Handbook on Access to Justice under the Aarhus Convention
Handbook on Access to Justice under the Aarhus Convention
Working Draft for Discussion at the
“Workshop on Access to Justice under the Aarhus Convention”
15-17 September 2001
Tallinn, Estonia
Edited by Stephen Stec
Regional Environmental Center for Central and Eastern Europe
Table of Contents
Handbook on Access to Justice under the Aarhus Convention......
Handbook on Access to Justice under the Aarhus Convention......
Edited by Stephen Stec......
Table of Contents......
[preface by lead country]......
Explanatory Note......
Acknowledgments......
Handbook on Access to Justice under the Aarhus Convention......
I. Introduction......
A. Environment and Democracy
B.The Rights-Based Approach
C.The Access to Justice Pillar
D.Main Questions
II. Rights and Duties with respect to a Healthy Environment......
A.A basic right to a healthy environment in Europe?
B.The Social Right to a Healthy Environment
C.The Duty of Authorities to ensure an objectively high level of protection
D.The Right to Respect for Private and Family Life, and for Home
E.Aarhus rights and procedures contributing to the right to a healthy environment
III.Administrative, Judicial and Other means for Access to Justice......
A.Administrative versus judicial appeal
B. Ease of Administration
C. Safeguards of Judicial Consideration
D.The Ombudsman
E.Special Environmental Tribunals
F.Arbitration and Mediation
G. Aggregation of Claims and Actio Popularis
IV.Access to Justice in Access to Environmental Information Cases......
A.Failure to respond to info request
B.Incomplete response
C.Challenges to claims of exemption
V.Access to Justice in Public Participation in Decision-Making Cases......
A.The Right to Participate (Administrative Standing)
B.Openness of documentation for participation in decision-making
C.Specific problems with ecological expertise (EE) and EIA
VI.The Republic’s Right to Enforce Environmental Law......
By John E. Bonine......
A.Introduction
B.Article 9 and Expanded Enforcement/Standing
C.National Legislation For Expanded Enforcement/ Standing
D.Judicial Interpretations and Expanded Standing
E.Conclusion
VII.Remedies and Costs......
A. Powers of Judges and Administrators
B.Enforcement of Judgments
C.Adequacy of Remedies
D.Costs
VIII.Administration of Justice and Due Process......
A. Judicial Independence
B. Corruption
C. Knowledge and Capacity
D. Public Support
E. Legal Certainty
F. Right to Counsel and Presumption of Innocence
G. Use of Precedents
H. Timeliness of Procedure
I.Protection of Persons Exercising Rights
IX.SLAPPs – Barriers to Public Participation and Access to Justice......
Table of Cases
Explanatory Note......
Section 1: Generated Case Studies......
ARMENIA
Case Study I: “The Victory Park Case”......
BELGIUM
Case study I: Representative standing......
Case study II: Special procedure......
Case Study III: Organisational Mission Standing......
BULGARIA
Case Study I: “The Pirin Mountain Case”......
CZECH REPUBLIC
Case Study I: “Šumava”......
Case Study II: “The Gravel Mining Case”......
Case Study III: “The Bohemian Highway Case”......
Case Study III: Case Study IV”Building of the D8 motorway through protected areas in the Northern Bohemia”
GERMANY
Case Study I: “Waste Fuel Plant Case”......
Case Study II: “The Experts’ Documents Case”......
Case Study III: “The Windmill Case”......
Case Study IV: “The Nature Preserve Case”......
Case Study V: “The Baltic Sea Motorway Case”......
Case Study VI: “The Elbe Case”......
GEORGIA
Case Study I: Defense Of National Park......
Case Study II: When Investor Is Not Welcome (Vake Park Case)......
HUNGARY......
Case Study I: “The Balaton Highway Case”......
Case Study II: “The Metal Plant Case”......
KAZAKHSTAN
Case Study I: “The Petrol Plant Case”......
Case Study II: “Waste in the Caspian Case”......
Case Study III: “The Fired Advocate Case”......
Case Study IV: “The Excessive Fees Case”......
LITHUANIA
Case Study I: Extra-Judicial Procedure......
MOLDOVA......
Case Study I: “The Sarmi’ Park Case”......
POLAND
Case Study I: “The Highway & Housing Case”......
RUSSIA
Case Study I: “The Water Works: A Case in Progress”......
