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Guiding Principle 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.
Effective judicial mechanisms are at the core of ensuring access to remedy. Their ability to address business-related human rights abuses depends on their impartiality, integrity and ability to accord due process.
States should ensure that they do not erect barriers to prevent legitimate cases from being brought before the courts in situations where judicial recourse is an essential part of accessing remedy or alternative sources of effective remedy are unavailable. They should also ensure that the provision of justice is not prevented by corruption of the judicial process, that courts are independent of economic or political pressures from other State agents and from business actors, and that the legitimate and peaceful activities of human rights defenders are not obstructed.
Legal barriers that can prevent legitimate cases involving business-related human rights abuse from being addressed can arise where, for example:
- The way in which legal responsibility is attributed among members of a corporate group under domestic criminal and civil laws facilitates the
avoidance of appropriate accountability;
- Where claimants face a denial of justice in a host State and cannot access home State courts regardless of the merits of the claim;
- Where certain groups, such as indigenous peoples and migrants, are excluded from the same level of legal protection of their human rights that applies to the wider population.
Practical and procedural barriers to accessing judicial remedy can arise where, for example:
- The costs of bringing claims go beyond being an appropriate deterrent to unmeritorious cases and/or cannot be reduced to reasonable levels through Government support, “market-based” mechanisms (such as litigation insurance and legal fee structures), or other means;
- Claimants experience difficulty in securing legal representation, due to a lack of resources or of other incentives for lawyers to advise claimants in this area;
- There are inadequate options for aggregating claims or enabling representative proceedings (such as class actions and other collective action procedures), and this prevents effective remedy for individual claimants;
- State prosecutors lack adequate resources, expertise and support to meet the State’s own obligations to investigate individual and business involvement in human rights-related crimes.
Many of these barriers are the result of, or compounded by, the frequent imbalances between the parties to business-related human rights claims, such as in their financial resources, access to information and expertise. Moreover, whether through active discrimination or as the unintended consequences of the way judicial mechanisms are designed and operate, individuals from groups or populations at heightened risk of vulnerability or marginalization often face additional cultural, social, physical and financial impediments to accessing, using and benefiting from these mechanisms. Particular attention should be given to the rights and specific needs of such groups or populations at each stage of the remedial process: access, procedures and outcome.
What National Action Plans say on Guiding Principle 26
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 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.
Pillar 3: Access to Redress Mechanisms
Strand 1: State-Based Judicial Mechanisms [pages 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.
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.
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.
The Colombian NAP does not contain a reference to GP26.
Pillar III. Access to Remedy
Judicial resources [pages 41-42]
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.
Accessibility of the courts [pages 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
4. Access to remedy
Recommendations on judicial remedy [page 20]
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
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. “
Appendix 2 – Overview of the implementation of the access to remedy
Access to remedy [page 34]
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.
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles)
- At international level the Danish Government actively promotes the discussion of legislation with extraterritorial application, in particular the need for joint solutions (see UNGPs 2).
- 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 remedy 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.
Finland’s NAP does not contain a reference to GP26.
III. Access to Remedy
1. Judicial Mechanisms [pages 46-53]
At the international level
1.1 The Protocol to the ILO Forced Labour Convention (No. 29)
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
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
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
The rules determining whether French courts have the international jurisdiction to hear noncontractual 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
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.
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.
In order to make the principle of equal access to justice fully effective, France has created a legal aid system giving underprivileged populations the ability to defend their rights in French courts (Act 91-647 of 10 July 1991 on legal aid).
Under this Act, legal aid is awarded to French citizens and European and non-European nationals on the basis of means testing. Non-European nationals must also show that France is their habitual and lawful place of residence.
However, exceptions have been created to the residency and means testing requirements in order to provide legal aid to applicants whose cases are particularly worthy of interest given [their] subject matter and the likely cost”. In cross-border disputes, exceptions can be made to the means testing requirement for people who prove that they could not pay the costs specified in Article 24 of this Act due to the differences in the cost of living between France and the Member State of domicile or habitual residence.
Lastly, some international agreements make legal aid available to nationals of countries that are not members of the EU in situations not covered by the 1991 Act.
To conclude, while legal aid is not automatically awarded to victims of human rights violations committed by companies or subsidiaries in countries outside the State in which these entities are domiciled, legal aid agencies nevertheless appear to have considerable discretion when assessing the circumstances of victims to determine whether they are eligible for legal aid.
1.5. The Denial of Justice
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.”
1.6. Whistleblowers Rights
The Act 2016-1691 of 9 December 2016 on transparency, fighting corruption and modernizing the economy replaced earlier sector-specific provisions on whistleblowers. Under the new Act, a single framework was created to protect whistleblowers who now share a common status regardless of the field concerned. The whistleblower status now includes:
- a) A general definition: a whistleblower is defined as an individual who reveals or reports, disinterestedly and in good faith, a crime or offence; a serious and manifest breach of an international commitment duly ratified or approved by France, of a unilateral act of an international organization adopted on the basis of such commitment, or a serious breach of a law or regulation; or a serious threat or harm to the public interest, of which the whistleblower has had personal knowledge.
