Questionnaire on Criteria for Standing

Aarhus Convention Task Force on Access to Justice

Third meeting, 4-6 October 2004

Agenda item 3

Version 01/10/04

Replies to the questionnaire on criteria for standing

Regarding criteria for standing, article 9, paragraph 3 of the Convention stipulates:

«[…] each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures […]».

With a view to identifying relevant activities to support implementation of article 9, paragraph 3 of the Aarhus Convention (cf. paragraph 3 (b) of Decision I/5) and in order to ensure that the work of the Task Force in this area is closely tailored to the needs of the Signatories/Parties to the Convention, the questionnaire below, prepared by the lead country, aims at inventorying criteria for standing in place in the relevant countries/organization (see also the report of the second meeting of the Task Force, MP.PP/WG.1/2004/3, paragraph 26). The questionnaire includes a specific section on good and bad practices with regard to these criteria.

The questionnaire included the following questions as well as inviting delegations to give suggestions for further work of the Task Force:

A: Are there any criteria for standing in your legal system?

1. If yes than

(a) Please summarise the criteria, highlighting their relevance to article 9, paragraph 3 of the Convention, while distinguishing, if applicable, between criteria regarding:

-Individuals (e.g. violation of a legally protected right – such as property or health), and

-Legal persons (e.g., for NGOs, territorial scope and/or number of members).p.3

(b) Please specify how these criteria are established; i.e.:

-Laid down, as such, in statutory provisions, or

-Developed by the courts through the case-law on the basis of general statutory provisions.

p.11

2. If not thanplease qualify the type of procedure in place in your country/organization (e.g. actio popularis), by whom and how it can be initiated, and describe its relevance against the background of article 9, paragraph 3 of the Convention. p.14

B: In your legal system, dopublic authorities have the possibility to initiate (a) procedure(s) in order to enforce national law relating to the environment?

If so:

(a)Which public authorities (e.g. a governmental agency, a public prosecutor and/or an ombudsman) have such a possibility?

(b)What type(s) of procedure(s) can these authorities initiate?

(c)Which criteria (if any) must these authorities fulfil to initiate the procedure(s)?

(d)Can members of the public request these authorities to initiate the procedure(s)? If so, is such a request limited to certain members of the public (e.g. NGOs)? Are the authorities obliged to act further to such a request? p.15

C: Good and bad practices

1. How do the procedures described above (A and/or B) work in practice in your legal system? p.25
2. Which practical measures (if any) could be taken in your legal system to improve enforcement of national law relating to the environment? p. 30

D: Draft recommendations on good practices

1. Which suggestions (if any) does your country/organization have regarding the drafting of recommendations on good practices for the application, by Parties, of criteria for standing (cf. the report of the first meeting of the Task Force, MP.PP/WG.1/2003/3, para. 18)? p.39
2. Do you have specific textual amendments/additions to propose regarding the elements that might be included in a draft recommendation? p.40

Answers were received from the governments of Armenia, Republic of Belarus, Belgium, Czech Republic, Denmark, Estonia, Finland, Georgia, Germany, Italy, Latvia, Romania, Serbia and Montenegro, Slovakia, Sweden and the United Kingdom, as well as from WWF (UK), Ecopravo Lviv (Ukraine), Svitlana Kravchenko (Ukraine) and John Bonine (USA). Answers in Russian from the NGOs GLOBE (Armenia) and Nature Protection Team (Tajikistan) were received after 10 October and will be added to the compilation following the Task Force meeting.

The answers have been included as they were received, without editing by the secretariat.

A. Are there any criteria for standing in your legal system?

1. If yes than

(a) Please summarise the criteria, highlighting their relevance to article 9, paragraph 3 of the Convention, while distinguishing, if applicable, between criteria regarding:
-Individuals (e.g. violation of a legally protected right – such as property or health), and
-Legal persons (e.g., for NGOs, territorial scope and/or number of members)

