Judicial remedy is “[t]he manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.” (other forms of remedy exist, see Non-Judicial Remedy)
The form of remedy depends on the wrong committed and the liability which arises. Certain wrongs can give rise to criminal liability, certain wrongs can give rise to civil liability, and other wrongs can give rise to both forms of liability; it depends on the jurisdiction in question. Civil remedies are designed primarily to make victims whole, or put them back in the position they would have been in but for the wrong that injured them. Only a victim, or in some cases those close to the victim, can bring a civil law action against those who caused the wrong. Civil remedies often take the form of financial or non-financial compensation but can also include, for example, apologies, restitution, as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition. A criminal remedy or sanction is pursued by the state, with or without the involvement of the victim. Criminal remedies or sanctions against an individual person or legal entity (i.e. a business) can take a range of forms depending on the jurisdiction, which can include imprisonment, house arrest, community supervision, fines, restitution, and community service. Put simply, the difference between the criminal remedies or sanctions and civil remedies is that “criminal law is meant to punish, while the civil law is meant to compensate.”
International human rights law requires an effective remedy where an individual’s rights or freedoms have been violated. The legal source of the right to a remedy is dependent upon the origin of the right violated (e.g. a violation of the International Covenant on Civil and Political Rights (ICCPR), Article 6, the right to life, is subject to the ICCPR, Article 2(3), the right to an effective remedy).+ Read more
“Remediation and remedy refer to both the processes of providing remedy for an adverse human rights impact and the substantive outcomes that can counteract, or make good, the adverse impact. These outcomes may take a range of forms, such as apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.”
The UN has noted that:
“Ensuring corporate accountability for violations of [social, economic, and cultural] rights requires reliance on various tools. The most serious violations … should give rise to criminal liability of corporations and/or of the individuals responsible.”
Guiding Principle 25 of The UN Guiding Principles on Business and Human Rights (UNGPs) states that “[a]s 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.”
Guiding Principle 26 provides that “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.”
Juan José Álvarez Rubio and Katerina Yiannibas have noted that:
“Such barriers may include lack of jurisdiction by the courts of a particular state, questions of which law is to be applied, absence of duties of care on the parent company, availability of legal funding and representation, and many others. Overcoming these barriers requires states to conduct an assessment that will provide it with a clear view of which barriers are problematic in their own legal systems, and what should be done to have them eliminated.”
In order to improve national remedy systems in cases of human rights violations linked to businesses, and particularly in cases of serious violations, the UN Office of the High Commissioner for Human Rights (OHCHR) launched an “Accountability and Remedy Project” (ARP) in 2014. The ARP aims to prove States with “practical and action-oriented guidance and recommendations, suitable for a range of legal systems and traditions [..]”. The UN OHCHR’s final report, presented to the UN Human Rights Council in June 2016, “sets out guidance to improve accountability and access to remedy for victims of business-related human rights abuses”, which takes the form of “policy objectives” for domestic legal responses, supported by a series of elements intended to demonstrate the different ways in which States can work towards meeting those objectives in practice.
In 2017 the UN Working Group on Business and Human Rights conducted a survey “to learn about their efforts to implement the Guiding Principles on Business and Human Rights, as well as to identify the challenges, opportunities and policy innovations in this field.” The survey results are then used to inform the OHCHR’s report, which in turn, “aims to articulate what an effective remedy means under the UNGPs, develop a framework to realize effective remedies for the rights-holders, and elaborate the concept of reparations in the context of business-related human rights abuses.”
To tackle the gaps in the access to remedy for victims of human rights violations, caused by insufficient national level mechanisms as well as limitations stemming from the corporate law (corporate veil, separate legal personality), there are efforts undertaken at the international level aimed at the developing an international legal treaty on business and human rights, led by the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, and strongly supported by the civil society community gathered including the Treaty Alliance.
Although access to remedy has seen the least development out of the three pillars within the UNGPs, a positive example is provided by the French Corporate duty of vigilance law of 2017. The European Coalition for Corporate Justice has noted that:
“The French corporate duty of vigilance law establishes a legally binding obligation for parent companies to identify and prevent adverse human rights and environmental impacts resulting from their own activities, from activities of companies they control, and from activities of their subcontractors and suppliers, with whom they have an established commercial relationship.
The companies covered by the law – it only applies to the largest companies established in France – will assess and address the risks of serious harms to people and the planet under annual, public vigilance plans. Liability would apply when companies default on their obligations, including the absence of a plan or faults in its implementation.
With this new law, interested parties – including affected people and communities – are empowered to hold companies accountable. They can require judicial authorities to order a company to establish, publish and implement a vigilance plan, or account for its absence. Interested parties may also engage the company’s liability through civil action and ask for compensation if the violation of the legal obligation has caused damages.”
The UK Modern Slavery Act 2015 (MSA) established three criminal offences: (i) slavery, servitude and forced or compulsory labour (s1), (ii) human trafficking (s2) and (iii) committing any offence with the intent to commit human trafficking (s4). If businesses fail to respect it, they may face criminal prosecution and will be also exposed to civil prosecution. The first case under the MSA resulted in the High Court of England and Wales holding that a company had failed to pay the national minimum wage, had made unlawful deductions from wages and had failed to provide adequate facilities to wash, rest, eat and drink, and were ordered to pay compensation to the victims. The first conviction of a UK business person for conspiracy to traffic was in connection with the supply of labour and saw him sentenced to 27 months in jail. Focus on Labour Exploitation have detailed the varying forms of compensation available to victims of human trafficking in the UK.
