foreign Affairs. Examples of such situations are a demand for a bribe or a request to keep certain information secret.

4. Access to Remedy

4.1 State-based grievance mechanisms

Judicial grievance mechanisms [page 40]:

The 26th principle concerns judicial mechanisms for addressing human rights abuses:

26. States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.

Norway has comprehensive human rights legislation and legislation in other areas that is also applicable to CSR. We also have an effective judicial system, and the Norwegian law of damages provides for financial compensation or redress under certain conditions.

Norwegian companies may become involved in legal cases dealing with human rights abuses in the host country. If the case is to be brought before a Norwegian court, it must satisfy the requirement in the Dispute Act that the facts of the case ‘have a sufficiently strong connection to Norway’. In order to determine whether the connection is sufficiently strong, an overall evaluation must be made of all the circumstances in the case that includes both judicial and other relevant circumstances. There are also other conditions for bringing a case before a Norwegian court.

It is important to ensure that individuals who feel that their rights have been violated have access to effective remedy. The Government will actively follow the international efforts to strengthen access to judicial grievance mechanisms at the national level.

The measures listed in the NAP regarding judicial remedy include [page 40]:

• “Participate in international cooperation to ensure that victims of grave and systematic human rights violations as a result of business activities have access to effective remedy;
• Support the work headed by OHCHR to strengthen national judicial systems to protect the rights of the victims of grave and systematic human rights violations;
• Participate in the process in the Council of Europe on following up the recommendations of the UN Guiding Principles on access to effective remedies at national level.”

 

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CHAPTER 2: Protect, Respect, Remedy Framework

Pillar III: Access to Remedy (pages 13-14)

‘In relation to judicial mechanisms, the Constitution of Pakistan safeguards the independence of the judiciary and the right to a fair trial and due process. A significant challenge, in this regard, is the cost of litigation and the slow dispensation of justice due to the backlog of cases in Courts. Therefore, access to effective and timely justice is a serious concern for most litigants, especially those who fall in the lower income bracket. In this regard, the State of Pakistan has taken several steps, including enacting the Cost of Litigation Act of 2017, which amongst several important measures, also discourages untimely and unnecessary adjournments in proceedings.’

 

CHAPTER 3: National Action Plan Priority Areas and Proposed Actions

3.2. NAP Priority Areas

3.2.1 | Financial Transparency, Corruption and Human Rights Standards in Public Procurement Contracts

Proposed Actions

• Federal (page 19)

‘12. Further strengthen judicial processes and create awareness on issues related to Anti-Money Laundering/Counter Terror Financing (AML/CTF) to encourage financial transparency.

Performance indicator(s): Number of trainings on AML/CTF

UN Guiding Principle(s): 1, 2, 3, 25

Relevant SDG(s): Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 12 designating the Ministry of Human Rights, the Ministry of Law and Justice and the Anti-Corruption and Economic Crime Wing (Federal Investigation Agency) as Leading Entities, and designating the National Accountability Bureau, the Securities and Exchange Commission of Pakistan, the State Bank of Pakistan, the Provincial Home Departments, the Provincial Law Departments, the Supreme Court of Pakistan, the High Courts, the District Courts, the Federal and Provincial Judicial Academies, the Federal and Public Service Commissions, the Anti-Narcotics Force, the Anti-Terror Courts, the Provincial Anti-Corruption Bodies as Additional Entities (page 46).

3.2.2. Anti-Discrimination, Equal Opportunities, and Inclusion

Proposed Actions

• Federal and Provincial (page 20)

‘16. Review, and amend where required, existing laws pertaining to all forms of violence against women and girls, and ensure effective functioning of Gender-Based Violence Courts.

Performance indicator(s): (i) Review report; (2) Number of laws amended

UN Guiding Principle(s): 1, 2, 3, 8, 25, 26, 27, 28

Relevant SDG(s): Goal 5 – Gender Equality; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 16 designating the Ministry of Human Rights, the National Commission on the Status of Women and the Ministry of Law and Justice as Leading Entities (page 48).

3.2.8. Access to Remedy (page 36)

‘The State of Pakistan commits to improving the effectiveness of its judicial and non-judicial grievance redressal mechanisms, and also expects businesses to ensure a reduction in barriers to accessing internal remedies within organisations.’

Proposed Actions

• Federal and Provincial (pages 36-37)

‘65. Establish Labour Courts in all districts, and review the existing framework of Labour Courts, including assessment of gender-responsiveness, and utilise the findings to increase and strengthen functioning of Courts to provide for the efficient handling of industrial disputes and the effective protection of labour rights.

Performance indicator(s): (i) Number of newly established Labour Courts; (ii) Review reports; (iii) Budgetary allocations

UN Guiding Principle(s): 1, 3, 25, 26

Relevant SDG(s): Goal 8 – Decent Work and Economic Growth; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 65 designating the Federal and Provincial Governments; Ministry of Law and Justice; Provincial Law Departments; Provincial Labour Departments; Legal experts as Leading Entities, and designating the High Courts, Supreme Court of Pakistan, Law and Justice Commission of Pakistan; Ministry of Parliamentary Affairs; Provincial Parliamentary Affairs Departments; Trade/Labour Unions as Additional Entities (page 70).

‘66. Establish Child Protection Courts in all districts, and review the framework of existing Child Protection Courts to include the authority to direct the training and rehabilitation of victims of child labour.

Performance indicator(s): i) Number of newly established Child Protection Courts; (ii) Review reports; (iii) Budgetary allocations

UN Guiding Principle(s): 1, 3, 25, 26

Relevant SDG(s): Goal 8 – Decent Work and Economic Growth; Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 66 designating the Ministry of Human Rights, the Ministry of Law and Justice, Provincial Home Departments, Provincial Legal Departments and Legal experts as Leading Entities, and designating the High Courts, the Supreme Court of Pakistan, the Law and Justice Commission of Pakistan, the Provincial Human Rights Departments, the Federal Public Service Commission, the Provincial Service Commissions, the Federal Judicial Academy and the Provincial Judicial Academies as Additional Entities (page 70).

‘67. Establish and strengthen existing guidelines and compile best practices for the Judiciary to ensure effective remediation of human rights abuses occurring through business activity.

Performance indicator(s): (i) Development of guidelines and best practices; and (ii) Dissemination of Guidelines

UN Guiding Principle(s): 1, 3, 25, 26

Relevant SDG(s): Goal 16 – Peace, Justice and Strong Institutions’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 67 designating the Ministry of Human Rights; Provincial Human Rights Departments; Ministry of Law and Justice, Provincial Law Departments as Leading Entities, and designating the Federal and Provincial Judicial Academies; Provincial Human Rights Departments; Federal Public Service Commission; Provincial Service Commissions; legal experts as Additional Entities (page 70).

‘68. Ensure the effective functioning of public grievance redressal mechanisms such as the Ombudsperson Offices and enhance their capacity to resolve complaints.

Performance indicator(s): (i) Development of Capacity-building Initiatives; and (ii) Number of Capacity-building Trainings

UN Guiding Principle(s): 1, 3, 27

Relevant SDG(s): Goal 5 – Gender Equality; Goal 8 – Decent Work and Economic Growth; Goal 10 – Reduced Inequalities’

This information is also covered under Appendix 1: Implementation Plan, Proposed Action 68 designating the Federal and Provincial Ombudsperson against Harassment of Women at the Workplace; Ministry of Human Rights as Leading Entities, and designating the Provincial Human Rights Departments; National Commission of Human Rights; Services and General Administration Department; Legal experts as Additional Entities (page 71).

