The meeting brought together experts from designated governments, as well as judges and academics from the region, representatives of the European Commission (EC), representatives of the United Nations Institute for Training and Research and representatives of the national non-governmental organisations (NGOs). I – as a member of our crew – had an observer status.
The first day of the meeting took the form of a “Mini-Conference” on the theme of “Opening the Doors to Justice: The challenge of strengthening public access.”
Therefore one has to know the text of article 9 in the full text of the convention. It says:
Article 9
ACCESS TO JUSTICE
Each
party shall, within the framework of its national legislation, ensure
that any person who considers that his or her request for information
under article 4 has been ignored, wrongfully refused, whether in part or
in full, inadequately answered or otherwise not dealt with in
accordance with the provisions of that article, has access to a review
procedure before a court of law or another independent and impartial
body established by law.
Article 9 paragraph 3 says: In addition and without prejudice to the
review procedures referred to in paragraphs 1 and 2 above, 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 to challenge acts and omissions by private persons
and public authorities which contravene provisions on its national law
relating to the environment.
Article
9, paragraph 4 rules that the procedures have to be settled in
appropriate time, with effective remedies, including injunctive relief
as appropriate and be fair, equitable, timely and not prohibitively
expensive.
In the Mini-Conference the participants talked about the
topic of opening the doors to justice as a challenge of strengthening
public access.
Experts
from universities of Bremen and Copenhagen, Upsala (Sweden), professors
of the University of Oregon, USA, and representatives of the NGOs
talked about various aspects of the implementation of the access to
justice. Those are:
“Key-challenges”:
(1) Strong need to have a check on the acts and omissions of the administrative authorities to balance their power to protect and preserve the environment against the interests of the “voiceless environment”.
(2) Length of procedures and determination of costs, in particular, presenting obstacles to effective environmental protection (the courts could play an important role in interpreting relevant legal rules in line with the objectives of the Convention and thus objectively balance the interests of applicants acting altruistically to protect the general interest “environment” against the interest of operators, polluters or administrations.)
(3) Questions:
(a) Who shall protect the environment, the administration or “also” the civil society?
(b) How can the environment be protected against administrative acts or omissions, inertia or negligence?
Access for whom
Under
article 9, paragraph 4, the issues included are such as “actio
popularis”, for recognized NGOs, sufficient interest standing, and
restrictive subjective requirements for standing.
Effective remedies – Do they exist?
There
is no universal understanding amongst different legal systems in
relation to the notion of the “environmental procedure”. There were
substantive differences in terms of procedural obstacles to access to
justice between appeal systems in which courts acted in the ordinary
course of appeal and had the authority to review the decision in its
entirety and systems in which courts could only scrutinize a particular
case on issues of legality. According to case examples one expert
stressed that the need for effective remedies could differ from one
system to another, depending upon some key issues such as the time of
action.
Idea of courts as arbiters
Questions
were raised as to who protected the general interest and how to ensure
the independence and discretion of the judiciary. The importance of
immediate publication of relevant studies, as well as of open and
transparent procedures and judgements given in writing, was particularly
stressed. It was agreed that the experiences of and with courts varied
in different countries and that examples of best practice could be
useful. The participants in particular discussed the issue of costs and
the insecurity related to them which remained a major obstacle to
effective access of justice. Some participants also pointed out that
fears that opening the doors to justice would result in a flood of cases
had proven to be groundless.
“Public interest advocacy”
From
the International Foundation Environment/ Ukraine was pointed out that
several factors preventing individuals and NGOs from filing court cases
had to be considered, such as: personal threats, the risk of strategic
lawsuits against public participation (SLAPPs), psychological barriers,
fear of the courts, financial implications, lack of professional
experience and knowledge, low environmental awareness, conflicts between
economic, social and environmental interest for individuals and the
lack of financial support, the availability of lawyers and support from
the local population for NGOs. At present nearly 90 percent of all court
suits were initiated by NGOs. Furthermore, strategic lawsuits tended to
be initiated by NGOs rather than individuals, underlining the key role
of public interest advocates in the implementation of article 9 of the
Convention.
“Protective costs orders”
In
2005 the Court of Appeal in the United Kingdom set the parameters for
appropriate issuance of “protective costs orders” that ensured that, if
the NGO lost, it would not have to pay the lawyers’ costs of the other
side: “The overriding purpose ….is to enable the applicant to present
its case to the courts with a reasonably competent advocate without
being exposed to such serious financial risks that would deter them from
advancing the case of general public importance….”
Access to justice in transboundary cases
Another
aspect was discussed according to the non-discrimination principle
embedded in article 3, paragraph 9, of the Convention, that demonstrated
how this principle had developed in international environmental law and
how it had been applied in practice. While the Convention required a
clear and transparent legal framework also for transboundary cases, even
in the absence of such legislation the courts had an important role in
ensuring due application in transboundary disputes. It was important to
realize the broader scope of concerns for courts in a global society,
not least with respect to environmental matters.
Litigation
While
NGOs often lacked the funds to file a claim, usually business
corporations could easily afford litigation. This inequality, whereby
access to justice remained often a question of financial ability to sue,
had to be addressed to ensure fair and equal proceedings.
Resume
The
plenary emphasized that the numerous obstacles identified could not be
eliminated by just one group of stakeholders but required the combined
efforts of the judiciary and other legal professions as well as the
relevant ministries and the parliament.
According to the Eastern states where 90 percent of the high court judges came from, a representative judge from the Constitutional Court of Belgium emphasized that the dissemination of adequate information to all relevant legal stakeholders should be a top priority. This could be done through national environmental handbooks or journals that form the basic reference material for most of the legal profession. Secondly, the Convention should be an important item in training activities for judges and other judicial officers. Constitutional courts in particular could play an important role in the enforcement of the Convention. He also underlined that administrative courts could easily reinterpret the existing national provisions on standing in conformity with article 9, paragraphs 2, 3 and 4, of the Convention.
A Resident Judge at the Mayor’s and City of London Court pointed out that there was some work done from the European Union Forum of Judges for the Environment (EUFJE) whose purposes are to: (a) share experiences of judicial training in environmental law, (b) foster knowledge of environmental law among judges, (c) share experiences of environmental law, and (d) contribute to a better implementation and enforcement of international, European and national environmental law.
In the ensuing plenary discussion it was noted that the establishment of judicial networks and associations in other (Eastern) regions would require funding which might need to come from outside sources, at least initially. In this regard, governmental sources, EU funding und funding from private foundations could be explored.
Conclusions and recommendations
Based
on discussions in the mini-conference, its Chairmen presented some
general conclusions and recommendations. Noting the overall importance
of the Convention in the development of both national and international
environmental law, they emphasized the immediate importance of the tasks
undertaken by the Task Force on Access to Justice. In this regard, they
noted that involvement of high-level judges in the work of the Task
Force, including through capacity-building activities, had proven
particularly useful. They also suggested that involvement of
professional associations of judges, attorneys and other legal
professionals be considered for future activities.