Additionally, the MSA requires that businesses (with a turnover above £36m) prepare a slavery and human trafficking statement for each financial year, which must be signed by a director and approved by the Board before being published in a ‘prominent’ place on the organisation’s website, and provisions concerning the personal liability of the director and board members also come into operation, which means that they could be sued for making an untruthful statement if the information provided is proved misleading or dishonest under the UK Fraud Act 2006.
A good example of legislation that provides a remedy for victims is the UK Corporate Manslaughter and Corporate Homicide Act 2007, which introduced an offence of corporate manslaughter (known as corporate homicide in Scotland) in the UK and according to which an organisation will be guilty of corporate manslaughter if the way in which its activities are managed or organised causes a person’s death; the death results from a gross breach of a duty of care owed by the organization to that person; and the senior management had organised or managed the organisation’s activities in such a way to be a substantial element of the breach. The Corporate Manslaughter and Corporate Homicide Act does not apply to individuals, but if found guilty, an organisation will be subject to an unlimited fine. The law also provides for individual criminal liability independent of that of the organisation.
Judicial remedies relates to the following Sustainable Development Goal
The International Corporate Accountability Roundtable (ICAR) (2015) Parent Company Accountability – Ensuring Justice for Human Rights Violations
The International Corporate Accountability Roundtable (ICAR), CORE and The European Coalition for Corporate Justice (ECCJ) (2013) The Third Pillar – Access to Judicial Remedies for Human Rights Violations by Transnational Business
Justice Ian Binnie and Anita Ramasastry (2016) The Corporate Crimes Principles: Advancing Investigations and Prosecutions in Human Rights Cases
What National Action Plans say on Judicial remedy
Action point 2
Prepare a brochure on grievance mechanisms related to public authority
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
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
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
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.
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.
- Action Point X is dedicated to judicial grievance mechanisms:
- Action point 10.1 (p. 23)
“The Council to the President for Human Rights will encourage the Ombudsman’s Office to lead the implementation of the access to remedy policies covered by this Action Plan, and to develop a specific training effort for its officers at the territorial and local levels.”
- Action point 10.2 (p. 23):
“The Working Group on Business and Human Rights, within the year of the Plan being launched, will draw a map of the current judicial and non-judicial remediation mechanisms on business and human rights in the country. Such map will identify which mechanism responds to each type of conflict, and will include a diagnostic of the efficacy and efficiency of the access to judicial and non-judicial remedy mechanisms, according to the United Nations Guiding Principles, identifying the obstacles to access to justice by the affected populations, both legally and practically.”
- Action point 10.3 (p. 23):
“Upon the Plan’s launching, the entities part of the Working Group, supported by the Ombudsman’s Office will provide advice on access to the current judicial and non-judicial remediation mechanisms in the country, through its communication channels with citizens. Once completed the mechanism map, the collected information therein is to guide the assistance provided to citizens.”
- Action point 10.4 (p. 23):
“The Ministry of Justice will prepare a gradual adjustment plan to mitigate the primary obstacles to access to effective judicial remedy as identified in the aforementioned mechanism map.”
- Action point 10.5 (p. 23):
“The Ministry of Justice, together with the Council to the President for Human Rights will design strategies to train judicial operators in the international standards on Business and Human Rights within the year of the Plan’s launching.”
- Action point 10.1 (p. 23)
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.
- 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]
- 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.
- 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).
- 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.
- 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).
- 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
- 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.
- Raise awareness among consumers of the possibility of resolving consumer disputes extrajudicially.
Coordinator: Ministry of Trade and Industry
- 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).
- 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.
- 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
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.”
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.”
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.
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.”
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.
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.
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.”
- “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”.”
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.”
II. Background and Context
…The UN Guiding Principles (in line with the Framework) rest on three pillars:
3) ACCESS TO REMEDY: The need to guarantee greater access to an independent and effective remedy in case of human rights abuse, both at judicial and non-judicial level.
IV. Government Responses: Current activities and future commitments
B) Operational Principles
General State regulatory and policy function
GP 3 (a)
The Administrative Liability of Entities [page 14]:
Decree 231 of 2001 has introduced the direct liability of legal entities for specific offences (corruption, money laundering, bribery, fraud, etc.) providing for a special form of liability, which is administrative in nature but to be ascertained by a penal judge and according to criminal law procedures …
UN Guiding Principles 25 (effective remedy) and 26 (domestic judicial mechanisms) [page 26]:
The Italian legal system ensures access to effective remedies to protect against human rights violations occurred within its territory: art. 24 and art.111 of the Italian Constitution guarantee the right to be heard in Court and take judicial action for the protection of his/her own rights and legitimate interests, and right to a fair trial.
As far human rights abuses by business, the Italian government must indeed guarantee that victims of human rights abuses by business may exercise their right to effective remedy. The right to an effective remedy is a human right, which has to be guaranteed by a competent, independent, and impartial authority established by law.