- b) A process for raising alerts: in order to receive legal protection, the whistleblower must respect a three-step process, raising the alert first with his/her employer or the contact person designated by the employer, second with the judicial or administrative authority and third with the public, as a last resort.
- c) Three forms of legal protection:
– Professional protection against all forms of retaliation for raising the alert;
– Protection against criminal liability: whistleblowers are not considered criminally liable for disclosing information that is a legally protected secret if this disclosure is necessary and proportionate to the interests being defended and the whistleblower respects the alert process described above. However, this exemption does not cover whistleblowers who disclose national defence secrets, medical secrets or lawyerclient communications.
– Protection against being prevented from raising the alert any person who interferes with the transmission of an alert by a whistleblower is punishable by law by up to one year of imprisonment and a €15,000 fine. The Act also reinforces sanctions for malicious defamation proceedings against whistleblowers.
Proposal for Action No. 14
Actions to be implemented
– Amend Article 113-8 of the Criminal Code so that a prosecutor’s decision not to open an investigation into a complaint lodged by the victim of a crime committed by a French entity abroad can be appealed.
– Continue to examine national and international options to address the denials of justice faced by plaintiffs attempting to take legal action to obtain remedy for harm caused by the subsidiaries of groups operating in countries where courts do not have the necessary independence to deliver justice, or where plaintiffs are threatened.
4. Guaranteeing access to remedies and redress
4.1 Access to justice and the courts for injured parties [pages 46-38]
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.
- 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 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 Irish NAP does not contain a reference to GP26.
IV. Government responses
Current Activities and Future Commitments [page 26]
B. Operational Principles
Guiding Principle 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: 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. Ø 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; Ø 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 1: ensuring State’s duty to protect, defend and respect human rights
I. Legislative measures [page 1]
1.Improvement of the legislative The aim is to review legal acts regulating law making, including also, if necessary, drafting of required new legal acts, as well as to ensure dissemination of best practice as regards application of the principles of transparency and openness in law-making. Law on Legislative Framework of the Republic of Lithuania was adopted on 18 September 2012, and carne into force on 1 January Following the principles of openness and transparency, it provides for law-making to be made public, as general interest-related legislative decisions cannot be made without public awareness and without the possibilities to participate; the public must have access to information related to the national policy objectives, the need for legal regulation and participating bodies; the civil society and interest groups must be provided with a possibility to submit proposals for legal regulation at all the stages of law-making. It also provides for the right to know the bodies that were involved in submitting, drafting and assessing regulatory impact of a respective legislative proposal, and the bodies monitoring legal regulation
2. Reforming legal regulation regarding administrative The aim is to regulate individual administrative liability in the Republic of Lithuania, to separate it from criminal liability, ensuring the main features of the administrative liability: simple fast-track process, preference to non-repressive impact measures, and their adequacy to the committed offence, thus increasing effectiveness of these measures. The measure is carried out with a view to improving the Draft Code of Administrative Offenses of the Republic of Lithuania, submitted for deliberation to the Seimas of the Republic of Lithuania on 7 Jw1e 2012.
A. lmplemented measures [page 9]
2. lmprovement 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) carne into force on l March 2013. Provisions of the CCP allowing persons to submit procedura! documents to court using electronic means of communication (Article 1751 of the CCP) carne into force on I July 2013
4. Introduction of class action institution in civil 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 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 Lithuania was adopted on 15 May 2014 and came into force on I 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 witl1 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.
Objective 3: ensuring access to effective remedy
A. lmplemented measures [page 8]
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. 1 R- 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 mediation system development and to improve the mediation system in civil, administrative and criminal procedures.
B. Planned measures [page 11]
5. Introduction of the jury institute in courts. The aim is to restore public trust in the legal system. On 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.
3. Results of the consultations and government response
3.5 Scope for Remedy
Judicial mechanisms [page 26]
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 [page 38]
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)
4.1 State-based grievance mechanisms [page 40]
Judicial grievance mechanisms
The 26th principle concerns judicial mechanisms for addressing human rights abuses. 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.24 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.
- 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.
Pillar III. Access to remedies
1.Current situation regarding access to legal remedies [pages 37-43]
The Polish legal system provides people who have been victims of human rights violations in the context of a broadly defined economic activity with a range of legal measures to seek judicial protection. Access to these instruments is wide and allows appropriate remedial action to be taken, depending on the nature of the violation. These measures are universal and applicable in many situations. Such a comprehensive approach seems necessary due to the diverse nature of human rights violations in business.
Protection under civil law
The civil-law instruments that make it possible to seek judicial protection of claims by those affected by the activities of enterprises include:
1) lawsuits: Article 187 et. seq. Code of Civil Procedure;
2) 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 violation, they may also demand that the person committing the violation 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 a violation of personal interests, 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 violation 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 violation 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 a violation;
- 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. 39
The claim for cessation may be made primarily in the case of a violation of personal interests, but there is a risk of further violations in the future. In such a case, it will usually accompany claims for removal of the effects of a violation or for redress. This measure can also be used in situations where there is only a risk of a violation occurring in the future.