Governmental Representatives

ARMENIA
Yes, there are.
Regarding individuals and legal persons , including NGOs in the administrative procedure:
_1) individuals are considered capable when they reach the age of 18
_2) violation of legally protected rights(for example, for citizens_ the right of sound environment and the right of protection of property independent of its form
3) Citizens have the right to appeal against administrative acts, actions or inaction of an administrative body with the aim of protecting their rights/there has been already prepared a draft of a law about establishment of administrative courts which will deal with such cases.
4) demands of obligatory registration of NGOs by legally established order.
In this case NGO acquires the status of legal person, i.e. the capacity of legal person comes into being after his registration.
In the legal procedure the concept “interested person” is established for individuals and legal persons. This person has the right to have recourse to the court for the protection of his rights, liberties and legitimate interests provided by the Constitution, Laws and other legal acts and also by the agreement.
Law doesn’t provide for preliminary obligatory appeal against illegal actions in administrative procedure. Interested person can have direct recourse to the court for protection of his rights, liberties and legitimate interests. Law doesn’t prohibit prejudicial appeal against illegal actions.
Regarding legal persons in the legal procedure:
_1) presence of the fact of illegal actions (inaction)_taken by legal persons or officials who violate legal person’s rights, gives grounds to appeal against the actions mentioned above.
_2) NGOs must be registered by established order(unregistered NGOs don’t possess standing as they aren’t considered legal persons. This means that NGO needs a document of registration, status of a taxpayer, seal and stamp in order to be recognized.
_3) only those NGOs can present individuals’ interests in the court which have the right to protect citizen’s ecological rights. Such NGOs can also present public ecological interests by their own initiative.
Suggestions for further work of the Task Force
To study the question about the appropriateness of preparation of a separate/special/ manual on “ Access to Justice on questions relating to environment” on the basis of the analisys of legislation and practice of law enforcement of countries especially with transitional economy. To recommend the preparation of the conventions of legislative exprience and practice of law enforcement of the countries-Parties of Convention of Western Europe and their submission to the secreteriat .To study the question about the criteria of creating appropriate mechanisms of rendering assistance in order to remove or diminish financial or other obstacles to access to justice corresponding to art.9,p.5 of Aarhus Convention.
BELARUS
Legal system of Belarus Republic has different criteria for standing regarding individuals and legal persons. Regarding individuals (physical persons) and legal persons (NGO) in an administrative procedure:- 1) violation of a legally protected rights (for example, for citizens - rights on a favorable environment, on health protection etx, for legal persons – right on the environmental information)- 2) NGO should be registered in accordance with legislation Regarding individuals (physical persons) in a judicial procedure:- 1) presence of the fact of non-legal actions, accomplished by legal persons or officials who violated the rights of citizens, if the legislation of Belarus Republic does not stipulate other, not judicial order for appeal,- 2) the citizen has the right to address in court only after the preliminary appeal of non-legal actions specified in point 1 above, administratively – in higher state body or to the higher official Regarding legal persons in a judicial procedure:- 1) presence of the fact of non-legal actions, accomplished by legal persons or officials who violated the rights of the legal person and the legislation of Belarus Republic directly stipulate an opportunity of the judicial appeal of the actions mentioned above- 2) NGO should be registered in accordance with legislation - 3) NGO, working in the field of environmental protection that is determined in their bylaw, have the right for court appeal only of their members for compensation of the harm caused to a life, health, property as a result of harmful influence on an environment - 4) NGO can be the representatives of individuals (physical persons) in court if the law, but not other normative act or regulations, gives to them the right to represent in court legitimate interests of their members and other persons
Suggestions for further work of the Task Force

1. To consider the problem on expediency of preparation of the Manual on access to justice on the questions concerning an environment on the basis of the legislation and practice for standing of the countries with transitive economy (for example, the CIS) where there is a similar legal system, with attraction as authors of experts of the specified region.
2. To consider the problem on criteria «creations of corresponding mechanisms of rendering assistance for elimination or reduction of financial or other obstacles for access to justice » according to item 5 of art. 9 of the Aarhus convention.
3. To consider the problem about not legal barriers in realization of a principle of access to justice:-necessities of improvement of professional skill of judges, public prosecutors, state officials,-complexity of use of the international technical aid and support of NGO, rendering the free-of-charge help to citizens on the questions concerning preservation of the environment in the separate states with transitive economy.