Case Study II: “The Nikitin Case”......
Case Study: “ Sosnovskih, Startcev and Koroleva v. Moscow City Government”......
SPAIN
Case Study I: “Nuclear Files”......
Case Study II: "Aznalcollar Waste Dam"......
THE NETHERLANDS......
Case Study I: “The Oily Bird Case”......
Case Study II: “The ‘Indispensable’ Pesticides Case”......
UNITED KINGDOM
Case Study I: “The Lappel Bank Case”......
Case Study II: “Agricultural Storage Centre Case”......
UKRAINE
Case Study I: “Ukrainian Right to Know Case”......
Case Study II: “NGO Right to Information Case”......
Case Study III: “Pyrogovo Villagers Case”......
Case Study IV: “The Troublesome Cafeteria Case”......
UNITED STATES OF AMERICA......
Case Study I: “The Telephone Case”......
YUGOSLAVIA
Case Study I: "(Silver Plate) Fulfillment of environmental protection
Case Study II: Café "Zvezda"(Star)-protection against noise
Case Study III: Quarry Susica-Cacak
Section 2: Other Cases......
Paralel Public Participation in the Czech EIA System
The Ombudsman in Denmark
ENDS Daily 29 th June2001 issue 1020, Spanish court orders telephone mast removal
Stiching Greenpeace Council et al. v.European Commission
Guerra v. Italy, ECHR "Council Of Europe
"National Assotiation of Ecologists"Milada Mirkovic
Case Summarise: Kate Cook
Case Summaries presented by Peter Roderik, FOE
[preface by lead country]
Explanatory Note
This Handbook has been developed by the Regional Environmental Center for Central and Eastern Europe with the participation of the following partner organizations: American Bar Association/Central and East European Law Initiative (ABA/CEELI), European ECO Forum, the Environmental Law Association of Central and Eastern Europe and the Newly Independent States (Guta Association) and the Environmental Law Alliance Worldwide (ELAW). Project funding was provided by the Government of the United Kingdom. Additional financial support, including the translation of the Handbook into Russian, was provided by ABA/CEELI. A project Steering Committee was formed to support the Handbook’s development. Steering Committee membership was open to all UNECE member states, as well as representatives of the Partner Organizations, REC and the UNECE Secretariat. The countries which participated in the Steering Committee included Bulgaria, Denmark, Estonia, the Netherlands, and the UK.
The project to develop the Handbook was designed with a practical approach in mind, making use of actual cases as far as practicable. It drew upon the experience in developing a good practice handbook on “Public Participation in Making Local Environmental Decisions” in connection with a workshop in Newcastle, UK (December 1999). Cases were generated in several ways. Most were developed through announcements sent through existing networks, primarily the network of government Aarhus Focal Points, and networks and databases of public interest environmental lawyers. A number of cases from the CEE and NIS regions were generated through a Sub-Regional Case Study Development Meeting, held in Lviv, Ukraine, 4-5 June 2001. Finally, several cases were identified through research by the authors.
The Handbook also contains an analytical part. The framework for the analytical part was developed through numerous consultations involving the Steering Committee. An important reference for the framework was the report, “Complaint procedures and Access to Justice for citizens and NGOs in the field of the environment within the European Union,” discussed at the EU-IMPEL Workhsop held in the Hague, the Netherlands (May 2000). While not covering all aspects of access to justice under the Aarhus Convention, the analytical part treats some of the more significant issues, as identified in the Hague Workshop, the Sub-Regional Case Study Development Meeting, and in other relevant consultations. Further work certainly needs to be done. It is our hope that this document will contribute to future collaboration to develop the state of the art of access to justice in environmental matters in the UNECE region.
Acknowledgments
Rita Annus, Sofie Flensborg and Cairo Robb provided valuable comments on the text. Jeffrey Thomas provided background material for Section VII and edited the case studies. Joost Rutteman, Olga Razbash and Merab Barbakadze also gave valuable input to Section VII. Linda Nowlan and Chris Tollefson provided information on SLAPP suits in Canada. Peter Roderick supplied valuable materials relating to UK cases. Thanks are due to the staff at Ecopravo-lviv for local organization of the Sub-regional Case Study Development Meeting in June 2001. Translators for the Russian edition included Tanya Krivitska, Marina Lazo, Andriy Kondratyev, Dmitry Zhdan, Anna Zinchenko and Natasha Chumachenko. The REC expert team lead by Stepen Stec consisted of Marianna Bolshakova-Project Manager and Magdolna T. Nagy Head of Public Participation Programme,technical and administrative support was provided by Orsolya Szalasi, Liljana Antonovska, and Balazs Ruzsa. Others too numerous to mention provided materials, facilitated contacts and performed other important services that contributed to the overall project in many ways.