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CHAPTER III: DIAGNOSIS AND BASELINE: ACTION AREAS 3.1. General conclusions of the diagnosis and baseline Thirdly, with respect to judicial and extrajudicial reparation mechanisms, positive changes have also been evidenced at the regulatory level. Thus, the State has adopted administrative, civil, and criminal penalties for breaches of human rights legislation in the business context. In addition, these reparation mechanisms have taken into account the human rights approach and complementary approaches. Despite these advances, the reparation of individuals and peoples for violations of their rights continues to face serious difficulties due to legal, procedural, and social barriers -mainly- for groups with special protection, which hinders their adequate access to justice. For example, it is evident that the investigative authorities do not have sufficient operational capacity to carry out their functions and judicial processes take years to be resolved. – page 40 Afro-Peruvian people The problems faced by Afro-Peruvian people in relation to business activities are centered on four scenarios: (i) access to work, (ii) employability and work environment, (iii) consumer relations, and (iv) advertising and media. On this last point, the media play a fundamental role, since they construct and reproduce behavioral models, promote or omit certain discourses, and legitimize practices or subject them to public scrutiny. The Peruvian State has not yet implemented remediation and reparation mechanisms in favor of the Afro-Peruvian people in the face of human rights violations, beyond the declarative nature of the 2009 norm on historical forgiveness. – page 46 Indigenous peoples and prior consultation With respect to mechanisms for redressing the rights of indigenous peoples, judicial remedies are the most commonly used, although they are slow and ineffective. There are also administrative ave- nues used, but it is noted that they are not designed to address the integrity of the damages caused, especially those resulting from informal activities and the criminal environment. Although strategic litigation by indigenous peoples and civil society has been a more efficient form of access to redress, this mechanism has been limited. – page 49 Judicial and extrajudicial reparation mechanisms In the relationship between human rights and business, access to an effective remedy is a corners- tone in the face of rights violations. There is a need to strengthen and develop the capacities of the bodies responsible for the procurement and administration of justice, as well as the oversight bodies and extrajudicial mechanisms, with a gender and differential approach. The importance of this lies in the fact that the reparation of human rights violations can have a dissuasive effect on the repetition of similar situations. It is necessary to evaluate the possibility of expanding the catalog of crimes for which criminal liability could be imposed on legal persons, in relation to human rights violations that are characterized as crimes; as well as to assess the convenience of clarifying or making explicit the rules of domestic law from which the liability of companies to prevent adverse impacts on human rights is derived. – page 51 Private security In terms of reparation mechanisms, the judicial system presents pre-existing barriers that affect access to justice, especially for the most vulnerable people, and therefore, access to judicial reparations. – page 51 Use of force and police agreements For its part, the formal business sector has been incorporating complaint and grievance mechanisms within the framework of which security and human rights issues can be addressed, such as the Guide for Complaints and Grievances prepared by the SNMPE. Likewise, progress has been made in training on the subject with the formation of a working group. – page 52 Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050 Strategic guideline No. 2: Design of public protection policies to prevent human rights violations in the business environment. Objective No. 3: Review, design, and adoption of national plans and programs to guarantee human rights in the framework of business activities. 38. Action: Execute training actions aimed at GORES officials on the guidelines of the procedure for the formalization of individual and collective land rights. Background: The process of formalizing individual and collective land rights needs to be strengthened. To this end, it is necessary that MIDAGRI, through DIGESPACR, implement training actions aimed at GORES officials on the guidelines of the formalization procedure under the approach of individual and collective human rights over land. Indicator: GORES officials trained in the guidelines of the procedure for the formalization of individual and collective land rights. – page 82 43. Action: Promote the reduction of the land titling gap of rural properties, and of peasant and native communities at the level of the GORES. Background/Indicator: The execution of the procedures for the Titling of rural properties, peasant communities, and native communities is the exclusive competence of the GORES and the steering role is exercised by the MIDAGRI through the General Directorate of Agrarian Property and Rural Cadastre (DIGESPACR), it, it is required to strengthen the mechanisms to continue promoting the process of formalization of individual and collective land rights, according to its competence. – page 84 45. Action: Expressly incorporate the GP-RBC approach in actions related to climate change, biological diversity, and environmental land use planning in the next National Environmental Action Plan and the National Environmental Policy. Background: The issues of climate change, biological diversity, and environmental land-use planning should be expressly associated with the issue of business and human rights. In this way, related public policy measures would encourage companies to take into account the issues arising from these issues in their due diligence processes throughout the supply chain and address negative environmental risks and impacts. Indicator: National Environmental Action Plan, including or expressly contemplating the GP-RBC approach in actions related to climate change, biological diversity, and environmental land use planning (Action Indicator). – page 85 Strategic guideline No. 5: Design and strengthening of mechanisms to ensure that those affected by human rights violations have access to judicial, administrative, legislative, or other means of redress. Objective 1: Strengthen mechanisms at the state level to redress human rights violations in the corporate sphere. 88. Action: Promote regulatory modifications that guarantee suitable reparation mechanisms, in accordance with international standards. Background: Establish mechanisms or commissions for the review of legislative frameworks and judicial and extrajudicial mechanisms, in line with the recommendations issued in the OHCHR Project on Access to Redress (A/HRC/32/19/Add.1, A/HRC/38/20/Add.1 and A/HRC/38/20/Add.1). Indicator: Creation and Implementation of space for intersectoral sectoral coordination for the reviewing of legislative frameworks and judicial and extrajudicial mechanisms (Action Indicator). – page 120 Objective 2: Strengthen the judicial and extrajudicial systems to redress human rights violations in the corporate sphere. 94. Action: Produce and disseminate international standards on business and human rights through informative materials on judicial redress to strengthen the mechanisms for sanctioning and investigating human rights violations caused by business activities, aimed at judges, prosecutors, jurisdictional and fiscal assistance personnel. Background: In order to provide accessible and useful tools that will enable judges, prosecutors, and judicial and prosecutorial staff to strengthen their work on reparations in the area of business activities, it is important to produce and disseminate informative guides and other similar documents that facilitate the application of international standards in judicial and prosecutorial work. Indicator: Creation and dissemination of guides. – page 124 95. Action: To disseminate judicial and extrajudicial mechanisms for the protection of human rights in business activities. Background: To make visible and disseminate the existing tools in the national legal framework and the experiences in terms of reparation in cases involving corporate responsibility for adverse impacts on human rights, including aspects such as the burden of proof. Indicator: Report on activities for the dissemination of judicial and extrajudicial mechanisms implemented. – page 124

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2. Ministry of Development Funds and Regional Policy

Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services

[page 10]

“In 2019, Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services (European Accessibility Act, EAA) entered into force. The mechanisms ensuring conformity with the accessibility requirements comprise:”

(…)

“- Alternative dispute resolution mechanisms

– Administrative and judicial channels

– Any consumer will be able to lodge a complaint (take an action to a court or public administration body) with additional powers of NGOs in this respect.”

Activity of the OECD National Contact Point for Responsible Business Conduct

[page 11-12]

“The Polish OECD National Contact Point for Responsible Business Conduct (OECD NCP) was established in 1998, two years after Poland’s accession to the OECD. Since 2016, OECD NCP has been operating within the structure of government administration, currently in the Ministry of Development Funds and Regional Policy (MFiPR) in the structures of the Office of the Minister. As part of the operations of the OECD NCP in the area of respect for human rights in business activity of enterprises, the following activities are planned: – promotion of the OECD Guidelines for Multinational Enterprises and the OECD sectoral recommendations, with particular emphasis on those concerning respect for human rights, – continuation of activities aimed at translating OECD documents on responsible business, which have not yet been translated into Polish, including involvement of representatives of relevant industries and sectors in the process of translation and verification of the documents, – organisation of thematic information meetings on the activities of the OECD NCP to promote responsible business standards and the complaint mechanism for reporting potential violations of the OECD Guidelines for Multinational Enterprises, – processing of notifications of potential violations of the OECD Guidelines for Multinational Enterprises by multinational enterprises. The OECD Guidelines for Multinational Enterprises address respect for human rights in business activity of enterprises in Chapter IV and, in part, also in Chapter V on employment relations including labour rights. Across the 50 countries implementing the OECD Guidelines for Multinational Enterprises, human rights violations constitute one of the most frequent reasons for filing notifications to the OECD NCP. Hence, one of the indicators for monitoring the implementation of the NAP in 2021-2024 will be information on the number of notifications of potential violations of the OECD Guidelines related to Chapters IV and V of the OECD Guidelines as received and processed by the OECD NCP. Moreover, in the coming years and in line with the expectations of the social partners the OECD NCP plans to increase the number of events promoting the OECD Guidelines, such as webinars or conferences. These events will also include one promoting responsible business standards in the context of respect for human rights in business activities of enterprises.”

6. Ministry of Justice

Draft Act amending the Act – the Code of Civil Procedure and certain other acts

[page 24-25]

“As intended by the legislators, the new draft Act amending the Act – the Code of Civil Procedure and certain other acts is to increase the scope of protection of consumer rights and strengthen the position of the consumer as a party to proceedings against the entrepreneur. The foregoing aim is to be 25 achieved primarily through the introduction of new separate proceedings with the participation of consumers, the provisions of which will also apply when the entrepreneur who is a party to the proceedings has ceased his business activity. In cases heard in accordance with the provisions governing these proceedings, the consumer will be able to bring an action also before the court of their place of residence. This will not apply, however, to cases in which the jurisdiction of the court is exclusive.”