Re: b). Claim for removal of the effects of a violation
The catalogue of measures to remove the effects of a violation of personal interests is not exhaustive. When choosing the measures to remove the effects of a violation of personal interests, account should also be taken of all circumstances, such as the behaviour of the person whose interests have been violated, and, in particular, whether they provoked the incident. Issuing a statement is the most common measure of removing the effects of a violation of dignity, privacy, or bodily integrity, whereas the content and form of the statement depends on the circumstances of the case. The options include 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 violated 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 a violation 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 a violation of one’s personal interests, the court may award to the person whose interests have been violated 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 violation.
In this case, the act of harm may be an act of tort, but the provision covers events of violation 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 violation 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. 40
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 a violation of certain personal interests (health), the principle will apply to both financial and non-financial damage.
Re: f). Claim for restitution of unjust enrichment
A violation 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 (acts 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.
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, violation 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) 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 therefore not 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).
Mediation in civil-, economic-, and individual labour- law proceedings
National legislation makes it possible to use mediation. This instrument is widely employed, e.g., on the basis of civil, economic, and individual labour law. It may be used by anyone who has been a victim of human rights violations in the context of business activity. Mediation was given its current form by the Act of 10 September 2015 amending certain acts to support amicable methods of dispute resolution, while the provisions governing this matter are dispersed throughout various acts.
Mediation is a voluntary and confidential method of resolving disputes in which the parties themselves reach an agreement with the help of an unbiased and neutral mediator. It may be applied in all cases where the law permits a settlement. This mechanism provides an opportunity to reach a faster and cheaper resolution of a dispute by means of developing a common understanding.
In civil cases, mediation may take place before bringing a case to court (mediation agreement, out-of-court or pre-trial mediation) or after proceedings were initiated, by means of a court decision. In addition, each party to the dispute has the right to request mediation at any stage of court proceedings. In any case, the necessary condition for mediation is the consent of the parties to the dispute, which may also be withdrawn at any stage of mediation proceedings.
Having decided to start an arbitration procedure, the mediator contacts the parties by setting the date and place of the first meeting, during which they inform the participants about their rights and outline the course of mediation proceedings.
Mediation should be understood as a joint discussion between the parties in the presence of a mediator; however, the participants may individually meet with the mediator in the course of the proceedings, where the circumstances of the case would make this advisable. In exceptional situations, this process can also take place without direct contact between the participants. Mediation is, in principle, of a confidential nature, and the mediator, the parties, and other people involved in the proceedings are required to maintain the confidentiality of the facts they learn in the course of the proceedings.
Mediation proceedings may result in the conclusion of a jointly developed settlement, and in such a case, the parties have to apply to a court for approval. The settlement, after such acceptance, has the legal force of a settlement reached before a court of law. However, if the parties fail to reach an agreement, they still have the right to pursue their claims in court proceedings.
Protection under criminal law
The provisions of the Penal Code.
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 Labour of 1930, it is advisable to continue the work on verifying whether the provisions related to forced labour under Article 115 § 22 PC are sufficient to penalise the phenomenon of trafficking in human beings for forced labour.
Liability of collective entities
Also important is the Act of 28 October 2002 on the liability of collective entities for acts prohibited under threat of punishment.
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 legal assistance
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 non-governmental 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.
C. Pillar III. Access to Remedy [pages 22-23]
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. 3. The Government will develop and provide the necessary instruments so that every citizen can have access to comprehensible information about all of the grievance mechanisms that they can use. Therefore, a map of the existing resources in terms of legal assistance will be made and publicised.
1. State Duty to Protect
Swedish legislation to protect human rights [page 10]
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.
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. 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 con-ducted 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.”
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.
5.8 Pillar 3: access to remedy
5.8.2 Operational principles: state judicial mechanisms [pages 36-38]
Guiding Principle 26
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 Convention102). 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 realised 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 (ordre 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.
The federal government will employ the following policy instruments (PI) to implement Guiding Principle 26:
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
UK Government and access to remedy for human rights abuses resulting from business activity
The UK sees its own provision of judicial remedy options as an important element in the remedy mix. Non-judicial grievance mechanisms based on engagement between the parties involved are also an important option. This can be done through an internal company grievance procedure or through arbitration, adjudication, mediation, conciliation and negotiation. Such services can be advised on or offered by independent dispute resolution companies, the Ombudsman, the Citizens’ Advice Bureau, the Government regulator in certain sectors, or the Advisory, Conciliation and Arbitration Service (ACAS).
The UK 2016 updated NAP
4. Access to remedy for human right abuses resulting from business activity [page 20]
28. 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
– Specific criminal law provisions, including under the Bribery Act 2010, Modern Slavery Act 2015, Serous Crime Act 2007, Corporate Manslaughter and Corporate Homicide Act 2007 and Gangmasters (Licensing) Act 2004
The US NAP does not contain a reference to GP26.