With regard to Criminal Law, the Italian legal system generally applies the principle of territoriality as a limit of the efficacy in space of Italian law; however, this principle is subject to exception with regard to the criminal conducts or offences against universal human values such as genocide, slavery, terrorism, etc. In particular, article 7 of the Italian penal code provides for a universal definition stating that for specific offenses the Italian penal law may apply even if the crime is totally committed abroad (outside national boundaries) both by nationals and foreigners. This article, in particular is recalled also with regard the law 231 on the administrative responsibility of entities: art. 4 of law 231 states that in cases falling under art. 7 of criminal code, the enterprise having its headquarter in the state territory is held accountable also in relation to crimes committed abroad, if the state where the offense occurred did not yet proceed against it.
In order to facilitate awareness of the available remedies, improve the efficiency of the judicial system, and better guarantee the right of access to judicial remedy, Italy undertakes to:
- Within the framework of the monitoring mechanism set in the Plan (see par. V) give special attention to the following priorities:
- Conduct a review of the legal mechanisms and develop a practical and comprehensive toolkit of the remedies available in domestic law;
- Identify eventual gaps and/or existing barriers jeopardising access to judicial remedy for victims of business-related human rights abuses especially with regard to extraterritorial violations also basing on the relation between parent company and subsidiary;
- Evaluate the introduction of relevant additional legislative measures to strengthen access to effective remedy both in civil, criminal and administrative law;
- Within the framework of the on-going parliamentary activity of reform of judicial system, raise the awareness on the following priorities:
- remedies against the excessive length of civil proceedings;
- measures to strengthen special courts for enterprises by extending their competence to consumer protection-related claims, misleading advertising and unfair competition;
- special court sections for human rights (especially children rights) and family issues;
- introduction of criminal provisions against economic crimes, also committed abroad;
- verification of the possibility of introduction of the class action.
- Activate, with the assistance of the CIDU, and also through the collaboration with the Ordine Forense, training courses for judges and lawyers on the legal implications of business and human rights;
- Keep adequate level of funding for legal aid and guarantee its access also to non-national and non-resident claimants, in particular irregular migrants victims of crimes perpetrated by organised criminal network, such as trafficking and smuggling and allow them to denounce crimes irrespectively of their status.
Guiding Principles 28, 30, and 31 [page 29]:
Italy recognizes that judicial state-based mechanisms are at the core of the State’s ability to guarantee the full access to effective remedy against human rights abuses…
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.”
Part I – Rational Framework for the development, adoption and implementation of the NAP
1. International Context
1.1. United Nations (pg. 12)
…Under their terms of reference, “Protect, Respect and Remedy,” the 31 United Nations Guiding Principles on Business and Human Rights:
c. Underline the need for appropriate and effective remedies – judicial and non-judicial – for human rights violations at both State and enterprise levels (Guiding Principles 25- 31).
Part II – Process of the NAP
1.1. A formal engagement from the Government for a NAP (pg. 20)
… In this respect, it is important to emphasize that the UN Guiding Principles on Business and Human Rights do not impose new legally binding obligations for companies. The Government reserves the right to consider the full range of authorized prevention and remediation measures, including … judicial proceedings.
Part III – NAP
1. Declaration of Engagement (pg. 26)
… the Government [of Luxembourg] recognizes the implementation of the UN Guiding Principles as the primary vector for preventing negative impacts on human rights from companies’ activities and, where appropriate, for accessing remedy in lieu of their consequences. As such, the Guiding Principles form the basis of this NAP.
The Dutch NAP contains a section on access to remedy.
3.5 Scope for Remedy [32-38]
“The consultations showed that the government has a major role to play in creating scope for remedy to implement the 3rd pillar of the Ruggie Framework, and providing information on the matter. Suggestions varied from providing more information on existing access to remedy through the embassies, to promoting complaint mechanisms at company level and encouraging dialogue between companies and communities under the leadership of an impartial mediator or facilitator. The ACCESS Facility was mentioned as an initiative that could receive support as part of the action plan.
In his commentary on the 3rd Pillar of the Principles, Professor Ruggie points out that grievance mechanisms may take various forms, but their aim will always be to counteract or make good any abuses. Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions, as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition. The term grievance mechanism is used to indicate any routinised, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought.
The ACCESS Facility was set up in December 2012 with a view to knowledge building and improving access to effective dispute settlement between companies and communities either in or out of court. ACCESS supports and facilitates local dispute settlement mechanisms, since it is convinced that local solutions are the most effective and sustainable, and that companies and other interested parties will only use dialogue and mediation if they have confidence in both the design and function of the relevant mechanisms. Since the government believes that the ACCESS Facility clearly provides added value, it has awarded start-up funding under the Human Rights Fund.
“On the basis of Dutch civil law, victims of abuses that have taken place in the Netherlands can claim compensation in the civil law courts. Where an unlawful act has been committed, the court may order the company not only to cease the abuse but also to compensate for the damage caused to the victim (article 6:162, Civil Code). Dutch criminal law provides limited scope for payment of compensation.