1
DRAFT
"Access to Justice Handbook"
Handbook on Access to Justice under the Aarhus Convention
Part I
Analysis
I. Introduction[1]
By Stephen Stec
As stated by the Focal Point for the Aarhus Convention in Kazakstan in a note accompanying the submission of cases: “Today we may speak just about the general principles of access to justice in this or that country and compare the experience of different countries . . . [O]ne may speak only about development of the processes of democratization in court practice of . . . countries [in terms of] application of the principles of the Aarhus Convention, creation of [the] possibility of this and after [the Convention has] come into force – it will be possible to implement it and control compliance.” This statement sums up the purpose of the present Handbook.
The pages that follow contain an assessment and analysis of various issues relating to access to justice under the Aarhus Convention, based in part on the practical cases collected in connection with this Handbook, and in part on the state of play of relevant international and domestic legal developments, including those represented by the adoption of the Convention itself. To some extent it is necessary to apply the “spirit of the Convention” in undertaking the analysis, but as far as possible the authors have tried to be neutral with respect to the underlying policy issues, and to focus instead on the laws and rules and how they are applied in practice by courts, administrative tribunals and other fora for access to justice in specific cases.
The cases considered cover a wide range of environmental justice matters, from broad issues of fundamental rights (Hungary, Kazakstan, Slovenia) to narrow disputes over the interpretation of time limits in providing information (European Commission). They arise out of administrative appeals, judicial appeals, mediated disputes, even labor and other matters with environmental significance. Some of the cases show that simply by appealing to justice, you get the attention of other parties, with the result that you might settle the matter (Hungary). Other cases demonstrate that even where you lose your case, it might be a victory in the long run (Austria, Germany, Kazakstan). Some cases highlight the fact that the possibility of access to justice influences behavior in indirect ways; proponents of activities with questionable environmental impacts are much more careful to act where justice is a real possibility. Where justice is elusive, powerful interests are much more likely to ignore legal requirements. An unfortunately common practice that has given rise to a disproportionate number of cases is so-called “land grabs” by organized crime elements in public parks and other protected nature areas (Armenia, Georgia, Moldova, Russian Federation). Still other cases highlight the difference in the outcome were the Aarhus Convention in force (Belgium, Georgia). A number of cases demonstrate the different standards that tribunals employ in reviewing the actions of authorities (Lithuania, UK). Finally, by noting the reactions to the results reached in disputes, the sometimes unrealistic expectations relating to access to justice are revealed (Yugoslavia).
The pros and cons of different approaches towards access to justice have been discussed in other fora. For example, a report discussed at a workshop on access to justice in environmental matters on the European Union level, held by the EU-IMPEL network, 10-11 May 2000, in the Hague[2] set forth some of the pros and cons of broadening or limiting access to justice to actors who aim to protect the environment.[3] The coming into force of the Aarhus Convention, however, makes some of these discussions obsolete. The approach of this Handbook is to consider the obligations of the Convention and how they might be enforced or upheld through complaints procedures and other means for access to justice. Using the example given, the pros and cons of broadened standing for NGOs in environmental matters is not a subject of this Handbook, since the Convention accepts broader standing. With respect to that subject, therefore, this Handbook focuses on the rules with respect to broader standing, and the application of those rules in particular circumstances.
In dealing with these and other issues, we hope to raise them for consideration by Parties to the Convention in the adoption of implementing legislation and in the development of rules of court and rules of practice of other tribunals and similar bodies. We hope that an exchange will be fostered resulting in the development and broad adoption of best practices in the field of access to justice in environmental matters in the UNECE region.
