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Guiding Principle 25

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.

Commentary

Unless States take appropriate steps to investigate, punish and redress business-related human rights abuses when they do occur, the State duty to protect can be rendered weak or even meaningless.

Access to effective remedy has both procedural and substantive aspects. The remedies provided by the grievance mechanisms discussed in this section may take a range of substantive forms the aim of which, generally speaking, will be to counteract or make good any human rights harms that have occurred. Remedy may include 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. Procedures for the provision of remedy should be impartial, protected from corruption and free from political or other attempts to influence the outcome.

For the purpose of these Guiding Principles, a grievance is understood to be a perceived injustice evoking an individual’s or a group’s sense of entitlement, which may be based on law, contract, explicit or implicit promises, customary practice, or general notions of fairness of aggrieved communities. The term grievance mechanism is used to indicate any routinized, 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.

State-based grievance mechanisms may be administered by a branch or agency of the State, or by an independent body on a statutory or constitutional basis. They may be judicial or non-judicial. In some mechanisms, those affected are directly involved in seeking remedy; in others, an intermediary seeks remedy on their behalf. Examples include the courts (for both criminal and civil actions), labour tribunals, national human rights institutions, National Contact Points under the Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development, many ombudsperson offices, and Government-run complaints offices.

Ensuring access to remedy for business-related human rights abuses requires also that States facilitate public awareness and understanding of these mechanisms, how they can be accessed, and any support (financial or expert) for doing so.

State-based judicial and non-judicial grievance mechanisms should form the foundation of a wider system of remedy. Within such a system, operational-level grievance mechanisms can provide early stage recourse and resolution. State-based and operational-level mechanisms, in turn, can be supplemented or enhanced by the remedial functions of collaborative initiatives as well as those of international and regional human rights mechanisms. Further guidance with regard to these mechanisms is provided in Guiding Principles 26 to 31.

What National Action Plans say on Guiding Principle 25

[accordion clicktoclose=true tag=h3] [accordion-item title="Belgium"]

STATUS IN BELGIUM/ ACTIONS ENGAGED:

In Section 4 “Scope of the action plan” p.7:

The NAP explicitly states that “the action plan and the baseline mapping specifically address the first and third pillars of United Nations Guiding Principles on Business and Human rights, namely the obligation of the state to protect people, when third parties, including companies, infringe on human rights and need to ensure that victims of human rights violations have access to effective remedy.”

PLANNED ACTIONS:

In context of Action point 2, Elaborer une brochure sur les mécanismes de réparation liés à l’autorité publique [Prepare a brochure on grievance mechanisms related to public authority] the NAP explains that in Belgium, various legal procedures (both judicial and extra-judicial procedures and grievance mechanisms) form the basis of the grievance system. 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. 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.

Action point 3, Formulation de recommandations en vue d’améliorer l’accès à un mécanisme de reparation judiciaire [Recommendations for improving the access to a judicial grievance mechanism], covers the issue of judicial remedy in a broad manner.

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 grievance 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, Assurer la diffusion de la boîte à outils et de la brochure sur les mécanismes de réparation parmi les représentants belges à l’étranger et sensibiliser ceux-ci à la question [Ensure the dissemination of the toolbox and brochure on grievance mechanisms among Belgian representatives abroad and raise awareness of the issue] links 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 be given 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, Accorder une attention particulière à la question des droits de l’enfant dans la sensibilisation des entreprises [Pay special attention to the issue of children’s rights in awareness raising of enterprises], 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.

Access to remedy [page 22]

Where the human rights risk prevention has failed and an adverse effect has been caused, the State is obliged to provide remediation, being understood as the implementation of adequate measures to guarantee access to effective remediation. This Plan aims at a consistent judicial and non-judicial mechanism system providing satisfactory solutions to both parties. This requires a proper structure clearing the ways by which citizens might access to effective remedy. Such solutions might be provided through various entities or by strengthening social talks and the civil society empowerment for participation in such mechanisms in equal conditions with the business actors.

X. Judicial and administrative mechanisms [page 23]

It is necessary to identify the improvement spaces within both training of officials and strengthening of the judicial system regarding the business and human rights matters, and access to justice for such individuals who may deem their rights have been infringed.