In 2009, Professor Alex Geert Castermans and Dr Jeroen van der Weide of Leiden University conducted research into the legal responsibility of Dutch parent companies for the involvement of their subsidiaries in human rights abuses. In practice, companies often make use of a group structure. In these cases, the Dutch parent company is at the head of a group of subsidiaries, which may be located in various countries. Within a group too, each independent legal person is responsible for its own acts. Each legal person is therefore liable for any harm that may be caused by its actions.
Under the rules of private international law, a dispute about harm is judged on the basis of the law of the country in which it has occurred. If it is the result of the actions of a foreign subsidiary of a Dutch parent company, any liability on the part of the parent company will also be judged under the law of the country where it has occurred. Should the subsidiary in question be located in another country, the liability of the Dutch parent company will be judged according to the law of that country. A Dutch civil court may declare itself competent if there is a sufficiently close relationship with a Dutch legal person.
In the consultations, a number of the people interviewed suggested providing more opportunities to gain an understanding of the legal and organisational structures of groups and the relations of control, and to promote transparency regarding the impact of their operations on human rights. The Minister of Security and Justice will inform the House of Representatives separately on the obligations of companies to provide information.”
Legal aid fund
“During the consultations, it was suggested that more financial support should be provided for alleged victims, enabling them to institute proceedings. A fund was proposed to contribute to the costs, including those incurred in collecting evidence and carrying out investigations. Alleged victims usually have fewer resources at their disposal to take a case to court than a company.
In the government’s opinion, a fund is unnecessary, because the regular legal aid scheme provides scope for support in paying legal costs. In the event of claims for compensation from parent companies in the Netherlands, non-Dutch nationals are also entitled to legal aid.
Access to the courts is not as easy in every country. The Netherlands is therefore committed to strengthening countries’ business climate and, in particular, national legal infrastructure, and providing victims in every country with adequate access to remedy mechanisms. It supports capacity development and enters into strategic partnerships with organisations such as the International Development Law Organisation (IDLO).”
4. Action Points
Scope for remedy [page 42]
“In 2014, the Netherlands will organise a conference on judicial and non-judicial grievance mechanisms, together with the ACCESS Facility.”
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.”
1. History of the initiative [page 4]:
It is essential that states ensure the effective judicial and extrajudicial enforcement of mechanisms for the handling of complaints on human rights violations in connection with economic activity. According to the Guiding Principles, victims should be given access to remedies and the possibility of redress for any harm incurred.
Pillar I: The state’s duty to protect human rights
1. Regulations relating to business and human rights under Polish law
Freedom of association [page 13]:
In accordance with Article 35(1)(c) of the Act on Trade Unions, discrimination against an employee because of his or her membership in a trade union, non-membership in a trade union, or the holding of a trade union function may result in criminal liability.
Pillar III: Access to remedies
1. Current Situation Regarding Access to Legal Remedies
Protection under civil law [page 38]:
The civil-law instruments that make it possible to seek judicial protection of claims by those affected by the activities of enterprises include:
- lawsuits: Article 187 et. seq. Code of Civil Procedure;
- class-action lawsuits under the Act of 17 December 2009 on Collective Redress Litigation (Journal of Laws, 2010, Item 44).
By applying these civil-law instruments, those affected can seek judicial protection of their personal interests, as well as claims for damages (personal or property).
According to Article 23 of the Civil Code (CC), the personal interests of a human being, in particular their health, freedom, dignity, freedom of conscience, name or pseudonym, image, privacy of correspondence, inviolability of home, and scientific, artistic, inventive, or improvement achievements are protected by civil law, independent of protection under other regulations. Article 24 § 1 and 2 CC stipulates that any person whose personal interests are threatened by another person’s actions may demand that the actions be ceased unless they are not unlawful. In the case of infringement, they may also demand that the person committing the infringement perform the actions necessary to remove its effects, in particular that the person make a declaration of the appropriate form and substance. Under the terms of the Civil Code, one can also claim monetary recompense or payment of an appropriate amount of money for the social cause indicated (Article 448 CC). If damage has been caused due to an infringement of a personal interest, the injured party may demand a remedy in accordance with general principles (Article 415 et seq. CC). The prerequisites for protecting personal interests that must be met together are: the existence of a personal interest, the threat or violation of that interest, and the unlawfulness of the threat or the violation.
The first two premises must be proven by the plaintiff seeking protection, while the defendant can defend themselves, demonstrating that they did not act unlawfully. The distribution of the burden of proof is therefore favourable to the plaintiff.
The legislator introduced the presumption of unlawfulness of the infringement of personal interests (Article 24 § 1 CC). However, claims cannot be made if the perpetrator demonstrates that the occurrence of one of the circumstances rules out the unlawfulness of the action, and they thus indicate the circumstances that justified the infringement of a particular personal interest.
The provisions of Articles 23 and 24 CC suggest that the protection of personal interests is comprehensive. Its exercise may take on a different character and be pursued through various measures, which may be both non-financial and financial in nature.
Non-financial protection measures include:
a) – claim for cessation;
b) – claim for removal of the effects of an infringement;
c) – Assertion lawsuit;
Financial protection measures include:
d) – claim for redressing non-financial damage;
e) – claim for recompense for property damage;
f) – claim for restitution of unjust enrichment;
g) – claim for non-performance of an agreement;
h) – claim for non-performance of an agreement (contractual liability).