Proposal of a definition of forced labour

[page 25]

“The Ministry of Justice has received the material developed within the framework of the Working Group for Relations with Individuals Performing Work of the Advisory Board for Sustainable Development and Corporate Social Responsibility – an auxiliary body of the Minister of Investment and Development, containing a proposal for the definition of forced labour. The Ministry of Justice will examine the possibility of working on the criminalisation of forced labour as a prohibited act positioned between the violation of labour rights and trafficking in human beings.”

Liability of collective entities for prohibited acts

[page 25]

“As regards liability of collective entities for prohibited acts, a draft of the relevant law, introducing a modern model of such liability, was drafted in 2018 at the Ministry of Justice and adopted by the Government, and then referred to parliamentary work. The draft has been discontinued due to the end of the term of the Sejm. The Ministry of Justice will examine the possibility of resuming work on the draft law.”

6. Ministry of Justice

Mediation

[page 25-26]

“The Ministry of Justice is planning activities in the area of mediation, including the establishment of the National Register of Mediators. In 2018-2019, during meetings with the Judges-Coordinators for Mediation operating by Regional Courts and during the meetings of The Council for the Alternative Methods of Disputes and Conflicts Resolution by the Minister of Justice, comments and reservations were raised on the functioning of the permanent lists of mediators kept by the Heads of the Regional Courts, as regards no possibility of verifying persons entered on the lists who no longer actively practice the profession of mediator.”

(…)

“The main objective of the project entitled ‘Popularization of Alternative Dispute Resolution methods through increasing the competences of mediators, creation of the National Register of Mediators (KRM) and information activities’ is to professionalise the profession of mediator by establishing the National Register of Mediators (KRM) and conducting a cycle of mediation trainings within the Integrated Qualification System, as well as to improve knowledge on e-mediation and possibilities of using it in commercial and labour disputes”

(…)

“The activities implemented as part of the aforementioned project are addressed primarily to citizens interested in making use of mediation proceedings, judicial authorities as those referring cases to mediation, as well as mediators and persons who want to obtain qualifications in mediation.”

13. National Labour Inspectorate

[page 35]

“The National Labour Inspectorate (PIP) is an authority established in order to oversee and verify the observance of labour law, in particular occupational health and safety rules and regulations. During the implementation of its statutory tasks, the National Labour Inspectorate cooperates with specialised authorities for supervision and inspection of working conditions, trade unions, employers’ organisations, workers’ self-government authorities, workers’ councils, social labour inspections, public employment services and state administration authorities, particularly authorities for overseeing and inspecting working conditions, the Police, the Border Guard, customs authorities, revenue offices, and the Social Insurance Institution, as well as local self-government authorities”

Statutory tasks

[page 35]

“The statutory tasks of the National Labour Inspectorate include, in particular:”

(…)

“– taking actions aimed at preventing and reducing hazards in the working environment;

– lodging complaints and participation in legal proceedings for the establishment of an employment relationship before labour courts, if the legal relationship between the parties fulfils the criteria of an employment relationship;

– issuing and revoking permission for a child to perform work or engage in other gainful activity until they reach the age of 16;

– providing technical guidance and legal advice;”

[page 36]

“Some of the PIP’s competencies derive from special provisions. These tasks include: – recommending that the competent Social Insurance Institution’s organisational unit increases the accident insurance premium rates (set for the next premium year) if a labour inspector finds serious violations of the health and safety regulations during two consecutive inspections; – registration of an establishment’s collective bargaining agreements; – ordering the establishment of occupational health and safety services or an increase in the number of service staff, if justified by occupational hazards discovered during an inspection.”

Powers of PIP authorities

[page 36]

“Labour inspectors have the right to conduct an inspection with respect to the observance of the provisions of labour law, and in particular occupational health and safety, without prior notice, at any time of day or night.

In the event that a violation of the regulations concerning labour law is found, the competent labour inspector is entitled to issue legal remedies (improvement notices, oral instructions, oral and written decisions) aimed at removing any irregularities (including the possibility of ordering the cessation of operations or operations of a particular nature).

In addition, the powers and competencies of a labour inspector include:

– imposing fines in the form of penalty tickets and lodging motions with a court of law to punish the parties responsible for violation of employee rights as specified in the Labour Code and petty offences referred to in Articles 119-123 of the Act of 20 April 2004 on the Promotion of Employment and Labour Market Institutions, as well as for other offences related to gainful employment, when provided for by law, and participating in these cases as public prosecutors.

– imposing fines on entities performing carriage by road or other activities related to this kind of carriage in violation of the obligations or conditions of carriage by road.”

Tasks of the National Labour Inspectorate in the field of combating discrimination in access to employment and in relation to the provision of services by employment agencies

[page 38-39]

“As part of inspections concerning the legality of employment, labour inspectors examine issues related to respecting the principle of equal treatment and non-discrimination in access to employment. These activities are aimed at disclosing offences with regard to a refusal to employ a candidate for a vacant position or place of vocational training on the basis of their sex, age, disability, race, religion, nationality, political beliefs, ethnic origin, religious denomination, or sexual orientation. Most often, they involve the examination of job advertisements in which employers post illegal criteria for people who apply for employment, where the nature of the work does not justify their use (e.g., relating to sex or age). Labour inspectors also check compliance with the principle of equal treatment of foreign nationals in terms of working conditions and other conditions of employment, compared to Polish citizens employed in corresponding or similar positions. Promotion of the idea of equal treatment and non-discrimination in the labour market, especially with respect to foreign nationals, is supported by projects co-financed from European funds, as well as PIP publications (leaflets, brochures, guides) addressed to a wide audience.”

Receiving, processing, and handling complaints and applications before the PIP

[page 39-40]

“The subject of a complaint may be, in particular, violation of the rule of law or the interests of complainants, negligence or improper performance of tasks by the authorities or employees of the National Labour Inspectorate, as well as protracted handling of cases; violation of labour law provisions, including the provisions of occupational health and safety and legality of employment, directly affecting the complainant. The subject of an application, in turn, may be, in particular, matters 40 concerning improvement of the organisation, strengthening the rule of law, streamlining work and preventing abuse. Complaints and applications are accepted by all regional labour inspectors and the Chief Labour Inspectorate. They may be lodged in writing, by telegraph, telefax or orally to be included in the minutes, or by electronic means of communication via the electronic inbox.”

14. Office of Competition and Consumer Protection

Tasks related to counteracting the unfair use of contractual advantage

[page 40]

“The President of the Office of Competition and Consumer Protection will continue to perform tasks related to counteracting the unfair use of contractual advantage in trade in agricultural and food products. Their main objective will still be to improve the situation of the weaker participants of the agri-food market through ongoing monitoring of the situation in its individual segments, as well as carrying out explanatory and relevant proceedings in a consistent manner.”

Appendix 1 (information material prepared by the Ministry of Justice)

Trainings

[page 42]

“1. Topic: Claims under bank agreements, reference No C23/21

Specific issues discussed during the training include, among others: judicial control of the content of credit agreements, abusive clauses in credit agreements and their consequences, foreign currency denominated and indexed credits, claims under other bank agreements.

Target audience: judges, assessor judges and court referendaries adjudicating in civil and commercial divisions as well as assistant judges adjudicating in those divisions, and prosecutors and assessors in public prosecutor’s office dealing with civil law cases. Number of editions: 4. 

Number of participants: 200 (50 participants in each edition, including 2 places for prosecutors in each edition).

Duration of training: 6-8 hours.

Form of training: seminar (online).

[page 43]

“3. Topic: Agency agreement in court practice, reference No C34/21

 Specific issues discussed during the training include, among others: agency agreement, employment agreement, mandate agreement – differentiating elements (personal, economic and social risk, degree of subordination between an agent and a client, subordination of an employee); parties’ claims under an agency agreement during its term and following its termination; non-compete clause and claims arising therefrom; enforceability and prescription of claims in the case law of the Supreme Court and appellate courts.

Target audience: judges, assessor judges and court referendaries adjudicating in civil, commercial, labour law and social divisions as well as assistant judges adjudicating in those divisions, and prosecutors and assessors in public prosecutor’s office dealing with civil law cases.

Number of editions: 4. Number of participants: 200 (50 participants in each edition, including 2 places for prosecutors in each edition).Duration of training: 6-8 hours.

Form of training: seminar (online).”

[page 43]

“4. Topic: Bankruptcy, liquidation of an entrepreneur, reference No C42/21.