10.1 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.

10.2 The Task Force 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.

10.3 Upon the Plan launching, the entities part of the Task Force, 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.

10.4The 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.

10.5 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 launching.

Pillar III. Access to Remedy

Representation in court, legal assistance [pages 44-46]

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. 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.
Environmental protection associations may enter into certain types of proceedings.
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.
The bar association may assign a low-income applicant a lawyer for the provision of free legal assistance or legal services.

Tasks:

Analyse issues surrounding an extension to the set of situations where legal persons may represent parties to proceedings.

Coordinator: Ministry of Justice

Deadline: 31 December 2020

Evaluate the way the system of free legal assistance for the poor and needy works, especially the cost to the state, the bar association and applicants, the speed at which lawyers are assigned, and how much paperwork is involved. Evaluate the possibility of adding to the group of those who provide legal assistance.

Coordinator: Ministry of Justice

Co-coordinators: Ministry for Human Rights

Deadline: 31 December 2020

Access to evidence

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

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

Current state of play:

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

Task:

Conduct a comprehensive analysis of how the existing provisions on the “proceedings to unlock evidence” under the said law function. In this respect, continuously monitor their use and effect by reference to data collected from the courts, with the possibility of drawing on expert assistance from the Office for the Protection of Competition and any experience it might have of this issue, while respecting the business secrets of the entities concerned (especially competitors).

Coordinator: Ministry of Justice

Co-coordinator: Office for the Protection of Competition

Deadline: 31 December 2022

On the strength of a comprehensive analysis, consider introducing the concept of “proceedings to unlock evidence” in other areas of law, or introducing general provisions in this respect.

Coordinator: Ministry of Justice

Deadline: 31 December 2022

Collective actions

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

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

Current state of play:

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

Tasks:

Prepare for the introduction of collective actions in civil proceedings before the courts.

Coordinator: Ministry of Justice

Deadline: 31 December 2020

Drawing on the experience of collective actions in civil proceedings before the courts, consider whether to introduce collective actions in the administrative judiciary.

Coordinator: Ministry of Justice

Deadline: 31 December 2022

Integration of authorisation proceedings

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

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

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

Current state of play:

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

Task:

Chart the authorisation proceedings coordinated by a particular ministry and assess whether they can be merged with the authorisation processes of other ministries, or whether procedural rules can be unified.

Coordinators: Ministry of Regional Development, Ministry of the Environment, Ministry of Industry and Trade, Ministry of Transport, Ministry of Agriculture

Deadline: 31 December 2020

Actively cooperate with other authorities on the integration of authorisation proceedings coordinated by various different ministries.

Coordinators: Ministry of Regional Development, Ministry of the Environment, Ministry of Industry and Trade, Ministry of Transport, Ministry of Agriculture

Deadline: Running

Appendix 2 – Overview of the implementation of the access to remedy

Access to remedy [page 34]

Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles)

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 remediation 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.

4. Access of victims of human rights violations to legal remedies [pages 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 rneasure, 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.

4. Guaranteeing access to remedies and redress [page 37]

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.

Measures

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 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 3. Actions

II. Initial priorities for the Business and Human Rights Implementation Group

Access to Remedy [page 19]

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.

IV. Government responses

Current Activities and Future Commitments [page 26]

B. Operational Principles

Guiding Principles 25 & 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.

(…)

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:

Planned Measures

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: i) remedies against the excessive length of civil proceedings; ii) measures to strengthen special courts for enterprises by extending their competence to consumer protection-related claims, misleading advertising and unfair competition; iii) special court sections for human rights (especially children rights) and family issues; iv) introduction of criminal provisions against economic crimes, also committed abroad; v) 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.

II. Objectives and Measures

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

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. lmplemented measures [page 9]

I . lmprovement 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 State Guaranteed Legall Aid of the Republic of Lithuania carne 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.

3. Results of the consultations and government response

3.5 Scope for Remedy

ACCESS Facility [page 32]

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.