Re: a). Claim for cessation
This claim, provided for in the first sentence of Article 24 § 1 CC, has a broad application. The premise is that somebody’s personal interests are threatened by another person’s unlawful actions. The eligible party may only demand that the actions be ceased.
The claim for cessation may be made primarily in the case of an infringement of personal interests, but there is a risk of further infringements in the future. In such a case, it will usually accompany claims for removal of the effects of an infringement or for redress. This measure can also be used in situations where there is only a risk of an infringement occurring in the future.
Re: b). Claim for removal of the effects of an infringement
The catalogue of measures to remove the effects of an infringement of personal interests is not exhaustive. When choosing the measures to remove the effects of an infringement of personal interests, account should also be taken of all circumstances, such as the behaviour of the person whose interests have been infringed, and, in particular, whether they provoked the incident. Issuing a statement is the most common measure of removing the effects of an infringement of dignity, privacy, or bodily integrity, whereas the content and form of the statement depends on the circumstances of the case. The option includes a withdrawal, an apology, a regret, a rectification, or an explanation of certain facts. An appropriate form is understood to be the manner in which the statement is communicated to third parties or the general public.
Re: c). Assertion lawsuit
Apart from the measures of non-financial protection of personal interests explicitly listed in Article 24 CC, the eligible party may also file a lawsuit to assert that it is entitled to a certain personal interest or that the interest has been infringed or threatened—the claim will be based here on Article 189 of the Code of Civil Procedure.
Re: d). Claim for monetary recompense
According to Article 24 § 1, in the case of an infringement of personal interests in accordance with the terms laid down in the Civil Code, the eligible party may demand monetary recompense or that an appropriate amount of money be paid to a specific public cause.
The provisions in question include:
- Article 445 CC, providing the possibility of awarding redress in the event of injury, induced health disorder, deprivation of freedom and inducement using deceit, violence or abuse of a dependence relationship to submit to an illicit sexual act. The act of harm must be an act of tort, but the principle of responsibility (fault, risk, equitability) is indifferent.
- Article 448 CC, according to which, in the event of infringement of one’s personal interests, the court may award to the person whose interests have been infringed an appropriate amount as monetary recompense for the harm suffered or may, upon their request, award an appropriate amount of money to be paid to a social cause chosen by them, irrespective of other means necessary to remove the effects of the infringement. In this case, the act of harm may be an act of tort, but the provision covers events of infringement of personal interests other than those referred to in Article 445 CC. The liability principle will manifest itself as fault only in the case of liability for one’s own act (Article 415 CC), but if the infringement of personal interests results, e.g., from an action on the part of an enterprise (Article 435 CC), establishing fault will not be required.
- Article 446 § 4 CC, according to which the court may also award an appropriate sum to the closest members of the deceased’s family as monetary recompense for the harm suffered. The principle of liability (fault, risk) will also depend on the basis of liability in this case.
Re: e). Claim for recompense for financial damage (personal injury)— ‘tort liability’.
Recompense for financial harm (personal injury) may be awarded in accordance with general principles, e.g., Article 415 et. seq. CC. In the case of an infringement of certain personal interests (health), the principle will apply to both financial and non-financial damage.
Re: f). Claim for restitution of unjust enrichment
An infringement of certain personal interests may lead to unjust enrichment of the perpetrator. This applies to incidents of financial exploitation of certain personal interests (image, name, right to privacy). It should be noted that the commercial use of personal interests, by concluding relevant agreements (e.g., to use an image or name in an advertisement, write a biography) may be the source of significant benefits.
Gaining benefits at the expense of another person without concluding a relevant agreement creates an obligation to return those benefits to the eligible party (Article 405 CC). Enrichment in this context means the expenditure saved against the conclusion of the relevant agreement. The entitled party will be impoverished by the same amount: due remuneration has not been included in his or her property. The party using the personal interests of another person for commercial purposes benefits unjustly at the expense of the entitled party. For such a claim, it is not important whether the eligible person was able to or wanted to use their interests commercially. In spite of the lack of harm, the entitled party may claim for restitution of enrichment.
Moreover, apart from the above-mentioned claims for damages in case of personal injury, individuals are entitled to adequate compensation claims in the event of financial harm. With regard to personal injury, these claims are based on the provisions of Article 415 et. seq. CC, including Article 435 CC referred to above.
According to Article 415 CC, anyone who, through their own fault, causes damage to another person is obliged to remedy it. This provision lays down general rules for liability for damage (to property and personal) caused by events called acts of tort, constituting so-called tort liability. Events causing damage (act of tort), the occurrence of damage itself, and the causal link between the incident and the damage are the premises of tort liability based on the perpetrator’s fault.
A person obliged to pay compensation is liable only for the normal consequences of the actions or omissions from which the damage arises (Article 361 § 1 CC). As a rule, the principle of full indemnity applies; thus, the remedy for damage covers the losses that the aggrieved party suffered and the benefits that it could have obtained had it not suffered the damage (Article 361 § 2 CC).