Specific issues discussed during the training include, among others: termination of an employment relationship as a result of bankruptcy, liquidation of an enterprise; rights of an employer and employee in the event of bankruptcy and liquidation; regulations precluding protection of employee’s rights; the order in which layoffs are effected, group layoffs, the amount of severance pay; the impact of bankruptcy and restructuring proceedings on ongoing proceedings in labour law cases.

Target audience: judges, assessor judges and court referendaries adjudicating in labour and social security divisions as well as assistant judges adjudicating in those divisions, and prosecutors and assessors in public prosecutor’s office dealing with civil law cases.

Number of editions: 2.

Number of participants: 100 (50 participants in each edition, including 2 places for prosecutors in each edition).

Duration of training: 16 hours. Form of training: seminar, workshops”

[page 43-44]

“5. Topic: Combating hate speech crimes committed via the Internet, reference No K28/21.

Specific issues discussed during the training include, among others: the Internet as a space for hate speech offences – the scale, dynamics and specificity of the phenomenon; identifying the perpetrator of an act of hate speech committed via the Internet, the problem of identity theft – pretending to be another person; hate speech as an element of prohibited acts and freedom of speech, national and international case law; overcoming technical and legal difficulties in obtaining evidence from Internet service providers, owners and administrators of social networking sites.

Target audience: judges and assessor judges adjudicating in criminal divisions as well as assistant judges adjudicating in those divisions, and prosecutors, assessors in public prosecutor’s office and prosecutor’s assistants.

Number of editions: 2. Number of participants: 100 (50 participants in each edition).

Duration of training: 6-8 hours.

Form of training: seminar (online).”

Appendix 1 (information material prepared by the Ministry of Justice)

Trainings

[page 44]

“In line with the recommendations of the Polish Institute of Human Rights and Business, the Ministry of Justice requested that the National School of Judiciary and Public Prosecution consider including the following training courses in the schedule of training activities for 2021-2024:

– for judges, assessor judges and assistant judges on the issue of discrimination and anti-discrimination legislation

– employees of the judiciary who are in contact with citizens as regards dealing with persons who lack sufficient legal knowledge (in particular on simplifying explanations regarding complex legal issues).

In addition, the following training events covering the above-mentioned topics have already been scheduled in the schedule of training activities of the National School of Judiciary and Public Prosecution

1.Training M9/21 European Union anti-discrimination law. Since 2003, the Academy of European Law in Trier (ERA) organises annual seminars on European anti-discrimination directives, adopted under Article 19 of the EC Treaty, i.e. Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Specific issues: among others, the effects of EU law on the legal order of Member States; EU anti-discrimination legislation and definition of key concepts: direct discrimination, indirect discrimination, harassment, burden of proof indiscrimination cases; remedies and sanctions in anti-discrimination law; the role of the national judge and the preliminary ruling procedure; the prohibition of age discrimination in the light of CJEU case law.”

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Principle 1- State’s duty to protect HR

The relevant human rights authorities in Slovenia include judicial bodies, state administration bodies, and other bearers of public authority. (pg. 8)

Principle 3a – Workplace Mobbing

In the event of workplace mobbing (bullying, harassment), the worker has the right to judicial protection and damages. (pg. 13)

Principle 26 – Domestic judicial mechanisms

The Constitution of the Republic of Slovenia guarantees judicial protection of human rights and fundamental freedoms, and the right to obtain redress for violations of such rights and freedoms (Article 15 of the Constitution). (pg. 35)

Regarding basic procedural rules, a comprehensive update of the regulations governing judicial protection sought by private parties in the event of human rights violations was carried out in 2017. One of the objectives of the amended regulations is to enable more effective protection of individuals’ rights…through the institutions enabling the unification of case law and thus greater legal predictability of court decision making, leading to enhanced judicial protection and trust in the law. (pg. 36)

Regarding respect for human rights in the business sector, the Code contains an important provision stipulating that criminal liability is to be imposed on a legal person for criminal offences which the perpetrator commits in his name, on his behalf or in his favour. (pg. 36)

The amended Criminal Code, which entered into force on 2 July 2017, stipulates that no direct intent needs to be determined in the event of the criminal offence of violation of fundamental workers’ rights, and that conditional intent suffices; the foreseen penalties are also higher. (pg. 36-37)

About access to judicial protection for the socially underprivileged, it is important to mention the institution of free legal aid as defined in the Free Legal Aid Act. (pg. 37)

Judicial verification and judicial protection regarding administrative acts and actions undertaken by the public administration are guaranteed by the Administrative Dispute Act. The right to trial without undue delay, judicial protection of this right and the right to just satisfaction if the right is violated are envisaged by the Protection of Right to Trial without Undue Delay Act. (pg. 37)

Workers in an employment relationship are guaranteed direct legal protection in the event of a request to determine the grounds for the illegal termination of an employment contract, other modes of termination of employment contract or decisions regarding the disciplinary responsibility of workers. In addition, workers may bring monetary claims arising from the employment relationship before the competent labour court. (pg. 37)

In the event of bullying or discrimination, workers have the right to judicial protection. (pg. 37)

Workers can also appeal to the Labour Inspectorate of the Republic of Slovenia. If a labour inspector, since a report or inspection, determines a violation of the prohibition of bullying, appropriate measures or sanctions may be imposed on the employer. (pg. 38)

Principle 26 – Planned Measures

The purpose of the Class Actions Act is to improve access to judicial protection and ensure the exercise of the rights violated for individuals in cases of collective injury, to deter potential violators from illegal actions and to prevent the overload of courts due to an excessive number of independent actions in the event of collective injury. (pg. 39)

Principle 27 – Alternative settlement of legal disputes

The Advocate of the Principle of Equality may provide independent assistance to persons discriminated against when exercising their rights concerning protection against discrimination in the form of counselling and legal assistance in administrative and judicial proceedings regarding discrimination. (pg. 40)

In accordance with the provisions of the Act on Alternative Dispute Resolution in Judicial Matters, the courts carry out programmes of court-related mediation. To promote court-related mediation, the Ministry of Justice of the Republic of Slovenia has prepared a set of activities to increase the visibility of mediation as a means of settling legal disputes, and to additionally inform parties to court proceedings of all the advantages offered by this method of resolving disputes. (pg. 41)

Principle 31 – Nonjudicial Grievance Mechanisms

The State grants access to judicial mechanisms and is developing new non-judicial mechanisms to facilitate access to effective appeal mechanisms related to violations of human rights in business. In so doing, the State strives to improve the effectiveness, accessibility, predictability and transparency of procedures. (pg. 42)

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South Korea’s NAP does not make specific reference to judicial remedy; however, it notes in the Introduction:

Introduction [page 2]

… States should take actions to address adverse impacts on human rights by business activities, ensure and support corporate responsibility to respect human rights, and realize effective policies to improve access to remedy. While tasks of improving protection and respect for human rights in business activities are discussed in other rights such as the right to work and the right to decent living, we are here separately addressing several tasks including … remedies for victims under the theme of business and human rights, given the special significance of establishing human rights policies on business activities.

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Guiding Principle 25

Measure 1

“Within one year from the approval of this Plan, the Monitoring Commission will prepare a report on the legal mechanisms through which the civil liability of companies that cause damage or harm to human rights, including damage or harm caused through the lack of action on due diligence for the prevention of their own behavior, or that of their employees or agents, or that of the companies belonging to the same business group.”

Measure 2

“The Government will collaborate with civil society organizations in the distribution of existing redress mechanisms available to victims of human rights abuses caused by the activity of companies.”

Measure 3

“The Government will apply its commitments derived from the United Nations Declaration on Human Rights Defenders.”

Guiding Principle 26

The independence of the judiciary, stipulated in Article 117 of the Spanish Constitution, is an essential element to guarantee access to effective judicial redress mechanisms.

Regarding the need to remove obstacles of any kind that may limit access to remedy, which may include temporary limitations, it should be noted that the Spanish legal system provides no statute of limitation for the most serious crimes, that is, genocide, war crimes, and crimes against humanity.

In 2010 a system of criminal liability of legal persons was introduced in the Spanish legal system (Article 31.bis of the Criminal Code), which was subject of technical improvement in 2015. This institution constitutes an important mechanism for the reparation of any damage caused by a company’s activity to the possible victims.

Finally, the Law on Free Legal Aid guarantees that the lack of resources will not be an obstacle to access judicial mechanisms of reparation.

Measure 1

“The Government, through the policy of cooperation for development, will support the efforts of third-party States in favor of strengthening the independence of the judiciary.”