BELGIUM
Yes: for administrative procedures (Council of State) as well for judicial procedures. a. -Individuals have to justify a personal and direct interest i.e. violation of a legally protected right-Legal persons have to respect several criteria depending on the procedure followed (e.g. for the Council of State : legal personality, acting within its statutory activities, close link between the statutory activities and the matter concerned…)Concerning the specific “1993 Right of Action relating to the Protection of the Environment Act”, the right of access to justice is recognized for associations which are: - registered as environmental protection association for at least 3 years- operating on a non-profit basis- able to prove that there is a real activity which is in accordance with their statutory goal and which concerns the collective environmental interest that they aim to protect- must specify the territorial coverage of the activities of the association
CZECH REPUBLIC
Each one claiming that his or her right were impaired by a decision of public authority issued in administrative procedure can bring an action against the public authority to administrative courts. In addition, each one who participated in the previous procedure (even not meeting the above mentioned criteria) can bring an action, if the impairment of his/her rights in the proceeding could have resulted in unlawful decision. Action popularis can be brought by:- supreme prosecutor,- those having this right on the basis of special act (e. g. Act on Nature and Landscape Protection) or international convention forming a part of domestic legislation. Pursuant Act on Nature and Landscape Protection, NGO, in order to be eligible to be participant in administrative proceedings (and thus have the right to bring an action subsequently), must notify its participation within 8 days from the commencement of the procedure. Only those NGO whose purpose is protection of nature can file a suit.
Suggestions for further work of the Task Force
Criteria regarding territorial scope of NGO to be eligible to file a suit.
DENMARK
There are no statutory provisions in Danish law that define the “right of action” concept in any general sense and the meaning of the concept is established through case-law.
The general rule regarding the criteria for standing is that the plaintiff must have a specific and current interest in having his or her case tried. The nature and the intensity of the interest that the plaintiff has in a lawsuit regarding breach of environmental legislation must be assessed in each individual case in order to establish whether the plaintiff has a right of action (cf. Bernhard Gomard: Civilprocessen, 5th edition, 2000, pp. 330-335). A private interest group (NGO) will therefore not automatically have a right of action. In a ruling from the Eastern Division of the High Court reported in the Danish legal journal Ugeskrift for Retsvæsen 1994, p. 780, the Court, following a general assessment of the structure and purpose of Greenpeace as well as the claim involved, held that the organization had standing to bring an action against the Government concerning the question of whether the Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (EIA Directive) had been complied with in connection with the decision to build the Øresund bridge between Denmark and Sweden.
ESTONIA
1. According to Art 7 of the Code of Administrative Court Procedure[1] only a person who finds that his or her rights have been violated or his or her freedoms have been restricted by an administrative act or measure has the right to file an action with an administrative court. An action for the establishment of the existence or absence of a public law relationship or the unlawfulness of an administrative act or measure may be filed by a person who has legitimate interest in the matter.
A protest against an administrative act or measure may be filed with an administrative court by an agency or official to whom the corresponding right is granted by law.
An association of persons, including an association which is not a legal person, may file an action with an administrative court in the interests of the members of the association or other persons if the corresponding right is granted to the association by law.
An agency, official or other person performing administrative functions in public law may file an action against an individual, or against a legal person in private law only in the cases provided by law. In a dispute concerning issues of service, an official is deemed to be an individual. In review, by way of administrative court procedure, of actions against an individual, or a legal person in private law, such individual or legal person has the rights and obligations of an agency, official or other person performing administrative functions in public law, taking into consideration the nature of the action filed against the individual, or the legal person in private law.
FINLAND
In Finland, persons and organisations have, by environmental law, extensive rights of access to justice, for example, under the Environmental Protection Act, the Nature Conservation Act, and the Land Use and Building Act.The criteria for legal standing exist in the Finnish legal system in the field of the environment.
Under the Environmental Protection Act (86/2000) right of appeal pertains to:
1) persons whose rights or interests may be affected by the matter;
2) registered associations or foundations whose purpose is to promote environmental, health or nature protection or the general amenity of the environment and whose area of activity is subjected to the environmental impact in question;
3) the municipality where the activity takes place and other municipalities subjected to its environmental impact;
4) the regional environment centre (state authorities) and the environmental authorities of municipalities where the activity takes place or which is located in the area of impact;
5) other authorities supervising the public interest in the matter.
For the purpose of safeguarding the public environmental protection interest, regional environment centres and municipal environmental authorities are also entitled to appeal Administrative Court decisions amending or reversing decisions issued by them. Equivalent provisions on the right of appeal are included in the Water Act.
According to the Nature Conservation Act (1096/1996) the right to appeal belongs to those whose rights of interests may be affected by the matter in question. In matters other then compensation, the local authority also has the right of appeal. In matters other than compensation, the right of appeal also belongs to any registered local or regional association whose purpose is to promote nature conservation or environmental protection. A decision taken by the Council of State (the Government) concerning the adoption of a nature conservation programme can also be appealed by a corresponding national organisation or any other national organisation safeguarding the interests of landowners. If the Provincial Administrative Court amends or repeals a decision taken by an authority the right to appeal shall also belong to said authority.
In the Land Use and Building Act (132/1999) the right of appeal against decisions to approve a land use plan or a building ordinance is based on the Municipalities Act (365/1995). In addition, registered local and regional organizations are entitled, when the matter concerns their sphere of activity, to appeal decisions concerning the approval of a plan or building ordinance within the area in which they operate. Nationally active organizations are also entitled to appeal decisions to approve regional plans if they contravene national land use objectives.
GEORGIA
Yes
A person may appeal to the court only to request protection of his rights or his legal interests
The court starts its proceedings only in response to the appeal from an «interested person» (legal or physical).
«interested person» is the onewhose:
- legal rights are directly affected, or
- legal interests are illegally constraied
Specific NGO rights are aknowledged based on Aarhus Convention
only in environmental cases
(interesting detail: by mistake in the official Georgian translation of the Convention in the article 9.2 reference to article 6 has been omitted. So, as a result, in Georgia environmental NGOs have broader rights to appeal to the courts to challenge any decision of administrative bodies (including enforcement/punishment decisions). Though no NGO has used this right so far. Up to now appeals are strictly made according to the rights granted by English original (worth noting that texts of this article (9.2) in Russian and English originals differ) )
GERMANY
In Germany for standing strict criteria have to be met. The German legal system is based on a subjective judicial review. Therefore, taking legal action entails a quest for the protection of individual rights provided by law. The plaintiff must show, that a subjective right provided by a statute or by the constitution may have been violated by an administrative action. To establish whether a statute contains a subjective right, the following criteria were developed (“protective norm doctrine”):