It is important to note that the above-mentioned general principles are modified when damage is caused by an action taken by an enterprise or establishment. In this regard, Article 435 CC provides that a person who runs their own business or an establishment set in motion by natural forces is liable for any personal or property damage caused by the operation of the enterprise or the establishment unless the damage is due to force majeure or solely to a fault on the part of the aggrieved party or a third party for whom they are not responsible.
[There is no paragraph g) contained within the NAP]
Re: h). Claim for non-performance of an agreement (contractual liability)
Protection under the law is also based on the disposition resulting from the content of Article 471 CC. According to this provision, a debtor is obliged to remedy any damage arising from non-performance or improper performance of an obligation unless the non-performance or improper performance is due to circumstances for which the debtor is not liable. The recompense for non-performance of an agreement under Article 471 CC is performance aimed at compensating for the damage caused by an unlawful action or omission on the part of the debtor. It has a different character than a claim for performance of an agreement, as its purpose is to compensate for the damage caused by the improper behaviour of the contractor, rather than to force the contractor to fulfil the obligation under the agreement. On the other hand, if the performance of a service is inconsistent with the content of the obligation, the creditor is entitled to claim recompense for the damage resulting from improper performance of the obligation.
Contractual liability covers any—even the slightest—infringement of an obligation. This refers both to instances of non-performance or improper performance of an obligation indicated in the provisions of Article 475 and Articles 476-482 CC (performance impossibility, delay default) and to any other discrepancy between the correct performance of a contractual obligation and the actual behaviour of the debtor.
According to Article 471 of the Civil Code, the debtor’s contractual liability arises if the following conditions are met:
1) damage to the creditor occurs in the form of financial damage;
2) the damage was caused by the debtor’s non-performance or improper performance;
3) there is a causal link between the fact of improper performance or non-performance of an obligation and the damage suffered (Article 361 et seq. CC).
The burden of proving the above conditions rests, in light of Article 6 CC, on the creditor, as the person who derives the legal consequences from these facts.
The debtor’s liability for non-performance or inadequate performance of an obligation has been formulated in accordance with the principle of fault. However, Article 471 CC contains a presumption that non-performance or improper performance of an obligation has been caused by the circumstances for which the debtor is liable. Acceptance of the debtor’s liability is not therefore conditional on the creditor’s proving that non-performance (or improper performance) of the obligation is a consequence of the circumstances for which the debtor is liable (Supreme Court judgment of 19 January 2002, V CKN 630/00).
The Provisions of the Penal Code [page 42]:
Under the Penal Code (PC), there are a number of provisions that can cover violations of human rights in connection with business activities. According to Article 53 § 2 of the Penal Code, in imposing a penalty, the court must, above all, take into account the motivation of the perpetrator, which may be, e.g., desire for personal gain. It is important to note that this provision applies to all crimes listed in the Penal Code. Provisions of substantive law should also be noted here, such as those concerning crimes against the rights of individuals performing paid work provided for in Chapter XXVIII (Articles 218-221 PC). In this context, it is worth mentioning the amendment to the Penal Code that introduced a definition of slavery (Article 115 § 23 PC) and a definition of trafficking in human beings (Article 115 § 22 PC) modelled on the standards set by the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings. Penalisation was provided not only for the act itself, but also for the preparatory stage for its execution (Article 189a PC). In connection with Council Decision (EU) 2015/2071 and Poland’s ratification of the Protocol of 2014 to Convention No 29 on Forced Labor of 1930, it is advisable to continue the work on verifying whether the provisions related to forced labor under Article 115 § 22 PC are sufficient to penalise the phenomenon of trafficking in human beings for forced labor.
Liability of collective entities [pages 42-43]:
According to the law, the liability of collective entities refers to prohibited acts that are offences (including fiscal offences) within the meaning of relevant substantive law. The exhaustive catalogue of punishable acts is broad and refers to a number of offences that are relevant for the protection of human rights, including prohibited acts against economic relations, sexual and moral rights, humanity, the environment, property, or related to terrorism. In order to secure the proper course of proceedings, even before they are initiated, it is possible to apply to the competent court to issue an order freezing the property of the collective entity for imminent penalty or forfeiture (Article 26 of the Act). In addition, the court may apply a preventive measure in the form of a prohibition of merger, division, or transformation of the collective entity while conducting proceedings against it, and also of encumbering its estate at that time or disposing of property without the consent of the court. Proceedings are initiated at the request of a prosecutor or the aggrieved party, and in cases concerning prohibited acts recognised by the law as acts of unfair competition, the proceedings may also be initiated at the request of the President of the Office of Competition and Consumer Protection. Under the law, the court may impose a financial penalty of between PLN 1,000 and PLN 5,000,000 against a collective entity, but not more than 3 per cent of its revenue generated in the financial year in which the offence constituting the basis of the collective entity’s liability was committed. In addition, the court may apply several other sanctions against a collective entity. To enforce a financial penalty, forfeiture, prohibitions, and to make the judgment public under Article 42 of the aforementioned law, the provisions of the Executive Penal Code are applicable, respectively, regarding the enforcement of a fine, forfeiture, prohibitions, and publication of the judgment, with the penalty being payable from the revenue of the collective entity. Furthermore, the determination or absence of the liability of a collective entity under the provisions of the law in question does not exclude the possibility of determining civil liability for the damage caused, administrative liability, or individual criminal liability of the perpetrator of the offence.