Measure 2

“Specific training on business and human rights will be provided to judges and prosecutors.”

Measure 3

“The Government will develop and provide the necessary instruments so that every citizen can have access to comprehensible information about all of the grievance mechanisms that they can use. Therefore, a map of the existing resources in terms of legal assistance will be made and publicized.”

Guiding Principle 30

Measure 1

The Government will support the development of effective remedy mechanisms in the collaborative initiatives in which it participates reflecting the criteria identified in the Guiding Principle 31.

Read more about Spain

1 The State duty to protect human rights [page 10-11]

Swedish legislation to protect human rights

“Disputes concerning the relationship between employer and employee are often resolved in the Labour Court, which is a specialised court for examining labour law disputes. The Labour Disputes (Judicial Procedure) Act (1974:371) contains certain special regulations on labour law disputes.”

Criminal law provisions to protect human rights

Sweden has a number of criminal law provisions for the protection of human rights regardless of the context in which an offence is committed, including in the business context. Through these criminal provisions Sweden also fulfils its international commitments in relevant respects. Examples include:

• Protection of life and health, through criminal liability for crimes such as murder, assault, manslaughter and work environment crimes (Chapter 3, Swedish Penal Code).
• Protection of liberty and peace, through criminal liability for human trafficking, including for the purpose of exploiting a person’s labour, and other provisions protecting against coercion or deprivation of liberty. Provisions also exist to protect against harassment, intrusive photography, breach of postal or telecommunication secrecy, unlawful interception and breach of data security (Chapter 4, Penal Code).
• Protection of property, against corruption, etc., through criminal liability for offences such as theft, robbery, fraud, extortion, receiving stolen goods, bribery, dishonesty to creditors and infliction of damage (Chapter 8–12, Penal Code). • Provisions on crimes involving public danger also protect the above-mentioned interests through criminal liability for acts such as arson (Chapter 13, Penal Code).
• Criminalisation of international crime also provides for protection of life, health and property. The Act on criminal responsibility for genocide, crimes against humanity and war crimes (2014:406) entered into force on 1 July 2014.
• Criminal liability under the Act on Criminal Responsibility for the Financing of Particularly Serious Crimes in Some Cases (2002:444), the Act on Criminal Responsibility for Terrorist Offences (2003:148) and the Act on Criminal Responsibility for Public Provocation, Recruitment and Training concerning Terrorist Offences and other Particularly Serious Crimes (2010:299) also provides protection in this context.
• Under Swedish law, jurisdiction is extensive and Swedish courts are therefore often able to adjudicate in cases concerning offences committed abroad. Normally, for this to occur, the perpetrator would need to have some ties to Sweden and the offence would need to be subject to criminal liability under the law of the place where it was committed. However, such restrictions do not apply to the most serious crimes, i.e. certain specified crimes such as crimes under the Act on criminal responsibility for genocide, crimes against humanity and war crimes and, in general, all crimes with a minimum sentence of imprisonment for four years, for example, exceptionally gross assault (Chapter 2, Penal Code).
• Corporate fines entail liability for companies, among others. Although only natural persons can be convicted of a crime, corporate fines may be imposed on a business operator (e.g. a legal entity) for crimes committed in the exercise of business activities. (Chapter 36, Penal Code).

3 Access to remedy [page 15]

Legal remedies provided by the State

“According to the UN Guiding Principles, States have an obligation to provide effective remedies when a company has committed human rights abuses. These include both judicial and non-judicial mechanisms. The legal remedies available in the Swedish legal system are in line with the international human rights conventions that Sweden has acceded to. There are three types of courts in Sweden:

• the general courts, consisting of district courts, courts of appeal and the Supreme Court,
• the administrative courts, i.e. administrative courts, administrative courts of appeal and the Supreme Administrative Court, and
• the specialised courts, such as the Labour Court and the Market Court, which settle disputes in specialised areas.

The Government and the Swedish National Courts Administration take continuous action to ensure that the courts’ activities are conducted effectively and to a high standard, and that backlogs and turnaround times are kept to a reasonable level. Efforts in recent years have aimed, for example, to develop appropriate rules of procedure, a sustainable judicial system and more efficient working methods. …

The Office of the Equality Ombudsman is a government agency responsible for monitoring compliance with the Discrimination Act. The Ombudsman is to try in the first instance to induce those to whom the Act applies to comply with it voluntarily. However, the Ombudsman may also bring a court action on behalf of an individual who consents to this. Those who violate the Discrimination Act may be found liable to pay compensation for discrimination to the person discriminated against.”

Annex: Measures taken [page 21]

Regulations and legislation

• “The Inquiry on protection of workers who blow the whistle on various unsatisfactory conditions, irregularities or offences submitted its report on 20 May 2014 (Swedish Government Official Reports 2014:31). The Inquiry proposes a new labour law act strengthening the protection provided to whistleblowers. Under the act, workers who have suffered reprisals for whistleblowing will be entitled to damages. The Inquiry’s proposals have been circulated for comment.
• With a view to improving the protection provided to workers, amendments have been proposed to the Work Environment Act and the Working Hours Act. Under these amendments, financial penalties would largely replace penal sanctions to create a more effective sanctions system.
• In 2014, the Government Bill ‘Measures to manage major criminal cases and the cancellation of main hearings’ (Govt Bill 2013/14:170) was passed by the Riksdag. The bill proposed to give the parties greater influence and participation in proceedings so that accusations of criminal offences can be heard within a reasonable time, maintaining high standards.
• The UN Guiding Principles on Business and Human Rights point out that the costs of bringing claims are sometimes a barrier to having a case heard. Even after statutory amendment (1987:452), the fees charged by Swedish courts are low by European standards.”

Annex: Measures planned [page 27]

Regulations and legislation

• “An inquiry has been tasked with producing data on the practical, organisational and economic implications that is needed to form a position on how proposals for major changes in the handling of criminal cases should be implemented. The inquiry has reported in The criminal justice process – an impact assessment (Ministry Publications Series 2015:4), which has been circulated for comment.
• An inquiry has presented further proposals for modern, effective and legally certain administrative proceedings. The continued development of administrative proceedings and specialisation for tax cases (Swedish Government Official Reports 2014:76) was presented in December 2014 and has been circulated for comment.
• An inquiry has reviewed remuneration for public counsels, injured party counsels and legal aid counsels, along with expenses for evidence, parties, interpreters and guardians ad litem. It has also reviewed income ceilings and legal aid fees. The final report, The price of justice (Swedish Government Official Reports 2014:86), has been circulated for comment.”

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2 National Action Plan on Business and Human Rights 2020-23

2.1 Pillar 1: state duty to protect

 

2.1.5 Policy coherence

Guiding Principle 10

Measure 21: Support for UN bodies in charge of promoting the UN Guiding Principles

The federal government will continue to lend political and financial support to the UN Working Group, the Office of the UN High Commissioner for Human Rights and the annual UN Forum on Business and Human Rights in Geneva. It will work with these bodies on several projects that:

– improve access to remediation mechanisms for those affected by business-related human rights abuses.

 

Measure 22: Commitments by Switzerland to the UN Guiding Principles at multilateral level

Switzerland actively contributed to the drafting of the Recommendation42 on business and human rights adopted by the Committee of Ministers of the Council of Europe on 2 March 2016. In implementing the NAP, Switzerland is implementing the Committee of Ministers Recommendation. It also supports Council of Europe efforts to improve access to remedy for those affected by human rights abuses, as well as to its online business and human rights platform.

 

2.3 Pillar 3: access to remedy

Many business enterprises have introduced mechanisms that enable their employees and/or business partners to share their concerns about possible human rights abuses and bring claims. Dealing with such claims internally, for example through mediation, often produces satisfactory outcomes for all affected parties. When a constructive solution cannot be found, the State must provide non-judicial and judicial mechanisms which give those affected by human rights abuses access to effective remedy.

 

2.3.1 Foundational principle

Guiding Principle 25

The Federal Council recognises the need to provide access to remedy for those affected by human rights abuses committed on Swiss territory and/or under Swiss jurisdiction. It believes the principal means of doing this is via the well-functioning Swiss judicial system, along with alternative, non-judicial dispute resolution mechanisms.

The Federal Council also acknowledges its responsibility to facilitate access to Swiss grievance mechanisms where business enterprises based in Switzerland are involved in human rights abuses abroad, and those affected in the host state have no appropriate access to effective remedy. In such instances, due consideration must be given to a smart mix of judicial and non-judicial mechanisms.

