ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS IN THE SOUTH EAST EUROPEAN REGION

Preliminary Findingsdr. Csaba Kiss (EMLA)

Expert Meeting, 24 February 2014, Geneva (CH)

Introduction

• 6 + 1 studies on the implementation of Art. 9 of the Aarhus Convention in the SEE Region

• UNECE Aarhus Convention Task Force on Access to Justice

• REC, UNECE, OSCE ENVSEC• 6 + 1 national experts + 1 consultant• Presentation at A2J TF meeting (February

2014) and at MOP5 (June 2014)

Methodology

• Questionnaire finalized 2013 summer • National expert input 2013 fall• National consultations 2013 winter• Analytical summary 2014 February• Discussion• Finalization• Presentation

Structure of Questionnaire

• Legislation• Administration• Administrative decision-making (remedies)• Judiciary• Access to information cases• Public participation cases (standing)• Practical features of access to justice

Findings: Context

• SEE Region in the center of interest for decades

• Major driving force: EU approximation• Conservative regulatory models• Some creative solutions with no systemic

approach• Painful lack of case law in all the Region

Findings: Legislation

• Modern Constitutions• Full „Norm Pyramids” in environmental issues

(major Act of Parliament + subordinate legislation)

• Large number of laws on specific topics• Aarhus Convention ratified (except 1 case)

Findings: Administration

• Ministries of the Environment everywhere (local name and competence variations)

• Environmental agencies (usually 2 layers: regional and national)

• Public prosecutors with mostly criminal law competences

• Ombudspersons for reviewing maladministration

Findings: Administrative decision-making

• General Administrative Procedure Acts (no environmental procedure act)

• 2 level public authorities with an opportunity to appeal

• Public authorities for inspection and enforcement

• No general public information access to 2nd instance administrative decisions

• Members of public can report environmental problems

Findings: Judiciary

• Elaborate judicial infrastructures• Basic, Regional, Supreme Courts, special

Administrative Courts, Constitutional Courts• Legally independent courts• No lay person participation mostly• No harmonized system of public information

access to court decisions

Findings: Access to Information Cases

• Freedom of Information Acts but no access to environmental information laws

• Remedy quoted in the refusal of information• Administrative appeal then judicial remedy• Non-responsive public authorities and lack of

legal knowledge in the public

Findings: Public Participation Cases

• Legal standing based on traditional affectedness doctrine (rights or legitimate interests)

• Exhaustion of administrative remedy as precondition for judicial remedy

• Art 9.3: partly affectedness based and partly not in the Region, in cases true actio popularis

• Appeals have automatic suspensive effect• Filing lawsuit has no automatic suspensive effect but

courts can be asked for injunction• Mediation: laws in place but no practice

Findings: Timeliness

• Administrative appeal within 15 or 30 days• Court procedure within 30 or 60 days• No time limits for judicial decision-making• Time limits mostly not sufficient or effective

Findings: Costs

• Administrative appeal non-expensive• Court fees non-expensive except when

proportionate to value of the case• Payment exemption based on personal status,

mostly not for NGOs• Loser Pays Principle• Free negotiation with attorney + Bar

Association Tariffs as minimum• High costs: evidence, bonds• No legal aid in 3 out of 7, not for environmental

cases in the Region

Findings: Effectiveness

• Lack of • case law• public willingness to sue• public knowledge of the law• legal aid• clear criteria for injunctions• knowledge by the courts of environmental

issues and environmental laws

Findings of the Expert Meeting

• Similar problems throughout the Region partly due to common legal heritage

• Aarhus Convention: not sure on its direct implementation or what impact it could make

• Need for lawyers in the Region doing environmental cases

• Common problems – common solution probably as part of a large-scale regional project or initiative

UNECE, REC, OSCE, EMLA

•Thank You!