Legislative work is currently under way at the Ministry of Justice to change the provisions of the law. It will aim to increase the effectiveness of the collective liability system, especially with regard to combating serious economic and fiscal crimes. As practice shows, there is a need for significant improvements in the effectiveness of the existing mechanisms, as evidenced by the small number of cases against collective entities. In 2015, 14 cases were submitted before the courts; in 2014, 31 cases; in 2013, 26 cases. Analyses also indicate an insignificant amount of fines imposed under the law, which may indicate that it is used mainly for small collective entities. This leads to the conclusion that the model adopted in Poland requires substantial changes. The planned amendment is at the stage of preliminary analytical work.
Access to pre-trial assistance [page 43]:
In this context, it is also necessary to mention legal assistance at the pre-trial stage, which is a new mechanism under Polish law, facilitating access to the protective measures described above. The system of gratuitous legal assistance was launched on 1 January 2016, and is accessible from 1524 locations throughout Poland. These centres were established as a result of cooperation between the central administration and local governments. Some of the existing centres were entrusted to specialised nongovernmental organisations. Advice is given primarily by lawyers and legal advisors, and relates to cases at the pre-trial stage. Free legal services can be used by, among others, social assistance beneficiaries, Large Family Card holders, veterans, or individuals under the age of 26 or older than 65. Assistance is offered in the form of, e.g., advice about legal status, rights or obligations, presentation of a solution to a case, or preparation of necessary letters and documents.
Planned and ongoing activities a [page 52]:
Continuation of activities to ensure access to court and out-of-court remedies.
International Legal Framework in Force in Poland [page 56]:
In international law, there are no treaty provisions that impose obligations on international enterprises to respect human rights and make them liable for human rights infringement. Nevertheless, in certain multilateral conventions, states undertake to establish their jurisdiction over the extraterritorial activities of legal entities falling within the scope of the convention in question. Treaties of this kind provide for the obligation to introduce criminal liability for legal entities in national legislation. The agreements of this type to which Poland is a party include:
- Council of Europe Criminal Law Convention on Corruption of 27 January 1999 (Journal of Laws of 2005, Item 249);
- OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1999 (Journal of Laws of 2001, Item 264);
- Council of Europe Convention on Cybercrime of 23 November 2001 (Journal of Laws of 2015, Item 728)
- Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005. (Journal of Laws of 2009, Item 107);
- Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse of 25 October 2007 (Journal of Laws of 2015, Item 608).
- Directive 2014/95/EU on disclosure of non-financial and diversity information by certain large undertakings and groups.
Guiding Principle 25
“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.”
“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.”
“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.
“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.”
“Specific training on business and human rights will be provided to judges and prosecutors.”
“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
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.
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.”
5. National Action Plan on Business and Human Rights
5.7. Pillar 1: state duty to protect
5.7.1 Fundamental principles
Guding Principle 2: Business enterprises’ foreign operations [page 13]
The Federal Council regards preventing human rights abuses by Swiss companies abroad, and ensuring access to effective remedy, as integral parts of its State duty to protect and its constitutional mandate to promote respect for human rights. This is particularly true with regard to the foreign activities of companies that are based in Switzerland.
However, in view of the political, legal and practical obstacles to the extraterritorial pursuit of policy and application and enforcement of law, the federal government is concentrating on domestic measures, the reach of which extends to partner States and the activities of business enterprises abroad. It also promotes international agreements and standards. As part of its international cooperation efforts, it supports States in the fulfilment of their duties under international law to protect.
5.8. Pillar 3: access to remedy
5.8.1 Fundamental principle
Guiding Principle 25 [page 36]
The Federal Council acknowledges its duty to grant access to remedy to 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 country have no appropriate access to effective remedy. A smart mix of judicial and non-judicial mechanisms will be considered.
5.8.2 Operational Principles: State Judicial Mechanisms
Guiding Principle 26 [page 36-38]
The UNGP describe practical and procedural obstacles as court costs, lawyers’ fees, the lack of opportunity for representative proceedings, or a lack of resources, specialist knowledge and support on the part of public prosecutors. These barriers can make it difficult for those affected by human rights abuses to seek remedy via the channels provided for in law. In international cases additional issues concerning jurisdiction and applicable law may arise.
The Federal Council recognises the importance of effective domestic judicial mechanisms to punish offenders and grant remedy to victims of human rights abuses connected with business enterprises. The extra-territorial dimension of any judicial mechanisms must be examined here. 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 to appeal before Swiss courts. The competence of these courts to hear such cases, as well as the applicable law, must be assessed individually with reference to the applicable legal basis.
Judicial competence must be reviewed first in international cases. Here, treaty law must be considered in addition to national law. The rules of jurisdiction will determine whether or not an action can actually be brought before a Swiss court. The question of what law should apply to the action arises only in the second phase. This law will determine whether or not a business enterprise bears any liability and, if so, according to what rules. Both questions must be examined independently.