 

2.3.2 Operational principles: state judicial mechanisms

Guiding Principle 26

Domestic judicial mechanisms (the courts) may be used to determine matters involving business-related human rights abuses. The federal government intends to ensure the effectiveness of these mechanisms by devising measures to reduce legal, practical and other hurdles that could prevent those affected from gaining access to remedy. These measures should pay particular attention to the additional obstacles that women may face.

In this context, it is necessary to consider the extra-territorial dimension of any judicial mechanisms. The Federal Council therefore supports efforts to achieve a better understanding of the relevant frameworks in different countries, and encourages international processes. Under certain circumstances, it is possible under Swiss law for individuals who believe that their rights have been violated by Swiss companies to bring an action or appeal before Swiss courts. Whether Swiss courts have jurisdiction to hear and determine such cases and the governing law must be assessed on a case-by-case basis with reference to applicable legal provisions.

The Federal Council addressed all these issues in a report and acknowledges that the mechanisms available in Switzerland are, by international standards, sufficiently well-developed. The report also identified areas where improvements could be made. The Federal Council subsequently decided on additional measures to improve access to remedy in Switzerland for individuals who have suffered human rights abuses committed by a business enterprise based in another country.

 

Measure 31: Promoting the option of collective redress

The Federal Council intends to make selective amendments to the Civil Procedure Code (CPC) to improve its applicability. These will focus on removing obstacles to legal redress such as fees and the risks associated with legal costs, strengthening collective redress mechanisms and simplifying the coordination of procedures.

In the process of revising the CPC, the federal government drafted amendments to the provisions governing costs with a view to extending the scope of the conciliation procedure. New rules on group actions and establishing a group settlement mechanism will close a gap in the available legal protection by facilitating class actions in respect of mass and dispersed damage claims. These amendments and new articles bring the draft bill in line with Business and Human Rights Recommendations 39 and 42 of the Committee of Ministers of the Council of Europe of 2 March 2016. They also meet the expectations of the UN, as expressed in Guiding Principle 26.

Objective	Indicator	Responsibility
Facilitated class actions.	Selected amendments to the CPC.	FDJP [Federal Department of Justice and Police]

Read more about Switzerland

V. Access to remedy

B. Actions taken

• Judicial remedy

Civil remedy and litigation aid (page 17)

The “Code of Civil Procedure” and the “Labor Incident Act” both provide for a “litigation aid” system. Under this system, except in cases where there is manifestly no prospect for a party to prevail in the action, or where a party lacks the financial means to pay the litigation expenses, the court may grant the litigant temporary relief from any requirement to pay court costs. Taiwan’s “Legal Aid Act” provides that when a party lacks the financial means to pay litigation expenses and attorney fees, the court shall provide aid through an institutional channel to safeguard the basic human right of the people to engage in litigation and benefit from the right of equality.

This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP26, Actions taken (page 55).

 Collective remedy and citizen lawsuits (page 17)

‘Businesses generally have much greater financial resources than individuals do, which means that when business behavior infringes upon the rights of an individual consumer, it is often difficult for the latter to receive real relief. Accordingly, the Taiwan government has included provisions in the “Code of Civil Procedure” and the “Consumer Protection Act” that allow for the victims of public safety hazards, consumer disputes, and product defects to initiate class action suits. For persons whose rights have been infringed, this approach makes it more affordable for them to seek relief via the judicial system. In addition, the “Basic Environment Act,” “Environmental Impact Assessment Act,” “Air Pollution Control Act,” “Waste Disposal Act,” “Soil and Groundwater Pollution Remediation Act,” “Water Pollution Control Act,” and “Toxic and Concerned Chemical Substances Control Act” all include provisions that allow for citizen suits. When a public or private entity violates the law and the competent authority is negligent in enforcement, victims or public interest groups may notify the competent authority in writing, and if the competent authority continues to ignore the violation, the victims or public interest groups may file a lawsuit with an administrative court.’

This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP26, Actions taken (page 55).

Extraterritorial jurisdiction (page 18)

‘With respect to any human rights abuses that occur overseas, Taiwan already has laws and regulations which provide that such abuses are subject to the jurisdiction of Taiwan’s judicial authorities no matter where the abuses have taken place. For example, if a responsible person or an employee of a company engages overseas in human trafficking, drug dealing, or piracy (as referred to in Article 5 of Taiwan’s “Criminal Code”), or offers a bribe to a public servant from Taiwan or a foreign nation in connection with cross-border trade, investment, or other business activities (as referred to in Article 11 of the “Anti-Corruption Act”), the offense will be subject to the jurisdiction of Taiwan’s judicial authorities regardless whether the offense is punishable or not under the law of the land where the crime is committed. In addition, the “Regulations Governing the Handling of Companies’ Overseas Investments” provide that when the Taiwan government reviews an investment application, if it discovers that a company has violated the provisions of an international treaty in the course of its overseas investment activities, the application will be rejected. Also, the Taiwan government imposes corporate social responsibility requirements when it grants approval for a company to invest overseas, and at the same time will require the company to abide by the legal requirements of the host jurisdiction.’

This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP25, Actions taken (page 53).

 

C. Actions planned

• Continue promoting judicial reform, establish better remedy systems (pages 19-20)

‘As part of an ongoing judicial reform effort that first got underway in 1999, the Taiwan government in 2016 convened a “Presidential Office National Congress on Judicial Reform.” After more than 40 subcommittee discussions, the president convened a summary meeting where she instructed government agencies to implement a total of 303 resolutions. Judicial reform measures pertaining to business and human rights include the following:

On 5 December 2018 the president promulgated the “Labor Incident Act,” which entered into force on 1 January 2020. By setting up special labor courts to hear labor-related litigation, and by establishing the principle of providing labor with convenient access to the courts, this Act appropriately adjusts the principle of party presentation, effectively promotes timely adjudication procedures, and institutes a new regime for prompt securing of rights in order to achieve substantive fairness and provide effective remedy.

On 15 January 2020, the president promulgated the “Commercial Case Adjudication Act” and the “Intellectual Property and Commercial Court Organization Act,” which will enter into force from 1 July 2021. Under the new Acts, special intellectual property and commercial courts at the level of a high court will hear commercial litigation as the court of first instance, and a judgment rendered by such a court can only be appealed once, to the Supreme Court. The idea is to ensure that disputes of this nature can be resolved quickly, appropriately, and professionally. This would improve Taiwan’s business environment and boost economic development.

In the future, government agencies will continue engaging in dialogue with society and soliciting a broad range of opinions to use as reference in developing a reform program that is closely in line with conditions in Taiwan. This program will be actively promoted to facilitate further reform of business-related human rights remedy systems.’

This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP26, Actions planned (pages 55-57).

• Strengthening of extraterritorial jurisdiction (pages 20-21)

‘Cross-border litigation occasionally arises due to: (a) human rights violations or environmental destruction caused in Taiwan by foreign multinational corporations engaged in business activities in Taiwan; or (b) human rights violations or environmental destruction caused overseas by Taiwanese corporations (or by multinational corporations controlled by a Taiwanese corporation) engaged in business activities overseas. With respect to such litigation, our government needs to conduct research on how to provide victims with effective remedy channels. The scope of such research should include, without limitation, the following:

1. Study how to enact rules governing Taiwan’s jurisdiction over cross-border litigation, including litigation filed in Taiwan by foreign nationals not domiciled in Taiwan (but note that, in doing so, we must act in line with the principles of substantive fairness, jurisprudence, and procedural economy).
2. Study the legality and feasibility of using measures other than fines to deal with the corporate criminal liability of Taiwanese and multinational corporations.
3. Multinational corporations often use overseas duty-free countries to establish subsidiaries, so we need to study whether the parent companies of multinational corporations are required to bear joint and several liability for indemnification of aggrieved parties when subsidiaries infringe upon the rights of other parties.
4. Cross-border actions for damages are sometimes filed in connection with environmental destruction caused overseas by multinational corporations, so we need to study whether there is a need to amend related laws and regulations (e.g. environmental protection legislation) to provide for an extended period of prescription.’

This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP25, Actions planned (page 54).

