EU Fundamental Rights Agency Calls for Better Access to Remedies through Criminal Justice

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Source: FRA website

It is a pleasure to welcome Alessandra De Tommaso as a guest poster on ‘Rights as Usual’. Alessandra is a PhD candidate at Middlesex University School of Law in London. She works on the challenges arising from corporate criminal liability under international criminal law. This post is hers.

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On 10 April 2017, the Fundamental Rights Agency (FRA) published an Opinion on Improving access to remedy in the area of business and human rights at the EU level, providing advice on how to ensure access to remedy for victims of business-related human rights abuses. This blog post briefly presents the main aspects of the Opinion, and then focuses on the area of criminal legal remedies for victims of business-related human rights abuses. In that area, FRA recommends that existing instruments be better implemented and calls for more cooperation among states when investigating cross-border corporate crimes.

Main Aspects of the Opinion

The Opinion was sought by the Council of the European Union in its Conclusions on business and human rights of 20 June 2016. In the Opinion, FRA calls for more action to ensure access to remedies for victims of business-related human rights abuses. Too often existing legal and practical barriers leave victims without opportunity for effective remedy. The EU and its Member States are therefore advised to take all the appropriate steps to remove these obstacles and guarantee access to remedy to victims.

FRA’s analysis covers the areas of judicial and non-judicial remedies, as well as issues related to their effective implementation. Based on its findings, FRA formulated 21 specific opinions on what actions the EU should undertake to increase access to remedies in the field of business and human rights. Some of the suggestions include, for instance, facilitating access to legal aid for victims of business-related human rights abuses, improving access to remedy in extra-territorial cases, strengthening the role of non-judicial mechanisms in the business and human rights field, and improving data collection on complaints and compensation.

Criminal Justice

FRA’s findings suggest that more could be done at the EU level to ensure access to effective remedies through criminal justice in the area of business and human rights. Even though a number of existing EU instruments require Member States to criminalise some forms of serious business-related human rights violations, these instruments are not used at their intended capacity. The Opinion mentions, in particular, the Employers Sanctions Directive (2009/52/EC), which obliges EU Member States to criminalise severe forms of labour exploitation, and the Anti-Trafficking Directive (2011/36/EU), which establishes minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. Both directives oblige EU Member States to ensure that legal persons can be held accountable for offences criminalised according to these two instruments. However, research conducted by FRA into the implementation of these instruments shows a lack of states’ commitment to holding business companies to account for their involvement in severe forms of labour exploitation and trafficking in human beings. This failure to ensure full implementation of these instruments at national level is a serious issue that needs to be addressed by the EU institutions. The EU is therefore strongly advised to make “greater efforts to ensure proper implementation in the Member States of the existing EU criminal law instruments that are relevant to business and human rights.”

Another aspect that needs further consideration at the EU level is cooperation among Member States in investigating corporate crimes. Due to the often transnational nature of business-related human rights abuses, effective and specific cross-border cooperation mechanisms are essential to ensure proper investigation of corporate crimes. In this regard, the Opinion rightly underlines how the EU can play “a unique role” in facilitating cross-border investigations by making greater use of existing resources, such as Eurojust.

Overall, what is clear from the Opinion is that more needs to be done to improve victims’ access to remedies through criminal justice in the field of business and human rights. Even though advances have been made in recent years, the lack of proper implementation of existing instruments prevents victims from fully exercising their rights to remedies. The EU, therefore, must adopt a more proactive approach to ensure states’ commitment in this regard.