For tort cases brought under private law in Switzerland against Swiss-based companies, the place of jurisdiction must always be stated as Switzerland (Art. 2 International Private Law Act (IPLA)101 and Art. 2 of the Lugano Convention 102). Action may even be brought in Switzerland against business enterprises based abroad, if the damage or loss (from a violation of human rights, for example) is realized or has had a direct impact in Switzerland, or was caused from a branch in Switzerland (Art. 129 IPLA, Art. 5 nos. 3 and 5 of the Lugano Convention). Art. 3 IPLA also provides for emergency Swiss jurisdiction if proceedings abroad are impossible or unreasonable. The condition here is that the case being brought has a sufficient association with Switzerland.
The success of any action, and especially the question whether or not a tort can be ascribed to a particular party, depends on the applicable law. In Swiss courts, this is determined for torts by Article 132 et seqq. IPLA. However, by virtue of the provisions on public policy (order public, Art. 17 and 18 IPLA), fundamental tenets of Swiss law –specifically human rights –apply irrespective of the law applicable to a given case.
Under certain circumstances, a business enterprise may face criminal prosecution under the General Provisions of the Swiss Criminal Code, in addition to the natural persons who have committed the punishable act, and who are punishable first and foremost.
PI45 Evaluation of access to Swiss courts and of the removal of practical and procedural obstacles
In 2014, the federal government commissioned a study from the SCHR on jurisdiction in cases of infringements of human rights by transnational business enterprises. It is intended in part to set out the legal options, and any barriers to access to Swiss courts. The analysis concentrates on the ways in which those affected by human rights abuses committed by Swiss companies abroad can claim effective remedy before Swiss courts. The study will also create a basis on which to evaluate Switzerland in comparison with the international community, and to identify the options for any future measures.
In fulfilment of postulate 14.3663 Zugang zur Wiedergutmachung [‘Access to remedy’], submitted by the Council of States Foreign Affairs Committee, the Federal Council is also analysing which judicial and non-judicial measures are being put in place by other States to permit persons whose human rights have been violated by a company in a host state to seek remediation in that company’s home State. The SCHR and the Swiss Institute of Comparative Law are drawing up the study jointly. Work is scheduled to be completed by the end of 2016. Drawing on the study, by 2019 the Federal Council will then examine the implementation of possible measures in the Swiss context, with a view to the revision of the National Action Plan on Business and Human Rights.
As part of work in fulfilment of motion 14.4008 Anpassung der Zivilprozessordnung [‘Amendment of the Civil Procedure Code’] and postulate 14.3804 Zivilprozessordnung. Erste Erfahrungen und Verbesserungen [‘Civil Procedure Code. Initial experience and improvements’], the Federal Council is currently examining the law of civil procedure that has been in effect since 2011 in order to identify shortcomings and weaknesses. It will submit any proposed revisions to Parliament by the end of 2018 at the latest. The situation with regard to legal costs, in particular, is to be investigated.
Furthermore, in fulfilment of motion 13.3931 Förderung und Ausbau der Instrumente der kollektiven Rechtsdurchsetzung [‘Furthering and extending class action instruments’], the Federal Council is also currently drawing up draft bills which will make it easier for a number of injured parties in low-value and mass claims to bring a class action. Individual aspects of the existing instruments are to be improved, and new instruments introduced.
PI46 Accountability and Remedy Project by the Office of the UN High Commissioner for Human Rights
Switzerland works within international bodies to ensure that court jurisdiction is coordinated, and access to remedy improved. It provides both content and financial support for the work being undertaken by the office of the UN High Commissioner for Human Rights in this area. The corresponding report to the UN Human Rights Council was completed in May 2016 in collaboration with stakeholder groups. It contains recommendations for member states. The next step for Switzerland will be to determine which OHCHR recommendations it is able to implement to improve access to remediation.
PI47 Rule of law in host states
Switzerland engages in political dialogue (cf. PI 34) and international development cooperation to support a variety of partner States which exhibit deficits in governance. This support aids them in establishing and strengthening the rule of law, so they are better able to fulfil their duty to protect. These programmes include public-private partnership projects, and will be continued on their existing scale.
The UK 2013 NAP‘s Introduction states that the document sets out the UK’s plan for further work to “support access to effective remedy for victims of human rights abuse involving business enterprises within UK jurisdiction”.
The UK 2013 NAP notes that [Chapter 2]:
“The Human Rights Act 1998 ensures that individuals in the UK have a remedy for the breach of rights which are protected by the European Convention on Human Rights (ECHR). It applies to all public authorities and other bodies performing public functions, as private companies sometimes do.”
The UK 2013 NAP has a section on access to remedy which states [Chapter 4] that:
“The UK has a culture of human rights awareness and protection – much of which results from our framework of legislation described earlier – and our range of remedy mechanisms is diverse. We recognize that remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions, as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.
The UK sees its own provision of judicial remedy options as an important element in the remedy mix…
We will: …
(iv) support projects through the FCO Human Rights and Democracy Programme Fund relating to 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 who are actively engaged on issues relating to business and human rights; – support to business efforts to provide, adopt or participate in effective grievance mechanisms.
(v) keep the UK provision of remedy under review.”
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.”
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