4. Action Points

Scope for remedy [page 42]

The Netherlands has provided the ACCESS Facility with start-up funding.
In 2014, the Netherlands will organise a conference on judicial and non-judicial grievance mechanisms, together with the ACCESS Facility.
In very serious situations, where a recommendation by the NCP is needed to support the social dialogue, the government will acquire scope to ask the NCP to carry out a sector-wide investigation into CSR issues. The conditions under which the NCP may be requested to carry out these investigations will be specified in the amendments to the decree establishing the NCP, which will be submitted to the House of Representatives before the summer of 2014.

In their letter requesting advice on how effective CSR agreements can be concluded with business sectors, the Minister for Foreign Trade and Development Cooperation and the Minister of Economic Affairs asked the SER to devote explicit attention to the role the NCP could play as facilitator or dispute settlement mechanism.

4.1 State-based grievance mechanisms [page 40]

The 25th principle concerns the state’s overall responsibility to ensure a well-functioning remediation system. Principles 26–31 deal with what steps states and enterprises can take to ensure remediation.

Pillar III. Access to remedies [page 37]

The UN Guiding Principles indicate that 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 those affected have access to effective remedies. In some cases, those affected are directly involved in seeking a remedy; in others, an intermediary seeks a remedy on their behalf. A remedy may be sought in the courts (for both criminal and civil actions), labour tribunals, national human rights institutions, National Contact Points under the OECD’s Guidelines for Multinational Enterprises, ombudsperson offices, and government-run complaints offices. In Poland, the Commissioner for Human Rights has the status of the national institution of human rights acting under the Paris Principles.

Pillar III. Access to remedies

6. Planned actions to provide access to remedies [page 50]

Employment agencies

There have been instances of labour-law violations identified among entities conducting the activities of a temporary employment agency. This phenomenon is not widespread, but given its social dimension, it is necessary to monitor it continuously and take actions to improve the standards of temporary work and the protection of temporary workers.

In Poland, issues related to employment agencies are governed by the Act of 20 April 2004 on Promotion of Employment and Labour Market Institutions (Journal of Laws of 2016, Item 645, as amended).

Employment agencies are entities that provide one or more of the following services: job matching, temporary work, vocational guidance, and personal counselling, and that are not—except for temporary employment agencies—parties to employment relationships which may arise from their services.

There are two mechanisms for dealing with complaints about abusive practices in employment agencies. Any person who becomes aware of non-compliance by an employment agency with the provisions of the Act on Promotion of Employment and Labour Market Institutions, including abuse and fraudulent practices on the part of such an entity, may file a complaint to the marshal of the voivodship competent for the seat of the employment agency or the National Labour Inspectorate. In the case of temporary employment agencies, the complaint may also concern non-compliance with the provisions of the Act on the Employment of Temporary Workers and other labour-law provisions. Employees’ organisations (i.e., trade unions) and employers’ organisations are also entitled to lodge such complaints.

If the inspection services determine non-compliance on the part of an employment agency—abuse of employees and fraudulent practices—the agency may be removed from the register of employment agencies (Article 18m of the Act on Promotion of Employment and Labour Market Institutions) and liable to a fine (Article 121 of the above-mentioned law).

Article 121 of the Act on Promotion of Employment and Labour Market Institutions imposes the following sanctions against individuals who provide employment agency services for offences against the provisions of this law: a fine of not less than PLN 3,000.

The following parties are subject to this penalty:

– anyone who operates an unregistered employment agency;

– anyone who, while providing services referred to in Article 18(1) or Article 18c(2) of the law, collects additional fees other than those specified in Article 87(2)(7) of the law, from the person for whom the agency is seeking employment or other paid work;

– anyone who, while providing services referred to in Article 18(1) or Article 18c(2) of the law, does not respect the principle of non-discrimination on grounds of sex, age, disability, race, religion, ethnic origin, nationality, sexual orientation, political beliefs, religious denomination, or trade union membership;

– anyone who, prior to sending a person to work (or temporary work) abroad, does not provide that person with written information on the costs, fees, and other charges (including those referred to in Article 85(2)(7) of the law) related to delegating someone to work, as well as taking up and performing work abroad.

A fine of not less than PLN 4,000.

Penalties are imposed on any person who delegates a person to work abroad for foreign employers without a written agreement with that person.