Read more about Taiwan

3.The core content of the National Action Plan on Business and Human Rights

3.1 Action plan on labour

3.1.3 Action Plan (2019–2022)

Pillar 3: Duties of the state and the business sector to provide remedy (Remedy)

No.	Issues	Activities	Responsible agencies	Time-frame (2019–2022)	Indicators (wide frame)	Compliance with National Strategy/ SDGs/UNGPs
3.	Administration of Justice	Develop criteria for approval and selection of migrant workers from three countries (Cambodia, Laos and Myanmar) to be the language coordinators to facilitate migrant workers who enter into the justice system. The coordinators should be trained in order to perform duties correctly, fairly and efficiently	– Ministry of Labour	2019–2022	–   Develop and improve criteria for selecting the coordinators –   Number of trainings for language coordinators	–   National Strategy for Social Cohesion and Just Society –   National Strategy for Public Sector Rebalancing and Development –   SDG 8, 10 and 16 –   UNGPs Articles 25, 26, 27, 28, 29 and  31
5.	Remedies	Review and revise the Compensation Act 1994 and modernize the Compensation Fund system to be transparent, fair and in line with international principles	–   – Ministry of Labour	2019–2022	–   Amount of benefits or criteria that have been reviewed or improved	–   National Strategy for Public Sector Rebalancing and Development –   SDG 8 and 10 –   UNGPs Articles 27, 28, 29 and 31
		Set up remedy mechanisms from both the government and private sectors at the regional level. Remedies should be in consistent with the needs of affected people and communities.	–   Ministry of the Interior (Department of Local Administration) –   Ministry of Justice	2019–2022	–   Mechanisms and remedy measures for adversely affected victims and victims of human rights violations as a result of business operations	–   Strategy for Public Sector Rebalancing and Development –   SDG 8 and 16 –   UNGPs Articles 25, 26, 27, 28, 29 and 31
		Review criteria of compensation under the Act on Compensation for Injured Persons and the Damages and Expenses for the Accused in Criminal Cases B.E. 2544 (2001) and the Amendment (No. 2) B.E. 2559 (2016) to cover migrant workers that have been victims of crime.	– Ministry of Justice	2019–2022	Meetings to review payment criteria for state compensation under the Act on Compensation for Injured Persons and the Damages and Expenses for the Accused in Criminal Cases B.E. –   2544 (2001) and the Amendment (No. 2) B.E. 2559 (2016) to cover migrant workers that have been victims of crime	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 25, 26, 27, 28, 29 and  31

 

3.2 Action plan for community, land, natural resources and the environment

3.2.3 Action Plan (2019–2022)

Pillar 3: Duties of the state and the business sector to provide remedy (Remedy)

No.	Issues	Activities	Responsible agencies	Time-frame (2019–2022)	Indicators (wide frame)	Compliance with National Strategy/ SDGs/UNGPs
3.	Prosecution	Determine punitive measures for business organizations that violate human rights	– Ministry of Industry	2019–2022	Proceeded with or imposed punitive measures for business organizations that violate human rights	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
		Expand ways to request services from the Justice Fund	– Ministry of Justice	2019–2022	Consider adding channels to receive services from the Justice Fund	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
		Develop measures to provide legal assistance to people and communities, such as providing legal advice and assistance in litigation in order to be able to access justice easily, conveniently, thoroughly and fairly	– Ministry of Justice	2019–2022	Developed measures to provide legal assistance to people and communities, to be able to access justice	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
		Increasing efficiency in civil and criminal proceedings in cases related to the environment, natural resources and land rights	– Office of the Attorney General	2019–2022	Relevant law enforcement officer strictly proceeded with civil and criminal cases related to environmental, natural resources and land rights	–   National Strategy for Public Sector Rebalancing and Development –   SDG16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31

 

3.3 Action plan for human rights defenders

3.3.3 Action Plan (2019–2023)

Pillar 1: State duties in protecting (Protect)

No.	Issues	Activities	Responsible agencies	Time-frame (2019–2022)	Indicators (wide frame)	Compliance with National Strategy/ SDGs/UNGPs
4.	Enhancing knowledge and understanding	Organize training and enhance potential development for lawyers as well as providing a list of lawyers and legal advisors with expertise in defending human rights cases	–   Ministry of Justice –   Office of the Attorney General	2019–2022	Activities and projects to train and develop capacity of human rights lawyers A list of lawyers and legal counsel with expertise and understanding in defending human rights cases	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 1, 3, 5 and 7

 

Pillar 3 Duties of state enterprises and the business sector (Remedy)

No.	Issues	Activities	Responsible agencies	Time-frame (2019–2022)	Indicators (wide frame)	Compliance with National Strategy/ SDGs/UNGPs
1.	Complaints/ petition for assistance	Establish a mechanism for petition and effective, appropriate and sufficient assistance to resolve violations of human rights that may arise from conducting business	–   Ministry of Justice –   Ministry of the Interior –   Ministry of Commerce –   Ministry of Industry	2019–2022	A mechanism for petition and effective appropriate and sufficient assistance to resolve violations of human rights that may arise from conducting business	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
3.	The proceedings	Provide assistance to access to justice process for human rights defenders	–   Office of the Attorney General –   Ministry of Justice	2019–2022	Channels/mechanisms/ measures in helping human rights defenders to access justice	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
		Enhance knowledge and skills for persons responsible for the law, regulation, and correct policy with justification for offenses outside the Kingdom	– Office of the Attorney General	2019–2022	Activities to enhance knowledge for the persons responsible for the law, regulation, and correct policy with justification for offenses outside the Kingdom	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
		Develop the capacity of witness protection officers by supporting resources, budgets, personnel and enhancing knowledge, expertise and skills in witness protection	– Ministry of Justice	2019–2022	Activity to continually enhance the potential of witness protection officers	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
4.	Remedies	Study and analyse the legal gap and obstacles to access justice for human rights defenders in order to improve reliable healing processes	– Ministry of Justice	2019–2022	Legal gaps and obstacles to access justice for human rights defenders studied	–   National Strategy for Public Sector Rebalancing and Development –   SDG 16 –   UNGPs Articles 24, 25, 26, 27, 28, 29 and 31

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CHAPTER THREE: SITUATIONAL ANALYSIS

3.7 Access to Remedy

Article 50 of the 1995 Constitution of the Republic of Uganda guarantees judicial remedy for human rights violations and in particular stipulates that, any person who claims that his or her fundamental or other right or freedom guaranteed under the Constitution have been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation. The judicial avenues for offering remedy to complaints of business-related human rights violations include the Civil Division of the High Court, the Environmental Tribunal, and the Industrial Court for employment and labour relations, among others. In the event of dissatisfaction, there are provisions for appeal to the Court of Appeal and further to the Supreme Court.

 

CHAPTER FOUR: STRATEGIES AND INTERVENTIONS

STRATEGIES

OBJECTIVE 1: To strengthen institutional capacity, operations and coordination efforts of state and non-state actors for the protection and promotion of human rights in businesses.

4.1.1 Capacity building for state and non-state actors on business and human rights

1. Strengthen the technical capacity of judicial and non-judicial agencies on business and human-rights related issues.

 

OBJECTIVE 5: To enhance access to remedy to victims of business-related human rights abuses and violations in business operations.

4.5.1 Strengthen access to remedy mechanisms against business-related human rights abuses and violations

(…)

III. Strengthening the capacity of judicial and quasi-judicial institutions to provide remedy to business-related human rights abuses and violations.

 

4.5.2 Improve access to legal services to communities affected by business-related human rights violations and abuses

1. Build capacity of lawyers, human rights defenders, judicial officers, communities and other stakeholders on access to remedy for human rights abuses and violations related to business operations.
2. Provide free legal aid services to communities affected by business-related human rights abuses and violations.
3. Strengthen linkages and referrals for human rights violations and abuses.
4. Promote alternative dispute resolution mechanisms.
5. Promote the use of regional and international remedy mechanisms for violations and abuses related to business.

 

CHAPTER FIVE: INSTITUTIONAL FRAMEWORK

 (…)

5.2 Uganda Human Rights Commission

(…)

x. Receive, investigate and adjudicate cases of human rights violations in business operations.

 

5.5 Ministry of Justice and Constitutional Affairs

1. Coordinate the formulation and review of legislation pertaining to business and human rights.
2. Promote access to justice for victims of human rights violations in business operations.
3. Innovate solutions to quicken conclusion of court cases.

(…)

5.16 The communities and households

The community and households will;

1. Strengthen social support networks and mechanisms to protect and promote the welfare of vulnerable groups.

 

The strategic implementation framework in the 1.0 Appendices includes: 

• Strategic Action, Objective 4.0: Empower communities to demand for protection and fulfilment of their rights and access to justice.
• Objective 5.0 – To enhance access to remedy to victims of business-related human rights abuses and violations in business operations.