A.Environment and Democracy
In the UN/ECE region, a “giant step forward”[4] in the quest of strengthening citizens’ environmental rights is the adoption of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 1998). As an ambitious venture in the realm of “environmental democracy”[5], its three pillars (A to I, PP and A to J) are rooted in Principle 10 of the Rio Declaration.[6] It is a new kind of environmental agreement, in that it regulates the relationship of a government to its people, rather than particular activities harmful to the environment. It is thus not only an environmental agreement, but an agreement about government accountability, transparency and responsiveness,[7] sharing elements in common with conventions in other areas of law.
In recent years events have given rise to an understanding that environmental protection and environmental law are major engines for transition to a civil society.[8] Environmental issues are a motivating factor for change. On a basic level, the right or duty of persons to take action to protect the environment is deeply entangled with the fundamental rights of expression, information, assembly, association, etc. The popularity of environmental issues brings attention to the natural connection between the basic freedoms whose exercise helps to achieve environmental protection goals, and democratization in the larger sense, including reform of particular institutions and processes, placing those reforms in a positive light. These issues find expression in the three pillars of the Aarhus Convention.
All three pillars of the Convention contribute to the democratization of society, but the first two pillars cannot stand without being backed up by access to justice, that is, by the means to elaborate, institutionalize and enforce the norms contained in the access to information and public participation pillars through recourse to the law. Thus, the Aarhus Convention requires Parties to meet or exceed minimum standards for a basic framework of administrative and judicial process to guarantee environmental justice with respect to the matters under the Convention. By involving administrative and judicial matters, the Aarhus Convention in turn invokes two basic elements of democratic government, separation of powers and the rule of law, which in turn find institutional expression through an independent judiciary and a responsibly administered government.[9]
1.Environment and Justice
In environmental protection, inadequacies in the system of administrative and judicial review come to the fore quite readily, due to the level of civic activism. As obstacles are encountered resort is given to mechanisms for the administration of justice, and this kind of occurrence is growing in frequency. Ultimately the call for access to justice is an indication of the interest of the public to take steps towards protection of the environment, preferably in partnership with authorities, but sometimes in spite of the action or inaction of authorities.
Whereas a generation ago environmental cases in the courts outside of a handful of countries were virtually unheard of, today courts and administrative tribunals are hearing more and more environmental cases. In such a way, the recognition of the link between environmental rights and more general notions of justice has passed from the academic literature into jurisprudence and practice. As a matter of domestic environmental law access to justice is becoming more and more commonplace.[10] It is perhaps no surprise, therefore, that the term “access to justice” has seen increasing use in the context of international environmental law, and in particular in the context of instruments concerned with the relationship between the state and the public.
During the negotiation of the Aarhus Convention,[11] many of the delegates questioned the merit of considering access to justice as a separate pillar of the convention. They pointed out that “access to justice” is nothing more than a guarantee of the “normal” functioning of administrative and judicial procedure. According to this argument, if there would be a need to implement reforms because of a lack of proper functioning of such procedures, the way to do so would be through horizontal reform of constitutional civil, administrative and criminal law and procedure. But other delegates pointed to the importance of backing up rights with procedural and substantive guarantees in the field of environmental protection now, rather than waiting for horizontal reforms. These delegates recognized that for the public it is of the utmost importance to recognize the so-called “third pillar” of the convention at every turn.
The negotiations revealed further that there has been a tendency to confuse two aspects of access to justice. The first is a threshold issue – under what circumstances a person has standing to invoke substantive and procedural guarantees. This issue is quite separate from the question as to what procedures and remedies should be available once it has been determined as a matter of law that a person has a right. The latter is the second part of the access to justice pillar. Countries that have a legal tradition or constitutional prerequisite requiring subjective rights to be impaired prior to resort to judicial remedies may have trouble with the first aspect of access to justice – for example, with respect to the recognition of subjective rights arising out of the declared or purported interests of environmental organizations. Other countries with more idealistic but less strictly implemented legal traditions may have no trouble recognizing broad concepts of rights and interests, but may have trouble with the notion that in a given case such recognition may result in strict application of norms and remedies. Thus, starting from two quite different points, we may arrive at opposition to the notion of “access to justice” in the field of public participation in environmental protection – on the one hand because it extends spheres of rights into heretofore uncharted territories, and on the other hand because it requires all rights to be taken more seriously. In both cases it is restricting the freedom of governments to act without criticism and oversight, and is further extending the scope of the law over citizen-state interaction. The fact that access to justice spells trouble to such strange bedfellows ought to cause us to take a closer look at what is really at work.