The Ministry of Family, Labour and Social Policy has taken steps to improve the conditions of temporary employment, increase protection for the clients of employment agencies, improve the effectiveness of the National Labour Inspectorate’s inspections in the area of temporary employment, as well as the legal security of temporary work agencies and the employers of their clients and, consequently, raise the standards of services provided by employment agencies.

Mediation

Undertakings that support the establishment and operations of mediation and arbitration centres are planned as part of measures co-financed by the European Social Fund. These activities are scheduled to start within the Operational Programme Knowledge Education Development (OP KED) in 2017. They will involve the establishment of such entities in regions where they are not yet in operation, and will serve to standardise the operation of the existing centres. Due to the limited scope of ESF support in the OP KED decision accepted by the European Commission, support in this area will focus exclusively on the issue of mediation in disputes between business entities.

7. Planned and ongoing activities

Continuation of activities to ensure access to court and out-of-court remedies;

Continuation of support for NGOs working in business and human rights.

C. Pillar III. Access to Remedy [page 21-22]

In relation to the access to reparation mechanisms, it is important to highlight the role of human rights defenders, and the serious obstacle posed by threats or repression directed against them. In this context, it is worth mentioning the Program for Protection and Temporary Shelter of Threatened Human Rights Defenders, managed by the HumanRights Office of the Ministry of Foreign Affairs and Cooperation since 1995. The Program is directed to threatened human rights defenders in at risk situations due to non-violent activity in defense of universally recognised human rights. The Program is developed in close collaboration with civil society organisations, which can request the inclusion of a person in the Program.

Measures

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 organisations 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.

3. Access to remedy

Legal remedies provided by the State [page 15]

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.

Annex: Measures taken [page 21]

In 2013, the Swedish Government adopted a platform for Swedish action on corporate social responsibility (CSR). The issue of business and human rights has received considerable attention in recent years. The following examples describe some measures already taken in accordance with this policy.

Regulations and legislation

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

Regulations and legislation [page 27]

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.

5.8 Pillar 3: access to remedy

5.8.1 Fundamental principle [page 36]

Guiding Principle 25

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.

UK Government and access to remedy for human rights abuses resulting from business activity

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.

Action for Government to promote access to remedy

We will:

(i) disseminate lessons from the 2012 experience of the London Organising Committee of the Olympic and Paralympic Games (LOCOG). LOCOG developed a process informed by the UNGPs to deal with complaints and grievances related to the application of its Sustainable Sourcing Code by commercial partners, particularly in relation to labour conditions at factories supplying sponsors, licensees and suppliers.

(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 UK 2016 updated NAP

4. Access to remedy for human right abuses resulting from business activity [page 20]

26.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.

27. We recognise 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.

Actions taken to promote access to remedy [page 21]

The Government has: (…)

(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.

Government commitments

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.

(iii) continue to work to promote protection of human rights defenders active on business and human rights related issues.”

Box: Case study – Supporting human rights defenders in Colombia, Mexico and Brazil

The UK supported International Service for Human Rights to deliver an intensive training and advocacy programme for human rights defenders working on issues relating to business and human rights in Colombia, Mexico and Brazil.

ISHR also created a toolkit to equip human rights defenders to engage with and influence business and supported an advocacy mission to the Inter-American Commission on Human Rights for the purpose of briefing diplomats and decision-makers on the situation of human rights defenders working on issues of business and human rights in Brazil, Colombia and Mexico and obtaining recommendations in that regard.

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.4 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.

Outcome 5.1: Exploring and Enhancing Platforms for Remedy

New Actions

Consulting with Stakeholders on Remedy: The United States will host stakeholder outreach and explore with one or more U.S. advisory committee(s) as to how the U.S. government can work with U.S. companies to help address concerns about the perceived lack of accessible and effective remedy available to those who feel they have been negatively impacted by U.S. business conduct abroad. As part of this consultation, the United States will solicit advice on how best it could support access to remedy, including the potential development of tools or guidance related to non-government-based mechanisms that would assist U.S. businesses that wish to improve their own individual and collaborative efforts to address this challenge. Implementing Agency or Department: State