Budgeted outputs in Annex I include:

• Strengthen the technical capacity of
judicial and non-judicial
agencies on business and human-rights related issues. (Objective 1.0)
• Review and strengthen the capacity and function the probation and labour department to handle labour-related grievances (Objective 1.0)
• Establishing and/ or strengthening laws, policies and grievance redress mechanisms to ensure accountability by businesses (Objective 2.0)
• Awareness raising on available remedy mechanisms for business-related human rights abuses and violations. (Objective 5.0)
• Strengthen laws and policies providing for effective remedies on business-related matters (Objective 5.0)
• Build capacity of lawyers, human rights defenders and judicial officers on access to remedy for business and human rights. (Objective 5.0)
• Provide free legal services to communities affected by business-related human rights abuses and violations. (Objetive 5.0)

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The 2016 Updated UK NAP reiterates a number of the commitments in relation to judicial remedy included within the UK 2013 NAP, but further notes that [page 20]:

“The UK has a range of judicial mechanisms that help to support access to remedy for human rights abuses by business enterprises both at home and overseas. This includes:

• Employment Tribunals provide access to remedy for abuses of labour rights
• Avenues to pursue civil law claims in relation to human rights abuses by business enterprises.”

The UK 2016 Updated NAP also refers to judicial remedy in action oriented section Actions Taken to Promote Access to Remedy and notes that the Government has [page 21]:

(iii) supported projects through the FCO Human Rights and Democracy Programme Fund on work on remedy procedures in other countries, including:

• help to States wishing to develop their human rights protection mechanisms and reduce barriers to remedy within their jurisdiction;
• support to civil society and trade union efforts to access effective remedy and promote protection of human rights defenders active on business and human rights;
• support to business efforts to provide, adopt or participate in effective grievance mechanisms.

v) commissioned an independent survey of the UK provision of remedy to help our understanding of judicial and non-judicial remedies available to victims of human rights harms involving business enterprises.

The UK 2016 Updated NAP, in the section Government’s Commitments, states that [page 22]:

“The Government will:

(i) continue to ensure that the UK provides access to judicial and non-judicial remedies to victims of human rights harms linked to business activity. We will keep the UK provision of remedy under review.

(ii) continue to support work on remedy procedures in other countries, including help to other States, civil society and trade union efforts and support to business efforts.”

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Providing Access to Remedy [page 23]

“As set out in the UN Guiding Principles, countries are responsible for taking appropriate steps to establish means by which those allegedly affected by human rights abuses may seek effective remedies. [the footnote states “Access to remedy encompasses judicial, administrative, legislative, and many other appropriate means of redress. As such, the United States notes that not all harms are necessarily redressable via individually enforceable judicial remedies in its domestic courts.”] However, not all countries have such mechanisms in place. As to remedies in the United States, the U.S. government will continue to help provide access to a grievance mechanism and the potential for remedy through its active USNCP for the OECD’s Specific Instance process and through the World Bank’s Stolen Asset Recovery Initiative. The U.S. government will also seek to strengthen judicial systems in other countries through its foreign assistance programs; to build consensus internationally for strong remedy mechanisms through its participation in the UN, OECD, ILO, and other multinational organizations and fora; and to advance its agenda on remedy through consultations at home with relevant stakeholders.” – Implementing Department or Agency: State

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I. GUIDING PRINCIPLES AND OBJECTIVES

2. Objectives

a) Overall objectives

Raising awareness and building capacity; reviewing and improving policies and laws and improving the effectiveness of the implementation of policies and laws (including improving efficiency and promoting access to remedies) in order to promote RBP in Viet Nam for the period of 2023-2027 to enhance the positive impacts and minimize the negative ones of economic and business development activities on society and the environment (focusing on investment and environment; protecting the legitimate rights and interests of workers, consumers and vulnerable groups), thereby contributing to promoting the circular economy and improving Viet Nam’s socialist-oriented market economy.

b) Specific objectives

– Improving the efficiency and quality of law implementation related to RBP of enterprises in Viet Nam, including improving efficiency in review, supervision and promotion of access to remedies;

II. TASKS AND ACTIONS

1. Raising awareness and building capacity for relevant agencies, organizations, businesses and people about policies and law on RBP

a. Training to raise awareness and strengthen capacity for relevant agencies and organizations, businesses and people about policies and law on RBP; capacity building for people with the authority to sanction administrative violations and investigators; improving the legal consultancy capacity for lawyers in activities related to RBP

– Lead agency: Ministry of Justice

– Coordinating agencies: Ministry of Planning and Investment, Ministry of Labor, War Invalids and Social Affairs, Ministry of Natural Resources and Environment, Ministry of Industry and Trade, Ministry of Public Security and other relevant ministries, ministerial-level agencies and government-attached agencies, People’s Committees of provinces and centrally-run cities, Viet Nam Women Union, Viet Nam Chamber of Commerce and Industry, Viet Nam Association of Small and Medium Enterprises, Viet Nam Cooperative Alliance, Viet Nam Bar Federation, Viet Nam Legal Practictioner Association, Viet Nam General Confederation of Labor, Viet Nam Consumer Protection Association, and industry associations.

– Outputs: Training materials, manual guidelines, training reports, trainings for awareness raising and capacity building; improved awareness and capacity on policies and law on RBP of agencies, organizations, enterprises, civil servants and people (including capacity of people with the authority to sanction administrative violations, investigators and lawyers) (through survey results);

– Deadline: 2027.

b. Capacity building for judges, prosecutors and relevant judicial titles in handling RBP cases in Viet Nam

– Lead agencies: Proposing the Supreme People’s Court and the Supreme People’s Procuracy to be in charge

– Coordinating agencies: Ministry of Justice, Ministry of Planning and Investment, Ministry of Labor, War Invalids and Social Affairs, Ministry of Natural Resources and Environment, Ministry of Industry and Trade, Viet Nam Bar Federation, Viet Nam Lawyer Association;

– Outputs: Reports on capacity building trainings; improved capacity of judges, prosecutors and relevant judicial titles in handling RBP cases (through survey results).

– Deadline: 2027.

2. Policy and law improvement

e) Other related fields

– Studying, reviewing and proposing amendments and supplements to the Civil Proceeding Code 2015 and related instruments to promote RBP (including drafting principles of evidence and responsibility for providing evidence in civil and administrative proceedings to create favorable conditions for disadvantaged parties when exercising the right to litigation; promoting the application of simplified procedures in dispute settlement in the fields of labor and consumer protection; building and improving friendly and accessible procedural models for PWDs, LGBTI, etc.)

+ Lead agency: Proposing the Supreme People’s Court to be in charge

+ Coordinating agencies: Ministry of Justice, Ministry of Planning and Investment, Ministry of Labor, War Invalids and Social Affairs, Ministry of Natural Resources and Environment, Ministry of Industry and Trade, Viet Nam Bar Federation, Viet Nam Lawyers Association and other agencies and organizations involved in judicial support

+ Output: Research and review of the Civil Proceeding Code 2015 and related documents and proposals and recommendations (if any); Resolutions and case precedents of the Judicial Council of the Supreme People’s Court

+ Deadline: 2027

– Studying and reviewing the law on handling of administrative violations in the fields of investment, labor, environmental protection, protection of vulnerable groups, and consumer protection to promote RBP

+ Lead agency: Ministry of Justice

+ Coordinating agencies: Ministry of Planning and Investment, Ministry of Labor, War Invalids and Social Affairs, Ministry of Natural Resources and Environment, Ministry of Industry and Trade and other relevant agencies and organizations

+ Outputs: Report on Studying and reviewing of the Law on Handling of Administrative Violations, decrees on sanctioning of administrative violations in the fields of investment, labor, environmental protection, vulnerable group protection, consumer protection and related documents, suggestions and recommendations (if any)

+ Deadline: 2027

3. Improving the efficiency of law and policy implementation

e) Some other related tasks and actions

– Guiding enterprises to conduct RPB; encouraging the development of internal self-remedial and preventive regulations (including procedures and principles for dealing with complaints; and regulations and rules on internal governance, business conducts and ethics in the form of Codes of Conduct to promote RBP)

+ Lead agencies: Viet Nam Chamber of Commerce and Industry, Vietnam Association of Small and Medium Enterprises, industry-specific business associations (according to relevant functions and tasks)

+ Coordinating agencies: Relevant agencies and organizations

+ Outputs: Codes of Conduct, Codes of Ethics; Tools and guidelines on RBP + Deadline: 2026

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